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State v Torovel [1982] PGNC 55; [1982] PNGLR 242; N350 (5 April 1982)

N350

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

MARGARET GARA TOROVEL OF NAPAPAR

Rabaul
Pratt J

2-3 April 1982
5 April 1982

CRIMINAL LAW - Particular offences - Concealing birth of child - Elements of offence - Revised Criminal Code, s. 313.

Section 313 of the Revised Criminal Code which provides for the offence of concealing the birth of a child in the following terms:

"A person who, when a woman is delivered of a child, endeavours, by any secret disposition of the dead body of the child, to conceal the birth, is guilty of a misdemeanour whether the child died before, at or after its birth", requires proof of the following:

(a) The product the subject of the disposition, must be a child and not a mere foetus:

The State v. Meli Heti [1977] P.N.G.L.R. 173 followed.

(b) There must be disposition which is intended to be secret, and, in the sense that there is an intention at the time of disposition to dispose of the body either temporarily or permanently, by secretive means.

(c) The disposition must be for the purpose of concealing the birth of the child be it dead or alive, as to which the following matters are relevant:

(1) the degree of effort of concealment;

(2) whether the concealment is in a place not likely to be found;

R. v. Sleep (1864) 9 Cox C.C. 559 referred to.

(3) and, whether the concealment is to prevent detection of the birth from the world at large or just an individual;

R. v. Morris (1848) 2 Cox C.C. 489; 12 J.P. 251 referred to.

Cases Cited:

Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R. 619.
Plomp v. The Queen [1963] HCA 44; (1963) 110 C.L.R. 234.
R. v. Alton (1841) 5 J.P. 194.
R. v. Ash (1840) 2 Mood & R. 294, N.P.
R. v. Bathurst [1968] 2 Q.B. 99.
R. v. Brown (1870) L.R. 1 C.C.R. 244.
R. v. Clark (1883) 15 Cox C.C. 171.
R. v. Clarke [1866] EngR 19; (1866) 4 F. & F. 1040.
R. v. George (1868) 11 Cox C.C. 41.
R. v. Gogarty (1855) 7 Cox C.C. 107.
R. v. Goldthorpe (1841) 2 Mood C.C. 244.
R. v. Hughes (1850) 4 Cox C.C. 447.
R. v. Jacob [1932] SAStRp 51; [1932] S.A.S.R. 456.
R. v. May (1867) 10 Cox C.C. 448.
R. v. Morris (1848) 2 Cox C.C. 489.
R. v. Mutch [1973] 1 All E.R. 178.
R. v. Narden (1873) 12 N.S.W.S.C.R. 160.
R. v. Opie (1860) 8 Cox C.C. 332.
R. v. Perry (1855) 6 Cox C.C. 531.
R. v. Pratt (1971) Crim. L.R. 234.
R. v. Sleep (1864) 9 Cox C.C. 559.
R. v. Sparrow [1973] 2 All E.R. 129.
The State v. Meli Heti [1977] P.N.G.L.R. 173.

Trial

This was the trial of an accused on a charge of concealing the birth of a child contrary to s. 313 of the Revised Criminal Code.

Counsel:

E. Kariko, for the State.
M. Maraleu, for the accused.
Cur. adv. vult.

5 April 1982

PRATT J: The accused is charged on indictment that she on 6th November, 1981, endeavoured, by the secret disposition of the dead body of a child of which she had then lately been delivered, to conceal the birth of the said child. The birth occurred in the house which the accused was occupying at Napapar, about the middle of the afternoon of Friday 6th November and the child was a fully formed female. This house belonged to her father and is very close to the house of her former father-in-law Benedict Lalau. Her husband had died in 1980 and the father of the child, the subject of this charge, is a very young man in his early teens. Understandably the relationship was not looked upon favourably by the community and it is said that the young man or boy has been sent to Kieta. The accused’s house is some fifteen or twenty feet from a dirt track, wide enough to be used by vehicles, and as darkness approached the accused went across the track into her garden and buried the body of the new born babe under some banana palms. The defence did not object to evidence which deposed that she was seen in this general area where the grave was subsequently located by another family as they made their way home along the track that Friday afternoon. There is no evidence to say whether this group passed by before, during or after the burial.

The accused is of very slim build. Not surprisingly, her pregnancy was noted some time before she gave birth. Common sense and the authorities make it clear that the present charge has nothing to do with concealing or revealing pregnancy but concealing the fact that a birth has occurred.

Apparently the only people in the vicinity at the time of birth were the accused’s young sister (how small we do not know) and her own three small children. The father-in-law had gone to his plantation and returned home that Friday about 5.30 or 5.45 p.m. No mention of the birth or burial was made to him or to anyone else on that evening or on the Saturday or on the Sunday until after dark. Towards evening on that Sunday, however, Christopher Lalau, the brother-in-law of the accused, became suspicious of an area of ground in the accused’s garden where he had gone to collect some coconuts for the evening meal. He had observed that "the accused’s pregnancy did not show any more" and thought she must have given birth. As a result, he spoke to his father Benedict who straightway went to the accused’s house and asked words to the effect, "Are you still with child?", to which the accused replied in the negative. It seems the discussion ended at this point when other folk noticed a strange flashing light above the ground in the vicinity of the grave site, thus proving that "you buried the baby there".

The location of the grave has been deposed to by several witnesses. Constable Gaboina says it was fifteen to twenty feet from the accused’s house, while Christopher Lalau puts it at about twenty yards. Whatever the distance, it was quite close by. It was in a cleared area of an old garden which had thick bush on one side at least. It was a site easily observed by anyone passing along the track. Christopher had noticed the disturbed earth and this immediately aroused his suspicions on the Sunday evening. There is no evidence as to any person visiting that garden on the Saturday or on the Sunday until the visit of the witness, Christopher. His suspicions were sufficiently strong to cause Benedict to demand an explanation from his daughter-in-law. Although no exhumation was made by the villagers, the village peace officer reported the matter to the police that night and they attended the scene and dug up the grave the next morning. The child was found to be wrapped in a laplap with the umbilical cord unsevered and part of the placenta still adhering to the body.

There are three essential elements requiring proof under s. 313 of the Revised Code, aside from the obvious matter of birth:

1. The product must be a child and not a mere foetus (see for example The State v. Meli Heti [1977] P.N.G.L.R. 173 per Kearney J. as he then was).

2. There must be a disposition which is secret.

3. Such disposition must be for the purpose of concealing the birth of the child, be it then dead or alive.

Mr. Maraleu for the defence has conceded the first point but has argued strongly that the State case does not come up to proof on points 2 and 3. A number of the authorities which I have examined deal with the question of temporary disposal which has some relevance to the present case because of the somewhat public nature of the area of interment. At the outset it is clear that whether or not there is sufficient evidence before the court to support any of the elements of the charge, is a matter of law. But whether such evidence will satisfy beyond reasonable doubt that there was a disposition, that it was secret and its purpose was to conceal a birth, are matters of fact. See for example R. v. Clarke [1866] EngR 19; (1866) 4 F. & F. 1040, R. v. Jacob [1932] SAStRp 51; [1932] S.A.S.R. 456 at p. 457, and R. v. Opie (1860) 8 Cox C.C. 332.

The intention must be to dispose of the body by secretive means. To leave the child on an open highway does not come within the terms of the section: R. v. Clark (1883) 15 Cox C.C. 171, nor in an open field where the cries of the infant before it died could be heard by pedestrians though they could not see the source because of intervening vegetation: R. v. May (1867) 10 Cox C.C. 448. In my view the evidence that a child was buried so that it could not be observed by the casual passer-by, constitutes some evidence of secret disposition: R. v. Hughes (1850) 4 Cox C.C. 447 at p. 448.

It is difficult however to deal with secret disposition without at the same time taking into account the purpose therefor. For it is the degree of effort at concealment which so often affects the nature of the disposition. Thus there must both be a concealment in a place not likely to be found: R. v. Sleep (1864) 9 Cox C.C. 559, and a concealment to prevent detection of the birth from the world at large and not just an individual such as an irate father: R. v. Morris (1848) 2 Cox C.C. 489 at p. 490, where Coltman J. says:

"The statute did not apply to individuals, but to society in general. So here, if the secret burying or otherwise disposing of the dead body arose from an endeavour to conceal the birth from some private individual and not from the world at large, then ... the offence ... had not been committed by the prisoner."

See also R. v. Jacob (supra) at p. 460.

It would seem that temporary concealment is sufficient. In the present case the prosecution has laid emphasis on the fact that eventual discovery of the body does not mean that the intention at the time of burial was absent. The fact that it was near a track is of no assistance to the accused because she would hear persons approaching, and indeed did complete her task without detection. The burial went undetected for the best part of 48 hours and was only discovered because the brother-in-law happened to go into the garden in search of coconuts. The cases dealing with temporary disposition are much divided but in the upshot, the better view appears to be that it does not matter whether the disposition be temporary or permanent, if at the time of the disposition the intent is to conceal that a birth has taken place. The cases against this view are: R. v. Ash (1840) 2 Mood & R. 294, N.P., R. v. Opie (supra) and R. v. Alton (1841) 5 J.P. 194. The preponderance of cases however is the other way (see for example R. v. Narden (1873) 12 N.S.W.S.C.R. 160, where a child was hidden in bed linen draped about the suspect during a search; R. v. Hughes (supra) where there was a recovering of the child by the accused, the child having been left behind a barrier in an out-house; R. v. Brown (1870) L.R. 1 C.C.R. 244, with the throwing of a child over a wall into a field which was concealed from all the world save anyone who was searching or who accidentally looked over the wall; R. v. Perry (1855) 6 Cox C.C. 531, where a child was hidden under the bolster of a bed whilst the accused was being quizzed by a doctor; R. v. Gogarty (1855) 7 Cox C.C. 107, where the child was placed under a bed quilt in a locked room before the room was searched; R. v. Goldthorpe (1841) 2 Mood C.C. 244, where the child had been hidden between a bed and a mattress). In many of these cases the intention to dispose more permanently of the body at a later period was apparent or could be inferred. No such similar intention could be said to exist in the present case. As Bovill C.J. said in R. v. Brown (supra) at p. 246:

"... what is a secret disposition must depend upon the circumstances of each particular case."

The nature of the locale would indicate that seclusion was being sought, such that the body was not likely to be found:

"There must ... be an intent to conceal the body ..." (per Bovill C.J. at p. 247).

The intent of course must exist at the time of disposition. The accused says she was weak and thus I can infer she was not likely to engage in any strenuous physical activity such as a long walk into thick bush or the digging of a deep grave. She has chosen to remain silent thereby exercising her constitutional rights. Such silence of course, whilst a right, may on occasions work to the accused’s disadvantage. However in deciding what inferences I should draw from that silence, I must remind myself of two cases, the first R. v. Bathurst [1968] 2 Q.B. 99 at pp. 107-108, being referred to by Lawton L.J. in the second case R. v. Sparrow [1973] 2 All E.R. 129 at p. 136. There his Lordship mentions part of the judgment of Lord Parker in Bathurst’s case, namely:

"... as is well known, the accepted form of comment is to inform the jury that, of course, the accused is not bound to give evidence, that he can sit back and see if the prosecution have proved their case, and that, while the jury have been deprived of the opportunity of hearing his story tested in cross-examination, the one thing they must not do is to assume that he is guilty because he has not gone into the witness box."

Lord Justice Lawton L.J. goes on to comment that the statement of principle by Lord Parker was accepted in R. v. Pratt (1971) Crim. L.R. 234, and R. v. Mutch [1973] 1 All E.R. 178, and continues at p. 136;

"What, however, is of the greatest importance in Lord Parker C.J.’s advice to judges is his reference to the need to avoid telling juries that absence from the witness box is to be equated with guilt."

The site of the grave was anything but secretive. I have no evidence to indicate whether it was a deep or shallow excavation, but the inference, if one accepts the accused’s statements in her record of interview as to her condition, would be a somewhat shallow one. One would have thought that had the accused really intended to hide the body, she would have gone at least some distance into the bush. She did not volunteer any information as to the birth or the burial but on the other hand no-one asked her till Sunday night and then she admitted to delivery but the conversation at that point was interrupted. Perhaps continuation of the discussion was thought to be pointless in view of the flashing lights and the publication by the son-in-law of his suspicions.
One case in particular strikes accord with the facts of the present matter. In R. v. George (1968) 11 Cox C.C. 41 at p. 42, Bovill C.J. had this to say about the facts of the matter before him:

"It seems as if the child was put in the box for the purpose of being discovered, instead of being secretly disposed of. It was known that the prisoner had a miscarriage, and that being so, she goes away and leaves the body of the child; and, assuming that she placed it in the box, it appears to have been put there as if purposely to invite someone to look for it, and where someone must of necessity discover it. Neither of the boxes being locked nor fastened in any way, it amounts to no more covering than for decency’s sake. It was put in a room which was much resorted to by persons in the house, and the box arranged in such a manner as to attract attention; and the smaller box was known to belong to the prisoner. It may therefore be naturally expected that the discovery would be made."

The facts of the case bring out that the smaller box in which the baby’s body was placed had been put into the larger box in such a way that it prevented the lid of the larger box being closed, the larger box containing a certain amount of clothing. Obviously anyone who came into the room would have noticed the smaller box in the position in which it had been placed by the accused. Might not the same be said in the present circumstances?

In matters of circumstantial evidence I again remind myself of the words of Menzies J. in Plomp v. The Queen [1963] HCA 44; (1963) 110 C.L.R. 234 at p. 252:

"The customary direction where circumstantial evidence is relied upon to prove guilt, that to enable a jury to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw, was given. It was argued, however, that this direction is something separate and distinct and must be kept separate and distinct from the direction that the prosecution must prove its case beyond reasonable doubt. Notwithstanding that the applicant’s counsel did find some authority to support their contention ... that contention is unsound for the giving of the particular direction stems from the more general requirement that guilt must be established beyond reasonable doubt."
And once more I also go to the words of Griffith C.J. in Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R. 619 at p. 630:

"It is the practice of Judges, whether they are bound to give such a direction or not, to tell the jury that, if there is any reasonable hypothesis consistent with the innocence of the prisoner, it is their duty to acquit."

And his Honour goes on further at p. 634:

"The rule is sometimes stated that the circumstances must be such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused."

The same view was put by the other judges involved in this case, although perhaps not in quite so strong terms. I also refer to that part of the judgment of O’Connor J. at pp. 661-662 of the report where his Honour quotes at length from Starkie on Evidence (3rd ed.):

"What circumstances will amount to proof can never be matter of general definition; the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury. On the one hand, absolute, metaphysical and demonstrative certainty, is not essential to proof by circumstances. It is sufficient if they produce moral certainty to the exclusion of every reasonable doubt; even direct and positive testimony does not afford grounds of belief of a higher and superior nature. To acquit upon light, trivial and fanciful suppositions and remote conjectures, is a virtual violation of the juror’s oath, and an offence of great magnitude against the interests of society, directly tending to the disregard of the obligation of a judicial oath, the hindrance and disparagement of justice, and the encouragement of malefactors. On the other hand, a juror ought not to condemn unless the evidence excludes from his mind all reasonable doubt as to the guilt of the accused, and as has been well observed, unless he be so convinced by the evidence that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest; and in no case, as it seems, ought the force of circumstantial evidence, sufficient to warrant conviction, to be inferior to that which is derived from the testimony of a single witness, the lowest degree of direct evidence."

His Honour then goes on in his own words to explain that, as Lawton L.J. has said in Sparrow’s case (supra) and Menzies J. in Plomp’s case (supra), what all this really amounts to is an extra emphasis on the principle that the prosecution must prove its case beyond reasonable doubt.

The one factor which has periodically troubled me in this trial, despite the strong case against the accused, is the hypothesis that the accused merely wanted to give the child a quick and decent burial in a manner which would eventually lead to discovery. I think that such a course of conduct is not inconsistent with the vagaries of human nature and of course I must remember that whatever the accused did may have been affected at least in part by childbirth. The burial in such a place must almost inevitably have led to discovery. Thus I cannot be satisfied beyond reasonable doubt that such burial was for the purpose of concealment and I must therefore acquit the accused.

Verdict of not guilty entered.

_____________________________________________

Solicitor for the State: L. Gavara-Nanu, Public Prosecutor.
Solicitor for the accused: Maraleu, Isana & Associates.