State v Kango [2006] PGNC 115; N3083 (25 August 2006)

N3083

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR. NO.1515 of 2000

THE STATE

v

ALEX KANGO

Lae: Kirriwom, J.
2006:18 & 19 July, 25 August

CRIMINAL LAW – Particular Offence – Unlawful killing – Defence of insanity – Burden of Proof shifts to the Accused – Balance of Probability – Psychiatric Medical Evidence shows unsoundness of mind – Accused suffering from Schizophrenia before and during the time he committed the offence - Verdict of Not Guilty By Reason of Insanity – Accused is ordered to be confined at Laloki Psychiatric Hospital pending determination by the National Executive Decision for his release - ss. 28 and 592 of the Criminal Code.

CRIMINAL LAW – Evidence – Admissibility – Exception to Hearsay Rule - Dying Declaration – Statement made by the deceased seven hours before his death – Reliable Evidence – Evidence Act, s.20.

Held:

(1) Accused is found not guilty by reason of insanity and acquitted of the charge of unlawful killing.

(2) Accused was suffering from schizophrenia; a serious mental illness or disorder of the mind that impaired his brain both before and during the time of the commission of the offence and as such he was unable to judge the right from wrong or vice versa or even to control his actions.

(3) By reason of his acquittal on ground of insanity, the accused is confined to a mental asylum at Laloki Psychiatric Hospital to be kept there at the pleasure of the Head of State acting on advice until he decides otherwise.

Cases cited:
The State v Enakuan Salaiau [1994] PNGLR 388

Counsel:
J. Wala, for the State
M. Norum, for the Accused

DECISION ON VERDICT

25 August, 2006

1. KIRRIWOM, J.: The accused Alex Kango also known as Apaso of Tetsena village, Okapa, Eastern Highlands Province is charged with one count of unlawful killing. He is charged under Section 302 of the Criminal Code.

2. The charge states that on 9 day of June 2000 at Lae, Alex Kango Alsp known as Apaso unlawfully killed one Mark Nava.

3. This case took six years to actually have its day in court largely due to the accused exhibiting apparent signs of mental disorder and even unfitness to make a plea when he first appeared before the National Court on 6 February 2002 following his committal on a charge of wilful murder on 2 November, 2000. I observed the accused during several call-overs that he attended while awaiting his trial that he did not look normal. I agreed with counsel that the accused needed medical attention and treatment. The record and history of this treatment are explained in the doctor’s three separate medical reports marked as exhibits D1 – D3.

4. For purpose of arraignment the State alleged that between 7 and 8 p.m. on the night of 9 June 2000, the accused and the deceased were seen heading towards Bugandi High School from where they ordinarily reside which is Papuan Compound. Along the way near the Bugandi High School gate, using a kitchen knife, the accused allegedly stabbed the deceased in his stomach. The wound was described to be long and the knife estimated to be about a foot long was left imbedded in the deceased’s stomach when the accused left him from dead and headed towards Salamanda Street. Some residents found the deceased with his intestine pouring out from his stomach and immediately raised the alarm.

5. Police were alerted and they attended the scene where the deceased was found. He was still conscious when they reached him and took him to Angau Hospital. He told them that ‘Apaso’ was his attacker, gave them the description of the clothes he was wearing and where he was going or headed. The Police eventually caught him that same night.

6. The deceased underwent emergency surgery but died some seven hours later. The accused was subsequently charged with this offence.

7. The accused pleaded not guilty and raised the defence of insanity under Section 28 of the Criminal Code. Once insanity is raised as defence, the onus of proof immediately shifts to the accused to satisfy this court on the balance of probability that at the relevant time that he is alleged to have done the act that killed the deceased, he was suffering from a mental infirmity or disease of the mind such as to deprive him of the capacity to understand what he was doing, or to control his actions or to know that he ought not do what he was doing.

8. The State case consisted of the accused’s own record of interview with the Police conducted on 22 August 2000, both Pidgin and English translation [Exh.1a and 1b], Post Mortem Report of Dr. Thomas Koimbu who performed the autopsy on 22 June 2000 at Angau Memorial Hospital [Exh. 2], Certificate of Death [Exh. 3], undated but signed statement of Russel Egimbari, Police Investigator from CID Serious Crime Squad [Exh. 4] and sworn testimony from Cony Winjan, former Police Investigator and officer in charge of the case until retired from the Force and replaced by Russel Egimbari and one Peter Mareva, a resident of Papuan Compound.

9. There is no dispute about the death of the deceased. He died at 3.00 a.m., on 10 June 2000, less than 10 hours of being stabbed as confirmed by the Medical Certificate of Death (Exh. 3). The cause of the deceased’s death is also undisputed as disclosed in the Post Mortem Report. The deceased died as the result of hypovolemic shock from internal loss of blood due to injuries caused by a sharp object penetrating into the abdomen causing injuries to the major abdominal organs which included the liver and the spleen.

10. There is undisputed evidence from Russell Egimbari in his statement before the Court of talking with the deceased while he was still alive and lying at the scene of the stabbing near Bugandi High School Gate. He and Cony Winjan had driven earlier in a Police vehicle to pick up Cony Winjan’s son at Papuan Compound when the residents expressed concerns of an imminent danger that the deceased was being seen in the company of the accused that evening as they were last seen together heading towards Bugandi way. According to the residents at Papua Compound the accused was mentally sick and had stabbed another resident the previous night. They felt strongly that whoever was with the accused was in real danger. After picking up Cony Winjan’s son they left Papuan Compound and headed out towards Bumbu Police Barracks when Mobile Police came on the radio with the news of spotting a stabbed victim outside Bugandi High School Gate. They proceeded immediately to the scene where they saw the deceased lying on the ground with knife still stuck in his stomach and intestines pouring out. He was still conscious and talking. He told them his name was Mark and he came from Finschafen. He told them he was attacked by Apaso and described the clothes Apaso was wearing as green shorts and blue colour shirt and told the Police where Apaso was heading to.

11. After removing the knife from the deceased’s stomach the Police then rushed him to the hospital as they radioed other members to locate the accused by giving him the description of his clothes. The story in Russel Egimbari’s statement is supported by sworn oral testimony of Cony Winjan.

12. This is the only evidence of attack of the deceased implicating the accused as the sole assailant. Although this evidence was given uncontested, its admissibility, albeit hearsay, falls under one of the exceptions to the general hearsay rule which is that of a dying-declaration under Section 20 of the Evidence Act. I am satisfied that, although admissibility of this evidence is not an issue, for purposes of being correct in law, this evidence clearly qualifies for admission as a dying declaration as it was a conversation the deceased had with Russell Egimbari, Cony Winjan and his squad members some seven hours before he died.

13. Section 20 of Evidence Act provides:

20. Dying Declaration

A statement made orally by a person before his death relating to the circumstances resulting in his death is admissible in any legal proceeding if –

(a) at the time the person made the statement he believed, or may be reasonably supposed by the court to have believed, that his death was imminent, whether or not –

(i) he entertained at that time any hope of recovery; or

(ii) he thought that legal proceedings might eventually; and

(b) at the time the person made the statement he would have been a competent witness in the legal proceeding; and

(c) The person making the statement could, if he had not died, have given direct oral evidence in the proceedings of the matter in the statement.

14. State also tried to connect the deceased’s death to the accused by adducing indirect evidence of a similar incident or attack on another person, Peter Mareva, by the accused on the previous night before this incident. This is in the sworn testimony of Peter Mareva. Peter comes from Unggai also from Eastern Highlands Province and has been a resident of Papuan Compound for over 24 years. The night before this incident Peter went drinking with friends at Hagen Club. About midnight he returned home and ran into group of boys from the Compound playing guitar. Amongst them were his sons and one of them asked for some money? The accused was also with the boys. He gave some coins to his son and headed home to sleep. He noticed the accused leave the boys and followed behind him. His sixth sense warned him to take precaution so instead of heading straight for his house; he went to another house belonging to a Samarai man and pretended to knock on the door. The accused whom he referred to as Apaso proceeded further and disappeared from his sight. Thinking that he had successfully fended him off, Peter Mareva proceeded to his house. The accused had hidden himself close-by and as soon as the witness got close, he sprung out from behind him and without any reason stabbed him with a knife on the neck below the head from the back. The accused then fled as the witness spat blood and fell unconscious to the ground.

15. In cross-examination he said that the accused periodically suffered mental illness which caused him to chase and attack people. He knew the accused was suffering from the same bout of illness that had plagued him for some time so he took precautions to avoid becoming victim of his attack, but instead he ended up becoming one. He had his own children who grew up there and he watched the accused grow as a child. He said they were neighbours.

16. Peter Mareva gave evidence not only of being attacked and stabbed by the accused on the night of 8 June 2000 but he also gave evidence of his knowledge of the accused as a sufferer of a mental condition that caused him to attack people. He said the accused had a history of becoming violent when in that condition. He gave evidence that the accused was known as Apaso by everyone where they lived. The evidence was later confirmed by the accused’s own father who testified in the defence case where he gave a history of the accused’s background and his illness.

17. There is already in the State case some evidence of the accused being mentally deranged or becoming dangerous and attacking people for no apparent reason. The accused however denied the killing during the record of interview. He said he was told that he committed five murders and that was why the police picked him up but he knew nothing about the deceased’s death. However after persistent questioning he admitted stabbing the deceased in Q.47 where he said in his answer: ‘Yes I have stabbed him with the knife’. When asked why he said ‘I don’t know’ and thereafter continued with his denials of the offence. In the end he refused to sign the interview. There is really nothing much to gain from this record of interview one way or the other although it could be inferred that the accused may have realized the gravity of his wrong-doing and was deliberately denying involvement in the crime by maintaining the same story throughout.

18. The accused did not give evidence at his trial. He remained silent while the defence called Dr. Goiba Tienang, the Chief Psychiatrist of the country employed by Department of Health. Dr. Tienang holds a Masters’ Degree in Medicine and specializing in psychiatry which he completed in 2005. He is also a honorary lecturer at the Medical Faculty of UPNG. He had appeared several times in Court to give evidence in this specialist field, once in a criminal trial and three times in civil on workers compensation matters.

19. Dr. Tienang gave evidence of examining the accused on three different occasions. He saw him initially on 17 June 2003 at Buimo Jail outside Lae where the accused was detained. In that interview and from the information he obtained from other persons (the father) and the medical report of Dr. J.P. Kia dated 4 November 2002 he formed the view that the accused was not fit to plead to the charge. From the information he gathered in his interview with the accused and elsewhere, he concluded that the accused was suffering from a major mental disorder namely schizophrenia. This mental ailment was treatable so he recommended for the accused to be treated and prescribed appropriate medication.

20. Dr. Tienang saw the accused second time in March 17, 2004. He discovered in this visit that the accused was not on medication or continuous medication and his condition had not improved since he last saw him. He prescribed further medication and directed the Prison authorities to bring the accused to Angau Hospital monthly for review pending his transfer to Laloki Psychiatric Hospital to be admitted.

21. The accused was examined upon his admission at Laloki Psychiatric Hospital on 9 November 2004 by Dr. Tienang where he confirmed his earlier two findings and commenced him on appropriate treatment. The doctor’s last examination was carried out on 31 January 2006 where he was satisfied that the accused had fully recovered from his mental illness and was fit to plead in Court. He therefore certified him to be fit and discharged him from the hospital to be transferred back to Buimo Jail to stand his trail but subject to continuing medication and regular review at Angau Memorial Hospital Psychiatric Clinic.

22. Dr. Tienang compiled three reports of his examination of the accused which are marked as exhibits as follows:

1. Forensic Report for Remandee – Alex Kango Male 26 years – Buimo – dated June 18, 2003 – Exh. D1 (First Report)

2. Psychiatric re-assessment Report for Inmate Alex Kango – Male Adult – dated 18 March 2004 – Exh. D2 (Second Report)

3. Final Psychiatric Report and Assessment of Fitness to Plead for Remandee – Alex Kango, Male 29 Years old – dated 7th February 2006 – Exh. D3 (Third Report).

23. The doctor’s conclusion in his oral testimony confirmed his finding and his report as contained in his First Report or Exh. D1 where he reported:

(i) There is significant information that the remandee was suffering from a Psychiatric Disorder before the offence was committed.

(ii) There is also significant information that the remandee was suffering from a Psychiatric Disorder during the time the offence was committed.

(iii) My current finding also confirm that he is suffering from a major mental disorder namely Schizophrenia which requires proper treatment and rehabilitation.

24. I will return to the doctor’s evidence later and examine some of the background information that the doctor had that led to this conclusion.

25. The accused’s father Kango Kabuari also gave evidence. Although he did not see what happened as he was in the village in Okapa when the accused allegedly committed this crime in Lae, his evidence provides further factual basis not only to assist the court in reaching its verdict, but also complementing those that the Chief Psychiatrist had already collated in arriving at his conclusion of the accused on his first examination of him. The second and third examinations and the hospitalization of the accused in Laloki Psychiatric Hospital was to treat him and have him fit and of sound mind to understand the nature of the proceedings against him and to be able to consciously enter a plea on arraignment.

26. Kango Kabuari said he had four children and Alex was the third. He lived in Papuan Compound for 32 years. He was retrenched from work in 1995.

27. He said Alex developed this ‘sick longlong’ between 1999 and 2000 although before that when Alex fell sick he concluded to be malaria and would take him to clinic for treatment. This went on for sometime and it seems he kept a diary of some sort from which Dr. Tienang was able to draw some valuable information. He admitted that the accused smoked marijuana but he never saw him take it himself. This would have been about 1997 and thereafter.

28. He said Alex’s malaria began to get worse between 1999 and 2000 and it was at this time that he began to see a more serious side of his son’s illness. He realized then that this was not malaria but sickness of the brain – "sick longlong" he described it. He then took him to a private doctor on the 7 Street who supplied them medicine and they went home. It was not doing much good. Consequently he packed up, leaving his grown up children in Lae, he took the accused to the village. They got some treatment for him at Okapa but that was not doing much to the accused. He attacked him, his mother, grand parents and burnt their village house down. He took him to Goroka Base Hospital for treatment. He threw away the medicine and said they were not helping him; instead, he argued, it was worsening his condition.

29. He said Alex accused him of sending village people from home to attack and kill him. He had his own explanation for the accused developing the sickness in his head whenever it recurs. He said his son’s nemeses were the bats or flying foxes. He said he had observed this both in Lae and in the village at Okapa. Alex gets the attack of this illness in his head whenever the bats fly into their house or anywhere near where they are. The bats were causing this illness upon him.

30. After fighting with his own family in the village the accused ran away and returned to Lae. Not long after he got to Lae he was charged with this killing and his sister sent the word to their father and the rest of the family members.

31. The State in this case is not pursuing a different verdict to what is sought by the defence which is not guilty by reason of insanity. Mr. Wala’s contention is that if the Court finds insanity proven and is to acquit the accused by reason of defence of insanity, the appropriate consequential order is as provided in Section 592 of the Criminal Code for the strict detention of the accused pending the decision of the Head of State acting on advice and he referred me to the case of The State v Enakuan Salaiau [1994] PNGLR 388.

32. The accused is charged with unlawful killing under Section 302 of the Code. Therefore the question of intent does not arise. The only issue before the Court now is whether the accused killed the deceased? And, whether, at the time he killed the deceased he was afflicted by a disease of the mind by reason of insanity so that he was unable to appreciate or know the nature of his act or omission and or to what he was doing was right or wrong.

33. The accused carries the burden of proving to the Court that he was suffering from a known mental illness capable of amounting to a defence of insanity at the time of this killing. By law, under Section 27, everyone who is charged with an offence and taken before the court is presumed to be of sound mind and to have been of sound mind at the time of the offence until the contrary is proven. This is a presumption of law and therefore the accused must be taken to be of sound mind until he convinces the court otherwise.

34. Section 28 of the Code provides:

(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 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.

35. On the evidence of Russell Egimbari, Cony Wingan and Peter Mareva, supported by the dying declaration of the deceased himself, I am satisfied that the deceased was stabbed by the accused. The crucial question now is; was the accused, at the material time he stabbed the deceased, suffering from a major mental disorder?

36. Evidence from Peter Mareva as to his observation of the behaviour of the accused is quite plain. There have been visible displays of aggression or violence which often prompted the parents to contain the accused at home. This time the parents were not in Lae and they could not contain him.

37. The evidence from the accused’s father is again quite plain. He took his son’s medical problem initially as malarial attacks starting 1997 until 2000 when his behaviour changed dramatically and he became uncontrollable. He now formed the view that his son had ‘sick longlong’ or mental illness.

38. Dr. Tienang has given a very detailed description of the symptoms of the illness affecting the accused and possible causes, whether curable or not and importantly whether his mind was so affected by such illness that at the time he stabbed the deceased he had the disease of the mind that he did not understand what he was doing, control himself or to know that what he was doing was wrong. Dr Tienang concluded that the accused was of unsound mind at the time he committed the offence.

39. Part of the Chief Psychiatrist’s initial report dated June 18, 2003 (Exh.D1) explains this as follows:

"2.0 Background information

Due to the inconsistency of information received from the patient and the obvious disorders of thinking exhibited by the patient, most of the information was obtained from the father’s written statement.

• Birth normal on 4th of November 1977 at Angau Memorial Hospital.
• Grew up as a normal child.
• Left school at Emmanuel Lutheran School in 1998.
• Parents alive and well.
• Originally from Eastern Highlands Province but resided at Papuan Compound.
• Only boy in the family, 4 sisters.
• No history of mental disorder in the family.
• Used to take marijuana (did not quantify).
• Not married/had no girlfriends.
• No previous forensic history.
• Has been hearing abnormal voices since 1997/1998 which he could not fully understand.
  

3.0 Current Psychiatric Problems

• Abnormal behaviour clearly observed by warders.
• Unable to think properly.
• Thinking that people are after him.
• Inability to organize his thinking.
• Feels that his thoughts are blocked.
• People are controlling his actions.
• Feeling that people can read his mind and do things to harm him.
• He feels that he can read people’s minds and do things to harm him.
• He also feels that he can read people’s minds and predict their actions.
  

4.0 History of Current Psychiatric Problems

This history was given by the remandee due to his abnormal state some of it was incomplete and hence other resources like the father’s written statement and Dr. Kia’s report was used.

As narrated by the inmate himself, since end of 1997 and beginning of 1998 he started hearing voices from unknown people which he could not understand. He clearly stated that the voices command him to do things which as time went by he was unable to resist. This was progressively increasing until it was recognized by the father in 2002 where he was behaving abnormally, talking abnormally and his personal hygiene and speech were all affected. He was then sent to Goroka Hospital where he was investigated and treated for malaria. Despite this, his symptoms were still persistent. He was still suffering from all the above symptoms when he committed the crime. He was suspected of committing the described offence.

5.0 Mental State Examination

(a) Appearance

- Poor Personal Hygiene

- Easily Distractable

- Unkempt

- Psychomotor Retardation

(b) Speech

- Occasionally incoherent and not easy to understand

- Doesn’t spontaneously answer questions (i.e. requires a lot of probing)

- Retardation of Speech

(c) Mood

- Blunted Mood (This is typical of patients with a Chronic mental disorder)

(d) Abnormal Beliefs and Thinking

- Paranoid Delusions (i.e. ideas that people are doing things to harm him)

- Loosening of Association (i.e. occasionally his thinking process is interrupted and do not follow logical sequence)

- Thought broadcast (i.e. thinking that people are acting out his thoughts).

- Thought insertion (i.e. thinking that people are taking thoughts out of his mind).

- Passivity feeling (i.e. ideas of being controlled by an external force).

(e) Abnormal Perceptions

- Auditory Hallucination which he described as hearing good and evil voices arguing over him (i.e. this is called 3rd person running commenting auditory hallucinations which is classical sign of schizophrenia).

(f) Cognitive Function

- Unable to successfully complete this examination because patient unable to follow instructions.

(g) Fitness to Plead

(i) Remandee knows that he has been remanded for suspicion of murder, but he does not know what the charge means.

(ii) He explained that he has killed a person but could not draw a meaningful association with the charge of murder.

(iii) He says that it was wrong to take someone else’s life and feels sad that this has happened. He further explained the following:-

a. He was totally under control of the voices which commanded him to stab his victim.

b. He doesn’t know why he committed these crimes.

c. He stated that there was no planning or premeditation before stabbing.

d. He could not clearly remember how he was able to stab the 2 people.

e. He doesn’t clearly understand the role of the warders, the police and the judge.

f. He understood the difference between pleading guilty and pleading not guilty.

6.0 Summary

...all the information provided with my examinational findings, I, a Specialist in the field of Psychiatry have no hesitation in stating that:-

(I) There is significant information that the remandee was suffering from a Psychiatric disorder (sic) before the offence was committed.

(II) There is also significant information that the remandee was suffering from a Psychiatric disorder during the time the offence was committed.

(III) My current findings also confirm that he is suffering from a major mental disorder namely; Schizophrenia which requires proper treatment and rehabilitation..."

40. The report was signed by Dr. Goiba Tienang (MBBS MMED PSYCH) Acting Chief Psychiatrist – National Department of Health.

41. The doctor’s report of the mental condition of the accused is plain and the evidence given by the father of the behavioural pattern of the accused prior to this offence clearly depicted those characteristics described of a schizophrenic personality like those exhibited by the accused. There can be no dispute that the accused was suffering from schizophrenia, a sickness of the brain or a major brain disorder.

42. What Dr. Tienang has not explained in detail in his reports is as to what causes schizophrenia. If the accused’s condition was not hereditary as there is no history of mental illness in the family, how did the accused in this case end up with this psychotic problem? Is it the result of substance abuse? Medical literature does not conclusively show that substance abuse is the primary source of schizophrenia although researchers established that substance abuse can reduce the effectiveness of treatment for schizophrenia. This is the other side of this case which the State did not pursue and I am not going to take it further.

43. Schizophrenia is a known psychiatric condition. Many texts or literature written on the subject world over define schizophrenia as ‘a chronic, severe and disabling brain disorder that has been recognized throughout recorded history. It is said that people with schizophrenia may hear voices other people don’t hear or they may believe that others are reading their minds, controlling their thoughts, or plotting to harm them. These experiences are terrifying and can cause fearfulness, withdrawal, or extreme agitation. People with schizophrenia may not make sense when they talk, may sit for hours without moving or talking much, or may seem perfectly fine until they talk about what they are really thinking.’

44. I am satisfied on the evidence before me and supported by the undisputed psychiatric evidence of Dr. Tienang that the accused was mentally unsound before and during the time he committed the alleged offence. He was schizophrenic, a condition of the mind that did not enable him to judge right from wrong. It follows therefore that the only verdict open to the court and again it is not disputed by the State is that the accused must be acquitted by reason of insanity.

45. This verdict must as a matter of law be immediately followed with an order for the confinement of the accused in an appropriate institution to be detained at the pleasure of the Head of State until it is considered safe for the release of the accused. Section 592 of the Code provides this in mandatory terms as follows:

"592. Acquittal on grounds of insanity.

(1) If on the trial of a person charged with an indictable offence it is alleged or appears that he was not of sound mind at the time when the act or omission alleged to constitute the offence occurred, the court shall—

(a) if it finds him not guilty, find specifically whether or not he was of unsound mind at the time when the act or omission took place; and

(b) whether he is acquitted on account of such unsoundness of mind.

(2) If in a case to which Subsection (1) applies the court—

(a) finds that the accused person was of unsound mind at the time when the act or omission took place; and

(b) says that he is acquitted on account of that unsoundness of mind,

it shall order him to be kept in strict custody in such place and in such manner as the court thinks proper pending a decision by the Head of State, acting on advice.

(3) In a case referred to in Subsection (1), the Head of State, acting on advice, may give such order for the safe custody of the person pending a decision by the Head of State, acting on advice, in such place or confinement and in such manner as the Head of State, acting on advice, thinks proper.

(4) Where a person is confined under this section, the Head of State, acting on advice, may at any time order that he be released from custody either unconditionally or on such conditions as are laid down by the National Executive Council."

46. According to the ensuing subsections continued confinement of the person in strict custody so ordered by the court is subject to the discretion of the Head of State acting on advice of the NEC. As Doherty J said in The State v Enakuan Salaiau (supra):

"Defence counsel asks the Court to find the accused insane and refers to s 28 (1) of the Criminal Code, which provides that:

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

(a) 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."

A finding under s 28 is a very drastic one. Once such a finding is made, it brings into play a different provision of the Code, s 592. This provides that once a court finds a person is not of sound mind, it must find him not guilty and order him to be kept in strict custody at a place and in a manner as it thinks proper pending a decision of the Head of State.

In effect, this means that the person, to use a common phrase, is incarcerated "at the government's pleasure". It is a mandatory provision and is an open sentence without a specific end. It is normally a life sentence. It is open to review from time to time on advice given to the Head of State. In practical terms, there has been no such review for quite some years at the Laloki psychiatric hospital. I have referred to these provisions several times in the course of submission."

47. I agree with Her Honour in her discussion on the effect of the mandatory provision of section 592 of the Code. But I have difficulty with her conclusion and her reasoning in that case where she was not prepared to find insanity proven in the terms of section 28 of the Code and proceeded to convict him because of that, and then she went further and found that ‘the accused may have suffered from schizophrenia and requires mental and other medical assistance and help’. What is schizophrenia then if that was not a mental illness that played havoc on his human mind to such a degree that he could no really differentiate between right and wrong? Could it not have been schizophrenia (the voices he was hearing and the delusions he was having) that caused the accused in that case to kill his mother? Researchers have said that persons suffering from schizophrenia are not usually violent or aggressive unless that is what the voices command them to do especially to defend themselves. But if ever they become violent or aggressive it is usually against their own family members and this reaction can be triggered by being upset over something.

48. That case was comparable with the case before me where the accused was hearing voices since 1997 and gradually his condition became progressively bad that he argued with his own family members, fought them and destroyed their things including their home in the village. This is not the behaviour of a normal person.

49. I bear in mind, as the judgment itself speaks of, that Her Honour did not have the benefit of expressly qualified psychiatric-medical evidence in that trial although she had two medical reports and one concluded that the offender was suffering from schizophrenia. But if Her Honour did explore a little bit more on what schizophrenia was she probably could have been satisfied that it was a sickness of the brain that had the potential to satisfy the requirements of the defence of insanity.

50. I have no contradictory evidence or conclusion to that of Dr Tienang based on his examination and I so find as stated earlier with the appropriate orders pursuant to section 592 of the Code.

Verdict: Not guilty by reason of insanity and the accused is hereby acquitted on that ground and ordered to be taken to Laloki Psychiatric Hospital where he shall be strictly kept and monitored until the relevant authority decides otherwise as required of it by law.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence