Unreported National Court Decisions
N278
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V.
DAVELAMBEM YANGIDAO
Goroka
Narokobi AJ
11 December 1980
NAROKOBI AJ:
INTRODUCTION
Simple and straight forward facts do not often produce clear cut legal results. More often than not, they present dilemas. In a case such as this one, the accused will readily admit attacking his victim. The questions raised are whether the facts as admitted amount to any category of homicide, or a category of bodily assault or to no crime the written law should punish.
PRIMARY FACTS
I will state the primary facts of this case simply this way. The accused is a young villager of Kimulane village in Marawaka, now a part of Eastern Highlands Province. It is a week’s walk to Kainantu. He has not shaven and would be no older than 18. Marawaka used to be a part of Morobe Province. Davelambem, the accused was cooking a meal with his wife and her parents on July 19th, 1980 in their house. It was evening. He wore his ancestral dress of grass skirt. He had a steel axe on him. The accused and his hosts were sitting on the floor of the house, when the deceased entered.
A man, the accused later recognized as Yakepengi Uravende came into the house, uninvited. He came with his younger brother Nemini without a word, Yakenpengi attacked Davelambem with a cane stick about 3 - 4 feet long and ½" diameter. The accused was attacked three times. There is a difference of opinion as to what part of the accused’s body the deceased struck.
The accused pulled out his axe from under his legs, stood up and struck the deceased three times. He did so with the blunt edge of the axe as he held the handle half way down with both of his hands. The deceased was struck on the waist; and he became unconscious. He walked out like a drunkard and said he would not live. He fell off the stairs and was taken to his house where he died shortly afterwards.
EVALUATION OF FACTS
No one it seemed, was prepared to tell me why the deceased and his brother entered another family’s house and without a word attacked Davelambem. The accused himself would not say. His evidence was that he was attacked for nothing. His wife, who is no more than 14, in my estimation said in her evidence that she did not know. Nemini, the brother of the deceased did not know either. He said his brother walked in and he just followed him. It appears from the cross examination of the accused by Ms Bourke that the deceased and his brother suspected the accused of an affair or a liaison between the accused and the deceased’s wife. It seems that for three weeks, Yakepengi had been accusing the accused of illicit association with his wife. There was no evidence of it.
The deceased had, in the past, left Marawaka, on plantation labour. On his return, he was made a village leader on being appointed as a committee man. There is no evidence to the contrary, but it is fair to conclude that as a village leader, the deceased did not call a meeting of the village people to resolve the question of the accused’s alleged involvement with his wife. Instead, he wielded the big stick, not only figuratively, but literally as well. Unfortunately, it ended his own life.
Obed Ilelako, a medical orderly who examined the body of the deceased also gave evidence for the State. He was trained for two years in Mount Hagen. He started working in late 1979. He was called to the village of the deceased after the deceased had died. Prior to the day of the trouble, Obed Ilelako had treated the deceased for an illness he diagnosed as malaria.
Obed Ilelako found no marks on the deceased’s body. There were no cuts, no broken bones, no bruises or scratches, or blood. He also felt his way through the spleen. From what he felt out, and from his previous treatment of the deceased, he concluded that the deceased must have died from an enlarged spleen. He strengthened his opinion by the fact that the deceased had spent sometime on the coast, on plantation labour.
The accused’s evidence on cross examination by the State Counsel, Ms Bourke suggests that the accused struck back by way of “pay back”, or a vengence killing. This, so the evidence suggests was confirmed by the fact that the accused was not sad or upset about the death of the deceased. On this basis, the retaliation would be consistent with a conclusion that this was a vengence, spleen killing case.
There is, on the other hand some conflicting and confusing evidence about the attacks. On all evidence, the deceased attacked the accused first. He attacked him quietly and stealthily. No words were spoken before the attack. The deceased’s brother spoke of hitting the accused. He said it was after the accused had attacked the deceased. The girl, Mari Yuwayeya spoke of the accused, the deceased and Nemini the brother of the deceased, fighting. She also spoke of the deceased, fighting, and that Nemini hit the accused, after the accused hit the deceased.
There is also a difference of opinion on what part of the body the deceased struck. The girl, thought the deceased struck the accused on the face. She saw two assaults. These were inflicted by the deceased holding onto the cane with both hands, and using full force. The accused said he was attacked three times on the waist. On the evidence available, it makes little difference which part of the body the deceased struck. The accused responded immediately, with the closest weapon he had, in the ancient Melanesian and Biblical fashion, eye for an eye, or a hip for a hip.
THE LAW
A no case submission by the defence counsel, Mr Kirriwom was not made. The accused went into evidence after which it was submitted that the accused was literally and legally provoked. For the accused, it was submitted that it was bad enough provoking him, but injury was added to insult when this was done in front of the accused’s wife-to-be and her parents. This, it was argued produced a sudden reaction, and that the retaliatory force used was not only equal in number to the force inflicted, but was proportionate in degree to that administered by the deceased.
The defence argued, on the basis of The State v. Saikoro Norman[cdxl]1 that s. 272 of the Code provides a perfect defence of provocation to manslaughter. The result should be that the accused should be freed from any criminal liability whatsoever.
Defence Counsel also relied on the majority view in PLAR No 1 of 1980[cdxli]2. That was a decision of the Supreme Court of three judges from the decision of Kearney, A.C.J. in State v. Saikoro Norman (supra).
The law as it is now, is that four judges of the National Court have expressed an opinion on the effect of s. 272 on manslaughter. Three of the judges, (one of who is no longer a member of this bench) have held that provocation is a perfect defence to manslaughter. One judge has held that it is not. I have expressed my own views (obiter) in two judgements. I am inclined towards the minority view. I am deciding this case on its own facts.
The onus is on prosecution, once there is sufficient evidence to raise provocation by the defence, to negative that defence. It is for the State to prove that the accused did not act in the heat of passion. (see Regina v. Moses-Robert[cdxlii]3). The law is settled on this point, namely that mere anger is not enough. There must be passion or loss of control, taking the place of reason. (see Regina v. Rumints-Gorok[cdxliii]4).
In Regina v. Moses-Robert, (supra) Frost J. as he then was, on the facts of that case took the view that the accused did not strike during a loss of self control or in the heat of passion, but by way of revenge (at P 186). That was a case of a sophisticated national working and living in Port Moresby.
Loss of self control may be directly established or inferred from evidence, argued Mr Kirriwom and the accused’s failure to testify to self control should not herald fate to his case. See Regina v. Joseph Haiai Sarufa[cdxliv]5, citing with approval Lee Chun-Chuon v. The Queen[cdxlv]6. In Regina v. Joseph Haiai Sarufa (supra), Williams, J. was unable to exclude beyond reasonable doubt that provocative incident alleged by the accused did not occur, at P 181; and found the accused not guilty of wilful murder, but guilty of manslaughter.
A retaliation to an unarmed provocation, even with a deadly weapon and with great force, indicating a clear intention to kill or even to cause serious bodily harm, does not exempt the State from the onus to prove that the accused, in his own social and cultural condition, would not retaliate in the way the accused did. Such a view, was held to be correct by Mann, C.J. in Regina v. Yanda-Piaua and Others[cdxlvi]7. The provoked act must of course bear some similarity in its nature and reasonableness to the provocative or the provoking act. See Regina v. Kopal Wamne[cdxlvii]8. For instance, if a child had hit the accused fairly lightly with a cane stick and the latter retaliated in the way he did with an axe, without more, the retaliation would not in my view be an act provoked.
Mr Kirriwom submitted, that only one verdict is open to me and that is to find both legal and factual provocation as not having been negatived by the State. In the light of the majority view on the effect of provocation on manslaughter in PLAR No 1 of 1980[cdxlviii]9, I should acquit the accused and discharge him completely.
Ms Bourke argued on the other hand that the State has on the evidence amply negatived provocation. Death was the result, not, of provocation, but of a vengence, a “pay back” killing. It was argued that the accused was cross, but not very angry, he was acting deliberately whilst he was in command of his own actions, and acted in a cool, calm and collected manner. This, it was argued, is not a case of a stick versus a stick or a fist versus a fist. It was a clear case of a steel axe, against a cane stick.
Each case always depends on its own facts. Each accused must be taken in his own cultural and social environment, to determine whether the act, the result or the omission inflicted upon him, was such as was likely to provoke him and whether his retaliatory act, or omission was such as would in his condition, be likely to produce an act provoked. Some may argue that such personlised standards may produce different results, depending on the accused. My simple answer is that any system of justice that claims to be based on prevailing standards of human progress must do that, if it is to be appropriate and applicable to the nature and character of the individual who may violate the law.
In this case, I hold that I have an alternative verdict to acquitting the accused completely, were I to find that the defence of provocation was available to the accused. On the facts of this case, I make no specific finding that the accused had been provoked legally. I find however, that the State has not established conclusively that the deceased died of ruptured spleen. It is plain that the accused was factually provoked. This is enough to bring paragraph 2 of s. 552 into play.
In my view, s. 552 of the Code, was designed with this type of an offence in mind. It is a section which is rightly peculiar to Papua New Guinea, bearing in mind the difficulties in police investigations, the remoteness of qualified medical personnel and non availability of facilities to preserve evidence for scientific investigations.
The second paragraph was added in 1923, again to offer additional alternative verdicts, which could be returned. (see No. 19 of 1923, s.4; substituted by No. 16 of 1927, s.3; resubstituted by No. 26 of 1934, s.5; and now, No. 78 of 1974 Section, Schedule 1, s. 552.
The basis for an alternative verdict of unlawfully assaulting the victim who, is dead, is clearly envisaged under s. 552, and it has been so held in Regina v. S.M. and Others[cdxlix]10.
In preparing my judgement, I have read carefully the decision of Clarkson J. in Regina v. Marumyapusek[cdl]11. In that case, Clarkson J. at 588-589, held that manslaughter and unlawful assault are similar offences. Thus, if, the use of force was justified then it did not matter whether the victim was alive or whether he died and whether death was not intended and was not likely.
In that case, Clarkson, J. followed Smithers J’s views in Regina v. Nantisantjaba[cdli]12, reasoning, that Frost, J. (as he then was) took a similar view in Regina v. Bauoro-Dame[cdlii]13. See also, Ollerenshaw J. in an article Volume 1 Melanesia Law Journal No. 1 at P. 61; and Clarkson J’s own reasoning in Regina v. Anton Komalco[cdliii]14.
On pure legal logic, that is a correct view. If the law excuses an assault, then logically, it is difficult to see how, a verdict of not guilty of manslaughter could stand consistentely with a verdict under the second proviso of s. 552, because the same assault has been excused by law.
But, “the life of the law is not always logic but human experience”[cdliv]15. Death is after all the ultimate in human struggle. In Papua New Guinea, by command of the written law, killings are classified as wilful murder, murder and manslaughter. Discretionary life imprisonment is prescribed for each of this offence, even though the last mentioned is supposed to be of the least degree of culpability, morally and factually.
In a purely factual sense, when a life is terminated, unless it is a clear case of accident or unless it is excused by law, it remains an offence among the most serious kind known to man. To read the written law in a logical fashion to acquit completely, is one of the legitimate functions of the Supreme Court.
But, as I have indicated elsewhere[cdlv]16, that law development should not run against the grain of the general expectations of the people. It may be that pidgin speakers would accept that, “em sigirap orait em indai”, or that, “he invited this killing upon himself”. I know that provocation is very much a factual question. If provocation is to result in a complete acquittal, on a charge of manslaughter, one can expect that facts supporting provocations would be restricted and that the defence of provocation would have to be applied strictly. This was envisaged by his honour Judge Andrew[cdlvi]17. An foreseeable result may be produced. Defence counsel may be required, not by judicial precedent, but by the inevitable consequences of a successful defence of provocation, to go beyond what I may loosely call “evidenciary onus” to establish the elements of provocation. The result on prosecution may be that it would require no more than minimum evidence to discharge its onus of negativing the defence.
These are important policy issues I think about as a judge before I reach my conclusion. I accept my task to develop the underlying law. But as I have decided elsewhere, that underlying law should not develop to a stage where it bears no resemblance to the people’s expectations[cdlvii]18.
In my view, it would be a correct development of the underlying law, if courts could award compensation or damages and acquit of manslaughter on a successful defence of provocation. On these lines, I would have no difficulty with the majority view in P.L.A.R. No.1 of 1980.
In my experience, an acquittal of a man who factually has killed another man, does not acquit him of his liability to the community to which the accused returns immediately upon his release. At the same time no man should be subjected to imprisonment where law offers him a defence.
What is exculpatory in law may not be exculpatory in reality and this may lead to greater social disorder and breaches of the law.
It is plain on the reading of the last paragraph of s.551 that a person charged/with manslaughter cannot be convicted of any other offence except as provided by the Code. Section 552, in the second paragraph says clearly that if evidence supports such a finding, a person charged with wilful murder, murder or manslaughter may be convicted of unlawfully doing grievous bodily harm, unlawful assault, unlawfully doing bodily harm, unlawfully wounding, or a simple unlawful assault.
Although, logically a defence which excuses an assault, should excuse manslaughter where that excused assault is an element of manslaughter, I do not think it should follow logically that where provocation is not negatived as a defence, that it should necessarily result in a total defence. The differences between wilful murder, murder and manslaughter are relatively clear in law. But, the same facts may result in an indictment for wilful murder, murder or manslaughter, depending on the State’s exercise of its executive discretion to indict.
Now, a person who stands charged with wilful murder will have the defence of provocation available to him. If that defence succeeds, he will be acquitted of wilful murder, but may be convicted of murder or manslaughter. But, if the same person was charged with manslaughter and his defence succeeds, he would be acquitted completely.
In such an event, it is clear that the fate of an accused depends on the States executive discretion, for the same facts would result, in provocation in each case. It may be that a simple amendment to the second paragraph of s.552 may streamline the current judicial trend.
It may be that paragraph two of s.552 should now read:
“Provided also, that, and notwithstanding the fact that provocation may be available as a total defence to a charge of wilful murder, murder or manslaughter, the accused person may be convicted of a, b, c, or d”.
Such an amendment leaves all options open to the judge. He may find provocation and acquit of manslaughter but return a verdict involving assault or wounding or he may find no provocation and instead of convicting of manslaughter, acquit the accused of manslaughter, but convict him of a lesser offence of doing grievous bodily harm or unlawfully assaulting.
In this case, as I have indicated, I find the accused not guilty of manslaughter, but guilty of unlawfully assaulting the deceased.
Solicitor for the State: L. Gavara Nanu, Acting Public Prosecutor
Counsel: C. Bourke
Solicitor for the Defendant: D. McDermott, Acting Public Solicitor
Counsel: N. Kirriwom

[cdxl]Unreported Judgment N 207 of 1979
[cdxli]Unreported SC 181 of 1980
[cdxlii](1965-66) P. & N.G.L.R. 180
[cdxliii](1963) P. & N.G.L.R. 81, at p 85
[cdxliv](1974) P. & N.G.L.R., 173 at p. 181
[cdxlv](1963) A.C. 220
[cdxlvi](1967 - 68) P. & N.G.L.R. 482 at p. 487
[cdxlvii]Unreported N 809
[cdxlviii]Unreported SC 181
[cdxlix](1973) P.N.G.L.R., 304 at 310 - 11
[cdl](1973) P.N.G.L.R., 582
[cdli](1963) P. & N.G.L.R., 148 at P. 151
[cdlii](1965-66) P. & N.G.L.R., 201 at P. 204
[cdliii]Unreported Judgment
[cdliv]See unreported judgment N. 271 at P. 8 - 10 of 1980
[cdlv]See unreported judgment N. 271 at P. 8 - 10 of 1980
[cdlvi]Unreported SC. 181 at P.24
[cdlvii]Similar view was expressed in SC. 181, by Greville-Smith J.