Nefelesi v Reginam [1962] FijiLawRp 44; [1962] 8 FLR 23 (23 February 1962)

(1962) 8 FLR 23

COURT OF APPEAL OF FIJI

 

ONGI NEFELESI

V.

REGINAM

 

[COURT OF APPEAL, 1962 (Hammett P., Marsack J.A., Knox-Mawer J.A.), 19th, 23rd February.]

Criminal Jurisdiction

Criminal law-defence-automatism-wounding with intent to murder-proper foundation to be laid by defence. Criminal law-evidence and proof-defence of automatism-necessity for proper foundation to be laid by defence.

Before a court can consider a defence of automatism a proper foundation of evidence must be laid and the necessity of laying this proper foundation is upon the defence.

Cases referred to:

R. v. Charlson  (1955) 39 Cr. App. R. 37;  [1955] 1 All E.R. 859.
Bratty v. Attorney-General for Northern Ireland  [1963] A.C. 386; [1961] 3 All E.R. 523.
Hill v. Baxter  [1958] 1 Q.B. 277;  [1958] 1 All E.R. 193.
R. v. Cottle [19581 N.Z.L.R. 999.

[Editorial note: See also upon this subject the judgments of the New Zealand Court of Appeal in R. v. Burr  [1969] N.Z.L.R. 736.]

Appeal from a conviction by the High Court of the Western Pacific sitting at Honiara.

F. M. K. Sherani for the appellant.
K. C. Gajadhar for the respondent.

The facts sufficiently appear from the judgment.

Judgment of the Court: [23rd February 1962]-

This is an appeal against conviction before the Judicial Commissioner at Honiara of the offence of wounding with intent to murder and also against the sentence of 7 years’ imprisonment imposed upon conviction.

The facts concerning the actual assault by the appellant are not in dispute. Appellant had been paying court to a girl named Sio, the niece of the injured person Riba. Compensation was demanded by the relatives of the girl for appellant’s action in giving her an earring. Appellant denied his liability to pay compensation on that account but he paid nine native moneys because he "wanted to take the girl". Later the girl’s father demanded more money and appellant paid seven native moneys and one pig. Riba and another then came to appellant and demanded still more money, and a quarrel took place. The headman, to whom the dispute was referred, said that five of the moneys were to be returned, but Riba wished to keep it all. An hour or two later appellant took his axe and went to the house where Riba could be found. Riba was fast asleep in Agia’s house. Appellant then struck Riba with the axe a very severe blow in the abdomen. From the wound the stomach, the first part of his duodenum, and the head of the pancreas protruded. Dr. Gurney, who examined Riba, stated that the wound was very serious and that the man’s life was in grave danger. After an operation in the Auki Hospital Riba made a surprisingly good recovery, though he is still suffering from some physical disability as a result of the wound.

These facts are not contested. The defence set up is that at the time of the wounding the appellant was not responsible for his actions, though his mental condition did not amount to insanity. The learned trial Judge rejected the defence, found that intent to murder had been proved, and convicted the appellant accordingly.

The appeal before this Court was based substantially on the following grounds:

(a) that the prosecution had failed to prove beyond reasonable doubt an intent to murder on the part of the accused;

(b) that appellant’s act in wounding Riba was not a conscious act in that he did not at that time exercise any volition, but acted as an automaton;

(c) that the onus of proving that appellant was not acting as an automaton lay on the prosecution; and

(d) that the trial Judge erred in law in holding that the only defence open was that of insanity.

It becomes necessary to examine with some care the evidence regarding the appellant’s mental condition at the time. Dr. Gurney E states that the appellant gave him a history of mental disease, saying that he was subject to epileptic fits of 2 or 3 hours’ duration about 5 times a year. During these attacks appellant stated that he shivers, does not realise where he is, and walks about in a daze. Dr. Gurney proceeds:

"From what Nefelesi told me, it is correct, that he suffers from an inherited disease whereby at times he does not know what he is doing. The symptoms are similar to epilepsy. If what Nefelesi has told me is true, and I think he was speaking the truth, I would consider he suffers from epilepsy. If the accused had one of these attacks he would not know what he was doing during it. If a person who has this disease does something in an attack it is unlikely that he will remember what he has done. If a person who had told me of symptoms similar to those told by the accused gave some detail of what happened in an attack I would consider the disease to be somewhat less, likely but would not exclude it. If, however he had "an epileptic attack and told me later of some of the things he did during it, it is my opinion that he would not have known the deed he was doing or it consequences. By that I mean he would not consider the effect of what he was doing-he would however know that what he was doing would destroy."

Agia says:

"Accused’s father was my neighbour. I know he hanged himself. I saw the accused sometime-but not always-get sick, I never saw him being sick but I was told it."

Uia Nagwati says:

"Accused has had attacks quite a few times. During an attack he shakes and cries. I have seen him several times. The attacks last about 1 hour. No other members of accused's family have these attacks."

David Ridley Kapitana, District Headman, says:

"Nefelesi has from time to time a sort of madness. He gets like this in a row, after a row, or if someone makes him angry. When this kind of madness comes he will take his knife or axe and go into the scrub and does not want to talk to anyone or eat. He is not violent. Everyone knows this and when he is like this they never tease him in any way. There is a lot of this madness in my district and Nefelesi’s family is one in which it is ... I have not actually seen Nefelesi when he had an attack."

Patafanageni Lauabeu says in his evidence:

"I remember the evening of the 18th July ... That night while asleep Nefelesi came with some relatives. He told us he had attacked Riba. He also told us to run away ... I know that the accused sometimes has attacks of madness. During these attacks he breaks walls. He would hit the walls with his hands. After the attacks he would not talk about them. He would not know what he had done."

Police Corporal Andrew Adifaka states that after appellant had been warned he said "it is true I have killed him". The Corporal explains that in this sentence the word "killed" means "wound". The appellant proceeded "it was for the reason of a girl. I wanted to take that girl and I put up nine native moneys because I wanted to buy this girl but instead they took the money for compensation."

The statement of the Corporal gives further details with regard to the payment of additional money and the provision of one pig, and the reference of the matter to the Headman. The statement went on:

"At that time Simon the headman went away from us so I returned home because I was getting angry. I got angry and I returned and wounded him. At the same time when I was angry something made my mind that I did not know what I was doing. That is why I went and wounded him that night. That night when I cut him I cut him only once. After that I went away. I struck him with an axe. This is the end. There is nothing more for me to say."

The appellant elected to make an unsworn statement at the trial, in his defence, in the course of which he said:

"Riba and Fokaia wanted to kill me. When they came to kill me I was in my uncle’s house but I could hear clearly what they said. When I heard them I did not want to come and fight with them because I might have an attack of madness... I then returned home. I arrived home about 6 p.m. ... I stayed till about 7 o’clock. About this time I do not know what happened and the only thing I was thinking of was killing. I went on the same night and visited Golai and wounded Riba. When I wounded him I then realised what is wrong and what is right. After then I knew I had done something wrong. I returned home and told my mother and sister... I went to my uncle Uia. My brother Patafangeni was there also. I told them I had done something wrong I had wounded Riba... I came home and told the headman I had wounded Riba."

That is the evidence upon which Counsel for the appellant contends the onus was thrown on the prosecution to prove affirmatively that accused was not acting as an automaton at the time he wounded Riba, or at the least that the prosecution had not affirmatively proved an intention to kill.

The learned trial Judge does not comment in his judgment on the statement made by the Police Corporal that when appellant used the word "kill" to him he meant "wound". In his judgment he refers to the statement made by the accused "the only thing I was thinking of was killing" In our opinion there is ample evidence justifying the Court in holding that unless the defence of automatism is accepted the prosecution has discharged the onus of proving the intent to murder. No question seems to have been raised as to precisely what the appellant meant when he said "the only thing I was thinking of was killing". In view of the proved circumstances of the attack, it would be difficult to set up a hypothesis that the accused meant anything less than what those words connote in English. When a man inflicts a violent blow with an axe upon the recumbent body of another person it is difficult to suggest that he meant anything less than what he said by the sentence "the only thing I was thinking of was killing".

The main argument for the appellant, however, was developed around the defence of automatism arising from an epileptic fit. Counsel for the appellant placed great reliance on the judgment in R. v. Charlson  [1955] 1 All E.R. 859. At p. 862 Barry J. says in the course of his summing-up to the jury:

"If you think that (the accused) was in the condition similar to that of a person in an epileptic fit who does not know what he is doing at all, then elements of malice and unlawfulness would not have been established. If you are left in doubt about the matter and you think he might well have been acting as an automaton without any real knowledge of what he was doing then the proper verdict would be not guilty."

Charlson's case was considered by the House of Lords in Bratty v. The Attorney-General for Northern Ireland  [1961] 3 All E.R. 523. At p. 534 Lord Denning says, referring to the question of the onus of proof:

"My Lords, I think that the difficulty is to be resolved by remembering that, whilst the ultimate burden rests on the Crown of proving every element essential in the crime, nevertheless in order to prove that the act was a voluntary act, the Crown is entitled to rely on the presumption that every man has sufficient mental capacity to be responsible for his crimes: and that if the defence wish to displace that presumption they must give some evidence from which the contrary may reasonably be inferred."

Lord Denning proceeds to approve the words of DevIin J. in Hill v. Baxter [1958] 1 All E.R. at 196 "the defence of automatism ought not to be considered at all until the defence has produced at least prima facie evidence"; and also of North J. in R. v. Cottle [1958] N.Z.L.R. at 1025 to the effect that before the Court can consider this defence a proper foundation must be laid, the necessity of laying this proper foundation being on the defence.

Turning now to the evidence given on this point in the Court below, we can find nothing justifying the Court in coming to the conclusion that this proper foundation had been laid. The medical evidence is based entirely upon the case history supplied by the appellant himself. Dr. Gurney certainly states that he thinks appellant was truthful in relating his symptoms, and in that case he was suffering from epilepsy. But it would be necessary to show, or at least to raise a reasonable suspicion, that the appellant had been suffering from an epileptic attack at the time he committed this violent assault on Riba. From the opinion expressed in Dr. Gurney’s evidence it would appear unlikely that this was so. Dr. Gurney says "if a person who has this disease does something in an attack it is unlikely that he will remember what he has done... He would not know that it was a wrong thing to do". But it is clear from appellant’s own statement and from his evidence at the trial that he had a clear recollection of what he had done and that he knew that what he had done was wrong. Consequently, the inference to be drawn from Dr. Gurney’s evidence is that though the appellant was liable to epileptic attacks he was not subject to one at the material time in the present case.

The only independent evidence on the subject of appellant’s liability to epileptic seizures is vague; while several witnesses agree that appellant did suffer from his disability, only his uncle Uia and his cousin Patafanageni seem to have met appellant when he was in the throes of an attack; and neither of them describes with any clarity the effect of an attack on appellant’s mentality at the time.

It is incumbent upon this Court to make due allowance for the fact that appellant was not legally represented at the trial. It is, however, apparent on the face of the proceedings that the learned trial Judge was careful to explore all the possibilities of evidence, or inferences from the evidence, which might be interpreted in favour of the appellant. Regarding the evidence given at the trial in the light most favourable to the appellant, we cannot find any proper foundation for the defence of automatism. We are in fact forced to the conclusion that at the time of the savage attack on Riba the appellant knew what he was doing, and knew that what he was doing was wrong. It was, in our view, proved that the appellant was at that time mentally capable of forming an intention and that he did form an intention. That intention, in our opinion, was an intention to murder Riba, and in that respect we find that the prosecution has discharged the onus of proof laid upon it.

We are satisfied that the learned trial Judge did not misdirect himself on any matter of law, and that the verdict reached in his judgment was justified upon the proper consideration of the evidence put before him. There was no proper foundation laid in the evidence for a defence of automatism, or of a mental state, induced by disease, which prevented the accused at material times from forming an intention to do what he admittedly did. That being so, the learned trial Judge correctly held that the only defence based on mental instability which was available was that of insanity. That defence was properly rejected.

The further ground of appeal is that, in all the circumstances of the case, the sentence is excessive. We find no substance in this contention. A savage assault with an axe upon a sleeping man with, as we have found, an intent to murder, is a crime of great gravity which in our view, was no more than adequately punished by a sentence of 7 years’ imprisonment.

For these reasons the appeal will be dismissed.

Appeal dismissed.