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Regina v Zariai [1963] PGLawRp 282; [1963] PNGLR 203 (7 June 1963)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 203 - Regina v Zariai-Gavene

[1963] PNGLR 203

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

ZARIAI-GAVENE

Port Moresby

Ollerenshaw J

3-4 June 1963

6-7 June 1963

CRIMINAL LAW - Wilful murder - Evaluating inconsistent testimony of uneducated natives - Construction of Code - Provocation under Criminal Code and at common law - Criminal Code SS. 245, 268, 269, 301, 304, 323 - Native Regulations 1939 Regulation 71(d).

The accused was charged with the wilful murder of his wife. In a confessional statement adduced by the Crown and accepted as true by the Court, the accused said:

“I worked at Tapini Station for three months and one week ago I finished work and I went back to my village at Giniawi. My brother told me that my wife had had sexual intercourse with the Village Policeman while I was at the station. I said: ‘We will go back to my mother’s village.’ I talked to my wife to give the constable back the two blankets, two ramis and two dresses that he gave her to have sexual intercourse with him. The woman said: ‘I don’t want to be married to you. I want to stop with this policeman. You are a rubbish man. I don’t want you.’ I got very angry when she said this and I thought I would kill her. I told her to go and get my pigs but she said: ‘They are all my pigs.’ So I went and undid the rope on my two pigs and they went in the bush. She went and got a knife and tried to cut me, but I took it off her and threw it away. She said: ‘You eat my excreta. I have had intercourse with all men and the Village Constable. You can come up when I have had intercourse with some men and you can eat the grease off my private parts.’ I got very angry when she made this talk and I thought I would kill her straight away. I got my axe from the ground and I hit her on the back of the head.” He then demonstrated to the Inspector how he had swung his axe and said: “I hit her strong like this fashion. She fell down on the ground. She did not cry out. A lot of blood came out of her nose and mouth and neck. I looked at her and saw that she was dead. So my brother and I ran away and slept in the bush. I was frightened that all the women’s relatives would come up and kill us. We walked to here.”

In the evidence at the trial the accused gave a version of the incident not entirely consistent with his statement. He said, inter alia, that he did not intend to kill his wife but merely to hit her on the back. His Honour found as a fact that the accused did intend to kill his wife. Other evidence established that the wife’s words constituted an insult that an ordinary man of the accused’s community, similarly circumstanced would lose his self-control when so addressed and would have assaulted her as the accused did. There was no dispute that the axe blow caused her death.

Held:

that:

N1>(1) Section 268 defines provocation for the purpose of Section 304 of the Criminal Code.

N1>(2) Whatever the position at common law the Criminal Code enacts the view that a person is not criminally responsible as a murderer for an intention to kill formed under the impulse of provocation.

N1>(3) The words “ordinary person” in Section 268 refer to an ordinary person of the same community as the accused.

N1>(4) The accused killed his wife in the heat of passion caused by sudden provocation and before there was time for his passion to cool. Therefore he was not guilty of wilful murder but guilty of manslaughter.

Semble:

N1>(i) the word “wrongful” in Section 268 does not mean unlawful;

N1>(ii) the word “wrongful” in Section 268 does not qualify “insult”;

N1>(iii) the words in Section 268:

“and to induce him to assault the person by whom the act or insult is done or offered”

do not mean assault with the violence or in the manner employed by the accused person.

Holmes v. Director of Public Prosecutions, (1946) A.C.588; Bank of England v. Vagliano Brothers, (1891) A.C.107; Brennan v. The King [1936] HCA 24; , (1936) 55 C.L.R. 253; R. v. Scarth, (1945) Q.S.R. 38; R. v. Sabri Isa, (1952) Q.S.R. 269; R. v. Herlihy, (1956) Q.S.R. 18; R. v. Young, (1957) Q.S.R. 599; Kwaku Mensah v. The King (1946) A.C.83; Attorney-General for Ceylon v. Perera, (1953) A.C.200; R. v. Withers[1925] NSWStRp 38; , (1925) 25 S.R. (N.S.W.) 382; R. v. Duffy, (1949) 1 All E.R. 932; R. v. Scott, (1909) 11 W.A.L.R.52; Mancini v. Director of Public Prosecutions, (1942) A.C. 1; Woolmington v. Director of Public Prosecutions, (1935) A.C. 462; R. v. Hamo, 1 1963 P. and N. G. L. R. at p.9; R. v. Kauba, 1 1963 P. and N. G. L. R. at p.18, referred to.

The facts and the arguments of counsel appear sufficiently from the judgment.

Counsel:

Bowen, for the Crown.

Rissen, for the Accused.

OLLERENSHAW J: The accused, Zariai, is charged under Section 301 of the Code that he wilfully murdered his wife, Jojoa.

Mr. Bowen appears for the Crown and Mr. Rissen defends Zariai, a native of the Goilala village of Ganiawi.

In presenting the case for the Crown Mr. Bowen relied upon a confessional statement made to an officer of police by the accused person and the evidence of his brother, Ravai. He also called a fully qualified medical witness who had examined Jojoa’s body upon its exhumation some seven days after her death.

A deep wound was found low down at the back of Jojoa’s head. It was four inches long and penetrated for about three inches just behind and below the left ear. The base of the skull and the mandible on the left side were fractured. She undoubtedly had died from the effects of this wound. It could, the doctor said, have been caused by a blow with the butt of the head of the accused’s axe exhibited in this trial, a light axe, sometimes called a tomahawk, of the type in common use amongst the natives of this Territory.

In showing, in the course of his evidence, how he had hit his wife, Zariai demonstrated a good strong swing which would have manifested, I think, even more violence had it not been aimed at the Interpreter. There is no dispute as to the cause of Jojoa’s death.

The accused had explained it in the circumstances of his killing to Sub-Inspector Briancourt in these terms:

“I worked at Tapini Station for three months and one week ago I finished work and I went back to my village at Ganiawi. My brother told me that my wife had had sexual intercourse with the Village Policeman while I was at the station. I said: ‘We will go back to my mother’s village.’ I talked to my wife to give the constable back the two blankets, two ramis and two dresses that he gave her to have sexual intercourse with him. The woman said: ‘I don’t want to be married to you. I want to stop with this policeman. You are a rubbish man. I don’t want you.’ I got very angry when she said this and I thought I would kill her. I told her to go and get my pigs but she said: ‘They are all my pigs.’ So I went and undid the rope on my two pigs and they went in the bush. She went and got a knife and tried to cut me, but I took it off her and threw it away. She said: ‘You eat my excreta. I have had intercourse with all men and the Village Constable. You can come up when I have had intercourse with some men and you can eat the grease off my private parts.’ I got very angry when she made this talk and I thought I would kill her straight away. I got my axe from the ground and I hit her on the back of the head.” He then demonstrated to the Inspector how he had swung his axe and said: “I hit her strong like this fashion. She fell down on the ground. She did not cry out. A lot of blood came out of her nose and mouth and neck. I looked at her and saw that she was dead. So my brother and I ran away and slept in the bush. I was frightened that all the woman’s relatives would come up and kill us. We walked to here.”

By “here” he meant Tapini, whence he had come with his brother to report the incident and escape the retaliation of his wife’s relatives.

In evidence in this trial, while not expressly putting his statement to the police officer in issue, the accused has given a version of the encounter with his wife which does not entirely tally with it. He says now, and I will come to this later, that he did not intend to kill his wife but merely to hit her on the back.

He says now that it was he and not she who insisted upon their separation, that, having been told, and, on the day of his return, having confirmed that his wife was living in adultery, the next day, after a night which they did not spend together, he opened their interview thus: “I do not like you. You are always misconducting yourself and committing adultery. Now you can go back to your mother. I do not like your behaviour.”

The evidence of the accused’s brother strongly supports a conclusion that his first version was correct in this respect, that he did not go beyond expressing his decision that they should exchange their place of residence to his mother’s village. However, I consider that it is immaterial who first asserted that the silken bonds should be cut.

Thereafter the accused’s evidence of the incidents in the encounter followed his statement to the police officer except that he put the knife incident after his wife’s references to excreta and grease and just before he took up his axe and struck her.

Such variations between the testimony of accused natives and what they have said previously to an investigating officer occur regularly and sometimes create difficulty. They are frequently not inspired by cunning afterthoughts and may be due to one or more of a number of possible causes, such as the poor memories of some uneducated primitives, especially for matters which they do not think to be important or when the trial takes place some months after the event, the advice of other natives, which an accused person may receive while in custody as well as at the village fireplace, and their tendency to concentrate upon what they have come to regard as the important features and to be quite careless about others. Some tend to try something new when their first version does not appear to them to have impressed the officer to whom it was given although, in fact, it is sometimes more beneficial to them than the variation introduced.

In this trial I think it is probable that the real explanation of the discrepancy lies in the way the questions were put. I think that they invited the accused to tell what was said between himself and his wife, which he did, and then in answer to the final question upon the events that led up to the killing, a question which directed his mind to anything else that was done by his wife, he mentioned his wife’s attack with the knife and his disarming her as in his first statement. In any event the probabilities that this statement, which as it happened, he made the day after the killing of Jojoa, is the correct version of how the encounter mounted are so strong that I must surely give the accused the benefit of any doubt where it is more favourable to him. There is, too, the testimony of the accused’s brother who overheard the quarrel from his home nearby. He could not hear or see all that was said and done between the parties but the two things he did hear were the wife’s words about grease, spoken in a very strong and angry voice, and a thud, or thump, which was clearly the noise of the impact of Zariai’s axe upon her head. The impression I have from this evidence of the accused’s brother is that the thump closely followed the words.

The other material evidence I should mention is that obtained from Sub-Inspector Briancourt and the Goilala Police Constable, Gisau, directed to showing that Jojoa’s words constituted an insult and to the effect of them upon an ordinary man of the accused’s community in such circumstances as Zariai found himself.

Upon this evidence Mr. Rissen has submitted that Zariai is guilty of manslaughter and not wilful murder because the provocation given for his assault in the insulting words she used brings his killing within the benefit of Section 304 of the Code. He submits alternatively that it should be found on the evidence that Zariai did not intend to kill and so is not guilty of wilful murder and that the proper verdict would be guilty of murder under Section 302.

It is convenient to deal with the second submission first and briefly dispose of it. I find as a fact that Zariai did intend to kill his wife, as he confessed to Sub-Inspector Briancourt, and I have no hesitation in accepting that confession. There was a perceptible change in his demeanour to uneasiness when giving his evidence that he had no such intention and this part of his evidence and his demonstration of how he aimed the blow at Jojoa’s back but missed her back and hit the base of her head because she ducked downward and forward I find quite unconvincing. I think that he aimed a smashing blow to hit the back of her head at a spot higher than where it did meet and fracture her skull, lower down at its base, and I think that this happened because she ducked in the manner described in an attempt to avoid the axe. In any event, in a cross-examination that was not at all overbearing, Zariai admitted that it was true, as he had told the police officer, that he intended to kill his wife with the blow he aimed at her. I do not think that any undue pressure was used in getting from the accused this admission and return to his earlier confession.

PROVOCATION.

The submission upon provocation raises a number of questions of law with which I have previously dealt in oral judgments. However, they have been fully discussed in argument in this trial, for which I am indebted to Counsel, and to save time in trials before me in future I will now record my views.

I should first mention two matters in relation to provocation to dispose of them before coming to the questions that arise in this trial.

Firstly, it is clear to me and I find, what I do not understand to be contested by Mr. Rissen, that it was not his wife’s attempt to cut him with a knife that provoked Zariai to assault her with fatal intention so that there is no question in this trial of provocation given by a “wrongful act” but merely by the insult in her words. He disarmed her and there the quarrel might have rested. It would not have taken its mortal course had she not continued to incite him with her speech until she reached the final insult that tipped the scale.

Secondly, it was not the reference to her adulteries that incited Zariai to his act that caused her death. This was no sudden confession of unfaithfulness to a husband, unsuspecting or unconvinced. He already knew all about her unfaithfulness with the Village Constable and it also appears that he was aware of her promiscuous infidelity. A confession of adultery is not a wrongful act or insult and if a case should arise in which such a confession provoked a husband to kill, more particularly if made in circumstances of most extreme and exceptional character, Counsel for the husband may not argue so enthusiastically as Mr. Rissen has done that it is in Section 268 of the Code and not in the common law that I should find what the Code means by “Provocation” in Section 304: Vide Holmes v. Director of Public Prosecutions[cclix]¹.

In support of his general submission that provocation reduces Zariai’s crime to manslaughter Mr. Rissen submits:

N2>(1) That what is provocation for the purposes of Section 304 is to be found in Section 268 of the Code and not, as a number of Judges in Queensland have held, in the common law.

He so argues because in this trial he considers that he needs Section 268 because it is said that in the common law doctrine of provocation mere words without menace were not sufficient, except possibly in circumstances limited by Viscount Simon in Holmes’ Cas[cclx]² as “of a most extreme and exceptional character” and there is not to be found in the books any record of insulting words having been spoken in such circumstances. It has been held and it is accepted that Section 268 does include words by its express reference to “any . . . . insult”. He calls in aid Section 268 also to avoid entanglement in what is said to be part of the common law doctrine and which I may call compendiously proportionate retaliation. It has been said that the retaliation must bear some proportionate relationship to the conduct of the victim, as if it were, as a matter of law, a prerequisite of provocation and not merely a matter for the jury when considering, e.g., whether an ordinary man would retaliate like an accused person has retaliated to such conduct as is relied upon as provocation, or, whether his killing was induced by the provocation, or, was premeditated.

N2>(2) That although Zariai intended to kill when he struck the blow he is entitled nevertheless to the benefit of Section 304 inasmuch as he struck in the heat of passion caused by sudden provocation and before there was time for his passion to cool.

N2>(3) That in the application of Section 268 in this trial the character of the words and the effect they would be likely to have upon an ordinary man is to be judged according to the standards obtaining in the community to which the accused belonged and the effect they would be likely to have upon an ordinary native in that community.

N2>(4) In this trial Mr. Rissen does not dispute Mr. Bowen’s contentions that in the phrase “any wrongful act or insult” in Section 268 “wrongful” means unlawful and governs “insult” as well as “act”.

1. SECTION 268 V. THE COMMON LAW.

But for the conflict of judicial opinion in the fatherland of the Criminal Code I would have thought that there could be no doubt that Section 268 defined provocation for the purposes of Section 304 as it does for the purposes of Section 269 and in my view it does so.

Part V of the Code is entitled to cover “Offences Against the Person”. Chapter XXVI, the first chapter in Part V, deals generally with “Assaults and Violence to the Person” and contains a number of exculpatory provisions. In this chapter appears Section 268 which defines provocation when used “with reference to an offence of which an assault is an element”. A later chapter in the same Part V, Chapter XXVIII, covers “Homicide” and in this chapter comes Section 304, which reduces homicide, that would otherwise be wilful murder or murder, to manslaughter when the slayer “does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool”.

The word “provocation” also appears in the section which introduced a new defence, in certain prescribed circumstances, to offences involving assault, Section 269. It appears in the three Sections 268, 269 and 304 and a few other sections in Part V for incidental purposes and it does not appear in any other Part of the Code. Surely Section 268 should provide the meaning of provocation in all cases of offences against the person. I see nothing in the Section that excludes its application to Section 304. Nor do I see anything in Section 304 that excludes it.

I cannot see any proper reason for the assumption that Section 304 is a short statement of the common law. The object of the Act which introduced the Code was to replace the common law, to provide the Code as the repository of criminal responsibility in the place of the judgments in which it lies. Neither the Act nor the Code preserves the principles of the common law as, e.g., Section 8 of the Tasmanian Criminal Code Act preserves some of those principles “except in so far as they are altered by, or are inconsistent with, the Code”, or otherwise leans upon the common law. The reason being, no doubt, that the Code was intended to be a code of the law, the only source of criminal responsibility for the offences with which it deals.

It is true that, while the construction of the Code should not be approached with any prejudice in favour of its either reproducing or altering the law, the previous state of the law may be considered in the case of a provision of doubtful import or where words have already acquired a technical meaning or are customarily used in relation to a particular subject, be the subject negotiable instruments or crime. Vide: Bank of England v. Vagliano Brothers[cclxi]³; Brennan v. The King[cclxii]⁴; and R. v. Scarth[cclxiii]⁵. However I can see no doubtful import in Section 304 and although the word “provocation” had already acquired a technical meaning in the common law I consider that when the Code itself contains a section in the situation and definitive terms of Section 268 the license to resort to the previous state of the law is gone.

Not only does the structure of Part V support the application of Section 268 to Section 304 but also the words themselves of Section 268 and the subject matter of Section 304 appear to me to call for this. The definition of provocation in Section 268 is for the purpose of its use “with reference to an offence of which an assault is an element” and for all practical purposes Section 304 applies only to unlawful homicide in which an assault is an element. It is difficult to conceive that where the act, which causes death, is required to be performed in the heat of a passion that has not had time to cool in order to make the offence manslaughter instead of wilful murder it could be other than “assault”, the definition of which word is to be found in Chapter XXVI in Section 245.

I cannot see any force in the argument that when Section 268 says: “an offence of which an assault is an element” it means: “an offence in the definition of which an assault is an element (or rather) an expressed element”. In the first place it does not say that and I see no reason for reading it down to what could have been said so simply and what would produce such complex results. It is clear beyond argument that Section 268 applies to Section 269 and supplies the meaning of the word “provocation” in that section. It is also clear that Section 269, in such avoidance of criminal responsibility as it affords in cases of “assault committed upon a person” under provocation, supplies a defence to, e.g., a charge of unlawfully wounding under Section 323 in Chapter XXIX in this part of the Code. This is clear if for no other reason than that the definition in Section 245, which supplies the meaning of the word “assault” in Section 269, makes that word in that section include a wounding, as, e.g., a minor flesh wound with a pocket-knife. Yet, if the argument that Section 268 refers only to “an offence in the definition of which an assault is an expressed element” be correct, then for the purposes of the application of Section 269 to such offences as unlawful wounding in Chapter XXIX, in the definition of which the word “assault” does not appear, “provocation” would be undefined. Here, too, it may be that those in favour of reading the common law and not Section 268 into Section 304 would argue that the common law would provide the meaning of provocation. The result would be that when Section 269 is called in defence of charges of unlawful wounding and the like involving an “assault” but not defined with the aid of that word, “provocation” in Section 269 would have its common law significance and when the section is relied upon in defence of charges of common assault under Section 335 in Chapter XXX and other offences provided for in that chapter “provocation” would have the statutory meaning provided by Section 268. I cannot sympathise with such a result, from such an unwarranted complication. In my view the words in Section 268, “an offence of which an assault is an element” mean what they say and they say that the provocation the section speaks of is provocation that provokes an assault, although the offence may have other elements. There may be, e.g., a wounding or a cause of death. The element of assault and the justification for the application of Section 268 must be found in the facts emerging in the hearing of the actual charge upon which the accused person is being tried and to which he pleads provocation.

I am unaffected by apprehension that Section 268 introduces undesirable modifications of responsibility for unlawful homicide, that, e.g., whatever was the true position at common law, words, if insulting, are now sufficient to reduce murder to manslaughter, not, it has to be noted, sufficient entirely to avoid responsibility for causing death. Nor do I feel any alarm in applying Section 268 to unlawful homicide in that it does not expressly require that the force used should bear some relation, or be nor disproportionate to the provocation. I do not, myself, feel at all sure that this notion of commensurate retaliation was part of the common law doctrine notwithstanding frequent statements that it was. The common law, like Section 304, recognised provocation for an act which caused death and it generally takes very considerable force to kill and lethal weapons more frequently than fists cause death, particularly where there is an intention to kill. May it not be that matters of proportionate retaliation were matters strictly for the jury in the application of the doctrine in some of its aspects rather than matters of law. I cannot but suspect that, as has not infrequently happened in other branches of the law, expressions of judicial opinion upon questions of fact arising in the application of the doctrine of provocation have become crystallised by adoption and repetition until there appears to be a legal principle of proportionate retaliation in the doctrine itself. Alternatively this notion may have survived a distinction between the functions of judge and jury subsequently displaced in favour of the present distinction. It seems to me, e.g., that the amount of force used in retaliation was involved essentially in the question whether a reasonable man would have used such force in the face of such provocation rather than to say, as a matter of law, that a reasonable man would not use force out of proportion to the provocation, although deprived of his power of self-control.

I do not think that the force of this suggestion necessarily is weakened by the consideration that the draftsman of the Code did incorporate in the law prescribed in Section 269 this notion of proportionate force. Although I do think that, in some places, an irregular use has been made of what Sir Samuel Griffith thought he was doing when providing for provocation in his draft, I think that perhaps, it is just permissible, in connection with what I am discussing, to mention that he did intend that Section 268, itself, should be a restatement of the common law and he believed that it was. Yet neither in Section 268 nor in Section 304 did he include the notion of proportion. He did this where he deliberately was making new law in Section 269. The omission from Section 268 could not have been an oversight. In including proportionate retaliation as a condition in Section 269, possibly, he preferred its artificiality to opening new gates too widely and accepted its exposure to criticism such as that of Real J., who considered that the requirement of proportionate force was absurd in that it called upon a man to guide his anger with judgment: Vide: R. v. Sabri Isa[cclxiv]⁶.

I could say much more upon this question of Section 268 or the common law but much of what I would say has been said before and I do not think it necessary here to repeat or add to what has already been said. I would commend to those interested the judgment of Stanley J., in R. v. Sabri Isa[cclxv]⁷, where will be found marshalled many of the arguments on both sides as well as His Honour’s own views, with which I would, in the main, agree. In R. v. Herlihy[cclxvi]⁸ Stanley J. did refer to this judgment as exploratory and said: “Whether I was right or wrong in any part of it, I have no intention of going over the same ground again here”. I do not take this to indicate any weakening in his conclusion upon this point. For those who find strength in numbers I would observe in passing that if the judges whose unreported decisions were referred to by Stanley J. in R. v. Sabri Isa[cclxvii]⁹ are included it seems that even in Queensland the majority of judges, whose views upon the question have got into the reports, have preferred Section 268 to the common law to provide the meaning of provocation in Section 304. Notwithstanding this, Philp J. in the most recent case of R. v. Young[cclxviii]¹⁰ considered that the Court was bound by the majority decision to the contrary in R. v. Herlihy[cclxix]¹¹. It should be noted from the same page that O’Hagan J, who had been a party to the majority decision in favour of Section 268 in R. v. Sabri Isa[cclxx]¹² did not agree that the Court was so bound and pointed out, in my opinion rightly, that the question did not arise upon the facts in the case, I would also recommend for reading the articles by Mr. C. Howard appearing in 33 A.L.J. at pages 323 and 355, where reference will be found also to the decisions in Western Australia which have produced a unanimity in favour of Section 268, a unanimity that seems more desirable than the confusion which appears to exist in Queensland, particularly when there is so much to support it.

This brings me to say that I am well content to find myself in agreement with the conclusion on this point of the Chief Justice of this Court whose written judgments of the 23rd July, 1960, in R. v. Hamo[cclxxi]¹³ and R. v. Kauba[cclxxii]¹⁴ are available.

2. INTENT TO KILL.

Viscount Simon, speaking for the House of Lords in Holmes v. Director of Public Prosecutions[cclxxiii]¹⁵, appears clearly enough to have said that where there is an intention to kill the common law doctrine of provocation does not apply except in the case of the one exception made because of the gravity of the provocation when a spouse is found in the act of adultery. In R. v. Herlihy[cclxxiv]¹⁶ Mack J., who found provocation to lie in the common law and not the Code, offered an explanation of this dictum in attempting to reconcile it with statements of the common law made to the contrary in the Privy Council in Kwaku Mensah v. The King[cclxxv]¹⁷, which was decided a little before, and was not cited in Holmes’ Case[cclxxvi]¹⁸, and in Attorney-General for Ceylon v. Perera[cclxxvii]¹⁹ in which Holmes’ Case[cclxxviii]²⁰ is not cited and in which the discovery of a wife in the act of adultery, followed by the intentional killing of her and her paramour, is given merely as an example of provocation that may reduce murder to manslaughter where intention arises from sudden passion involving loss of self-control.

In R. v. Withers[cclxxix]²¹ it was held that the statute, which introduced grossly insulting language into provocation provided that the jury found that the act causing death was done “without intent to take life”, had put such language on the same footing as blows were in the common law of provocation. This suggests that Viscount Simons’ view of intent to kill at common law was current long before Holmes’ Case[cclxxx]²² was decided. A few years after Holmes’ Case and well before Attorney-General for Ceylon v. Perera[cclxxxi]²³, Lord Goddard C.J., who had spoken for the House of Lords in Kwaku Mensah v. The King[cclxxxii]²⁴, speaking for the Court of Criminal Appeal in R. v. Duffy[cclxxxiii]²⁵, approved of a passage in a summing-up upon a defence of provocation as a “classic direction”, a passage in which there was no reference to the accused person’s intention to kill although she had returned to the deceased’s room with a hatchet and a hammer, with both of which she then struck him, as he lay in bed.

Notwithstanding Holmes’ Case[cclxxxiv]²⁶ and R. v. Withers[cclxxxv]²⁷ it does seem that intent to kill did not necessarily avoid the application of the doctrine at common law, the circumstances in which it was formed being all important. It does not seem to me to matter whether such an intention is regarded as being not a real intention because it is formed suddenly by a mind in temporary disturbance or simply as an intention for which, in the circumstances, a person should not be held fully responsible.

Whether the Code entirely reproduces the common law of provocation is not a matter I think it necessary to decide. Whatever the true position was at common law it is clear that the Code enacts the view that a person is not criminally responsible as a murderer for an intention to kill formed under the impulse of provocation. Section 304, itself, expressly provides for a verdict of manslaughter in a case of provocation where but for this section the crime would be wilful murder and intent to cause death is made an essential element of wilful murder by Section 301.

(3) INSULT AND ORDINARY PERSON.

I accept, as, not without some reluctance, I have previously accepted, the submission now made by Mr. Rissen. I am fortified by the approach of Kriewaldt J., who had the task of administering the common law to the aborigines of the Northern Territory of Australia. Here, too, I am indebted to Mr. Howard, who cites a number of directions of Kriewaldt J., in his article in The Criminal Law Review for January, 1961. The development of His Honour’s view that in trials of aborigines the reasonable man is a reasonable aborigine and not a reasonable Englishman or white Australian may be traced in these directions. It is fortunately not necessary for me to decide whether I would follow His Honour’s extension of the principle to include language in the application of the doctrine of provocation at common law. Kriewaldt J., did express some caution in stating the common law in these directions, as he conceived it to be in the Northern Territory, in that he contemplated the possibility of correction by the High Court of Australia. Had the case of Kwaku Mensah v. The King[cclxxxvi]²⁸ been cited to him, Kriewaldt J., may have thought his caution to be unnecessary because in the advice in that case at page 93 there appears this passage:

“The tests have to be applied to the ordinary West African villager, and it is on just such questions as these that the knowledge and common sense of a local jury are invaluable.”

This was said in the application of the Criminal Code of the Gold Coast, a code that was considered by the Privy Council to reproduce the common law of England in all material respects. Notwithstanding the practical difficulties that have led me to entertain the thought that a better solution of the problem might be found in the use of The Criminal Code Amendment Ordinance of 1907, when I look at the Code and construe Section 268 in its context, I can see no reason in law for departing from the approach which seems to have the approval of the Privy Council, whether or not the Code merely reproduces the common law. My conclusion accords with the view of Mann C.J., as expressed in his judgments to which I have already referred. As far as I am aware these are the only material judgments delivered in this Court that have been recorded or are available and here again I am content to be in agreement with the Chief Justice.

4. ANY WRONGFUL ACT OR INSULT.

It was considered by Burnside J., in R. v. Scott[cclxxxvii]²⁹ that “wrongful” in the section of the West Australian Criminal Code, which corresponds to our Section 268, meant “unlawful” and McMullan J., in that case at page 54 and Stanley J., in R. v. Sabri Isa[cclxxxviii]³⁰ at page 296 appear to have thought that wrongful qualifies “insult” as well as “act”. Mr. Rissen does not maintain tbe contrary in this trial because he says that Jojoa’s insult was unlawful by virtue of Regulation 71 (d) of the Native Regulations, 1939, made under the Native Regulations Ordinance 1908-1962. I am inclined to think that “wrongful” means “wrongful” and not “unlawful”. It seems to me to be inappropriate to change the word in its context to introduce notions of legality and illegality into a provision so intimately based upon human nature. The ordinary person is not one who pauses to ask whether a wrongful act is also unlawful before he is provoked by it. I do not think that the sentence: “A lawful act is not provocation to any person for an assault”, sheds any light upon the meaning of a wrongful act” and it does not purport to be concerned with an insult.

I am also inclined to doubt that “wrongful” qualifies “insult” for the reason that “wrongful insult” would be an inapt expression even if it would fall short of tautology. These questions, I think, will require further consideration when occasion arises as it inevitably would do in this Territory if, as one may anticipate, the regulation relied upon is repealed.

I have considered what would be the appropriate directions in this trial upon the law as I conceive it to be and having considered also the arguments of Counsel upon the facts I note these findings thereon:

N2>(a) The accused intended to kill his wife when he struck the fatal blow.

N2>(b) That this intention was formed after provocative behaviour on the part of his wife, which included a quick succession of mounting insults.

N2>(c) That earlier in the course of these insults the accused thought of killing his wife, but, although he was very angry, he restrained himself.

N2>(d) That, in anger, he lost control of himself when his wife invited him to eat the lubricant upon her illicitly enjoyed vagina. In some of these wife-killings, where provocation has been set up, it has seemed clear to me that the accused person has not struck during a loss of self-control but by way of deliberate chastisement, chastisement delivered angrily but not in a transport of uncontrolled passion and this like, e.g., the motive of revenge is not sufficient. I think that Zariai did at last lose his self control before he struck. If I were not satisfied to come to this conclusion I would still be bound to give him the benefit of a very real doubt. Mancini v. Director of Public Prosecutions[cclxxxix]³¹ and Holmes’ Case[ccxc]³² at p. 597, citing Woolmington v. Director of Public Prosecutions[ccxci]³³.

N2>(e) That thereupon he was moved to kill her, picked up his axe, which was to hand in a customary way, and struck his wife within the very short time it took him to cover the little distance she had put between them in attempting escape.

N2>(f) That he struck in the heat of passion and before there was time for his passion to cool. When Section 268 is read into Section 304 I think that it appears clearly enough that “in the heat of passion” means the same thing as in the condition of a person who has been deprived in anger of his powers of self-control.

N2>(g) That the words spoken by the wife in her last utterance would be felt by a Goilala villager of ordinary reason and control in the circumstances in which they were used as an insult, an insult that would be likely to deprive such an ordinary native of his power of self-control and induce him to assault his wife. Indeed, I would find, if necessary, to assault her as Zariai assaulted Jojoa.

It would be difficult to imagine any community, European or native, in which such words would not be regarded in their circumstances as grossly insulting and Mr. Bowen does not contend to the contrary in this trial. Although I am aware that coarse expressions and allusions are commonly used amongst some of the native peoples and sometimes without offence, as between younger persons rather than husband and wife, my own experience in trials makes me the more readily accept the evidence of Sub-Inspector Briancourt and the Goilala Police Constable, Gisau. There is also the evidence of Ravai who said: “Yes, it is enough”, unconsciously borrowing from the language of Section 3 of the English Homicide Act of 1957.

I would think it unreal - it certainly is in this trial - to consider whether the words in Section 268: “and to induce him to assault the person by whom the act or insult is done or offered” mean assault with the violence or in the manner employed by the accused person. The ordinary person who loses his power of self-control and assaults in the heat of passion does not commit a technical or minor assault.

I find the accused not guilty of wilful murder and guilty of manslaughter.

This judgment had not been fully prepared in writing when I convicted the accused person. It includes all points discussed in argument and dealt with by me in the judgment which I then delivered. I now publish it in this expanded form.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the Accused: W. A. Lalor, Public Solicitor.

[cclix](1946) A.C. 588.

[cclx](1946) A.C. 583.

[cclxi][1891] UKLawRpAC 6; (1891) A.C. 107 at pp. 144-145.

[cclxii][1936] HCA 24; (1936) 55 C.L.R. 253 at p. 263.

[cclxiii](1945) Q.S.R. 38.

[cclxiv] (1952) Q.S.R. 269 at p. 289.

[cclxv] (1952) Q.S.R. 269 at p. 289.

[cclxvi] (1956) Q.S.R. 18 at p. 49.

[cclxvii] (1952) Q.S.R. 269 at p. 289.

[cclxviii] (1957) QS.R. 599 at p. 603.