State v Buku [2011] PGNC 265; N5011 (20 April 2011)

N5011

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 315 OF 2010

THE STATE

V

DOROTHY BUKU

Hoskins: Kawi J
2010: 10th – 11th August
Kimbe: 20th April 2011

CRIMINAL LAW – Practice and procedure – Attempted murder – Section 304 – Provocation as a defence under Section 267 is not available to a charge of attempted murder – an act of adultery can amount to provocation within the meaning of Section 267 – Rude and insulting behaviour – Poking fingers depicting an act of a sexual nature can induce a provoked assault – singing and dancing and swaying of bums depicting an act of sexual intercourse can constitute provocation within the meaning of section 267 – Uttering the words "bai mi kilim yu, bai mi kilim yu" – do not envince an intention to kill. It means – I will teach you a lesson – The State failed to prove beyond reasonable doubt, that accused intended to kill victim – Accused acquitted of attempted murder but, strong evidence of intention to cause grievous bodily harm- Accused convicted of causing grievous bodily harm under Section 319.

Brief facts

The accused was indicted and pleaded not guilty on arraignment to an indictment charging her with one count of attempted murder contrary Section 304(a) of the Criminal Code. An alternate count of causing grievous bodily harm was proffered under Section 319 of the Criminal Code. The accused gave evidence that she was angered by the actions of the victim who had committed adultery with her husband leading her to confront the victim and cutting her with a bush knife.

Held:

(1) An Act of adultery can amount to provocation within the meaning of Section 267 of the Criminal Code. Rude and insulting behavior and poking fingers depicting an act of a sexual nature can induce a provoked assault.

(2) Singing and deliberately swaying of bums depicting an act of a sexual nature can constitute provocation within the meaning of Section 267.

(3) Uttering the words "bai mi kilim yu, bai mi kilim yu", does not necessarily evince an intention to kill – It may mean I will teach you a lesson.

(4) The State failed to prove that the accused intended to kill the victim – The Accused is therefore found not guilty and acquitted of attempted murder under Section 304(a) of the Criminal Code – but there is strong evidence of an intention to cause grievous bodily harm. The accused is therefore found guilty and convicted of causing grievous bodily harm under Section 319 of the Criminal Code.

Cases cited:
Papua New Guinea Cases

The State –v– Raphael Kuanande [1994] PNGLR 512
R– v– Kiki Kau'au [1970] No. 557
R –v– Bauoro Dame [1965-1966] PNGLR 201, 204,
R –v–Bena Forepe [1965-1966] PNGLR 329
The State –v–James Pah [1985] PNGLR 188
The State –v– Henry Judah James (2005) N2950
R –v– Kopi Kami [1965-1966] PNGLR 73, 77, 79
The State –v– Roland Rebon [2008] N3495
R-v- Rumints Gorok [1963] PNGLR 81

Overseas Cases

Attorney General of Ceylon – v– Kumara singhege Don John Perera [1953] AC 200
Holmes –v– DPP [1946] AC 588
R –v– Morrison [1003] EWCA Crim 1722; (2003) Crim LE 801
Steven John McGhee –v– R [1992] HCA; 183 CLR 82

Counsel:

Mr Francis. Popeu, for the State
Mr Doko Kari, for the Accused

11August, 2010

1. KAWI J: INTRODUCTION: Hoskins in West New Britain Province was gazetted and designated as a National Court sitting area under section 4(a) of the National Court Act. It was so designated in Gazette No: G187 dated 29th September 2009. Despite being declared as a National Court sitting area, neither the District Court nor the National Court has ever sat in Hoskins to hear cases, until the case recorded in this judgment.
   

2. The case of The State –v- Dorothy Buku is recorded as the first ever criminal case to be prosecuted and defended here in Hoskins. Senior State Prosecutor, Mr Francis Popeu and Senior Defence Counsel, Mr Doko Kari are recorded as being the first ever counsel to appear and prosecute and defend this case here in Hoskins before me.

3. In this case, Dorothy Buku of Porapora Village here in Hoskins, is indicted for a charge under section 304(a) of the Criminal Code. She is accused of attempting to murder one Paula Golpak at Porapora Village, Hoskins on the 5th of December 2009. The indictment also alleges an alternative count in that the said Dorothy Buku inflicted grievous bodily harm upon Paula Golpak, without lawful excuse or justification contrary to section 319 of the Criminal Code.

ARRAIGNMENT

4. This matter first came before me in May 2010 as a plea matter. The accused upon arraignment admitted to unlawfully wounding the victim. I entered a provisional plea of guilty subject of course to my reading of the court depositions.

5. Upon reading the court depositions, I formed the opinion that this case could not possibly be a plea matter. The accused appeared to be raising the defence of provocation in the relevant parts in her Record of Interview. Furthermore there were doubts as to whether she had actually intended to kill Paula Golpak.

6. This was then brought to Defence Counsel's attention at which he made an application to vacate the provisional plea of guilty and enter a not guilty plea. I accepted this and entered a plea of not guilty. Subsequently the State had the charge upgraded to one of attempted murder and a trial was subsequently conducted here in Hoskins in August 2010.

7. Both charges were put to the accused upon arraignment, and she admitted to wounding the victim Paula Golpak by cutting her several times to her head, arms and stomach, but she stated that she did this because she was provoked to do what she did, the provocation being an alleged adulterous affair between the victim, Paula Golpak and the accused's husband one Henry Buku and furthermore on the day of the incident Paula Golpak is alleged to have poked her fingers in a rude and insulting gesture depicting sex and swaying her bums deliberately, again depicting an act of a sexual nature at the victim to provoke and induce the knife attack upon herself.

8. After this short explanation, I entered a plea of not guilty on the basis that the accused appear to be raising her husband's alleged illicit adulterous affair with the victim Paula Golpak, as provocation leading to the grievous wounding of the victim.

9. After a plea of not guilty was entered, the state called two witnesses to prove its case. The two witnesses are the victim herself, Paula Golpak and her niece, one Jones Dome.

STATE EVIDENCE

10. Paula Golpak gave evidence of coming back from Galeowale Village accompanied by her two daughters and her niece Jones Dome on the afternoon of Saturday 5th December 2009. As they walked passed Dorothy Buku's house they saw that she was resting under a mango tree near her house. They had already walked passed Dorothy Buku's house, when without warning she came out of where she was resting and attacked Paula Golpak from behind with a bush knife.

11. The first swing of the knife by Dorothy Buku caused a little cut to Paula Golpak's head. Then as Paula Golpak turned around, she put up her left forearm to protect her face. The accused swung the knife again and this time cut her on her left forearm. Paula Golpak was again cut on her right arm and Dorothy Buku continued to cut her with the bush knife. A final knife's swing cut her on her stomach, before her attacker Dorothy Buku was eventually restrained and the knife removed from her.

12. By then Paula Golpak felt dizzy and had blacked out. She did confirm that when she was being attacked, the accused was shouting at her and accusing her of having an adulterous affair with her husband Henry Buku. As the accused was attacking her, she was screaming, "I will kill you, I will kill you. (Bai mi kilim yu, Bai mi kilim yu") "

13. A passing vehicle took her to the Valoka Health Center, where because of the seriousness of the wounds, she was transported to Kimbe General Hospital where she was hospitalized for medical treatment.

14. Jones Dome (the victim Paula Golpak's niece) also gave evidence for the State. She was present and was walking with the victim Paula Golpak from Galeowale Village to Porapora Village when her aunty Paula Golpak was attacked with a bush knife by the accused, Dorothy Buku. Her evidence corroborated much of what the victim Paula Golpak stated in her evidence.

MATERIALS TENDERED IN BY CONSENT

15. The State also tendered in other documentary evidence by consent of defence counsel and they are as follows:

(1) Confessional Statement of Dorothy Buku dated 14th December 2009.

Original Pidgin version - State Exhibit 1(a)

English translation - State Exhibit 1(b)

(2) Record of Interview of the accused dated 14th December 2009

Original Pidgin version - State Exhibit 2(a)

English translation - State Exhibit 2(b)

(3) Medical Report by Dr James Maibon of the Kimbe General Hospital dated 7th December 2009 – State Exhibit 3.

16. The Medical Report prepared by Dr James Maibon also corroborated that the accused was indeed attacked with a knife and sustained serious bodily injuries. The Report further confirmed and gave details of the kind of knife wounds sustained by the victim Paula Golpak when she was attacked by Dorothy Buku.

THE DEFENCE CASE

17. The accused opted to give sworn evidence. Her evidence was that on that Saturday afternoon, she was raking mango leaves near her house when the victim Paula Golpak, and her two daughters with her niece, Jones Dome walked past her. When they walked past her, Paula Golpak is alleged to have danced in her face and pointed rude and provocative and insulting fingers of a sexual nature at her. She also danced while walking in front of her by swaying her bums and hips and again depicting acts of a sexual nature. The accused in fact demonstrated how Paula Golpak allegedly flicked her fingers and danced and swayed her bums and hips when she gave evidence in her own defence. She became very angry at this behavior because to her this finger gestures and the dance coupled with her bodily movements depicting sex only confirmed what her husband had previously confessed to her of his adulterous affair with Paula Golpak. She attacked and wounded Paul Golpak for this reason.

18. She also gave account of her husband's illicit affair with Paula Golpak. In her Record of Interview particular to Question and Answer 30, the following question and answer is recorded:

"Question: Do you have anything to say in answer to your charge?

Answer: Yes, I didn't cut her for nothing, there is a reason and I cut her. The whole reason is there. I fought with my husband in Port Moresby and she mocked me, 11th September 2008, 9:00 pm I received a call from Walindi. I talked with my husband for a while through the mobile, I heard the voice of Paula Golpak through the mobile of my husband from Walindi. I talked with my husband, where are you calling from, he told me that he was in the room, I asked him second time, you are in what room, he told me the room that he use to sleep. I talked with my husband about our own side and I heard a little disturb and I heard the voice of Paula Golpak, now I got angry, we both argue a little bit over the mobile phone and my husband denied. He came over to Port Moresby and told me that the story for him and Paula Golpak that everybody knows. The ladies are the prostitute ladies to wash penis, you don't worry, you stay happily, they are washing penis. And he also told me that a Buka lady also wanted to marry him; her name is Terry Boku, I told him, I taught you stay at home properly, I am scared of getting sick aids. I sent him out of the house to his sister's house. To conclude now I got angry and I cut Paula Golpak.

19. The Record of Interview was tendered into evidence by consent of both parties and so I will accept this evidence of adultery and make a finding on a balance of probabilities that Paula Golpak and Henry Buku, committed adultery on the night of 11th September 2008, at the Walindi Beach Resort outside Kimbe.

LEGAL ISSUES

20. A number of legal issues arise for consideration:

(a) Does provocation as a defence apply to the offence of attempted murder?

(b) Does the uttering of the words, "I will kill you, I will kill you" (Bai mi kilim you, Bai mi Kilim you") express the intention of the accused to kill the victim?

(c) Can an act of adultery be sufficient provocation within the meaning of section 267 to a charge under section 304(a) and section 319 of the Criminal Code?

(d) Can the poking of fingers in a rude manner depicting sex and dancing and swaying of bums and hips also depicting sex, amount to provocation?

THE LAW ON ATTEMPTED MURDER

21. The accused is charged under section 304(a) of the Criminal Code. Section 304 is stated in these terms:

"s304 – Attempted murder etc ........

A person who –

(a) Attempts unlawfully to kill another person; or

(b) With intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omissions being of such a nature as to be likely to endanger human life;-

is guilty of a crime.

Penalty: Subject to section 19, imprisonment for life."

22. In a case of attempted murder, the state must prove an intent to actually kill. The other elements of the crime to be proved by the State are to be found in section 4, which defines attempts. Section 4 is expressed in these terms:

S. 4 Attempts to commit Offences

(1) When a person, intending to commit an offence –

• (a) Begins to put his intention into execution by means adopted to its fulfillment; and
  
• (b) Manifests his intention by some overt act,
  

but does not fulfill his intention to such an extent as to commit the offence, he is said to commit the offence.

(2) It is immaterial, except so far as regards punishment whether –

• (a) The offender does all that is necessary on his part for completing the commission of the offence; or
  
• (b) The complete fulfillment of his intention is prevented by circumstances independent of his will; or
  
• (c) He desists of his own motion from the further prosecution of his intention.
  

(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

(4) The same facts may constitute one offence and an attempt to commit another offence.

23. It has been held that this section does not merely require that the intention be manifest by some overt act; it requires that the intention be put into execution. The cases still draw the distinction between a mere act of preparation and an act of the character required to satisfy S. 4 – See R –v– Kopi Kami [ 1965-1966] PNGLR 73, 77, 79

24. Thus, to establish a case of attempted murder under Section 304(a) the State must prove beyond reasonable doubt that;

(a) The accused intended actually to kill the deceased;

This element places an obligation upon the State to prove an intention to kill – See R –v– Bena Forepe [1965-1966] PNGLR 329. Specific intent to kill is a necessary ingredient of this offence and must be proved beyond reasonable doubt. R –v– Kiki Kau'au (1970) No. 557.

(b) The accused put his or her intention by means adopted to its fulfillment, and;
(c) The accused had manifested her intention by some overt act.

See R –v– Kiki Kau'au [1970] No. 557.

25. In The State –v– Raphael Kuanande [1994] PNGLR 512 Injia AJ (as he then was) made the following pertinent comments on proving intention:

"Intention is a matter which goes to the state of mind, of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the act constituting the offence."

26. In the present case the evidence is that Paula Golpak was flicking her fingers in a manner depicting sex at Dorothy Buku when she walked past her. At the same time she was also dancing in a manner also depicting sex, swaying her bums and hips in a sexually provocative and insulting manner. Insulted by these actions, the accused got a bush knife and attacked Paula Golpak. The court finds that she was most probably attacked from her left side and then cut several times to her head and arms and also the stomach. The cut to the stomach was really meant to cut her vagina. As the accused herself said in her evidence, "mi minim long katim em long kan blong en, tasol em kalap na mi kisim em long bel bilong em".

27. This was not a one off attack with a knife. The accused swung the knife at the victim several times cutting her grievously at each swing. Furthermore, there were other people who had accompanied the victim. There were her two daughters and her niece. The attack was however not aimed at the children or the niece. It was aimed solely at the accused.

28. When the accused, Dorothy Buku was cutting Paula Golpak, she was shouting words to this effect; "Bai mi kilim yu, bai mi kilim yu". Does the uttering of these words express the intention of the accused to kill the victim? The State says it does and coupled with the serious knife wounds she received it expressed an intention to actually kill her.

DEMEANOUR OF WITNESSES

29. The Court will deal first with the demeanour of the witness.

30. Both the accused and the victim are educated women. But I prefer the evidence of the accused to that of the victim. She was quite frank and honest in telling the court what she did. She did admit quite frankly of cutting the victim with the knife and describing in detail how she attacked the victim. On the other hand the Court finds that while Paula Golpak spoke with some honesty, I could not resist the observation that some of her evidence was tailored to simply securing a conviction. For instance she vehemently denied having an adulterous affair with Henry Buku, when the evidence against her on this aspect was tendered in by her consent. The evidence on her adulterous relationship is strengthened by Henry Buku's unequivocal admissions to his wife, the accused. Her vehement denials of poking rude and provoking fingers of a sexual nature at Dorothy Buku, is also not to be believed as well as her denials of her swaying her bums and hips also deliberately depicting an act of a sexual nature. Furthermore she said the accused swung many knife blows and cut her whereas medical evidence confirms that she sustained only two knife blows. Her evidence and that of her niece, Jones Dome were quite identical and matched each other well in most aspects. This leaves me with one unavoidable conclusion. Jones Dome was coached to tailor her evidence in such a way to secure a conviction and to make sure that Dorothy Buku is sent to jail. I will disbelieve Jones Dome as she was quite partisan to the cause of the victim. There were of course some inconsistencies in the evidence of witnesses called for by the State and the evidence of the other defence and State witnesses as well. However these inconsistencies are not such that they gravely affect the outcome of the entire defence case or the State case.

ALLEGED ACTS OF PROVOCATION

Acts Of Provocation

31. I commence first with the evidence of provocation. There are two kinds of provocative behaviour being alleged here.

(a) The adulterous affair of Paula Golpak and Henry Buku.

(b) The rude finger gestures from the victim depicting sex as well as her swinging her bums and hips and her bodily movements also depicting sexual intercourse.

LEGAL ISSUES

Provocation As A Defence To A Charge Of Attempted Murder

32. The provisions on provocation are Section 267 and Section 303.

33. The defence of provocation is defined under section 267. Section 303 reduces killing on provocation that would otherwise constitute wilful murder or murder to manslaughter. Section 303 (killing on provocation) therefore provides a partial defence.

34. In R –v– Bauoro Dame [1965-1966] PNGLR 201, at 204, it was held that provocation as a defence (section 267) is inapplicable to a charge under this section (s304) for attempted murder.

35. In Australia, the High Court interpreted Section 160 of the Tasmanian Criminal Code to say that the defence of provocation would not apply to a charge of attempted murder in the case of Steven John McGhee –v– R [1992] HCA; 183 CLR 82. Brennan J, Toohey J, Gaudron J, Dawson J (Dean J dissenting) held that section 160 could not be applied to the offence of attempted murder because, in the words of Dawson J:

"The answer to the question raised by this appeal must be found in the language of the code. In particular it must be found in a code where the role of provocation is limited by Section 160 to reducing the crime of murder to that of manslaughter. It has no other roles to play."

36. The Criminal Code of Tasmania is worded somewhat differently to our own and it combines the effect of Section 267 and Section 303. Relevantly Section 160 provides:

"(1) culpable homicide, which would otherwise be murder, may be reduced to manslaughter if the person who causes death does so in the heat of passion caused by sudden provocation."

37. The same reasoning as done by the High Court of Australia is applied to Section 303 (killing on provocation) of our Criminal Code. There must be a death for the Section to come into play. There is no room for any other contrary interpretation.

38. Section 304 has no operation where a person does not unlawfully kill another.

39. Frost J (as he then was), came to the same conclusion by a somewhat different route in the case of R –v–Bauoro-Dame [1965-1966] PNGLR 201.

40. In Bauoro Dame, Frost J, held at page 204 that provocation as a defence under Section 267 is inapplicable to a charge under this section for attempted murder. More recently Lay J in the case of The State –v– Henry Judah Les (2005) N2950, used the same reasoning process to hold that provocation under Section 267 is not a defence available to an indictment charging a person with attempted murder under Section 304.

41. This court is of the view that a specific intention to kill is an essential element of the charge of attempted murder and intention to kill involves an intention "to cause death".

42. In the present case following the cases of R –v– Bauro Dame and The State –v– Henry Judah Les, this court rules that the defence of provocation under section 267 is inapplicable to a charge of attempted murder under section 304 because an intention to kill is an essential element of the charge of attempted murder and intention to kill involves an intention "to cause death".

INSULTING OR OFFENSIVE BEHAVIOR AS PROVOCATION

43. The alleged adulterous affair between the victim and the husband of the accused, is aggravated by the rude and provocative finger gestures, singing and swaying her bums and hips and dancing in the face to the accused to depict sexual intercourse while the accused was resting under a mango tree.

44. The victim Paula Golpak completely denied poking rude and provocative finger gestures depicting sex at the accused. She also denied singing and swaying her bums and hips deliberately depicting acts of a sexual nature to make the accused angry. Moreover she denied any adulterous affair with Henry Buku, the husband of the accused.

45. Whether or not there is provocation is a question of fact for which the court will have to make a finding based on the evidence before me.

46. In relation to the first issue of using insulting behavior or insulting and offensive behavior which is calculated to induce an assault, Section 267 of the Criminal Code states that whether or not 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 the insult is done or offered, is a question of fact.

47. It follows that the court will have to make a finding on whether or not the actions of Paula Golpak in flicking rude finger gestures depicting acts of a sexual nature as well as the swaying of her bums and hips and dancing, again depicting acts of a sexual nature are sufficient to constitute provocation?

48. Provocation by mere words or by rude behavior may have more than one meaning. It may mean provocation by insulting or abusive language, which is calculated to rouse the hearer's resentment.

49. The common law position on this issue is that words or actions alone cannot even be sufficient to provoke a reasonable man to form an intention to kill or cause grievous bodily harm: See Holmes –v– DPP [1946] AC 588.

50. But in Papua New Guinea it is now settled law in this jurisdiction that verbal insults may constitute a sufficient inducement to assault and thus constitute exculpatory provocation: It has also been held that words alone can amount to provocation See The State –v– Roland Rebon [2008] N3495 and R–v–Rumints Gorok [1963] PNGLR 81.See also R –v–Kink Abu [1970] No 576. Here it is not words but actions of a woman. Can the actions of Paula Golpak be sufficient to constitute provocation? In the case of The State –v– Roland Rebon [2008] N3495, the deceased who had assaulted the accused a week earlier swore words at the accused. The words used were "you go home and eat your mother's vagina". This provoked the accused who punched the deceased twice and kicked him on his stomach. The deceased died from ruptured spleen. Lay J held that the words "yu go home and eat your mother's vagina." was sufficient to provoke an assault. On this basis His Honour found that these words did amount to provocation and acquitted the accused of murder. The accused has successfully established use of insulting words as sufficient provocation and therefore a defence to his charge of murder.

51. In R –v–Kink Abu the deceased wife boasted to her husband of her adulterous affair and said to her husband: "You come and eat my vagina and the vagina of your sister and when I have illicit intercourse you will eat the semen and other liquid of our intercourse". The court was of the view that these words would in any community, European or native in the circumstance be such as might reasonably be considered to constitute provocation.

52. In the present case the accused had knowledge of her husband's adulterous affair when he confessed to her in Port Moresby. This led her to chase him out of her household. Her knowledge of his marital infidelity stayed on with her for more than one year. When Paula Golpak poked her fingers at Dorothy Buku and swayed her bums and hips depicting acts of a sexual nature, the latter felt humiliated, insulted and momentarily lost her power of self control. By her behavior Paula Golpak was conveying information and confirming the fact of her adulterous affair with the husband of the accused.

53. Like spoken words this court finds that Paula Golpak's outrageous and insulting behavior of poking rude ringers depicting sex and the dancing and swaying of her bums and hips also depicting acts of a sexual nature are sufficient to constitute an inducement for assault and therefore sufficient to constitute provocation under Section 266 and 267 of the Criminal Code. The court finds that the behavior of Paula Golpak really was a means of conveying information of the fact of her adulterous relationship with the husband of the accused.

ADULTERY AS PROVOCATION

54. The accused also raises and relies on the adulterous affair of the victim, Paula Golpak, with her husband one Henry Buku. This adulterous affair between the victim and the husband of the accused, is aggravated by the rude and provocative finger gestures, and swaying her bums at the accused who was resting under a mango tree prompting her to attack the victim. It would appear to this court and the court so finds that this kind of behavior from Paula Golpak is highly repulsive, offensive and is intended to induce an assault.

55. The victim Paula Golpak completely denied poking rude and provocative finger gestures at the accused. She also denied singing and swaying her bums and hips deliberately to provoke the accused. She denied any adulterous affair with Henry Buku, the husband of the accused.

56. Based on the evidence before me the court finds on a balance of probabilities that there is no doubt that there was an adulterous affair between the victim Paula Golpak and Henry Buku, the husband of the accused. The court accepts the accused's record of interview especially the Question and Answer No. 37 where she told the Police of calling her husband at the Walindi Resort outside Kimbe. The husband's confession, of his adulterous behavior with Paula Golpak in his hotel room at Walindi Resort Hotel confirmed her suspicions. The Record of Interview was tendered in by consent and based on that evidence a finding of adultery is made against the victim and Henry Buku. This court further accepts the evidence of the accused who spoke very sincerely of her husband's confessions to her with respect to his adulterous affair not only with the victim, Paula Golpak, but also with other woman as well. The rude finger gestures and the dancing and swaying of bums and hips by Paula Golpak all convey a message of this adulterous affair. In R –v– Koruapu [1957] No.104 a pre Independence Supreme court held that an admission of adultery may be provocation, depending on the accused's cultural and social context.

57. Adultery is a marital offence which is governed by the Adultery and Enticement Act. This court is of the view that any act of adultery which concerns marital infidelity is a very serious offence against the dignity, sanctity and sacredness of the marriage union. It touches upon and inflicts injury and totally undermines the conjugal love of a husband and wife who express themselves in the act of sex in marriage. In marriage the physical intimacy of the spouses becomes a sign and pledge of spiritual communion. The acts of marriage by which the intimate and chaste union of the spouses takes place are noble and honorable.

58. The Cathechism of the Catholic Church (2006) Theological Publications in India states the following concerning adultery and the dignity and sanctity of marriage at page 343-paragraph 2380-2381:

"Adultery refers to marital infidelity. When two partners, of whom at least one is married to another party, have sexual relations-even transients - they commit adultery. Christ condemns adultery of mere desire. The sixth commandment and the New Testament forbid adultery absolutely. Adultery is an injustice. He who commits adultery fails in his commitment. He does injury to the sign of the covenant which the marriage is based, the rights of the other spouse and undermines the institution of marriage by breaking the contract, on which at least is based. He comprises the good and human generation and the welfare of the children who need their stable union."

59. I approve the statement of Smithers J in R –v– Rumints Gorok [1963] PNGLR 81 who said;

"Is then a wife's act of adultery something "done to" the husband,". Although it is not physically done to him. I think the act so closely touches and involves the relationship established between the spouses by marriage that when performed it is necessarily done to the spouses; no matter how far away or even how ignorant he or she may be when it is performed. The adultery was therefore a wrongful act done to him."

60. The act of adultery by one offending spouse is aimed at injuring the conjugal love and the covenant which the institution of marriage is based upon. It also destroys the rights of the other spouse and undermines the institution of marriage. The evidence here is that Dorothy Buku was resting under the mango tree after she had finished raking the mango leaves. Furthermore although she knows the adulteress Paula Golpak, she had not seen her for a long time as she (Dorothy Buku) was spending most of her time in Port Moresby with her children looking after her grandchildren. This particular afternoon was her first time to see the woman who had been having an adulterous affair with Henry Buku, her husband. I accept Dorothy Buku's evidence that Paula Golpak was swaying her bums and hips and poking very rude and provocative fingers as she passed by Dorothy Buku, as if to say: "So what can you do about it". Although this rude and provocative behavior of Paula Golpak in my view aggravated and inflamed her tempers her attack on Paula Golpak was less calculating. She was not swinging the knife in a frenzy to indicate her complete loss of passion. Dorothy Buku in my view did not loose her power of self control and was not attacking her victim in a heat of passion and with such savagery and ferocity as would be expected of people who completely lose their self control and attack under a heat of passion.

61. Section 266 defines provocation and Section 267 provides the defence. It is defined as a wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive him of the power of self control and assault the person concerned. The whole doctrine relating to provocation depends on the fact that it causes or may cause, a sudden or temporary loss of self-control whereby malice, which is the formation of an intention to kill or inflict grievous bodily harm, is negatived. – See Holmes –v–DPP [1946] AC 588 at page 598.

62. This court is of the view that an act of adultery can and does give rise to provocation and as Smithers J stated in R –v– Rumints Gorok, an act of adultery by one offending spouse in a marriage union is a wrongful act also done to the other party. In Rumints Gorok, the court held that the commission of adultery by one native spouse is a wrongful act done or offered by that offending spouse to the other within the meaning of section 267 and in circumstances may constitute provocation for an assault.

63. Exculpatory provocation has also been found to exist notwithstanding the passage of quite a substantial time from the occurrence of the act constituting the provocation – See Attorney General of Ceylon –v–Kumara Singhege Don John Perera [1953] AC 200.

64. Here in Papua New Guinea one only needs to look at the criminal list of cases of the very many adultery related killings to understand this. This also shows that the passion amongst many Papua New Guineans, remains alive and heated for periods much greater and longer than say a more sophisticated westerner. Upon seeing an adulterer or adulteress that passion is simply ignited and burns with rage.

65. The question does arise whether what the accused did was an act done in the heat of passion.

HEAT OF PASSION

66. At Common Law the position of provocation on the basis of adultery is expressed in the case of Holmes –v– DPP [1946] AC 588 where it was stated that only the discovery of a spouse in "flagrante delicito" or in the actual act of sexual intercourse itself may be regarded as sufficient to induce the heat of passion which will lead to violence.

67. The position in Papua New Guinea was clearly expressed in R –v–Rumints Gorok where the court found that exculpatory provocation was found to exist notwithstanding the passage of quite a substantial period of time from the occurrence of the act constituting the provocation. As well, the passion of a member of a primitive race may remain alive and heated for periods much greater than that of a more sophisticated person.

68. Applying the decision in Roland Rebon this court finds that Paula Golpak's actions ignited the deep seated passion and anger in her. The court however cannot say that she "ceased to be the master of her own understanding at that moment; see R –v– Rumints Gorok. Following the case of R –v– Rumints Gorok this court finds that Dorothy Buku did not attack Paula Golpak in a heat of passion.

LOSING THE POWER OF SELF CONTROL

69. Did the accused intend to kill the victim? On the issue of whether the accused was deprived of the power of self control or not, I find that she was not. In the actual execution, this court finds that the accused was less calculating and more driven by her anger than she intended.

70. The court finds that if she had intended to kill her, she would have calculated her moves in such a way that she would have attacked Paula Golpak from the rear and stabbed her. Instead the court finds that she attacked from the victim's left hand side. I infer from the words she was uttering while attacking the victim with a knife and the nature of the injuries inflicted upon Paula Golpak, which I will refer to later and which I find are not of the extreme one would expect of a person who had truly lost the power of self control, that the accused was very angry, but had not lost the power of self control. For one thing too, the accused walked up to the victim. She did not run or rush up to her in a frenzy, as would be expected of a person who was deprived of the power of self control and who was acting in a heat of passion. I do not find that the accused had lost her power of self control and was acting in the heat of passion.

PROVOCATION AND THE USE OF FORCE

71. Section 267 is made subject to the provision that:

"....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...."

72. In R –v– Taimbari Kesa [1966] No. 397, it was stated that where provocation is found to exist, a defence under this section is possible if the force used was not disproportionate to the provocation offered. In measuring the proportion of the force used, the section "requires a man to guide his anger with judgement", but a man who has been provoked to the extent that he has lost control of himself cannot be held to too fine a standard of judgement".

73. The force used here was a bush knife which was used to inflict two major wounds. Is the use of a knife to cut a victim proportionate to the provocation offered? In other words the mode of resentment must bear a reasonable relationship to the provocation offered. The court finds here that the use of a knife to inflict the wounds upon Paula Golpak was quite disproportionate to the provocation offered.

74. I find that provocation as a defence was not established here because:

(a) The accused did not act in a heat of passion.
(b) The accused did not loose her power of self control.
(c) The force used was disproportionate to any provocation offered. There may have been provocation offered but that may be provocation in a non-legal sense or de facto provocation.

ALTERNATIVE VERDICTS

75. The Indictment contained an alternative charge which alleges that the said Dorothy Buku unlawfully inflicted grievous bodily harm upon Paula Golpak without lawful excuse or justification contrary to section 319 of the Criminal Code.

76. Section 319 is stated in the following terms:

"319 – Grievous bodily harm

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

77. In his submission the learned State Prosecutor submitted that if the court is not satisfied that there is evidence of an intention to kill a further alternative verdict for a conviction ought to be entered under Section 315 of the Criminal Code.

INTENTION TO KILL

78. That now leaves only the issue of whether the State has proven beyond reasonable doubt that there was an intention to kill displayed by the accused.

79. One of the elements to be proven beyond reasonable doubt in order to prove a case of attempted murder is that the accused actually intended to kill the victim. Specific intention to kill is a very necessary ingredient of the offence here. See R –v– Bena Forepe [1965-1966] PNGLR329, see also R–v– Kiki Kau'au.

80. The State relies upon the words, uttered by the accused as she was attacking the victim Paula Golpak and the serious wounds she sustained on her body from the knife attack to show that Dorothy Buku intended to kill the victim. The words the accused uttered in the process of swinging the bush knife in attack are "Bai mi kilim yu" Bai mi Kilim yu". (I will kill you, I will kill you) The accused does not deny this, and the court so finds that the words "bai mi kilim yu, bai mi kilim yu" were indeed uttered by the accused, when she was attacking her victim. Does this express her intention or her state of mind to kill the victim?

81. Not every word spoken in a rage of anger is to be taken literally. Some of course are to be taken literally, while others are meant to frighten. Still others are meant to maim only, or to cause grievous bodily harm or to leave a "mark only". For instance in the case of the State –v–Henry Judah Les, Lay J found that the words uttered by the accused person, "Em dai blong yu", as he struck his wife with an axe after he suspected her of having an adulterous affair with another man in the village, was found not to be an expression of his intention to kill her, but to maim her or cause her grievous bodily harm. The task for me here is to decide from the overall picture of the events whether the words spoken viz, "bai mi kilim yu, bai mi kilim yu" are a true reflection of her intention.

82. I will try to work out her intention by looking at her conduct prior to, during and after the event. – State –v– Kuanande followed.

83. The first evidence I look at least is of course the Medical Evidence, which was tendered in by consent. The Medical Report describes Paula Golpak's wounds as follows:

" Paula Golpak received two knife wounds, one to her right forearm and one to her left forearm which caused her to lose a lot of blood and fractured her left ulna bone. She was given iv fluids and taken to the operating theatre for the repairs of the tendons, muscles and reduction of the fractured bone. She is still undergoing treatment and waiting further surgery. The injuries are serious that if treatment was not given, she could have bled to death. She will be left with permanent disability to both forearms and hands".

84. The Medical evidence does not talk about the depth of the wounds although it talks about the fracture of a bone, which is a very serious matter. Furthermore, the medical report does not talk about the severance of the tendons and which particular tendons were severed. All it talks about is the "repair of the tendons". Neither does the medical report talk about the degree of the permanent disability expressed in terms of percentages that Paula Golpak will suffer permanently, although it says that "She will be left with permanent disability to both forearms and hands".

85. The evidence than in summary is that the accused, Dorothy Buku, struck the victim Paula Golpak with a bush knife resulting in her sustaining wounds to her body which involve some severance of a tendon, the full extent of which was never disclosed by the Medical Report. There was no major severing of any ligaments. The only fracture reported was that of the left ulna bone. Again the depths of the wounds nor the depths of the fracture and the severance were reported. Paula Golpak was indeed left with some impairment, but the permanent nature of these disabilities was not reported as well. She only showed the scarring on her stomach where she suffered a grievous cut.

86. Against the background of truly horrific injuries which come before the courts every now and then, caused by axes and knives wielded by persons unequivocally intending to kill; and recognizing that any blows to the head or the rest of the body can be lethal and dangerous, I am unable to say, solely from the injuries themselves that they envince an intention to kill. Dorothy Buku's conduct prior to, during and after the knife attack, envinces this. The evidence is that the accused Dorothy Buku was resting under a mango tree after raking the leaves. This shows that she never had any premeditated or preplanned intention to kill. When the victim Paula Golpak made the rude signs at her depicting behavior of a sexual nature at her, she walked up to attack Paula Golpak from her left hand side. She did not run up to her in a frenzy as would be expected of a person who was acting in a heat of passion and had lost the power of self control. In relation to the wound on her stomach she said in her evidence, "mi minim long katim kan blong em tasol mi aburis". In my view she really meant to say that her intention was to maim or cause permanent injuries to the vagina of the victim, the vagina being identified as the offending and the guilty part of the human anatomy.

87. Therefore the overall impression I get is that the blows inflicted by Dorothy Buku, were eventually restrained to some extent when she was stopped and subdued by the young men who were also sitting on the bus stop nearby. The evidence does not go so far as to show that the blows were the type inflicted with such ferocity and savagery which by themselves speak clearly of an intention to kill. Being of the view that the blows were not swung with such ferocity and the savagery attributed to a person who really intended to kill another person and which were eventually restrained, I consider that the words uttered by Dorothy Buku "bai mi kilim yu, Bai mi kilim yu" were not a true reflection or statement of her intention to kill. If any, I find the words to be used in day to day language and that these words cannot be described as words or terms of art to mean a specific or literal intention. Parents for instance, who want to spank their children will often say, "bai mi kilim yu". This does not mean that they will kill the child or put such child to death. It simply means I will teach you a lesson. I find that the words, "bai mi kilim yu, bai mi kilim yu" has taken on or acquired a common daily and lighter usage to mean a common assault or an assault that will teach the offender a lesson which will deter him or her not to engage in similar misconduct again. The accused in my view appears to be saying "I will inflict some pain upon you so you can feel the kind of pain I experienced by your adulterous affair with my husband or that I will teach you a lesson that will deter you from engaging in similar adulterous conduct again".

88. The court finds that her true intention is reflected in her own statement given in evidence, viz, "mi minim long katim em long kan blong em tasol em kalap na mi aburis". By this statement the accused was unequivocally saying that she wanted to maim or cause grievous bodily harm to the vagina of Paula Golpak and not to kill her. Beneath the surface and underlying all her actions, the accused appears to be saying, I must protect the sanctity and dignity of my marriage before it is torn apart by wolves and other unauthorized intruders.

89. The whole circumstances of this case then leaves me with a lot of doubt as to Dorothy Buku's intention to kill Paula Golpak. I find that Dorothy Buku did not intend to kill Paula Golpak. The upshot of this is a judgement of this court that the State has not proven an intention to kill beyond reasonable doubt. The court considers that the evidence discloses that the accused is guilty of causing grievous bodily harm under section 319 of the Criminal Code. The court finds the accused not guilty of an attempted murder and accordingly she is acquitted of the charge of attempted murder under Section 304. Pursuant to section 539(4) (a) of the Criminal Code this court will however find her guilty of the alternative count of causing grievous bodily harm under Section 319 and accordingly convicts her of that alternate count.

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused