IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

Coram: Mann, C.J.

THE QUEEN

v.

DUBIK IEN
also known as NIGUA
of KAVILO

Madang,
5/3/1965

REASONS FOR JUDGMENT

The accused is charged with the wilful murder of one SAPUS. It is common ground and well established by the evidence that the accused attended a party held on Pana-Tibun Island, in Madang's outer harbour, on the night of Saturday, 24th October, 1964. The party was attended by visitors from Kranket Island, KarKar and other places. It lasted substantially all night, and many of the people present drank beer, gin and rum, and some followed this with what has been variously described as Methylated Spirits or Methylated Spirits mixed with gin.

The accused was involved in at least one fight during the night with a man named GIL, and possibly in other clashes, and was at some stages very drunk.

On the morning of 25th October SAPUS, who had also attended the party, was not seen by the men who had gone to sleep in the same hut after the party. On 27th October the body of SAPUS was found in the sea, some 60 feet off the point of the small island Pana-Tibun, where the party had been held. It was in a state of partial decomposition and its condition was consistent with having been in the water for two days. The cause of death could not be affirmatively established on post mortem examination, but there was no contraindication to the theory of death by drowning. No sign of injury was apparent.

Meanwhile a canoe which had been left on Pana-Tibun on the evening of the party by its owner, MAIE, had been missed on the following day, but was recovered on the next day from the larger island Kranket. It is common ground that the accused in the early morning of the 25th October had taken this canoe without permission to transport himself to Kranket Island after leaving the party, and was seen on that island early in the morning.

The Crown case is that the accused did not travel in the canoe alone but was accompanied by SAPUS who sat in front, whilst accused sat behind him with the paddle - Exhibit 13. According to this case accused struck SAPUS on the back of the neck with the paddle, SAPUS fell forward apparently unconscious with his head in the water, whereupon accused caught his legs and pushed him into the sea and left him there, and went on by canoe to Kranket Island.

According to the defence case, supported by the evidence of the accused, the accused did not see SAPUS in the morning after the party, but travelled alone in the canoe to Kranket. The movements of the accused from that point onwards are common ground. There is no substantial conflict of evidence from that point onwards. The accused admits that he made the statements  alleged to have been made. The whole Crown case depends directly upon those statements.

The main issues of fact are whether accused was with SAPUS at the commencement of the canoe journey, whether he struck him and left him in the sea, and whether death was due to drowning or any other cause attributable to the actions of the accused. The defence also relies in the alternative on the absence of intent, which would reduce the crime to manslaughter if he were held to have caused the death.

On the evidence tendered by the Crown there is no doubt that the accused could be found guilty of the crime charged. He made two verbal admissions, one to his brother ELMIS and the other to BOK PAK. He also made a statement to Sub-Inspector Dyson which the latter reduced to writing, and the accused signed the paper. The defence objected to the admission of this statement to test its voluntariness, and I admitted it as Exhibit "A" subject to that objection. I must deal with that objection before going into the weight of evidence, for the exhibit contains the real weight of the Crown case.

Sub-Inspector Dyson's conduct in taking the statement was not challenged nor does it appear to me that it was open to challenge.

When, the body was found in the water there were no signs of violence, and the post mortem examination gave no grounds to support any particular view of the cause or circumstances of death. The islanders purported to know nothing about it, and Sub-Inspector Dyson properly made a thorough search for information for the Coroner's inquiry. He interviewed many people, some of them many times, but could not establish any material facts until he received information from the Local Government Councillor KOI. This was after some three weeks of fruitless investigation.

Sub-Inspector Dyson immediately sent for accused, warned him, and asked some questions, recorded them and their answers on Exhibit "A.", got the accused to sign the paper, then let him go without arresting him.

There is no impropriety in all this, rather, Sub-Inspector Dyson carried out his duties with thoroughness and due regard for the interests of the accused.

The objection taken was based on the assertion of the accused that although Sub-Inspector Dyson did not do anything to make accused frightened, he was nevertheless frightened and confessed because he realized that his previous verbal statements to two men had got him into a difficult predicament and he could not see his way out of it. Thus the objection raises a matter which really goes to the weight which ought to be attached to the statement rather than to its admissibility. I think that the statement clearly ought to be admitted and taken as part of the Crown case. I disallow the abjection. I adhere to what I said in R. -v- Amo & Amuna to the effect that the court must retain an overriding discretion to cover cases where it would be unfair to allow a statement to be admitted in evidence, but there are no circumstances here to call for the exercise of such a discretion.

As to the weight of evidence, it is convenient to consider all three statements in order of time.

The first was made to the witness ELMIS, a brother of the accused. The making of it is not denied. It was made after the police had made many inquiries, .and it may be assumed that all the island people were well aware of these inquiries and aware of the fact that the police knew that a drunken party had been going on, shortly followed by the finding of the body of SAPUS, one of the participants who had been missing.

ELMIS says that the accused said, "I killed Sapus", during an ordinary conversation. ELMIS asked "why" but accused did not answer, so his brother went inside the house and nothing more was said. He did not tell anyone what had been said, and agreed that accused had "smiled" when he said it. He was irritated at the thought that accused should have waited so long before saying anything and had put the police to so much trouble by his silence. 

It is difficult to define what might be covered by the expression "he smiled" when taken from the Pidgin "ilap". The accused swore that he was only joking. He might easily have done just that to tease or irritate his brother, for he certainly achieved that result, and the topic itself was dropped without any serious discussion, such as might have been expected as between two blood brothers if the statement were true or taken to be true.

From the behaviour of ELMIS and other witnesses I infer that they regarded the whole episode, including the drinking party and especially the methylated spirits, the death of SAPUS and the police investigations, as a matter of shame to the people. As a man from KarKar, and a visitor amongst the other islanders, ELMIS appeared to have felt some responsibility for the behaviour of the accused at the party.

He appears to have been willing to regard the statement as a ready solution to a social problem, and to have become resentful or annoyed when his brother would not say more and appeared not to be serious. Standing on its own, I would attach no more weight to this statement than ELMIS appears to have done at the time. He was unwilling to tell the Councillor or anyone else about it, and from his manner of giving evidence I would think that he would undoubtedly have done this if he had felt that he would not be making a fool of himself.

BOK PAK'S evidence of the statement made to him requires careful assessment. There was by this time a strong demand amongst the island people for a solution to the problem. The police had made many inquiries over a long period and the island people felt their position. BOK PAK as a man of seniority started to make inquiries himself. He was talking to accused about the death of SAPUS after the police inquiries, and had no idea that accused knew anything about it until accused told him angrily that he had done it. On being asked why, DUBIK refused to discuss the matter further and said, "Why are you asking me".

BOK went and told the Councillor what had been said, but he appeared resentful when giving evidence of it. I think that he too as a neighbouring visitor may have been trying too hard to find a solution to the problem and upset the rather sullen and moody DUBIK, whose behaviour at the party had brought him no credit.

Neither of these statements standing alone or together could carry much weight, but they might add weight to the later statement which was exhibit "A".

This was taken fairly, and on a serious occasion when the accused would be likely to tell the truth. What then are the weakness in it.

(a) Although consistent with same known facts it is not supported affirmatively by any circumstantial evidence coming from any independent source.

(b) The explanation of accused that, having made the two other statements and having no time to think what to do he told the same story, is not an entirely improbable one.

(c) It contains statements of fact open to doubt. The body was found 60 feet away from the point of the small island after being in the water for two days. There are deep water channels here, two sizable rivers not far away and a shallow over a reef. It is highly improbable that a floating body would remain in the one place for that time, or if it were there, that it would remain unseen with canoes passing by day. It is possible that the body if it fell in shallow water would sink and be held by coral until it floated free after becoming more buoyant from decomposition. It might thus have come to the surface at the same place and been found immediately. It is thus, so far as I can say, possible that the statement is true, but there is no evidence to help me assess this as a matter of possibility or probability, and the absence of water in the air passages does not enable me to say with confidence either that the man drowned or that his body would sink.

The statement that accused killed SAPUS with the paddle is again questionable. The body showed no sign of injury. If, as has not infrequently happened in the Territory, a sudden and unexpected blow on the neck without real force, could cause instantaneous death by shock, it is again possible that accused killed SAPUS without leaving a mark, and this might explain the absence of water in the lungs, but again there is no affirmative evidence to guide me to such a conclusion.

Decomposition prevented any determination of the cause of death. The man was most probably in a drunken sleep after drinking methylated spirits and may have met with some mishap during the night. He might even have died of alcoholic poisoning. None of these things could be investigated because the body was too far decomposed for the alcohol content (if any) to be assessed.

According to the statement accused left the island of Pana-Tibun to go to Madang, but instead he killed SAPUS and went home to Kranket. The statement says that the canoe was left drifting, but the evidence of accused that he left it secure is supported by the evidence of the owner, MAIE.

The statement must be assessed against the weight of the evidence given by accused. The only motive suggested is that put forward in the statement, but this does not explain how it was related to SAPUS. The statement could have been invented quite falsely by the accused on facts known to him at the time, and from inferences drawn by him, the validity of which are, in the light of expert medical evidence now open to question. I do not by any means feel convinced that this is so, for it could be true, but the truth is not capable of further demonstration by reason of circumstances such as the decomposition of the body. Equally, however, I cannot feel. convinced that the statement is true and that the accused was lying in the witness box. I gained the impression that he is a moody and sullen man and could well have been affected by the growing pressures of inquiries being made by island people, and that he could well have reacted in the way that he stated in evidence.

It is noteworthy that when making his statement to Sub-Inspector Dyson, accused was still feeling resentment because the others at the party had given him methylated spirits to drink, and were unwilling to play guitars.

His reputation had undoubtedly suffered and he had been made to feel unwelcome as a guest because of his behaviour. This adequately explains why he left, but does not explain why he would go and get SAPUS to accompany him. His evidence raises a substantial doubt in my mind as to the very few facts in dispute and also as to the cause of death.

In these circumstances, a conclusion that accused caused the death of the deceased would not be justified.

Verdict: Not Guilty.