State v Moroi [1981] PGLawRp 576; [1981] PNGLR 132 (14 May 1981)

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CRIMINAL LAW - Unlawful killing -“Provocation”- Whether need for retaliation to be reasonably proportionate to provocation - Provocation by third person - Code definition exclusive and comprehensive - Criminal Code, s. 271[cxciv]1, s. 308[cxcv]2.

For provocation to act as a partial defence to a charge of unlawful killing under s. 308 of the Criminal Code, where it is defined in terms of s. 271 of the Code, it must possess all of the qualities prescribed in s. 271. Section 271 contains an exclusive and comprehensive definition of provocation for the purposes of the criminal law.

Unless there is evidence of the fraternal relationship necessary for s. 271, the provocative act must be a wrongful act of the person assaulted.

There is no legal requirement that the assault by way of retaliation be reasonably proportionate to the provocation.

R. v. Kopal Wamne (Unreported Judgment No. 809 of 4th October, 1974) not followed.

KEARNEY DCJ: The accused has stood his trial on a charge of the wilful murder of Katemui Suwis, on or about 31st March, 1979.

The State case is that the accused was one for a group of people who went by a hired vehicle to Bomana War Cemetery about 6:30 p.m. on Saturday 31st March, 1979 to attend a party, by invitation. By the time the accused’s group arrived, however, the beer had run out and the persons already at the party were preparing to go home. The accused went into the house of one Kopa Avui, although this was not the house of the man organizing the party. There he saw a man Mailai Kipi arguing with the wife of Kopa Avui. The accused got involved in that argument, and started to fight with Mailai. It may be that the fight became more general; in any event, the fighting spread outside the house; it involved the throwing of stones, bottles and sticks. During the fighting, the accused’s “wantok” Amuna Kopa was stabbed in the stomach; some of his intestines came out. Amuna Kopa called for help, and the accused came to his assistance, carrying an axe. With the axe he struck Katemui Suwis on the head; Katemui was not the man who had stabbed Amuna Kopa. The accused then ran off to the vehicle. Katemui died about a month later in hospital, primarily from various infections which, the State contends, he contracted from the axe wounds to his head.

[His Honour then reviewed the evidence adduced by the State. The defence did not go into evidence. His Honour concluded that the accused had struck Katemui twice on the head with an axe, with the intention of killing him, and continued:]

Mr. Miva submits that this was a killing on provocation, within the meaning of s. 308 of the Criminal Code. I have no doubt that the fatal blows were struck in the heat of passion, and on the sudden, before there was time for the accused’s passion to cool. This was the sort of immediate passioned payback upon a member of another line, arising in this case from the stabbing of Amuna Kopa, which occurs all too frequently. However, for “provocation” to operate as a partial defence under s. 308 of the Code, where it is defined in terms of s. 271 of the Code, it must possess the qualities prescribed in s. 271.

Two independent acts were advanced to found this submission. The first was the stabbing of Amuna Kopa. The second was that Katemui threw a bottle at the accused.

So far as concerns the stabbing of Amuna Kopa it is clear that it was not Katemui who stabbed Amuna, and there is no evidence that he was involved in that stabbing or that the accused believed him to be involved. “Provocation” as defined in s. 271 of the Code must be such as could induce an ordinary Goilala man living in Port Moresby—and did induce the accused—to assault the person whom he believed had stabbed Amuna, in the way the accused did. But the accused did not assault the person who had stabbed Amuna. He attacked Katemui, who had given the accused no provocation for that attack; I respectfully agree with Mann C.J. in R. v. Kauba-Paruwo[cxcvi]³ that to ascertain the scope of the partial defence there is no justification for going outside the words of s. 271: the provocative act must be “... any wrongful act ... of such a nature as to be likely ... to induce him to assault the person by whom the act ... is done” (emphasis mine). This is a narrower scope for provocation than the common law allows; see for example, R. v. Scriva (No. 2)[cxcvii]⁴. Accordingly, there is no scope here for the operation of provocation under s. 308 of the Code.

N1>I should add that there is no real evidence of the “fraternal” relationship necessary for s. 271 of the Code, between Amuna Kopa and the accused.

N1>There is also the question of bottle-throwing, Kopa Avui said that Katemui held nothing in his hands when the accused attacked him; Kopa Avui was not cross-examined about that. The accused in his record of interview claimed that Katemui “... threw bottle at us but he missed us”. That is the whole of the evidence on the point. The accused’s record of interview is evidence both for and against him; but since he did not testify his explanation cannot be tested. I do not accept what the accused claimed. Even if Katemui had thrown a bottle, he did so earlier on, according to the accused; but I consider that the earlier throwing of a bottle did not amount to sudden provocation in terms of s. 271; nor did it cause the accused’s passion in the heat of which the fatal blows were struck. On these matters there is lacking evidence which would result in a credible narrative of events disclosing material that suggests provocation in law: see the discussion of what is required of the defence in this respect in R. v. Banner[cxcviii]⁵.

N1>The submission fails, in limine, but there is one aspect I should perhaps enlarge upon.

N1>Mr. Damen submitted that the throwing of a bottle in these circumstances could not, as a matter of law, constitute provocation for the purposes of s. 308 of the Code, because accused’s retaliation by way of the murderous axe-blows was quite out of proportion to a provocation consisting of the throwing of a bottle by the deceased. That submission was founded on the pre-Independence case of R. v. Kopal Wamne[cxcix]⁶, which is cited in Andrew[cc]⁷ in a footnote to s. 308 of the Code as authority for the proposition of law that “the act provoked must bear some reasonable relation to the provocative act”. For the reasons which follow, I consider that there is no such rule of law applicable to Code s. 308 provocation.

N1>R. v. Kopal Wamne (supra) involved the predecessor to s. 308 of the Code, which did not define provocation in terms of what is now s. 271, or at all. It is clear that s. 271 does not reproduce the common law. The learned judge at p. 7 treated the predecessor to s. 308 of the Code as “merely a short form statement of the common law doctrine of provocation”.

N1>Those in fact were the words of Mack J. some eighteen years earlier in R. v. Herlihy[cci]⁸. As the learned judge in Kopal Wamne (supra) recognized, it had been much debated for years whether the provocation in the predecessor to s. 308 should be treated as provocation at common law, or whether the predecessor to s. 271 of the Code exclusively defined “provocation” for the Code. The Queensland courts generally had come to favour the former view. The great weight of Papua New Guinea authority had favoured the latter view; so had the Western Australian courts. Then the effect of the majority decision in the High Court of Australia in Kaporonovski v. The Queen[ccii]⁹ was that the latter view was not correct. His Honour was of course at that time bound by the High Court; and accordingly he adopted the view that provocation which reduced murder to manslaughter must meet the requirements of the common law.

N1>The question then was whether “reasonable relationship” is an element of provocation at common law, that is, a legal requirement.

N1>Historically, it does not appear to have been. East[cciii]¹⁰ treated it as a matter of evidence, going to whether the accused had really lost his self-control; any lack of proportion between the provocation given and the retaliatory violence could disclose the “malicious” mind which would exclude the partial defence, because the accused had not been suddenly deprived of the power of self-control. Stephen[cciv]¹¹ wrote to the same effect.

However, forty years ago, in Mancini v. Director of Public Prosecutions[ccv]¹² the House of Lords appeared to erect “reasonable relationship” from a matter of evidence into a substantive rule of the common law, when stating:

“... the mode of resentment must bear a reasonable relationship to the provocation, if the offence is to be reduced to manslaughter.”

Such a rule had respectable antecedents; see the historical review by Gibbs J., in Johnson v. The Queen[ccvi]¹³. This proposition subsequently became firmly established by judicial decisions as a rule of law, and “reasonable relationship” had to be shown before there could be provocation at common law: see Lee Chun-Cheun v. The Queen[ccvii]¹⁴.

N1>Curiously enough, however, in England though it surfaced briefly in R. v. Brown[ccviii]¹⁵—where the Court of Appeal clearly considered the proposition quoted from Mancini (supra) was not a rule of law and should be treated once again as an evidentiary matter—”reasonable relationship” has not been visible for nearly twenty-five years. This is because s. 3 of the Homicide Act 1957 (U.K.) leaves it exclusively to the jury to decide whether or not a reasonable man, who has lost his self-control, would have reacted to the provocation in the way the accused did. After the 1957 Act, a judge in England could no longer rule, as a matter of law, that the partial defence of provocation was not open because of a lack of material from which a jury could reasonably conclude that a “reasonable relationship” existed. The jury there considers “reasonable relationship” only as a guide or factor relevant to their consideration of the question whether the provocation was enough to make a reasonable man do as the person charged did. See R. v. Brown (supra) and Phillips v. The Queen[ccix]¹⁶. So, for example, a jury there could decide that a reasonable man in the circumstances of the accused, would have retaliated in a way which bore no reasonable relationship to the provocation offered. Or it could decide that the act of retaliation was so out of proportion to the provocation given, that it was an act attributable to a deliberate cold-blooded brutal ferocity rather than the hot-blooded murderousness of human frailty, in short in its nature and degree not the retaliation in the circumstances of an ordinary man who had lost his self-control. The point is, in England, it is all a matter for the jury.

However, the learned trial judge in R. v. Kopal Wamne[ccx]¹⁷ felt himself bound, in the then judicial hierarchy in 1974, to apply “reasonable relationship” as a substantive rule of the common law, in accordance with Da Costa v. The Queen[ccxi]¹⁸. In that case, Owen J. with whom three of the other four judges agreed, stated that he agreed with the view of Lord Devlin in Lee Chun-Cheun v. The Queen (supra) that “reasonable relationship” was one of the three elements of provocation in law; and finding no material from which such proportionality could have been found, held that grounds of appeal involving questions of law could not be sustained.

Since then, it may be noted, the question of “reasonable relationship” has been further considered by the High Court.

In Johnson v. The Queen[ccxii]¹⁹ the majority held it was for the jury to consider this matter when deciding whether there was such deprivation of control as would lead an ordinary man in the accused’s circumstances to do an act of the kind and degree as that by which the accused killed the deceased. Further, “reasonable relationship” should not be considered as a separate and distinct matter apart from that. It seems clear, I think, that the earlier view, in Da Costa’s case (supra), was regarded as wrong.

N1>In Moffa v. The Queen[ccxiii]²⁰ it was considered, obiter, that the weighing of proportionality in provocation must be left to the jury in the common law. There are other examples of a changed approach.

N1>In R. v. Webb Bray C.J. stated the proposition on “reasonable relationship” as follows[ccxiv]²¹:

“There is no separate requirement of proportionality between the provocative conduct and the means of retaliation employed by the accused ...”

In a Code jurisdiction, in Aleksovski v. The Queen[ccxv]²² Wickham J. held that it was not right for a jury to be told that it must consider whether there was a “reasonable relationship”. I should add that Lord Diplock in R. v. Camplin[ccxvi]²³ had no doubt that Mancini had stated “reasonable relationship” as a rule of law.

N1>I now turn to the question of the current law in this country on provocation reducing murder to manslaughter. It will be recalled that there were two steps in the argument which led to the conclusion in Kopal Wamne[ccxvii]²⁴ that “reasonable relationship” is a rule of law in this country. The first step was that “provocation” in killing cases bore its common law meaning. That step has now been cut away by statute. The second step was that the common law viewed “reasonable relationship” as a rule of law. That is now seen to be a very doubtful proposition, but it is unnecessary to express a concluded view on it. I now enlarge a little on these matters.

N1>The case law which led the learned judge in Kopal Wamne (supra) to treat provocation in the predecessor to s. 308 of the Code in its common law sense, has now been supplanted by s. 308 which expressly defines “provocation” for the purposes of that section, in terms of s. 271. The view to the contrary implicit in Kaporonovski v. The Queen[ccxviii]²⁵ is thus rejected.

N1>The question arises, whether nevertheless common law principles are to be read into s. 271; and if so what those principles are on “reasonable relationship” in light of the confusing pattern of the case law.

N1>The common law applicable, if any, would be the common law as it was in England on 16th September, 1975. It is a nice question as to what the common law then was, on “reasonable relationship”, bearing in mind sch. 2.2 of the Constitution, especially pars. (1) and (3). The determination of that question might involve a consideration of whether the declaratory theory of the common law is correct; see, for example, Wahgi Savings and Loan Society Limited v. Bank of South Pacific Limited[ccxix]²⁶.

N1>However, I think it unnecessary, when considering a killing upon provocation, to embark upon a consideration of what the common law was on 16th September, 1975, because I consider that in any event any rule that “reasonable relationship” is a legal requirement, is inconsistent with the Criminal Code.

N1>The “provocation” which reduces the culpability of a killing under s. 308 of the Code is “provocation within the meaning of s. 271”. And neither s. 271, which comprehensively defines “provocation”, nor s. 308, make any mention of “reasonable relationship” as an element; see, by marked contrast, s. 272. I consider that there is no warrant for reading the common law rule in Mancini into a comprehensive Code provision, as an independent necessary legal requirement. To do so would be contrary to the principles by which a Code is to be construed: see Bank of England v. Vagliano Brothers[ccxx]²⁷; Brennan v. The Queen[ccxxi]²⁸; Wallace-Johnson v. The King[ccxxii]²⁹; and R. v. Linton[ccxxiii]³⁰, on the corresponding provision in the Canadian Criminal Code.

N1>I think that Attorney-General for Ceylon v. Perera[ccxxiv]³¹, where the facts were not so dissimilar from the facts postulated here, is distinguishable because the Ceylon Penal Code provision referred to “grave and sudden provocation” as to which the Privy Council considered:

“It is impossible to determine whether the provocation was grave without at the same time considering the act which resulted from the provocation ...”.

I respectfully agree; but s. 308 of the Code is not expressed in terms of “grave ... provocation” and s. 271 is a comprehensive definition.

It follows that I consider that “reasonable relationship” is not a separate legal element of provocation, under s. 308 of the Code. It is a misdirection for a judge to withdraw consideration of provocation from the court as tribunal of fact, on the basis merely that a “reasonable relationship” does not appear. The question of law for the judge is whether there is any evidence on which the court as tribunal of fact might entertain a reasonable doubt that provocation in terms of s. 271 exists. Where there is such evidence, it is for the court as tribunal of fact to consider, and give such weight as it thinks proper to, “reasonable relationship” when deciding whether or not it has a reasonable doubt as to the existence of provocation in terms of s. 271 of the Code.

[His Honour, having found that death was due to infection introduced by the wounds caused by the axe-blows, returned a verdict of guilty of wilful murder.]

[cxciv]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.”

[cxcv]Section 308 of the Criminal Code provides:

“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation within the meaning of Section 271, and before there is time for his passion to cool, he is guilty of manslaughter only.”

Papua New Guinea Law Reports

State v Moroi [1981] PGLawRp 576; [1981] PNGLR 132 (14 May 1981)

Papua New Guinea Law Reports - 1981