State v Onepa (No 1) [2005] PGNC 96; N2858 (3 February 2005)

N2858

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1050 & 1191 OF 1999

THE STATE

V

REX ZANO ONEPA (1)

KOKOPO: Lenalia, J.

2004: 13 – 17 Dec.
2005: 31 Jan, 3 Feb

Criminal Law – Double willful murder – Not guilty pleas – Trial – Criminal Code s. 299, (Ch. No. 262).

Criminal Law – Evidence – Criminal liability and responsibility – Defences – Insanity
– Elements of – Impairment of capacity insufficient – Natural intention and ability to control action – Applicability of defence of insanity – Criminal Code s. 28, (Ch. No. 262).

The defence of insanity is provided for under s. 28 of the Criminal Code in the following terms:

"(1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity—

a) to understand what he is doing; or

b) to control his actions; or

c) to know that he ought not to do the act or make the omission.

(2) A person—

a) whose mind, at the time of his doing or omitting to do an act is affected by delusions on some specific matter or matters; and

(b) who is not otherwise entitled to the benefit of the provisions of Subsection (1),

is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist".

Criminal Law – Provocation – Defence of – Elements of provocation – Whether provocation as complete defence – Charges of willful murder – Evidence of premeditation – Criminal Code s. 267, (Ch. No. 262).

The Criminal Code (Ch. No. 262), s. 267 provides for the defence of provocation as follows:

"(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he—

(a) is deprived by the provocation of the power of self-control; and

(b) acts on it on the sudden and before there is time for his passion to cool,

if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) Any question, whether or not—

(a) any particular act or insult is 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; or

(b) in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or

(c) any force used is disproportionate to the provocation,

is a question of fact".

Held: (1) The defence of insanity requires that there be a mental disease or natural mental infirmity which must be shown by medical evidence to have deprived the person charged of his capacity to understand and control his actions at the time the act or omission is done.

(2) Impairment of capacity to understand or control an accused actions affected by emotional disturbances such as anger, jealousy, revenge or lack of self-control are excluded and are not applicable to s. 28 of the Code.

(3) In a case where, a person has premeditated the killing of a person, then another person is killed, is criminally responsible for willful murder.

(4) In a case like the instant one where the accused had planned in advance to "stab the man to death", the defence of provocation does not apply nor does the defence of insanity unless there was medical evidence of pre- existing conditions of a state of mental disease or "natural mental infirmity".

Cases cited

The State -v- Tendi Kalio Ulo [1980] PNGLR. 350
Plar No.1 of 1980 [1980] PNGLR 326NGLR. 493
Goi -v- The State [1991] PNGLR. 161
The State -v- Enakuan Salaiau [1994] PNGLR. 388
The State -v- Hekavo [1991] PNGLR. 394
R -v- Brigitta Asamakan [1964] PNGLR. 193.

Counsels:

J. Pambel, for the State
J. Isaac, for the Accused

3rd February 2005

LENALIA, J: The accused is charged with two charges of willful murder of Roi Zano and Stafford Eki contrary to s. 299 of the Criminal Code. After being arraigned, the accused entered not guilty pleas to both charges.

The facts of these two cases began in the following way. On 29th of June 1999 at Kokopo Police Station, East New Britain Province, the accused having planned in advance to kill a person by the name of Buka, came to Kokopo market where he found his wife Roi Zano. After having an argument with her, the accused slapped his wife. His wife (now deceased) walked quickly down to the Police Station where she laid the complaint. The accused followed the victim to the station and asked her what was, she reporting to the police about.

After hearing the wife complained, policemen on the counter informed the victim and accused that they should settle at home because it was a family problem. They were told to go away. They walked to the Bank of South Pacific and the victim having noticed a sharp pointed piece of grass-knife on the body of the accused, she went back to the police station to report to the police to disarm the accused. She walked back to the police station, not far away, only in a distance of about 150 to 200 metres and when she got to the door to the General Duty Office, the accused came behind her, held her by her back and stabbed her. She died instantly.

In the course of trying to separate the accused and his wife, a number of policemen and policewomen tried to separate the pair. In that commotion, the accused stabbed the second deceased a policeman in execution of his duties. The second deceased died sometime later in the hospital. Two other police personnels were also stabbed.

Evidence

The prosecution evidence establishes that on 29th day of June, 1999, the accused willfully murdered his wife, Roi Zano and Police Constable Stanfford Eki in execution of his lawful duties. The State evidence came from three witnesses. Apart from oral testimonies, a number of documentary exhibits were tendered together with a short piece of grass-knife used by the accused to facilitate the brutal killings of the two deceased.

Documentary evidence tendered and accepted as evidence for the State (excluding medical report done on the accused) included the following:

- the original record of interview (ROI) in Pidgin Ex. "A".

- the English version Ex. "B".

- medical report by Dr Willem van der Linden Ex. "C".

- medical report by Dr. Yap Ex. "D".

- medical report by Dr. Pomat Ex. "E".

- s. 96 District Court Act – Statement Ex. "F".

- grass-knife used in the killing Ex. "G".

- Dr. J. Kaven medical report on accused Ex. "H".

(Dr. Kaven’s evidence was accepted only on the basis that such report was made but not as to the truth of its contents).

Going by the reverse order of the witnesses called, I begin by discussing the evidence of Councillor Sae Napita, a long time resident of Palnavirua Ward in the Kokopo/Vunamami Local Level Government area in this Province. Putting the evidence that way would make it more logical in terms of all chronological events which took place prior to the commission of these two offences. Originally, this witness comes from Wapanamanda District in Enga Province. He has been in this Province for some time even before 1997. He is currently residing at the Sonoma Plantation where he works as a labourer. This witness knows the accused well as they have lived and worked together at the said plantation for a long time.

Sae recalls that, the accused and his deceased wife had always had marital problems since the accused brought his wife to this Province since 1998. But the accused had been in this Province well before the twin volcanic eruptions in 1994. In 1998, witness Sae recalls that, the accused came to him in his capacity as a Ward Councillor and told him that he (accused) and his wife were having a family problem because the wife was not staying and even sleeping with him in their matrimonial home and that very often, she used to sleep with her relatives away from the family house.

Having heard the accused’s complaint, Councillor Sae invited his own wife to go to see the accused and his wife. According to Sae, when he and his wife got to the accused’s house, the accused’s wife told the couple that, the accused does not treat her and their daughter well. That he never gave them any money and does not support them by provision of necessities. The accused’s wife told a story to Sae and his wife of an incident when the accused bought bags of betelnut from this Province and brought them to Lae by ship for sale. After the sale, the accused returned to Kokopo, but he never gave any money to his wife. This behavior really upset the deceased.

After counseling the accused and his wife, Sae asked the accused to pay compensation to his wife for threatening to cut her with a bush-knife and asked them both to return to church. The accused and his wife and Sae and his family are of SDA backgrounds and at one stage Sae in his capacity as a leader and Ward Councillor counseled the couple and closed with a word of prayer for the family to settle down and reunite.

Part of the State’s evidence is that, in the course of their stay at the Sonoma Plantation, the accused used to asked his wife for sex but so often, the deceased denied the accused such service. Such action by the deceased increased the accused’s suspicion of his deceased wife having an affair with another man. At one occasion, the accused is said to have found a letter written by a man named Buka in the possession of Roi Zano. Once more Sae was invited to settle the accused and deceased.

From the evidence, it is clear that after the accused and his wife were counseled, they lived happily for two or so weeks. Sometimes after that, Councillor Sae heard that the accused had killed his wife and another person.

Rose Benjamin Uwarefa called as the second witness did not see much of what occurred at the scene of the killings. She was working at a shop called "Spirit of Kokopo" and by midday she came to the market where she met the accused’s wife. The accused wife gave Rose K20.00 cash. As to why that money was given to her is not clear from Rose evidence.

After she got that money, they started to talk and in the course of their conversation, the accused came to them. The accused then started to assault Roi. Roi got up and swore at the accused and commented as to why the accused could not wait until they go to their house to discuss things. Roi in her rage pulled out a sharp pointed knife from her bag and wanted to stab the accused. The accused disarmed Roi. After this, Roi made her way to the Kokopo Police Station to report the matter to the police. As earlier stated, what occurred at the police station, Rose did not witness.

Police Constable Robin Ma’ampa was on duty on the relevant date. Between 5 and 5:30 pm this witness was on duty at the Kokopo Police Station. Whilst there, a couple walked into the police station. The "couple" happened to be the accused and his wife. The pair went straight into the duty counter while this witness remained outside the car park.

After talking to the duty policemen on the duty counter, they were told to settle their marital problem by themselves. So the accused and his wife came out from the duty office to the police station car park and out toward the Papua New Guinea Banking Corporation (PNGBC) building now the Bank of South Pacific (BSP). While this policeman (witness) was still standing there, the accused’s wife came back and reported to the two policemen standing near the door to the general office that her husband had a piece of sharp sarip (grass-knife) hidden on his side somewhere. Having heard this, Constable Ma’ampa and Probationary Constable Mamats walked down toward the accused and asked him to stand and wait for them.

As soon as the above two policemen spoke to the accused, he ran away as fast as he could back to the police station. They tried to catch him, but he was really fast. By that time the accused’s wife was on the door into the police station office, Constable Ma’ampa says that before the two of them reached the place where the accused’s wife was standing, the accused got there and held up his wife’s hand pulled out his piece of grass-knife see Ex. "G" with both edges sharpened and quickly plunged it onto the back of his wife.

More policemen joined the scene. When Const. Ma’ampa and his colleagues tried to stop the accused. He started to chase them with that same weapon. He caught up with P/C Mamats and stabbed him on his head. In the course of that commotion, the accused also stabbed Policewoman Constable Joyce Latu. Constable Stanfford Eki was also on the scene trying to help. However the accused gave a short chase and stabbed Stafford Eki as well. All injured policemen and policewomen were taken to the hospital immediately.

It is the State’s evidence that, the accused’s wife died shortly after she was stabbed still on the scene. In case of Const. Stanfford Eki, after being taken to the hospital, he died at the Nonga General Hospital at 11:35 pm on that same evening.

Medical Evidence for the prosecution

Post mortem reports were conducted on the bodies of the two deceased on separate dates. In the case of late Roi Yuve Zano, the post mortem was conducted on 28th day of August 1999. Dr. K. Pomat conducted the examination, noted the following external findings:

"1. External Injuries

She had swelling of the face especially on the left maxillar area with no obvious bony depressions nor traumatic lesions of the oral cavity.

2. Penetrating wound just superior end medial to the insertion of left clavicle to the sternum. Probed passed penetrated deep angling into the left thoracic cavity.

3. Skin deep wound on left posterior chest wall 4 cm from the spine at the 9th rib exposing it. The wound did not penetrate through".

On internal finding, Dr. Pomat continued:

"1. The penetrating wound above the sternum went through the left thoracic cavity at the apex, puncturing through the left subclavion artery about a 10 mm diatal to where it leaves the arch of the Aorta. The wound went through the apex of the left upper lobe of the lung, collapsing the whole left lung. There was also a wound on the lateral posterior wall of the left thoracic cavity at 9th rib. This would was in line of the wound above the sternum. The left thoracic cavity was filled with 900 mls of blood.

2. Right lung was contused over the middle lobe with bruising and haematoma over lateral border of right thoracic cavity from 5th to 8th rib. There was about 100 mls of serosanguinous fluid in the right thoracic cavity.

3. No injuries nor blood were detected in the peritoneal cavity. No other injuries were detectable elsewhere".

The doctor concluded that the young lady died from massive blood loss causing the left lung to collapse.

On the second deceased, Dr. A. Yap conducted the post mortem on 1st of July of that year. His examination was brief on which the doctor concluded that, the deceased Stenford Eki suffered a 5 cm by 8 cm wound from the back right side which penetrated through the lung causing the lung to collapse. Dr. Yap concluded that Stenford died of "respiratory failure and hypovolumic shock" because of the penetrating wound.

Defence case

The defence case does not deny the commission of the two offences. Instead, the accused said in evidence that the reason he did what he did on 19th of June 1999 was because first he was provoked and secondly that he suffered from a mental illness such that he was deprived of his capacity to understand what he was doing to be wrong and that was why he could not control his action. These defences are provided for in terms of ss. 24, 28 and 267 of the Criminal Code.

The defence evidence of what occurred at the Kokopo market is much the same as that given by the prosecution. There is no need for me to re-state what I have already covered in the evidence of Rose Benjamin Uwarefa.

When the accused got to the police station, policemen on duty enquired with him why did he stab his wife. He told them that, the reason why he hit his wife at the market was because; she had left their 3 year old daughter roaming around in the market. There was no evidence to support the allegations made by the accused over their daughter roaming the streets, near the market nor in the market area. I do not accept that part of his evidence. The defence case confirms that both the accused and his wife were at the police station and that they were sent away to settle their problem since it was a marriage issue.

After the pair had left the police station, they came to the BSP building, where the accused said as they were talking his wife said, she wanted to have a divorce order because she wanted to marry someone new. Somehow his wife left him and walked back to the police station. When the accused followed her, he found her near the entrance to the station. He asked her why she wanted to report the second time in a row. It is the accused evidence that in answer to his question, the deceased is said to have said something insulting like this in Pidgin "mitupela nupala man blong me I kuap istap na yu laik dringing wara blong mitupla".

It was here that the accused said after he asked why his wife had said those insulting words to him, that he drew his knife and stabbed her. From there, being near his wife, blood splashed from the deceased’s wound and covered the accused from his face down to all parts of his body. He further said, he was mad and could not know what he was doing and he was confused. He further said when his wantoks came, he even chased them. The accused did not recall what occurred after that until Thursday of that week when he realized he was in police custody.

The accused evidence raises an issue of police brutality during the record of interview. He said he was threatened and was even cut at the interviewing table. He said, he had to duck to avoid being cut. When the Court inquired with counsels why there was no voir dire trial, Mr. Isaac of counsel for the accused said the defence did not rely on such defence. Despite that, the record of interview was tendered and admitted into evidence without objections from the defence, (see Ex. "A").

Mr. Pambel of counsel for the State asked a series of important questions in cross-examination about the truthfulness of, the record of interview and if the accused had informed his lawyer about the alleged attack during the record of interview. The accused said he cannot now recall if he ever told his lawyer or not but that he forgets things easily. He later admitted that, he did not tell his lawyer about police brutality during the record of interview.

Jerry Tano is currently serving a term of imprisonment at Keravat gaol. He is from Lufa District in the Eastern Highlands Province. Jerry gave evidence that since 2001, he has seen some changes in the accused overall behaviour. He recalls that one time in either 2001 or 2002, the accused got a spoon and used it as a weapon to chase prisoners in the gaol premises. That when the accused sits he sometimes "switches off" and comes on again. At another time the accused got an axe and chase prisoners as well.

Defence medical evidence

The medical evidence in support of the defence of insanity came from Dr. John T. Kaven. Dr. Kaven graduated from UPNG School of Medicine in 1976. He has had a long standing practical experience. He has been in Nonga General Hospital for the past 15 year apart from other locations throughout the country. He is currently a Consultant Physician at the above Hospital for the whole New Guinea Islands Region. Dr. Kaven was honest to say that, although he is a medical doctor, he is not a Psychiatrist by profession but does a lot of consultation on mental illnesses.

The accused was referred to the Out Patient Department at Nonga Base Hospital on 8th of September of last year. There was no physical examination conducted on the body of the accused however he was booked for assessment and examination. The following is Dr. Kaven’s assessment on the accused’s history:

"History

Mr. Jano was married with one child. He claims has been sick for many years. He says that his faul thinking has been with him for many years, even when he was at home.

He was well dressed, non violent sitting quietly with normal eye contact. His thoughts and speech are rather slow and are clear. He displayed no mood change. The thoughts contents shallow. He has a factory hallucination. There was some auditory for example hearing a male voice saying wokim. There was no delusion. Mr. Jano was alert, he answers all questions.

Mr. Jano has no lost of memory (e.g. Lawyer sends me here). He’s intelligence is very poor. When he was asked if he is normal. He’s insight was present.

Impression

This 35 years old man originally of Lufa in EHP was married with one child. Has murdered his wife in 1999. The history revealed he has had mental illness many years ago.

Rex has cleaned dressed, talks slowly. He displayed auditory, taste, selling, visual etc hallucination.

He has some elements of schizophrenia. This is the worse form of mental illness.

Mr. Jano physical examination revealed a healthy male. His main organs have been normal clinically."

Mr. Pambel challenged the medical evidence by Dr. Kaven on the basis that though this witness is a physician he is not a psychiatrist and the Court should not accepted the defence medical evidence. The defence rested their case there.

Mr. Isaac in his closing submissions said the accused was provoked in the manner his wife had insulted him. He further submitted the defence had successfully made out the defence of provocation. In relation to the second charge, they submitted, the element of "intention" is an essential element in determining if the accused had intended to kill the second deceased. The second aspect of their submission raises the argument that the defence has successfully raised the defence of momentary insanity. Mr. Pambel for the State submitted the prosecution has proven their case beyond reasonable doubt to enable the Court to find the accused guilty on both charges.

Law

There is no dispute as to whether or not the accused committed these two brutal killings upon the deceaseds named in the indictment. All evidence both for the State and defence reveal that the accused committed the two killings one after the other. The defence however raises two defences, that of provocation and insanity.

Provocation is defined in s. 266 of the Criminal Code and s. 267 provides for the defence of provocation in the following terms:

(1) A person is not criminally responsible for an assault committed on a person who gives him provocation for the assault, if he—

(a) is deprived by the provocation of the power of self-control; and

(b) acts on it on the sudden and before there is time for his passion to cool,

if the force used is not disproportionate to the provocation, and is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2) Any question, whether or not—

(a) any particular act or insult is 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; or

(b) in any particular case, the person provoked was actually deprived by the provocation of the power of self-control; or

(c) any force used is disproportionate to the provocation,

is a question of fact.

In the leading case of PLAR. No.1 of 1980 [1980] PNGLR. 326, the Supreme Court constituted by three judges held by a majority of two that provocation is a complete defence for a person charged with manslaughter. In The State -v- Tendi Kalio Ulo [1980] PNGLR the Court there said provocation is available as a defence to a charge of willful murder or murder and if successfully proved an accused could be found guilty of manslaughter.

In order for the defence of provocation to be successful it must be shown that the accused acted on the "heat of passion" before there was time for him to cool off. The issue is one depending on the circumstances of the case under inquiry. In the pre-independence case of R -v- Kauba Paruwo [1963] PNGLR. 278, it was decided that the defence of provocation is not open to a person charged with willful murder. In a later case that of R -v- Yanda Plua [1967 – 68] PNGLR. 482, the accused was charged with willful murder was reduced to murder. The Court there commented that in this country, provocation should be decided in light of cultural environment. Another pre-independent case of R -v- Manga Kitai [1967] – 1968] PNGLR. 1, the Court there said, the Court enquiring into a murder case is entitled to consider the circumstances of setting of the stage for what is said to be the "sudden provocation".

It is my firm view that, this Court cannot side tract from the wording of s.267 of the Code. I am required by law to enquire into the evidence and determine, if the force used by the accused was either proportionate or disproportionate to the provocation offered by the accused’s wife and was the act of plunging the piece of grass-knife into the body of Roi Zano intended or was it likely to cause death or grievous bodily harm.

Further than ss.266 and 267 of the Code, s. 303 provides and absolute defence for provocation in these terms:

"Where a person who unlawfully kills another under circumstances that, but for this section, would constitute wilful murder or murder, does the act that causes death in the heat of passion caused by sudden provocation within the meaning of Section 266 and before there is time for his passion to cool, he is guilty of manslaughter only".

The double murder in the circumstances of this case, were brutal and merciless killings of the accused’s wife and a policemen. A number of other police personals were injured in the course of the two killings. But those other policemen and women who were injured is not a consideration on these cases. Would the accused fairly raise the defence of provocation in this situation where the accused himself had planned in advance that he wanted to "stab to death" the person by the name of Buka. During the record of interview, the accused was asked a series of questions in regard to why and how he committed the two crimes. The accused answered that, the reason he carried his knife with him was because he wanted to "stab to death" the person whom the accused named as "Buka". The following questions were asked and the accused answered them at his own free will.

"Q.24. You just told me that you stabbed your wife with a knife, what type of knife is it?

A: Grass-knife.

Q. 25. For what reasons and you were carrying the knife around?

A: I got it and hid it and came. I was very cross with Buka who with my wife wanted to get married, and I wanted stab him to death with this knife and that’s why I hid it on me and I came.

Q. 26. Which part of your body did you hid the knife in?

A: In between my trousers". (emphasis added).

Further questions were put to the accused about the double killing at page 4 of the record of interview.

"Q. 38. At that time, the Policeman namely Alex Mamats came, did you see him?

A: Yes, after I had stabbed my wife with the grass knife.

Q. 39. When Alex got close to you what did you do to Alex?

A: My head was not in order and my memory too that’s why I thought the Policeman was Buka, the man who was having an affair with my wife and I stabbed him with the grass-knife.

Q. 48. I must inform you that when you ran into the police station, the other policeman Stanfford Eki who was on duty too was inside and that where you stabbed him also, and later Constable Stanfford Eki died later in the hospital. What have you to say?

A: Yes, I stabbed him.

Q.53. Were Alex and Eki in police uniforms?

A: Yes, they wore uniforms. When I had killed my wife and turned, I saw them and I thought they were outsider(s) not policemen and I started cutting them with the knife".

The above evidence shows a vivid recollection of what occurred on the date of the double willful murder. It also shows that, the accused had previously planned in advance to kill Buka. The only issue is, what is the position in law in relation to killing a wrong person other than the person whom the accused planned to stab to death. In the pre-Independence Supreme Court case of R -v- Kauba Paruwo [1963] PNGLR. 18, the Court there said at the same page:

"A defence of provocation is not open to a person charged with willful murder or murder if the only provocation which induced the accused person to kill his victim was offered not by the victim but by a third person, albeit that the third person was closely related to the victim".

It was decided further in R -v- Dogwaingikata Miakawo (1971) No. 630 that since some "ill-will existed" between the accused and the victim for several months before the offence was committed could not constitute provocation since the accused had harmed himself with and sought out the victim with aggressive intention. Thus the accused action in picking up his bow and arrows and thereafter got it tightened up did not constitution provocation.

It is my view that, the double murder committed by the accused in the instant trial, were a possible consequence of his premeditated plan to kill Buka whom he claims was having an affair with his wife. As was stated in The State -v- Rapahel Kwanande [1994] PNGLR. 512, the case by Inja, J. (as he then was), the "intention is a matter which goes to the state of the accused mind at the time he acted". I must add to that proposition by saying that in case of willful murder, an accused must have had a premeditated plan to kill his adversary. And in the case of an accused who had planned in advance to kill his adversary, but instead kills a second or third person, the intention to kill has already been formed or has been cherished in the mind and the fact that a second or third person is killed must be seen as a probable consequence of the accused’s unlawful intent. Here is the case where there accused had a common intention to kill. In the instant trial, the State must proof beyond reasonable doubt that the intention to kill was the common purpose: R -v- Korea Menene (1968) No. 479.

The defence counsel has submitted that, the accused was provoked by his wife uttering provocative words to the accused. The Court would only accept that had the accused had a negative intent of killing someone. Any loss of self-control must be proportionate to the degree of provocation. The standard of a reasonable man against whom the reaction to provocation, is measured must be tested against an ordinary man in the environment and culture of the accused: R -v- Hand [1963] PNGLR. 9.

Even if the Court were to accept the defence of provocation in terms of s. 267 of the Code, the force used toward his wife was disproportionate to what the accused’s deceased wife had uttered. Provocation has been held to be a complete defence for charges of manslaughter: PLAR No.1 of 1980 [1980] PNGLR. 326. I must therefore reject the defence of provocation in relation to the first charge of willful murder.

In relation to the second count, the accused raises the defence of insanity in terms of s. 28 of the Criminal Code in the following words:

"28. Insanity.

(1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity—

(a) to understand what he is doing; or

(b) to control his actions; or

(c) to know that he ought not to do the act or make the omission.

(2) A person—

(a) whose mind, at the time of his doing or omitting to do an act is affected by delusions on some specific matter or matters; and

(b) who is not otherwise entitled to the benefit of the provisions of Subsection (1),

is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist".

On the medical evidence, from the start, I must say, I do not accept such evidence. Dr. Kaven is the New Guinea Isands Consultant Physician. By profession he is a medical practitioner of a long practical experience. It is clear from his evidence that, he has had some months courses in the psychiatrist field. He is not a psychiatrist by profession. For one thing, the accused merely booked an audience with the doctor at the Out-Patient Department at the Nonga Base Hospital. No physical examination was conducted. Dr. Kaven’s assessment was based on oral consultation.

From the transcript of the record of interview, I observed that the accused had given vivid descriptions of what he did on 29th of June, 1999. Although, he says his head was "foul" or that his "mind was changed" or that "my head was not in order" in my opinion did not refer to his mental and physical thinking. He was co-operative in the whole of the interview and its record shows that the accused was of sound mind.

In Goi -v- The State [1991] PNGLR. 161 the Supreme Court said at 169:

"Clearly, therefore, in a defence based on s. 28 of the Criminal Code, it must be shown by the defence that the accused person’s capacity to understand what he was doing or to control his actions or to know that he ought not to commit the act was taken away from him by the state of his mental disease or natural mental infirmity".

It went further to say at the same page:

"Deprivation of capacity to understand or control actions is not the same as mere impairment of such capacity".

I am of the opinion that to raise the defence of insanity, there ought to be a mental disease or "natural mental infirmity" of the accused person’s ability to understand that what he did was wrong in law was not present with an accused at the time he committed the act. Before the accused committed the two crimes, he had had a long family problem. There was no suggestion whatsoever by the State’s evidence that prior to committing these offences he suffered from any form of diseases. Even the defence case reveals negative presence of "natural mental infirmity". I am required to consider the accused’s conduct before and after he committed these two crimes: The State -v- Bakau Kaija (1980) N 213, see also R -v- Nicholas Lagit (1961) N 207.

In Bratty -v- Attorney General (Northern Ireland) [1963] AC. 386 at 413 Lord Denning said:

"In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary. The evidence of a man himself will rarely be sufficient unless supported by medical evidence which points to the cause of mental capacity. It is sufficient for a man to say, "I had a blackout" for blackout as Stable J said in Cooper -v- McKenna; Ex parte Cooper [1960] Qd is one "of the first refuges of a guilty conscience and a popular case excuse".

See also R -v- Heimbopi Wakipi (1971) N 648 and R -v- Waragot Waiyope (1976) N 796.

In The State -v- Hekavo [1991] PNGLR. 394, Doherty, J found that the defence of intention motive under s. 24 (1) (a) of the Code can only be made out if a proper foundation has been laid by the defence and there must be evidence of the accused state of mind at the time and there must be medical evidence in support. In that case the Court found that the defence of insanity was made out and the accused was found not guilty. That was because Dr. Brother Andrew’s medical evidence proved that the accused was just recovering from a bout of epilepsy and "in a post-ictal state during which state" the accused often exhibited aggressive behaviour.

In this jurisdiction, it is well established that the standard of proof required of an accused person to establish the defence under s. 28 of the Code is one of the "balance of probabilities". Goi -v- The State (supra), see also The State -v- Hekavo (supra), R -v- Agana Guguna (1965) No. 364, The State -v- Joseph Makapi (1980) No. 214 and The State -v- Justus Tambari Kauri (1987) No. 684.

In Goi’s case which I have cited earlier, the Supreme Court said at 167:

"There must be mental disease or natural mental infirmity, and this must be shown to deprive a person of his capacity.

(a) to understand what he is doing; or

(b) to control his actions; or

(c) to know that he ought not to do the act or make the omission."

In the instant trial, in order to assist this Court to determine if the accused actually suffered from a mental disorder, the defence must adduce sufficient evidence from which it may be reasonably inferred that the accused’s actions in brutally stabbing the two deceased one after the other were involuntary. Naturally, if a person is unconscious and does or omit to do an act, not knowing that what he or she is doing was or is wrong in law, it must be proven medically that such person must have acted in a reduced capacity and was affected mentally.

Goi’s case also states an important principle which was first stated in R -v- Brigitta Asamakan [1964] PNGLR. 196. The principle is that s. 28 of the Code cannot be used to avail a person from a range of emotional disturbances such as anger, jealousy, revenge or lack of self-control. The Court in the above case said at 198:

"A whole range of emotional disturbances, such as jealousy, anger, revenge or lack of self-control, are excluded form s. 27 (now s.28) and these are typical of matters affecting mental ability or balance, as distinct from insanity" (per Mann, CJ.)

I find from all evidence that, the accused had had a built-up anger and jealousy which resulted in an over reaction by him on that day. He planned in advance to kill Buka. I adopt the principle in the pre-Independence case of R -v- Kauba Paruwo [1963] PNGLR. 18 that the defence of provocation is not open to a person charged with willful murder or murder if it is proved that before the killing, the accused had planned in advance to kill his adversary and in his rage, he kills someone else. And on insanity in absence of medical evidence to support the accused’s claim of insanity, the Court must return verdicts of guilty on both charges.

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Lawyer for the State: The Public Prosecutor
Lawyer for the Accused: Paul Paraka Lawyers