State v Norman [1979] PGLawRp 697; [1979] PNGLR 599 (6 December 1979)

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CRIMINAL LAW - Unlawful killing - Provocation as defence - Whether available as absolute defence - “Offence of which an assault is an element” - Means “offence in the commission of which an assault is committed” - “Offence” and “element” related to particular facts - Criminal Code, ss. 271[dccxvi]1, 272[dccxvii]2.

The accused, a young village girl of about sixteen years was charged with the manslaughter of her aunt. There was evidence that during an argument relating to the care of the aunt’s children by the accused the aunt struck the accused a painful blow across the buttocks with a stick, that the accused immediately tried to return a similar blow to the aunt but the aunt turned and the blow landed across her stomach instead. The aunt shortly afterwards collapsed and died from rupturing of an enlarged spleen.

N1>(1) The defence of provocation under s. 272 of the Criminal Code is available in appropriate circumstances, upon a charge of manslaughter, where the death was caused by an assault.

N1>(2) The phrase “with reference to an offence of which an assault is an element” in s. 271 of the Criminal Code is to be interpreted as meaning “with reference to an offence in the commission of which an assault is committed,” that is, the words “offence” and “element” are to be taken as relating to the particular facts before the Court and the section is not to be limited to cases where the offence charged includes by definition an assault.

N1>(3) On the evidence the defence of provocation under s. 272 of the Criminal Code had been established and a verdict of not guilty should be entered.

This was the trial of an accused on a charge of manslaughter to which a defence of provocation under s. 272 of the Criminal Code was pleaded.

KEARNEY J: The accused is charged with the manslaughter of her aunt Delma Donoma, on 21st April, 1979.

The accused is a young village girl, about sixteen years of age. On the day in question, she was staying at her aunt’s place, on a block of land at Kokoda. Her aunt had apparently gone off to the garden, leaving the accused to look after her children. At some stage, the accused went off to the bush, to get firewood. It was almost dark by the time the accused arrived back home. Her aunt was there, and she was cross with the accused, saying that she was not looking after the small children very well.

An argument developed between the two of them, over this. The accused was sitting at a shelter. Her aunt came towards her, holding a stick. The accused stood up and took hold of a piece of firewood, a stick about three feet long. By then it was rather dark. Her aunt came closer, and swung her stick at the accused, striking her across the bottom. It was a painful blow. The accused immediately tried to return the blow. She swung her stick at her aunt’s bottom, but at that moment her aunt turned, and the blow landed across her stomach instead.

The medical evidence is that the aunt had an enlarged spleen, protruding about four fingers below the protection of the rib cage. The post mortem disclosed that the spleen had ruptured, and the aunt had died from the massive blood loss resulting.

There was only the one blow by the accused, quite a hard one. The aunt shortly afterwards collapsed, and died.

Mr. Wilson submits that while it is clear that the aunt died as a result of the assault by the accused, it was not an unlawful killing, because the assault by the accused upon the deceased was provoked by the deceased. The submission is that s. 272 of the Criminal Code applies in the circumstances of this case; the accused having been provoked is therefore not criminally responsible for the assault she committed on the deceased, and so, although the death which resulted from that assault is properly described as a “killing”, it is not a killing for which she is criminally responsible. In terms of the Criminal Code, it is submitted that the killing was not unlawful under s. 294, because it was excused by law, namely, by s. 272, in the particular circumstances of the case.

This involves an important and general question, upon which the judgment of the Supreme Court is desirable: is the defence of provocation in s. 272 of the Criminal Code available as a defence to a charge of manslaughter, where the death was caused by an assault?

I set out first my findings of fact. The deceased, by striking the accused on her bottom with a stick, gave the accused provocation for the fatal assault which the accused then made upon the deceased. I am satisfied as a fair inference from the evidence, that the accused upon being struck upon her bottom, was deprived temporarily by the pain of the blow of her power of self-control. In the heat of her anger, and immediately, before there was any time for her passion to cool, the accused swung her own stick at her aunt. I am satisfied, having seen that stick, that the force the accused used was not disproportionate to the provocation she had received — indeed, it was in rather exact proportion. I am also satisfied that the accused had no intention to kill her aunt, or to cause her grievous bodily harm; and that the force she used, with the weapon, was not such as was likely to cause the deceased to die or to suffer grievous bodily harm.

I should add that I consider that the blow by the aunt to the accused, was such as to temporarily deprive an ordinary village person in the position of the accused, of the power of self-control.

The leading Australian decision appears to be that of the High Court of Australia in Kaporonovski v. The Queen[dccxviii]³: the view of the majority (McTiernan A.C.J., Menzies and Walsh JJ.) was that the Queensland equivalent of our Criminal Code, s. 272 was limited in its application to those offences of which assault is, by definition, an element. An assault is not part of the definition of manslaughter, in s. 307. On this view, therefore, provocation cannot be a defence to a charge of manslaughter. Kaporonovski’s case[dccxix]⁴ involved a charge of grievous bodily harm and their Honour’s view, though of great weight, are obiter dicta.

The most comprehensive analysis in Papua New Guinea of the question — whether provocation under s. 272 can be a defence to a charge of manslaughter — is by Clarkson J. in R. v. Marumyapusek [dccxx]⁵. His Honour analysed all the relevant decisions, to November 1973. The facts of Marumyapusek, a manslaughter case, were not so very different from the facts of this case.

The question turns on the proper meaning to be assigned to certain words in s. 271 of the Criminal Code which define “provocation” when “... used with reference to an offence of which an assault is an element.” Clarkson J. in effect considered that the words “offence” and “element” in this phrase, relate to the actual circumstances of the particular case before the court; so that if, on the evidence, the charge (e.g. manslaughter) is shown to be founded on a death caused by an assault, it is open to rely on provocation (in terms of s. 272) for that assault as an absolute defence to the offence charged. That was also the view of the minority (Gibbs and Stephen JJ.) in Kaporonovski v. The Queen [dccxxi]⁶.

Clarkson J. also placed some weight on the point that in Papua New Guinea, as opposed to Queensland, it is the law that unlawful assault is an alternative verdict upon a charge of manslaughter; see Criminal Code ss. 551 and 552.

I have also been referred to The State v. Marawa Kanaio [dccxxii]⁷, a decision of the National Court of Justice in a manslaughter case on 15th August, 1979, where Greville Smith J., in what appears to be an obiter view (as it was found that the force there used was disproportionate to the provocation, so s. 272 could not in any event apply) considered that what I might call the “definition” approach adopted by the majority in Kaporonovski’s case[dccxxiii]⁸ should be followed in Papua New Guinea, with the result that a s. 272 defence is not open upon a charge of manslaughter.

As I have said, I think this important question should be decided by the Supreme Court. It is open to me to reserve the question, and now adjourn these proceedings until the point is resolved: see Supreme Court Act 1975, s. 20(1). But neither State nor accused seek that course, and in the circumstances of this case it would not be proper to do so. With diffidence, therefore, I express my opinion on the question.

With great respect, I am unable to agree with the views of Greville Smith J. in The State v. Marawa Kanaio [dccxxiv]⁹. I prefer the views of Gibbs J. in Kaporonovski [dccxxv]¹⁰. The “definition” approach in my opinion leads to needless absurdities in the criminal law, as illustrated by Lucas J. in the Queensland Court of Criminal Appeal in R. v. Kaporonowski [dccxxvi]¹¹, though his Honour was not impressed with that argument. I think it was this aspect which Clarkson J. had in mind in the penultimate paragraph of his judgment in R. v. Marumyapusek[dccxxvii]¹² which, with respect, I adopt:

“I prefer the construction whereby liability for punishment is determined by ascertaining whether the use of force is justified or excused and not by ascertaining whether the nose bleeds or whether the provoker is, unknown to anyone, a haemophiliac.”

That seems to me to be a common sense approach and would develop the law upon a rational principle. I appreciate that rational principle may not count for a great deal in the law of homicide; it is no seamless web of logic. Nevertheless, as Aristotle said: “... the matter in dispute is not whether the thing happened or not, but its justice”[dccxxviii]¹³. So far as concerns the criminal defendant, whether or not the victim dies from his assault does not alter in any way the situation which led to that assault.

I agree that there is merit in preserving uniformity in the law of homicide, as between different jurisdictions; but history and diversity impose limits upon this approach. In England the rules on provocation developed, and still exist, only to enable certain killers to be spared the mandatory penalty for murder. The position may be different in other common law jurisdictions e.g. Victoria, see R. v. Newman [dccxxix]¹⁴. The history is quite different in the Code States: see the analysis of the Queensland authority by Gibbs J. in Kaporonovski v. The Queen [dccxxx]¹⁵; and the Papua New Guinea authorities by Clarkson J. in R. v. Marumyapusek [dccxxxi]¹⁶.

It follows that I consider that the absolute defence under s. 272 is available in appropriate circumstances, upon a charge of manslaughter; that is to say, I consider that “offence” and “element” in the phrase quoted from s. 271 of the Criminal Code relate to the actual circumstances of the particular case before the court. I do not think s. 272 is limited to cases where the offence charged includes, by definition, an assault.

I should add that I think with respect that the interpretation placed on the key phrase “with reference to an offence of which an assault is an element”, by Smithers J. in R. v. Nantisantjaba [dccxxxii]¹⁷, namely “with reference to an offence in the commission of which an assault may be committed” (emphasis mine) is too wide, I note that that interpretation was approved by the majority in R. v. K. J.[dccxxxiii]¹⁸ and Clarkson J. therefore regarded its “proper construction” as finally settled, in R. v. Marumyapusek [dccxxxiv]¹⁹. With respect, I think the word “is” should be substituted for the words “may be” I have emphasised above.

Applying the law as I understand it to the facts as I have found them in this case, it is clear that the accused is not criminally responsible for the assault which caused the death of her aunt; as there was no unlawful causing of death, she is therefore acquitted of the charge of unlawful killing upon which she stands indicted.

I should add that, in the particular circumstances of this case, where I am now told the accused has been in custody for over seven months, had I reached the opposite conclusion, ruled that the s. 272 defence was not open as a matter of law, and convicted, I would have regarded the time she has already served as adequate punishment for her offence, in all the circumstances.

In so concluding I would have borne in mind the seriousness of the provocation “in fact”, its suddenness, and the suddenness of the accused’s retaliation.

Last, I trust that the principal legal adviser will consider exercising his powers of reference under s. 41(1) of the Supreme Court Act 1975 on the important point of law which has squarely arisen in this case.

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[dccxvi] Section 271 of the Criminal Code provides:

“The term ‘provocation’ used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.

When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.”

[dccxvii] Section 272 of the Criminal Code provides:

“A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool, provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely, to cause death or grievous bodily harm.

Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.”

[dccxviii] (1973) 133 C.L.R. 209.

[dccxix] (1973) 133 C.L.R. 209.

[dccxx] [1973] P.N.G.L.R. 582.

[dccxxi] [1973] HCA 35; (1973) 133 C.L.R. 209, at pp. 232-240.

[dccxxii] [1979] P.N.G.L.R. 319.

[dccxxiii] (1973) 133 C.L.R. 209.

[dccxxiv] [1979] P.N.G.L.R. 319.

[dccxxv] [1973] HCA 35; (1973) 133 C.L.R. 209, at pp. 236-240.

[dccxxvi] [1972] Qd. R. 465, at p. 513.

[dccxxvii] [1973] P.N.G.L.R. 582, at p. 589.

[dccxxviii] Nicomachean Ethics, Book V, 8.

[dccxxix] [1948] V.L.R. 61.