State v Wesley [1997] PGNC 102; N1598 (28 August 1997)

Unreported National Court Decisions

N1598

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR: 848 OF 1997
THE STATE
V
NICHOLAS WESLEY

Lae

Vagi AJ
8 August 1997
12 August 1997
25 August 1997
28 August 1997

Cases Cited

The State v Hekavo [1991] PNGLR 394

Goi v The State [1991] PNGLR 161

Bratty v Attorney General (Northern Ireland) [1961] AIIER 523

R v Gottle [1958] NZPoliceLawRp 16; [1958] NZLR 999

R v Brigitta Asammikan [1964] PNGLR 196

The State v Justus Taimbari Kauri (N684 1987, Unreported)

R v Toy [1960] Qd R225

Counsel

A Raymond for the State

L Siminji for the Accused

DECISION

25 August 1997

VAGI AJ: The ad pleaded not guilty ilty to the charge under s. 301 of the Criminal Code (The Code) that on 7th day of February 1995 at Bumbu Compound, Lae, he murdered Michael Ata.

The State tendered by consent the statements of six eyewitnesses, post-mortem examination report of Professor Patel of Angau Memorial Hospital, Lae, the record of interview in Pidgin and English and psychiatric report on the accused by Doctor Posanau.

I should say at the outset that the defence ran this trial on the premise that the accused had on the date of the killing was suffering from some mental infirmity that deprived him of capacity to control his action.

The defence let the State evidence uncontested. At the close of its case, the defence called the accused to give oral testimony. Mr Siminji le with a serieseries of questions. I reproduce here so the questions and answers to show what his defence is based on:

Q. &#160 Do yow wno ye yer>

A.&#>A.  ـ Yps.Q

Q. #160; ; Teel thrtCourt why?

A0;҈&ـ I thats charged with murder.

Q.&#>Q. &##160; W60; Wh0; When wae twas thes the murd murder committed?

A. ҈ I n file 7/2/95.

Q. ټ&##160; T60; Tell inll in your own words, how yoow you found out?

A. &#16efhe int I wck.&#Afternfternths whil while in e in jail jail I recI recovered. When they brought my fimy file I le I found that I had killed a person.

.ټ&##160;; Yoe sick what tyat type wape wape was thas that?

A. &##160; F60; First I aot ma.ari60w#160went and I did all soll sort of things.

Q. ;ټ W60; Were yore you you aware that you did these things?

ـ҈ I don&#8 knowt bout thut thut them unem until Itil I was told when I recovered.

In his record of interview he conceded that d dayebrua995, he5, he was sick and took a piece of iron with which he hit a woman. H60; He wase was arreand land locked in the cell, but got bailed out and allowed to go back to the house. On the nex he did not turn turn up in Court. On the date of theing he was affected again and come into town looking for hior his elder brother. He did not find him.&#16 w He went back to theound ger. At thet the same time the deceased went to his house and he said, he got up, got, got the axe and got involved in the inci At he cut the back of decf deceased’s neck, fck, front of the neck and both sides of his head. The record of interviewtaken on the night of 7th February 1995.

The facts as shown, that on the date in quen question, the deceased went to the accus217;s house to enquire about the progress of his motor vehicle which the accused’s fa;s father, a mechanic, was working on. When told that the accused’s father was not at home and told to return later, the deceased then walked away from the house. While he was leaving, the accused armed with a steel handle axe came from behind and struck him at the back of his neck. eceased fell on the groundround. While on the ground, the accused continued striking him all over the body, eventually cauhis death. The State shows the accustd intended to cause grievous bodily injury.&#160 In so doing hsed the deathdeath of ccused thereby contraveningening s. 301 of the Code.

This case is a bizarre one as there is no evidence of prelude or an explanatioto why such a killing took place. I agree with the dehe defence contention that the issue is one that calls for the state of mind of the accused. Mr Siminji r the defence once of automatism on the basis, the evidence had shown, that the accused at tme of the commission of thef the crime and after, he was suffering from mental infirmity. In supportis contention, hon, he relies on the decision in the The State v Hekavo [1991]PNGLR 394. This wcase of the accused used killing his wife where the medicalence established that he was recovering from a bout of epil epilepsy and in a post-ical state during which state aggressive behaviourn occurs. The court ourt on p 3ted ated a statement made in R v Foy [1960] Qd R 225. It was saat:

“#8220;If an accused person raises the defence that an act or ommission occurred independently of the exercise of his will because at the time o committing the act or making the omission he was though tegh temporary or permanent derangement of his mind, unable to exercise his will or did not exercise his will, the onus is upon him to provide that condition.

In each case there must be evidence upon which a jury can properly find that the mind of the accused was affected by the mental disease or derangement at the relevant time.”

The Supreme Court in Goi v The State [1991] PNGLR 161 said at p 167:

“It is well established in the jurisdiction that the standard of proof required of an accused person to establish the defence of insanity is proof on the balance of probabilities.”

The Supreme Court referred and approved the case of Bratty v Attorney General (Northern Ireland) [1961] 3 AIIER 523 where automatism was defined at p 527 as connoting the state of mind of a person who, though capable of action:

“is not conscious of which he is doing... It means unconscious intaruntary action, and it is a defence because the mind does not go with what is being done.”

In the New Zealand case of R v Cottle [1958] NZPoliceLawRp 16; [1958] NZLR 999 the defence of automatism Viscount Kilmuir said that not onot only must automatism be expressly put forward as a defence, but also a proper foundation must be laid for it.

An analogy was drawn between this defence and accident or provocation. It i enough to raise such such defence, there must be evidence for the tribunal of facts to act and find on.

In an endeavour y a proper foundation required, Mr Siminji made reference to some of the observations of thof the State witnesses of the accused’s behaviour prior to and during the time of the killing.

The first observation is that of Mrs Rose Setari, the accused’s own sister. She isusewife and a resideesident of Bumbu Compound. She stated that turday 4thy 4th February, 1995, she observed the accused had changed his personality of a normal person to that of an abnormal person. On that day the acctold har that he was sick. She then him K2.00 an00 an00 and asked him to go to the hospital but he refused. From then hisoach chang160 She observed him gave up eating and he accused her of poisoning h60; his food. When food ffered, he rd anrd and quoted from the Bible verse: “Man not live on bron bread alone, but by e by every word that proceeds from the mouth of 8221;0; Mrs Setari did not state how long this went onnt on but but she continued and stated that on Sunday, while everyone was talking about rugby, the accused talked about a different subject matter and at the same time looked for objects to kill any animal that went by.

The next observation was by Wilford Naikoman. Hrd that the accused went went to the 9th Street and obstructed the free flow of traffic. Wilforted that as soon as n as he heard about the killing, he ran to the compound and saw a youthd with an axe standing over over a body on the ground. He saw the yoalked towardswards the swamp.

Then Benedict Boeboe stated that she was inside her house when she heard some women screaming. She went outside to see what was happening. She he accuseded the bladebladeblade of the axe across his shoulder while he held the handle with his right hand. She saw the accusing aith no expression of any sort on his face.

Mr Siminji submits that these witnesitnesses provided evidence of their observs showing the state of mind of the accused who had mental infirmity and at the relevant timt time he acted out of the ordinary. He argues that the medical evidence of Doctor Posanai’s observations done some ten months after the killing and his evidence does not give an accurate report of the state of mind of the accused. He says the report issay asay at the highest level and the report was based on what the doctor was told.

Mrs Raymond objects to the observations of the three State witnesses at of lay persons and who are also related to the accused.&sed. She says Doctor Posanau’s report is a work of true professional and qualified psychiatrist whose opinion is based on all the information he had collected. Unlike in most other medfields where any medical observation is laboratory tested, ted, psychiatric opinions are formed largely from the information’s ned from people, including the psychiatric patient. In my view is no other pser psyc psychiatric report in rebutting Doctor Posanau’s opinion, so his report, although hearsay of the highest level, his profession requires that any psychiatric opiniocomes up with in his reporteport is based on information he gathers from people. Such informatie not laboraaboratory tested.

They are only weighed as what Doctor Posanau did in this case. I therefore admit his report in evidence.

The de must at least produce prima facie evidence of accusedRd’s condition (Bratty, adopting R v Cottle) and if that proper found is laid, the defence of automatism is left to the Court.&#rt. ccused gave direct evidencidence. He says that he knew about the killing when told by others and also reading about it from his file. In assessing “insa#8ty” under s. 2the Cthis piece of evif evidence is important insofar as showing the accused’s state of miof mind when he acted outside the control s will. There are indications the the accused was sias sick and abnormal prior to the killing. He attacked a woman with a piece of iron. He obstructed the flow of w of the traffic, and he refused to eat the food offered to him. Is it sufficior the cou fito find from this type of evidence that the accused was affected by mental disl disease or derangement at the relevant time?

One striking feature against the accused is the findings of Doctor Posanau. The defe defence tes his ehis evidence on the basis that it is hearsay. I have ay admitted in evid evidence Doctor Posanau’s report.

Doctor Posanau found thate is no abnormality in the accused’s physical conditindition and, in his opinion, was in good physical health. As to the presental state,tate, the doctor found that the accused was well oriented for time, place and person. His mood state was normal0; He has no dilutions (fixed, false belief), no auditory hallucinations (false, imaginary nary voices talking to him) and his cognitunction is not impaired. This it the doctor stated ated about the state of mind of thof the accused at the time of the killing:

“It is alleged by the patient and other relatives interviewed that at the time of the offence the accused was experiencing “abnormal” behaviour. However this is hearnly, tly, there is no hospital out-patient notes or other medical notes documenting this behaviour. Without the hospital notes it is difficult to confirm the “abnormal” behavat the time of the initial tial interview.”

The doctor went on to state that there is no history of epilepsy or any headry. There is no familfamily history of any psychiatric illness. There is no history of any admission to any hospital in Papua New Guinea. There is no psychiadiagnosagnosis that could be given. The doctor summarised that he questioned the accuf his knowledge of the nature, harmfulness and wrongfulnesslness of the offence. The accused stated to hit that it was wrong to killher person but he did this because of an abnormal behaviourviour. Ho, the doctor concluded tded that the abnormal behaviour &#8annot be confirm during the visit and a psychiatric diagnosagnosis cannot be given”. From the t it appears that that it wfficult to confirm the &#82 “abnormal” behaviour without hospital notes.

In his oral evidence the accused stated te has in him some spirits. He dt state what effe effe effect those spirits have in him. In hisrd of interview he s he stated that he was angered by not finding his brother in town that morning. When he returned to his house he was still in anger whe deceased visited his house. The eve of how he w he choe chopped the deceased is contained in his record of interview:

0;Q24. Where did you pick up the axe?

A. #160; ҈ ok to inst inside our househouse.

Q25. After you took it haae youe you done with it?

A. I took it camn dow candpedopped man.

Q260; What part of his body you you have chopped?

A. ; I6c; I edopped him at the the back of his neck,front, twos on both sides of his head head and and I turned the head of the axe anxe it his head.

Q27. &#How did you know that yout you have chopped the deceased five times?

A. ـ Iisaw en when I chopped hied him.

The arresting officer Detective Corney Wiinterviewed the accused at d at 10:00 pm on the date of the killing. He picked him ound 8:00 pm00 pm after hiding in the bush straight after the killing. The arresting officer obd rved the accused and this is what he stated:

“However during the time of thesed’s apprehension I on I did carefully observed his condition and his speech and it wasn’t that of a mentally affected person. He acted sensibly and acnimpanied us to the station. Anor to the commencement oent of an interview I asked him whether he was mentally alright and he said he is a normal person.”

If this be the evidence on the condition of the accused7;s mind, he was oriented tted to time, place and person. He wascious of his action tion in that it is questionable if s. 28 of the Code is applicable. The onidence is that he wahe was “angered” by not finding his elder brother. Is20;anger&# a conditionitionition of mind? The Supreme Court of the Colonial era as per Mann CJ in R v Brigitta Asamikan [1964] PNGLRat 198 said:

“A whole range of emotional disturbance, such as jealousy, anger,nger, revenge or lack of self-control are ded from s 27 (now s 28) an8) and these are typical of matters affecting mental stability or balance, as distinct from insanity.”

Anger must have impaired the accused’s ability to control his action. Thisiminished responsibilitbility. s. 28 there must be deprideprivation of capacities enumerated therein. In the State v Justus Tariibari Kauri (Kidu C N 6887 unreported) said at p6:

“For the the defence to succeed under s 28 of the the Criminal Code, it must be shown on a ce of probability that a State of mental disease or naturaltural mental infirmity deprived the accused of his capacity:

(a) to understand what e isg;oing; or

(b) ټ&#to cont control hiol his actions; or

(c) ټ tw knot that he ouge ought not to do the act or make the omission.”

In a defence based on s. 28, it me sho the ce that the accused person’s capacity to understand what he was doing or coor controlntrol his his action or to know that he ought not to commit the act was taken away from him by the mental disease or natural mental infirmity: See Goi v The State.

In contrast, the accused in the State v Hekavo, suffered from “an organic brain disorder, epilepsy. That at the material timwahe was materially affected by this disorder...”

In the present case Doctor Posanau concluded that there is no hisof epilepsy or brain disorder. ccused has no (fixed, fals false beliefs), no auditoryitory hallucinations (false, imaginary voices talking to him) and his coge function is n is not impaired. The foundations laid by the defence does not couple with the doctor’s findings and the evidence of the arresting officer. Then accused was oriented for time, place and person.&#1his is clearly a case of person who was in “angerRr”, a condition that is said to have not impaired the accused’lity to control his action.

Professor Patil’s 17;s post-mortem report shows that the deceased had deep lacerations of the scalp, associated committed fracture across major width of the skull, intracranial haemorrhages, incision wounds of the neck and shoulder and fractures of the left scapula. The cause oth was due to m to massive external haemorrhage in association with head injury.

In a layman’s eyes, the weapon used, the wounds inflicted, the deceased not having a chance to fen the attacker are all indicindicative of a vicious attack by the person who intended to cause grievous bodily injury. There wasrelude prior to t to the attack. What can then be the motive behind this. The deceased went toaccuseccused’s pes for a very lawful purpose; to enquire about the progress of his motor vehicle. The; The accused knew w wahe was at the time used eath.

I do>I do not know of a case a man killing anog another unless he has mental infirmity or has a bout of epilepsy (The St Hekavo) or “was experiencing strong emotions of anxi anxiety and fear causing dissociation and impairing his ability to make a natural intention, and to control his actions” (Goi v The State). In Goi’s cae defencefence had not been made out. In the present case thereawas an attempt by Mrs Raymond by cross-examining the accused if he had been intoxicated oraffected by marijuana. He denied takoth liquor auor auor and marijuana. If that is so then the accused had a clear conscious of what he did. There is no evidence he hahe had mental infirmity at the time of killing unless there was some hallucinogenic dr60; or plant or material that affected him and which medicaedical science has yet to discover. I heaories of tribal warriwarriors, before participating in any tribal combat, taken certain plants or herbs, with hallucinogenic values that drove out fear and greaxcited them to kill their enemies wantonly. I know ofow of one plant, ant, a ginger, commonly known in pidgin as “Kawawar”. There is no evidence the athe accused took such hallucinogenic plant or material that had greatly excited him to another person.

The >The only evidence by the accused is the presence of some “spirits” in his body. He could notwhat those spie spirits were and how they affected him. I have ved his demeanour iour in Court. He spoke quietly andered the questions well. He was well compand gave cave concise answers. t just cannot workout what what must have been thditiohis mind immediatediately prior to the killing. I find him to be of sane &ind. 160; No evidence of mentai infirmity or disease0; He washer intr intoxicatedcated or stupefied by alcohol drink or hallucinogenic drug. He was “ad”, a1;, a tion did npaired ired his ability to control his action.&#1n. I find that he kis own actn actioactions which were conscious and voluntarys “anger” was an emotional disturbance and is e is excluded from s. 28 and is typical of matter affecting mental stabilitbalance as distinct from inom insanity (R v Brigitta Asamikan).

This trial came before me after two years and six months from the date of the killing. Tis no report of any illneillness during the period he has been awaiting, his trial. There is no recent psychiaychiatric examination after Doctor Posanau’s report eighteen months ago.

The only conclusion I can drom the facts is that the accused has no mental infirmity apart from “anger” an1; and I find he has no defence of automatism.

Accordingly I find the accused guilty of murder contrary to s. 301 of the Code.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor