Regina v Moses [1965] PGLawRp 10; [1965-66] PNGLR 180 (1 March 1965)

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CRIMINAL LAW - Murder - Provocation - Whether act in heat of passion - Whether accused deprived of self-control - The Criminal Code, ss. 268 and 304.

On a charge of wilful murder the accused called no evidence and relied on the evidence of the Crown to support a defence on the ground of provocation pursuant to s. 304 of the Criminal Code.

N1>(1) To support the defence raised the act must have been committed in the heat of passion; that is the accused must have ceased to be the master of his own understanding. On the evidence, the accused was angry but his passion had not replaced his reason. Furthermore, the nature of the wrongful act was not such as to be likely to deprive an ordinary Papuan living in Port Moresby (as the accused was) of the power of self-control and induce him to assault the person by whom the act was done. On the evidence, the accused did not strike during a loss of self-control or in the heat of passion, but by way of revenge or through a sense of grievance or “deliberate chastisement”.

N1>(3) Where an accused, charged under The Criminal Code with the wilful murder of his wife, alleges that the wrongful act which provoked him was the adultery of his wife, the court is not bound by the common law rule that the accused must find his wife in flagrante delicto.

FROST J: The accused is charged under s.301 of The Criminal Code that on or about the 18th November, 1964, he wilfully murdered one Duku-Pinda.

It was not disputed that it was open to me to find that the accused had killed Duku-Pinda, who was his wife, or that he intended to cause her death, and the only defence was that the accused should be convicted of manslaughter on the ground of provocation pursuant to s. 304 of the Criminal Code.

The accused did not give evidence, nor did he make a statement and no witnesses were called for the defence.

The evidence called on behalf of the Crown showed plainly that at about 11.30 p.m. on the 18th November, 1964, on Scratchley Road, near the golf links, the accused had killed his wife, a female native aged about twenty or twenty-one years, death being caused by stab wounds to the neck and right temple. At the time of her death she was four months pregnant.

The accused, who is a middle-aged native from Samarai in Papua, had been married for several years to Duku-Pinda, who was from Talasea in New Britain. The marriage was apparently a Christian one, celebrated according to the rites of the Catholic Church. The accused was employed in Port Moresby as a driver of a tractor or bulldozer. He had lived in New Guinea for many years before returning to Port Moresby.

I am satisfied from the evidence of one Olaerape-Mairue, a social welfare assistant at Port Moresby, that the marriage had been an unhappy one. On three occasions, the 17th June, 1964, the 9th July, 1964, and the 17th November, 1964, the parties had consulted him to arrange for an air booking for the wife to return to her village. On each occasion the parties had changed their minds. The accused complained that his wife would not stay in the house, she would not do the household work and, at some stage, he had accused her of going around with one Thomas.

On the 17th November, 1964, the wife complained that the accused had taken her child from her-it was a female child of about one year old-and he had given it to a relation who lived at Tufi. She was reduced to tears and struck the accused a sharp blow with a desk ruler when they were seated in the witness’s office. She had complained of continual fighting.

However, on the morning of the 18th November, 1964, the accused and his wife came to see Olarape. The accused said he did not want her to go, she liked him and the wife also did not want to go back. According to Olaerape the accused said that the trouble between his wife and himself was happening because there were too many New Guinea people here. Olaerape then took the deceased to the Salvation Army Guest House.

Actually Olaerape saw the accused that evening after he returned from work. The accused said he was looking for his wife, whom he had expected to be at a certain Sergeant Gari’s house. Sergeant Gari came from the same village as the wife.

The story is best told from here in the light of the evidence of Kiawo-Kosiamo, who is a native constable of police stationed at Port Moresby. He said that at about 10 p.m. on the 18th November, 1964, the accused came up and spoke to him. The accused said that from about 4 o’clock he had been looking for his wife and apparently asked the constable to go with him. The constable agreed. It was raining heavily. They went to several houses at Badili and in the neighbourhood. They went to a house where they expected to see Thomas Upi, who was the man the accused had suspected his wife to be going around with. Finally they went to the P.M.F. Labour Compound and there, whilst the constable was asking a man named Harry Kare had he seen the accused’s wife, he noticed the accused scuffling with a man who turned out to be Thomas Upi.

Having heard Thomas Upi, Harry Kare and the constable, I find the facts to be that the accused went to Kare’s door, told him that another man was stealing his wife and whilst the constable was questioning Kare as to whether he knew where the wife was, the accused went a few paces to another door, banged on it and Upi came out on to the verandah. The two men scuffled and the constable stopped them. When Upi’s door opened Kare and the constable could see the wife inside the room, standing fully dressed.

Upi said to the accused, “Your wife wants to go back to the village, why have you to take her back with you?” The woman said she wanted to go back to the village and the Government was going to pay her fare. But the accused said Sergeant Gari had sent him to get his wife. The woman refused to go, she said she would go next day to Sergeant Gari’s house, but the accused went to her, grabbed her by the arm and pulled her away. He pulled her along for some distance, probably about 100 yards, while she resisted. The policeman said he would take the woman to Sergeant Gari’s house.

In evidence Upi said, “Moses was very angry with this woman and I saw that he was very angry and that made me think he wanted to kill her.”

I am satisfied that there was some association which extended for a period of at least several weeks between Upi and the deceased. Upi explained the deceased’s presence in his house. He said that on the 18th November, 1964, the deceased came to his house, she said that the accused had destroyed her things, so Upi bought her clothing and other personal items. Afterwards they had a meal at a friend’s house, he claimed, and at about 10 p.m. had returned to his boi-house. They were still there at 11 p.m. or later when the accused and the policeman arrived.

When it was put to him in cross-examination that he was having intercourse with the deceased at the time when the accused arrived, he denied it and I accept his denial, supported as it is by the evidence of Harry Kare and the constable. He said he had wanted to have sexual intercourse, but he knew it was not right to have intercourse with a pregnant woman. Earlier there had been certainly an opportunity for them to have intercourse, they were attached to each other. Upi was a young man closer to the deceased’s age than the accused, and he wanted to have intercourse with her. I am accordingly not satisfied beyond reasonable doubt that adultery did not take place in Upi’s house earlier that night.

After the accused pulled his wife out of the house, she said she wanted to sleep at Sergeant Gari’s house at Kila Kila. The constable said he would take her and that when the police truck came they would get a lift in it to Kila Kila.

The accused took the woman’s basket from the house and gave it to her. As they went off the accused offered to carry the deceased’s basket but she said she was capable of carrying the basket herself. According to the constable there was no other conversation.

The party walked through the rain a distance afterwards measured at 635 paces. The constable walked in the middle between the accused and the deceased. The constable said the accused was angry so he walked with his wife to look after her. When they came to the road junction, the constable said the man jumped towards his wife, bumped him and put him off balance and then “shot” her in the side.

In fact the accused had drawn a pocket knife, stabbed his wife in the side, again in the neck and finally drove it into the right side of her temple, where it was embedded and the blade broke. The constable immediately grappled with the accused. A passing motorist, Mr. Backhaus, stopped, came up to them and immediately the constable ran off for assistance.

Mr. Backhaus said to the accused, “You killed her?” The accused said, “Yes, she was playing with other men. I was very. wild with her. I wanted to kill. I was very cross with her.” Mr. Backhaus said he seemed very resigned to what happened and very calm. He said he wanted to kiss the body and he did. The deceased must have died very shortly after the fatal attack.

The only other evidence was a statement made by the accused to Sub-Inspector Anderton. The accused admitted that he had stabbed his wife with a knife and when asked would he like to tell the sub-inspector about it, he gave a long account of the course of events leading up to her death.

In the statement, which was in a sort of Pidgin English, the accused said that he started to look for the deceased at 4.30 p.m. She was not at Sergeant Gari’s house, he went from place to place and some places were several miles apart, he saw the welfare officer and spoke of his wife going to Talasea next day and then of his long search with the police constable, Kosiamo, for the deceased. He stated that he went to the P.M.F. Compound expecting to find his wife sleeping with Thomas-Upi. I cannot accept as true his statement that when he opened Thomas-Upi’s door “I see this man still on top of my wife”. I am not satisfied beyond reasonable doubt that no such conversation with his wife as he mentioned in his statement took place. But, if so, it was he who initiated it by asking, “Why did you do this for four years-this kind habit.” According to him, she said if you like you find another girl, she already had found another man and she said she did not worry about him. Then he started thinking about another man sleeping on top of her and it was no use telling her to stop “her dirty things” because of the years already gone and so it occurred to him it was better to kill her. So he thought of his pocket knife and he concluded as follows:- “Then another think come to my head, I strong too much, what I see with this man my wife inside his house so that think make me and I start to think to kill my wife now. So I look around there’s no man and no police car so I take pocket knife and I try to kill my wife. Then I think ‘It is hard to do this because it’s big trouble’. Then I tell my wife ‘I’m sorry you don’t have to worry about anything I am going to send you home’. She said ‘I don’t care-you’. So that time I take my pocket knife inside my pocket and I open it and I throw away this knife to his right side and take out again and I throw it in his head. Then I take the pocket knife. I want to kill myself but pocket knife is already broken.”

The Crown must negative beyond reasonable doubt that the accused stabbed his wife “in the heat of passion caused by sudden provocation” (s. 304). Mr. O’Regan submitted that having regard to the deceased’s antecedent course of conduct over a period of time, the accused’s long exhausting journeys through the rain over a period of about seven hours looking for his wife, the sight of her coming from Upi’s room in circumstances indicating that adultery had been committed, had such an effect on the accused that his self-control snapped and he stabbed her with the nearest available weapon.

In my opinion, for the act to be done in the heat of passion, the accused must have ceased to be the master of his own understanding. R. v. Rumints-Gorok[clviii]¹. In New South Wales the relevant statute refers to the act being “done suddenly in the heat of passion caused by such provocation . . .” (Crimes Act, s. 23). This section was considered by the Privy Council in Parker v. The Queen[clix]². Care must be used in applying the principles of this case as the Privy Council had regard to the common law at the date of the statute in its interpretation[clx]³. Different principles apply to the interpretation of our Code. But I consider that the meaning given by the Privy Council to the phrase “in the heat of passion” involving “a temporary suspension of the reason” supplies a correct interpretation of the same words, in s. 304.

Of course the accused was angry. He had found the deceased in Upi’s boi-house, where he had expected to find her. So he scuffled with Upi and pulled his wife away. But mere anger is not sufficient, there must be passion taking the place of reason, R. v. Rumits-Gorok[clxi]⁴.

The accused is a sophisticated native, living and working in Port Moresby as a bulldozer operator. I accept Mr. Greville Smith’s submission that the degree of his sophistication can be seen by his making use of the welfare’s officer’s services and of the police. He was accepted by the Roman Catholic Church as being sufficiently aware of the Christian teachings as to be able to contract a Christian marriage. He is used to the steady observance of law and order in all the facets of social and industrial life here in Port Moresby. But this is far from saying that I must view his conduct in the light of a civilized European. I must make due allowance for the fact that such a person as the accused “may be more easily deprived of self-control than an ordinary European”. Chibeka v. Regiva[clxii]⁵.

Having regard to these matters, the observation I had of him during the trial, the accused’s behaviour at the boi-house, the argument with Upi and the deceased, the request could he take the basket, the walk down the hill through the rain and his demeanour at the scene as described by Mr. Backhaus, I have reached the conclusion on the facts that I am satisfied beyond reasonable doubt that he did not act in the heat of passion and that the Crown has accordingly negatived provocation. The terms of his statement to the police (which Mr. O’Regan himself wished to tender) are consistent with my conclusion.

I have given consideration to Mr. O’Regan’s argument that the presence of the constable indicates loss of self-control, but it is well known that Papuan people having committed a crime will immediately go to the police, being quite prepared to take the consequences of a deliberate crime. If a European had ignored the presence of a policeman that may be significant evidence of loss of control, but the same does not apply to all Papuan people.

The view I take of this case is that the accused did not strike during a loss of self-control or in the heat of passion, but by way of revenge or a sense of grievance or “deliberate chastisement, chastisement delivered angrily, but not in a transport of uncontrolled passion”. See R. v. Zariai[clxiii]⁶ per Ollerenshaw J. I accept Mr. Greville Smith’s submission that this was an act of deliberate execution and it was not done in the heat of passion.

It is unnecessary for me to consider the other submissions so capably argued by Mr. O’Regan. But I propose to refer to Mr. O’Regan’s argument that the term “provocation” as used in s. 304 is defined in s. 268 of the Code.

This question is one which has vexed the courts of Queensland and of Western Australia, where the code is in similar terms. The relevant authorities in Queensland are: R. v. Sabri Isa[clxiv]⁷, R. v. Herlihy[clxv]⁸, R. v. Young[clxvi]⁹, R. v. Johnson[clxvii]¹⁰. In Western Australia, R. v. Scott[clxviii]¹¹, R. v. Dunstan[clxix]¹², R. v. Mehemet Ali[clxx]¹³. See also an article by Mr. C. Howard, “Provocation and Homicide in Australia”[clxxi]¹⁴.

I do not propose to say more than that after full consideration of the Code and these authorities, the reasoning of Stanley J. in R. v. Sabri Isa[clxxii]¹⁵ (supra) seems to my mind correct. I would also adopt the reasoning of my brother Ollerenshaw in R. v. Zariai[clxxiii]¹⁶.

I have reached the conclusion that “provocation” as used in s. 304 is defined in s. 268. Both the Chief Justice of this court and Smithers J. have also taken the same view, see R. v. Hamo-Tine[clxxiv]¹⁷, R. v. Kauba-Paruwo[clxxv]¹⁸, both decisions of Mann C.J., and R. v. Rumints-Gorok[clxxvi]¹⁹, Smithers J.

The only other submission by Mr. O’Regan I propose to refer to is that I have been left in doubt that the nature of the wrongful act in this case was not such as to be likely when done to an ordinary person, to deprive him of the power of self-control and to induce him to assault the person by whom that act was done. I accept his submission that the test is that of the ordinary native Papuan living and working here in Port Moresby and not that of a European. See Kwaku Mensah v. The King[clxxvii]²⁰. I have already indicated that I am left in doubt as to whether adultery did take place shortly before the killing. At common law, it would be necessary for the accused to find his wife in flagrante delicto, but I do not consider that under the Code I am bound by that rule of the common law. Of course, the provocation must be sudden. However, taking the nature of the act, which would of course have been wrongful to or towards the accused, I have reached the conclusion that in all the circumstances, including the lapse of time, the Crown has satisfied me beyond reasonable doubt that the act was not such as to be likely to deprive such an ordinary native of the power of self-control.

I desire to leave open Mr. O’Regan’s submission that under the Code the common law rule that retaliation must be proportionate to the provocation has no application. It could only indirectly apply. Cf. Attorney-General for Ceylon v. Perera[clxxviii]²¹.

For these reasons I find the accused guilty of the charge and accordingly convict him of wilful murder.

[clviii][1963] P.& N.G.L.R. 81.

[clix] [1964] A.C. 1369.

[clx]Ibid., p. 77.

[clxi][1963] P. & N.G.L.R. 81, at p. 85.

[clxii](1959) Rhodesia and Nyasaland Reports 476, at p. 483.

[clxiii][1963] P. & N.G.L.R. 203.

[clxiv][1952] Q.S.R. 269.

[clxv][1956] Q.S.R. 18.

[clxvi] [1957] Q.S.R. 599.

[clxvii][1964] Qd.R. 1.

[clxviii](1909) 11 W.A.L.R. 52.