Unreported National Court Decisions
N245
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V.
UNGUM OVOHE
Mendi
Narokobi AJ
10 July 1980
NAROKOBI AJ:  The accused Ungum Ovohe stands charged that he did wilfully murder one Egep Kelea on or about February 3rd 1980. The State evidence is very short and simple. It consists of confessional statements made on three different occasions, first at the village when the police visited the village to investigate the killing, second at the police station in the record of interview and thirdly by way of a section 103 of the District Court Act, statement at the committal proceedings.
Police witnesses gave evidence that when they went to the village, they found 5 village elders sitting making mumu. All the young men said to have been involved in a fight had fled. While the police were talking to the villagers, all of whom were men, the accused turned up and went straight to the police. In the presence of Constable Silvester Mui, the accused, told Constable Ericson Anji “I myself killed him”.
Ericson Anji at that stage asked the accused if he had been forced by the villagers to make the admissions and the accused replied in the negative. At the time the accused went forward, the police and the villagers were in a group. They had no weapons in their hands.
The second lot of statements of admission are contained in the record of interview, and is quite brief. In so far as it is relevant, it goes this way.
“On 3rd of February, we started building one house. While we were building the house, Egep, (the deceased) and his people came and argued about this land that we built the house on. Egep’s son came with bows and arrows and said ‘you people want a fight so we’ll fight’, and he shot a spear towards us.
At that time we started fighting and I was inside the fight. I killed Egep and the reason is about my land. I killed him with bow and arrow, on his ribs whether on his left or right side, I don’t know because I was hiding when I shot him. I was by myself and I shot him. Before that, my father and his people had a big fight and this man, Egep, and his people got this land, that is why we have the conflict.
I promised that I would kill him with my arrow so I aimed at him with my arrow and I shot him. Although all of us took part in the fight, it was I who killed Egep. Egep kept my land that is why we fought about the land and I killed him.”
In the District Court, at the committal proceedings, the accused was asked if he had anything to say and he gave a voluntary statement, consistent with the record of interview in these words:
“We fought on Sunday, 3rd February, 1980. We built a house. The deceased with other men came and chopped down that house. We told them to go. After the house was chopped down, we then started fighting. I was sitting underneath the bamboo and shot Egep Ketea with an arrow on the left side of his ribs, I shot him with one spear only.”
It will be seen that in this statement the accused further elaborates on his admissions in the record of interview. In particular he clarifies the point that he shot the deceased on the left side of the chest. He also elaborates on how he positioned himself. He hid under a bamboo grove and fired the arrow and caught the deceased.
In the record of interview the motive for the killing is well stated, it was over the disputed land, which the deceased had won through a previous tribal war, and if anyone had any motive to kill, the deceased certainly would have it.
Dr. John Stanley Miller’s evidence consisting of a Post Mortem report and evidence in the District Court were, by consent admitted in evidence. The doctor’s evidence is consistent with the accused’s story that the deceased died from an arrow wound.
The post mortem findings are that there was a laceration to the left lateral chest wall about 1.5 cm length, and no other external markings. The head and brain were normal. The chest laceration penetrated the chest wall and left lung collapsed and had been transfixed. There was haemorrhage the result of a small laceration of one of the left pulmonary veins just at its entry into the pericadial sac. The heart was pierced.
The doctor’s conclusion is that the cause of death was “pericardial
The doctor’s conclusion is that the cause of death was “pericardial haemorrhage, hemothorax and collapsed left lung; apparently caused by a long sharp pointed weapon such as an arrow or spear”.
At the conclusion of the State’s case, defence submitted that on two arguments, I should acquit the accused at this stage. The first argument is that on the facts as they stand, the accused has no case to answer. The State, so defence argues, has not corroborated the admissions in any material way, with any eye witnesses and therefore it should not be necessary to call on the accused to answer his charge.
The defence counsel relied on Clarkson J.’s statement in R. v. Namiropa Koinbondi[ccxxxv]1 that: “It is now clearly established that a court, taking proper safeguards may, even on a charge of wilful murder, act on a confession which is uncorroborated but it will do so only after the closest scrutiny and testing of the confession and only after an examination of ‘the considerations, if any, supplying hypotheses by which the making of a confession may be explained more or less reasonably consistently with innocence’. McKay v. The King ((1935) 54 C.L.R. 1, at p. 9) per Dixon J. (as he then was).”
In that case Clarkson J. also cited with approval a statement of Smithers J. in R. v. Mon and Debong[ccxxxvi]2 at p. 51 reads:
“When the court is dealing with native persons whose ways are frequently inscrutable, it is not for the court to reject hypotheses because they are not reasonable as applied to the white man. The onus is on the Crown to convince the court of the reality of its allegations against a background of the unknown. In such a setting an ounce of objective evidence is obviously of great value to the tribunal and the absence of that evidence may well be fatal to the Crown.”
Defence Counsel argues that even if I find there is a case to answer, the evidence at this stage is such that I should not call upon the accused to answer his charge. This is an argument based on the court’s discretion to determine that even though there is a case for the accused to answer, the evidence is insufficient to convict and therefore, I should acquit the accused. See R. v. Dodd[ccxxxvii]3.
In my respectful view, the principles in this double pronged argument have been correctly stated by O’Leary A.J. in the case of The State v. Paul Kundi Rape[ccxxxviii]4.
The principle of law to be applied in the first case is whether upon the close of the State case, a tribunal of fact could lawfully convict the accused. As I understand the law on corroboration, it is a rule of practice and not of strict law that confessional statements should be corroborated. In my view, it is a good practice to corroborate confessions in the peculiarities of our country, but the court could in appropriate cases proceed to convictions on the basis of confessional statements without corroboration.
Looking at the facts as they are brought out by the confessional statements, I rule that the accused has a case to answer (see May v. O’Sullivan[ccxxxix]5 and Zanetti v. Hill[ccxl]6).
The second argument, to my mind must proceed, not on the basis of the judge’s discretion to decline to call on the accused to give evidence. Rather, that the judge may decline to call on the accused to give evidence where in his opinion, although there is a case to answer, the evidence as it stands is insufficient and that he as reasonable jury on that insufficiency of evidence would not be satisfied that the facts sought to prove, are proven.
The second argument proceeds on the basis that because there is insufficiency of State evidence, the judge ought to exercise his discretion in favour of the accused there and then, by declining to call him to give evidence, whereupon he should acquit the accused.
If at that stage the accused says, “I will not give evidence nor will I call witnesses” then that is the end of the case and the court may proceed either to convict or acquit. If however, as in this case, I have decided that I should invite the accused to give evidence, if he wishes, then the State continues to carry the onus to prove every element of the crime beyond a reasonable doubt.
In my view, the State evidence is such that it does not amount to an insufficiency of evidence that I, as a tribunal of fact could not or ought not to come down with a verdict of guilty as charged. As this stage of the case, I am not therefore prepared to acquit the accused.
Now the accused has chosen to give sworn evidence. His evidence is supported by the evidence of one witness. The accused came to the court in his traditional dress of bare chest and “as tanget”. He is a young man of about 23 years of age. He adheres to traditional way of life.
His story is quite remarkable, but is not too unfamiliar in this country. I myself encountered one such story in my June circuit at Wabag where a prisoner informed me during my visiting Justice’s visit that he was marked out by a wealthy Enga business man to accept responsibility of the evil deeds of the latter.
In the present case, the accused’s story is that he was forced by a big man in the village, related to him as his uncle to accept the blame. The man he named as being Points. Points was the one who actually killed Egep, so says the accused. But because he was a big man with plenty of money, coffee, kina shells, pigs and several wives, he actually threatened the accused into accepting blame.
The accused says Points would kill him or his father, if the accused did not accept responsibility. Besides, says the accused, Points was a big man and if he did not go to gaol, he would stay back and make moka and hold big feasts and pay compensation to those involved in the fight.
The accused says he now feels free and safe to tell this story because Points is now dead. He is believed to have been killed in another tribal fight involving the line of the deceased Egep and that of Points. The accused says if Points was still alive, he would certainly not tell the court that it was Points who shot Egep and had forced him to take on the blame.
The evidence of the accused is interestingly enough corroborated by the evidence of the son of Points, who is serving a 2 years sentence on a conviction under Inter Group Fighting Act.
The accused said simply that on the day of the fight he was in the bush collecting material for his house. On his return, on Sunday, he was at the men’s house when Points approached him and said one of them, the young ones must go to prison, and that he would not go to prison. He said at that stage he refused, but Points threatened to kill him and his father. He, the accused, as a result of that threat went straight to the police when they went down to the village. According to the accused, Points again repeated his threat on Monday morning.
The accused gave evidence that he was frightened and went straight to the police. The evidence of Police Constable Ericson Anji is that when the accused first approached him and other police officers, he was “a bit shaking and when he came and told me something, his speech was in a trembling voice”.
Witness Kundi Points gave evidence that his late father had told him he killed Egep but had sent the accused to prison because as a young man he cannot pay any compensation, nor can he make any moka, traditional feasts. He stated that this was common knowledge in the village.
According to Kundi Points, had his father not died, he too, like the accused would not have told the truth that it was Points and not the accused who had killed Egep. The accused and witness Kundi belong to the same main tribe or clan, but belong to 2 different sub clans.
According to witness Kundi Points, his father was the leader of the village, but the leader of the sub clan of the accused is the father of the accused. The two men had equal rank and status; they each married two wives. However, Points has more pigs, money, and coffee gardens and is certainly a more dominant member in the family. Points, furthermore has no young sons in the village. One of his older sons is in Lae and the young ones are in community school.
Although the piece of land fought over belongs to the accused and his father, that land is also in part owned by Points. He as much as the accused would have a motive therefore to kill Egep.
The accused’s story that Points has been killed, it seems was told to him while he was in prison by a man from the enemy clan, namely Pa clan. The man’s name, according to the accused is Kupini.
The State sought to establish and in my view, did establish that Points was not around to effect the threats he said he would inflict. From that, the State would deduce that therefore the accused must have told the truth when he made the admissions.
In my view, it is not necessary for the accused to be disbelieved if the proposer of the threats was not there. The accused has raised a defence, so to speak and it is up to the State to negative that defence.
The defence case, now, lends itself of several theories or hypothesis. One hypothesis is that since Points was now dead, it is safe to shift the blame onto him. However, this hypothesis comes up against the evidence that it was not only Points who has since been killed by Pa clansmen. In fact as many as 7 people of the accused’s clan have been killed, as against one of the Pa clan.
The second hypothesis is that this new story is nothing more than a fabrication, probably instigated by the late Points’ son, to help his clansman get out of trouble. To my mind this hypothesis is not proved by the State. On the contrary, the sudden appearance of the accused before the police, in the midst of all adult elder males, the nervousness with which the accused appeared and spoke with a trembling voice, the non presence of Points, the somewhat brief admissions of the accused tell in favour of the accused.
In a tribal fight, a young man may well boast of killing the enemy, to build his name up. He may therefore be prepared to volunteer admissions. However, in this case, there is no evidence to support that thesis that the accused admitted the truth of his killing because that would give him title to land or to build up a big name for himself. There is no evidence of his having boasted of killing Egep. Therefore, I am unable to say the accused’s admissions tell of the truth against himself.
As I indicated earlier, in my view, in an appropriate case a conviction may be lawfully secured against an accused without corroboration and based only on confessional statements. This, in my view is as true in a simple traffic offence, as in a wilful murder case. Naturally, it would be safer to return a verdict of guilty on corroborated confessional statements, if for no other reason than to give the tribunal of fact a clear conscience that the conviction is proper.
In this country, particular attention must be had to the possibility of older and more influential men marking out young and innocent men to accept punishment either for a reward after release or through threats of violence upon their lives or the lives of their near relatives.
If during a trial, an accused comes before the court and says he admitted the crime but because he was forced to do so, it is my view that the court should acquit the accused whenever it is of the opinion that the State has not excluded a hypothesis consistent with actual innocence.
The accused, in a case like this would no doubt balance the risks involved and chose to tell a lie and get Government’s law protection in preference to running the risk of having himself or his relatives killed.
The doctor’s evidence in this case, is certainly consistent with the confessional statements, but it is not conclusive of the elements of the crime in a material way, except to establish that death was caused by an arrow wound at the left side. It does not negative the hypothesis that the accused made confessional statements because he was made to do so by the big man Points.
In Regina v. Mon and Debong[ccxli]7, Smithers J. stated that “When confessions are not supported either from within or without, the court must subject them to keen scrutiny ...”. His Honour in that case found a “lack of self corroborating feature in the terms of the confession”. In that case the confessions tended to “raise questions to be asked”, and the evidence in that case did “not induce a degree of conviction of guilt, which excludes reasonable doubt”. See pages 51 and 52.
In Regina v. Namiropa Koinbondi[ccxlii]8 (supra), the evidence against the accused was his own confessional statement to this effect:
“Yesterday evening my Mother said, ‘Go and get some water’, and I said ‘No’. She said, ‘You are not my child. Go back to your real Mother and Father.’ She said this and I cried and got angry. She went to sleep and I got an axe and cut her throat. I got a key and I opened the cash-box. I took some money and I came. I took a key from her bilum and I locked the door and I came...”
The accused was found to be in possession of $76. There was a motive in that case.
Clarkson J. in that case, acquitted the accused. He cited with approval the statement I already referred to from Smithers J. in Regina v. Mon and Debong (supra) (7).
It did occur to the police investigating team that the accused may have been picked out to accept responsibility. Unfortunately, no further investigations were carried out. I should hope that the police in the future would be placed on guard whenever a man comes forward and volunteers liability.
If no other evidence can be solicited, then the accused should be asked from different angles whether anyone of his line or any other line had asked him to volunteer responsibility. He should be asked too, if he was not standing in for somebody.
Cases of this nature raise serious difficulties. Were I to disbelieve the subsequent story of the accused and convict him, I would have to consider the punishment to impose. If capital punishment was available and I were to pass death sentence, I may well be wrong. Even if I were to impose life sentence and it subsequently turns out that I was wrong, I would have caused a citizen of this country to be punished wrongly.
In the circumstances of this case, I find that the accused has in fact named one other suspect who as events turned out has been killed in a tribal fight. At least I find that the defence raised has sufficiently cast a doubt in my mind on what would otherwise have been a formidable case against the accused.
I must therefore give the accused the benefit of my doubt and return a verdict of not guilty and acquit the accused.
Before I do so, I should however like to recommend to the police that they investigate the involvement of the accused’s father in persuading the accused to accept responsibility, with a view to prosecution. The accused may well be liable for the offence of perverting the course of justice.
I do not think it is a good custom of our people that they hide evil doers and pick out innocent people and force them to accept responsibility. In my view this accused should face certain responsibilities arising out of his false evidence in the District Court, as well. If anyone could protect the accused, I should think it would be the courts and the police.
Solicitor for the State: L. Gavara-Nanu, A/Public Prosecutor.
Counsel: E.I. Kariko.
Solicitor for the Accused: D.J. McDermott, A/Public Solicitor
Counsel: P.C. Kopunye.

[ccxxxv](1969-70) P & N.G.L.R. 194
[ccxxxvi](1965-66) P & N.G.L.R. 42
[ccxxxvii](1971-72) P.N.G.L.R. 255
[ccxxxviii](1976) P.N.G.L.R. 97
[ccxxxix]92 C.L.R. 654 at p. 658
[ccxl]108 C.L.R. 433 at p. 442
[ccxli](1965-66) P. & N.G.L.R. 42
[ccxlii](1969-70) P. & N.G.L.R. 194