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State v Earu [1976] PGNC 6; N73 (12 November 1976)

Unreported National Court Decisions

N73

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
JOHN YAKU EARU

Kieta

Prentice DCJ
9-12 November 1976

CRIMINAL LAW - circumstantial evidence - Court directing itself - consideration of McGreevy’s case and Peacock’s case.

PRENTICE DCJ: The accused stands charged with the wilful murder of one Peter Kondon on 8th July 1976. The deceased died from a massive cut severing his neck. There can be no doubt on the evidence, that the weapon used was an axe which was found shortly after the killing, thrown into nearby thick bush. There was still fresh blood on it. The savagery of the wound is such that there can be no doubt or contest that whoever inflicted the wound intended to kill Peter Kondon. He was killed apparently while lying (probably asleep) in his bed.

The accused has throughout investigation, committal and trial, denied responsibility for the killing. He does not suggest any other person who could have done the deed. The State case against him is based on circumstantial evidence only. I remind myself at the outset that I must be satisfied of guilt beyond any reasonable doubt before I might enter a conviction. I remind myself also of what since 1911 seems to have been regarded as a practice in Australian courts of warning juries of the unsafeness of convicting on circumstantial evidence alone, unless no other explanation than guilt is reasonably compatible with the circumstances (Samuel Peacock v. The KingN73.html#_edn1023" title="">[mxxiii]¹), a caution apparently based on a dictum of Alderson, B. in Hodge’s caseN73.html#_edn1024" title="">[mxxiv]². At the same time noting time more modern pronouncement of the House of Lords on an appeal from Northern Ireland, that it is unnecessary that such a direction should be given - provided always that a jury is directed in plain terms that they must not convict unless satisfied of guilt beyond reasonable doubt. In saying so much, their Lordships seem to have recognised that the considerations set out in Samuel Peacock v. The KingN73.html#_edn1025" title="">[mxxv]³ (supra) may well on occasions prove a useful guide for a jury. (McGreevy v. Director of Public ProsecutionsN73.html#_edn1026" title="">[mxxvi]⁴).

The killing took place in Room 8 of Haus A in Camp 10 at Panguna. Camp 10 consists of a number of houses marked A to M. Each “house” has steps at each end with a verandah going the length of the house. Off this verandah, 10 doors open into each room. Each room shelters five mine workers. Room 8 as appears from the photos exhibited, contained a double decker bed, three single beds and a number of clothing lockers. Haus A is close to the camp office. A series of toilets and ablution blocks and a ditch separate Haus A from Hauses E to M - M being the furthest of them from A.

The accused and the deceased both come from the same area of the Enga Province (possibly from the same village). Both lived in Room 8. The accused was employed as a room cleaner. His duties covered the cleaning of D, F and E hauses.

The other occupants of Room 8 Haus A were Kewa Yap a Jiga from the Ogelbeng District of Mt Hagen; Ring Mamio from Tikamp Village in Dei Council area of Mt Hagen; and Dure Mawi of Paga village Lake Kopiago, who is employed as a security officer. All these men gave evidence.

Others of the camp staff who gave evidence are Toba Bamil a Chimbu from Hora village near Gumine, who was the cleaner for Haus A; James Bakam from Dagua in the Sepik, whose duties include the cleaning of Hauses J, L and M and the dry canteen; Fabian Vari a Tolai who is assistant Camp Manager, and John Kalus a camp foreman and carpenter.

The prosecution story is that Kewa and Ring raturned from a work shift, went briefly to their Room 8, noticed some blood on the floor (and that some attempt had apparently been made to remove it) at about 3.30 - 4.00 p.m. The accused was seen close by at this time. They went for a shower, returned to their room, and found that Peter Kondon their roommate whom they had taken to be asleep full length under his sheet in the bottom of the double decker bed - was, when they pulled the sheet back, seen to have had his throat cut and to be clearly dead. Blood had soaked the bed. They hastily reported the matter at the nearby camp office to the manager Michael Williams at about 4.15 p.m.; the manager came with Fabian Vari his assistant to Room 8 - viewed the corpse and locked the room awaiting arrival of the police, leaving Vari on guard.

Dr Daniel Raho Johns a camp doctor who attended the scene just before 5.00 p.m. with the police, certified the quite apparent death of Peter Kondon - ho did not touch the corpse but inspected the blood about. The blood was, he said, beginning to clot. His opinion was that the wound had been caused at a minimum two hours before; and at a maximum three hours before. On the doctor’s evidence, death would appear probably to have ensued approximately between 2 p.m. and 3 p.m.; with a possibility that it was later than 3.00 p.m.

A police constable had found the axe by following a trail of blood spots from Room 8’s door to and down the verandah steps. By using a rope he searched the adjacent cliff face which is covered with thick growth. It was found at a point about 25 ft. from the foot of the steps. The state of growth around it was such the it appeared the axe had been thrown rather than taken to this position.

The accused gave evidence on oath. He stated that the blood-stained axe was different from his. It was longer in the handle and smaller in the blade. In any event, he contended that his axe had been stolen from outside the bathhouse on a Monday of the week before the killing (which would be 28th June). He denied the killing was done by him, and could suggest no other man as the murderer. He states that he had lunch at 12 noon with the deceased and afterwards went to Room 8 with him. They were “telling stories” (he was there half an hour), when Toba Bart, Haus A’s cleaner, came in and mopped the floor of the room. He went out with Toba and asked him for the master key of all the rooms in all the houses, and was told James Bakam had it. He went and asked James for the key - James opened E Haus for him. At 3.45 p.m. he raturned to Room 8 where Kewa, Ring and the camp manager came to the room. He went in, saw the corpse and cried. When Toba the cleaner had come in he said, the deceased was then sitting on his bed, and he John Yaku was standing up. He stated Toba was lying when Toba stated that he went out and closed the room door leaving John and the deceased inside.

During the whole duration of the trial the accused followed everything with interest. He is young in appearance - his bright eyes constantly roved the court watching each speaker. An appearance of cunning was communicated to me. If his evidence is true, his roommates, Toba and James and probably Fabian - are lying.

The State witnesses were all quiet in demeanour. Dure Mawi the security officer, was clearly intelligent and answered questions most carefully. I found him impressive. Toba Bamil, a man of apparently no education was nevertheless quiet and calm in demeanour and thoughtful as to his answers. Fabian Vari was a man of more education and good appearance. No cross examination was directed at any of the State witnesses to suggest that any of them had any particular reason for animus against the accused though it was vaguely suggested that the two Hageners belonged to lines that were traditional enemies of the Wabag Engas. This each denied, pointing, sensibly I thought, to the distances separating their areas from that of the Wabag Engas. The only person who displayed any slight reserve towards the accused was James Bakam, who apparently entertained doubts as to whether, at least on that day, (and possibly normally), the accused was an honest and hard worker.

Such small areas of difference as to dates and times in the evidence of the state witnesses as exists, I find explicable and of no real significance. I find myself impressed by them and I accept their evidence generally.

Two of the State witnesses positively identify Exhibit I, which I am satisfied was the murder weapon, as the accused’s. Dure stated it looked like the accused’s axe. The carpenter Kalus spoke of it as being the same kind. On the morning of the day of the killing Fabian when doing a security check of all rooms, had seen an axe handle standing tucked up behind the deceased’s bed. He could not see its blade if any. It was similar to that of Exhibit E. Kalus had been consulted by the accused on Tuesday, 29th June, as to how to shorten the handle of the accused’s new axe. He refused to do it - as being inadvisable. Kewa swore that the accused kept his axe locked in his cupboard, to which the evidence establishes he the accused had the key (and probably the only key). A few days before the killing he had seen the accused sharpening the axe. Ring Mamio had also seen him sharpening the axe 2/3 days before the killing, with a file. The accused apparently was advised not to use a file on it, but to wait until he got to his home district and to use a stone on it. Dure witnessed the talk with Kalus as to shortening the axe - but placed it at 2/3 days before the killing which would be about 2nd July. On that occasion the accused took the axe and locked it in his cupboard. All these stories are inconsistent with accused’s version that he lost the axe on a Monday the week before (28th June). It is clear that the accused was very proud of his axe.

There is a camp rule that axes may not be kept in the possession of workers. The accused denies knowledge of this rule - though it might have accounted for his leaving the axe as he says he did, outside the bathhouse as the camp manager approached it, on 28th June.

The accused’s version as given in his evidence as to the features of his axe, differentiating it from that found with bloodstains, was not put to the state witnesses. Though to the investigating police officer the accused denied keeping the axe in his cupboard, he here stated that he did so. And he stated he had not denied that when interviewed. (The record of interview was not challenged in cross examination). On a search of the camp, Inspector Wendau found only one other axe - a tomahawk. No witness speaks of having seen any other axe in possession of a camp 10 worker at the relevant time. I am satisfied the bloodstained axe was the accused’s axe and I am satisfied that his story about the axe being stolen is untrue.

Though it is apparent that the police investigation (not carried out by C.I.B. personnel) was nothing like as thorough as it should have been; some significance in the accused’s favour must be attached to the fact that no bloodstains were found on the accused or his clothing. No bloodstains or freshly washed clothing was spoken of. However, against this must be reckoned the fact that when Toba saw the accused at Room 8 that afternoon, the accused was wearing (I accept Toba’s evidence on this) a shirt different to that he was wearing when questioned about 5 p.m. that day. No explanation is offered as to why the accused would have changed his shirt in the middle of his working shift which extended from early morning to 4.00 p.m. or thereabouts. I am satisfied that the accused had the opportunity to carry out this deed. It is highly probable that whoever did the deed was someone who was entitled or expected to be in the vicinity at the relevant time and not a stranger. A number of men were grouped under Haus A, about the position of Room 5, playing cards during the afternoon. Men were asleep in various rooms. It is clear that a person would require only seconds to leave Room 8 carrying an axe, stride along the verandah, down the steps, and the comparatively few feet to the edge of the bush, and to hurl the axe to its position down the cliff about 25 feet from the steps. He required perhaps some luck not to be seen. But obviously he was not seen or if seen not remarked. If it were the accused, it would be less likely that notice would be taken of him and easier for him to conceal the weapon. I am satisfied that some time after Toba had cleaned Room 8, closed its door and proceeded to clean Rooms 7 and 6 (in the latter of which he handed the master key to James who came to see him) and then to Room 5; the accused came out of Room 8, asked at Room 5 for the key and then went back to near the door of Room 8. Shortly after he must have followed James some little distance down the steps and arranged for James to open the doors of Haus E. This appears from James’ evidence to have been about 2.30. It was not suggested that James was mistaken as to time or lying. James then walked to Haus M and cleaned its rooms, having first opened Haus E for the accused (though the accused did not go there he says). James then proceeded to Haus E and found the accused not there. He had apparently felt some concern that the accused would not complete his work before the men returned at 3.30 p.m. to 4.00 p.m. He must have been on the lookout for the accused, and saw him later coming from the direction of Haus A towards Haus E; to where he came and mopped its verandah.

Several of the accused’s roommates speak of a quarrel between the accused and the deceased some few days before over a watch. It is submitted that such incident as took place involved talk between them in Enga language which the witnesses would not understand. The accused says that when told by deceased that deceased’s watch had been stolen while he was washing; he accused, in sympathy took his own watch off and smashed it. There was he said, no quarrel. I am satisfied that angry voices were raised by both accused and deceased on that occasion, and that sufficient of the language was in Pisin for Kewa and Ring to establish, as they said they did, that deceased charged the accused with having stolen his watch whereupon the accused in violent anger smashed his own watch.

It is I think a distinctive and significant factor of this case that as to the evidence going to establish (a) ownership of the murder weapon; (b) opportunity to have committed the crime; (c) the changing of his shirt and (d) the motive possibly arising from a bitter quarrel - the accused denies the stories of the State witnesses.

On top of all this evidence I am satisfied that the accused has lied not only in this trial but during investigation. He in my belief falsely denies that the Exhibit E is his. He tells an untrue story both here and to Inspector Wendau that he had lost his own axe on 28th June. He lies I believe, when he says he had not been made aware of a camp rule that axes might not be kept in camp. He lied to Inspector Wendau in saying that he did not usually keep his axe in his cupboard. He lied in this court in saying that he had not made such a denial to Wendau. He lied in saying he had not had a bitter argument with the deceased. He is lying when he denies being in Room 8 after Toba the Chimbu cleaner left. He lied to Wendau when he said he was not in Room 8 between 12.15 and 5.00 p.m. that day and when he denied that he told Wendau he did not go back. He lied when he said he was wearing the most distinctive red and white check shirt which he is wearing in court, on the day of the murder. It is significant that though he told Inspector Wendau that he did not break his watch when he was very cross with Peter (after being accused of stealing); he did not explain to Inspector Wendau as he did to this court that he had broken his watch - but out of sympathy, not from anger. He lied when he told Wendau that he had not had any argument with Peter. I believe he lied when he stated that on the afternoon in question he was telling stories to deceased when cleaner Toba was in the room with them (and all the time) when Toba said a person was asleep in the deceased’s bed.

I am satisfied beyond reasonable doubt that the accused committed this murder. Even making allowance for what an innocent uneducated man might say and do when charged with such a crime; I feel that innocent explanation goes out the window in the face of such a multiplicity of what I find to be false denials.

The accused’s demeanour and stories are quite consistent with the well-known attitudes of Papua New Guineans of some cunning who are charged with commission of a crime that they are aware was not observed in the doing.

I convict the accused of wilful murder.

Solicitor for the State: K.B. Egan, A/Public Prosecutor

Counsel: K.R. Roddenby

Solicitor for the Accused: N.H. Pratt, A/Public Solicitor

Counsel: T.L. Konilio

N73.html#_ednref1023" title="">[mxxiii]^{(1912) 13 C.L.R.619 at p.630}

N73.html#_ednref1024" title="">[mxxiv] ^{(1838) 2 Lew. C.C.227}

N73.html#_ednref1025" title="">[mxxv]^{(1912) 13 C.L.R.619 at p.630}

N73.html#_ednref1026" title="">[mxxvi] ^{(1973) 1 All E.R. 503 at 510-511}