Queen v Pierce [1955] PGSC 12 (7 March 1955)

SC65A

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

THE QUEEN

against

HARRY VINCENT PIERCE

Criminal trial (Gore, .J., with a jury) at Samarai
3rd, 4th, 5th and 7th March, 1955.

insanity - epileptic fits

Pierce, a trader, shot two Natives dead, one in a canoe below the bow of Pierce's vessel and the other in another canoe at the stern of Pierce's vessel. There was no evidence to show why Pierce shot them or even that he was aware of the existence of one of them until he fired at him, and he said he must have had a "blackout". There was testimony indicating an epileptoid history. The medical evidence showed the existence of rombergism and that X-rays of his head disclosed a calcified tumour, both of which indicated an astro-cytoma which could cause epileptic fits.

HELD: "From this material, it would appear that it is probable that Accused suffered from some form of epilepsy. The question for "the jury" is whether he was in a state of epilepsy at the time of the shooting and whether it is satisfied on the evidence that this constituted a degree of insanity which relieved him of criminal responsibility" - (para.30).

Paul Quinlivan - Crown Prosecutor.
Norman White - of Counsel, for Pierce.

Editor's Note: The jury found that Pierce was not of sound mind at the time he killed the two men and the Court ordered that he be confined in strict custody.

On 7th March, 1955, His Honour summed up as follows to the jury:

GORE. J:

In this trial the accused is charged with the crime of wilful murder as you have been informed. Having heard the addresses of Counsel it now becomes my duty to instruct you upon the law applicable to this case. I may comment on the facts to assist you as far as I can, but you, and you alone, are the judges of the facts. The facts are your province.

Every person is presumed to be innocent until he is proved guilty. That is one of the great bulwarks of our legal system.

The burden of proof is laid upon the Crown to prove to the complete satisfaction of a jury beyond a reasonable doubt that the accused committed the crime. But there is an exception to this for there is another presumption in our law that every person is presumed to be of sound mind, and to have been of sound mine at any time which comes in question until the contrary is proved. Where the defence of insanity is raised or appears then the burden of proving it is upon the defence.

But the burden laid upon the Crown is heavier than that which the defence is required to carry in setting up or relying upon insanity. The Crown must prove to the complete satisfaction of the jury beyond a reasonable doubt while the defence has merely to satisfy the jury that at the time he did the acts with which he is charged he was not of sound mind. The defence does not have to remove all doubt from the minds of the jury.

The Crown must prove beyond a reasonable doubt that in this case the two Natives, LOSI and BARANA, were killed and that the Accused was responsible for their deaths. If you come to the conclusion that Accused did not kill these two men or, anyway, that they did not meet their death at his hands, then there would be an end of the matter, and you would find him not guilty. I do not suppose you will have much difficulty in arriving at the conclusion that these two men are dead and that their death was caused by the Accused.

There are three degrees of unlawful killing in our law. They are wilful murder, murder, and manslaughter. Although the Accused is charged with wilful murder, there is no presumption between the three degrees that the killing constitutes one or other of them, but it will be for you in the circumstances which have been proved (if you do not consider that any defence of authority, justification, or excuse is established) to draw such inferences as you think that the facts established as to the presence of such an intention to kill as is necessary to constitute wilful murder or such an intention as is necessary to constitute murder or as to the absence of any such intention as is necessary to constitute either of those crimes in which case the verdict could be manslaughter. In short, you will fit the intention to whatever degree you think appears or if there is no intention then you could find manslaughter.

Wilful murder is when a person unlawfully kills another intending to cause his death or the death of some other person.

Murder as it could relate to this case is when a person unlawfully kills another when intending to do the person killed or some other person some grievous bodily harm.

Manslaughter is where a person unlawfully kills' another person under such circumstances as not to constitute wilful murder or murder.

Now, I am explaining these three degrees of unlawful killing because I am obliged to do so. The matter is entirely for you and it is not for me. You could find the Accused guilty of any one of the three. You could, of course, find him not guilty at all.

On the facts as I see them, there does not appear to have been an intention to do no more than some grievous bodily harm to the two men LOSI and BARANA, facts which would reduce the unlawful killing to murder. Such an idea has not been suggested in the case, but I repeat it is a matter for you. Nor has it been suggested at any time that there was any question of manslaughter and no more. You, however, might have perceived something to the contrary.

Now as to the intention. A person is not criminally responsible for an act or omission which occurs independently of the exercise of his will of for an event which occurs by accident.

There has been nothing in the evidence to suggest that these two men met their deaths through an accident. Such a defence is not raised, so I think you can discard accident. Nor does it appear to me that whatever Accused did, if he did do any-thing was done independently of the exercise of his will. This is apart from the issue of unsoundness of mind which will appear later for discussion. These things are however matters for you. Nor does there appear to have been any mistake.

Accused would be relieved of criminal responsibility if it were shown in the evidence that he had justification or excuse. He would be excused if he were doing the act in execution of the law or in obedience to lawful authority or when he was threatened with violence and he resisted with force, which was reasonably necessary in the circumstances.

I do not see that any of these matters have evolved from the evidence, but you might, and it is for you.

The Accused could be excused if it were shown that there was provocation, but provocation does not appear to be relied on here at all.

I do not propose to traverse all the facts which have been adduced as to the deed itself. You, gentlemen, have been paying attention to them. The salient facts as they appear to me as to the act itself are these.

The Accused was engaged in trading in and about the Island of Sudest and in the course of this trading he came in his barge to a village named PANTAVA on the south coast of the Island. There some Natives came alongside the barge with a view, it would seem to trade with the Accused in gum and shell. An old man named DEIVO came aboard from a canoe in which he had arrived with BARANA, an ordinary villager, one of those alleged to have been killed later by the Accused. This canoe was at the stern of the barge. From another canoe which had drawn up alongside, the man LOSI stepped aboard. There was an amount of discussion between Accused and the old man DEIVO and this discussion developed into a heated one about, it appears, a girl, of whose whereabouts the Accused was demanding to know. There is a confusion, somewhat, here as to whether this girl was the wife of the Accused who had disappeared or another girl called MOTI. You might not agree with me but it seems to me that the girl was probably the wife of the Accused, but it does not appear clear. The old man said he did not know where the girl was and he was punched by Accused. After a while Accused called for his crew-boy, SOGI, to bring his revolver which SOGI did. Apparently when LOSI heard the revolver being called for he went off the barge and into his canoe which was taken along the side of the vessel to the bows where the occupants of the canoe held onto the anchor chain. After a time the Accused got the revolver from where it had been placed by SOGI and walked towards the bows of the ship as far as the mast. Here he fired a shot which seems to have gone over the heads of the men in the canoe, hitting the water. Accused then went right up to the bow of the ship and, firing down into the canoe, shot LOSI through the top of the head. Then Accused left the bows and returned to the stern and, pointing the revolver into the canoe where BARANA was sitting, shot him three times in the body. Both these men died as a result of these revolver shots.

Accused returned to the wheelhouse where DEIVO had been sitting all the while. He put the revolver in the wheelhouse and then he fell down on the hatch which is inside the wheelhouse. DEIVO called out to SOGI "toubada has fallen". SOGI went and caught the Accused by the arm and helped him up and Accused sat in his chair. Accused then continued the questioning of the old man as to the whereabouts of the girl. Finally DEIVO was sent off the barge by Accused.

There was evidence led that Accused had been drinking out of a bottle. He had been drinking from a half bottle the night before and from a full bottle on the day of the alleged killing. But whether or not it was intoxicating liquor the witness was unable to say.

The defence appearing in this case is that at the time these two men were killed the Accused was of unsound mind and therefore is not criminally responsible. The law says 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 is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing or of capacity to control his actions or of capacity to know that he ought not to do the act or make the omission.

I have referred to the evidence of the Accused having been drinking out of a bottle with a frequency which might suggest that it was intoxicating liquor which eventually caused intoxication, and so I want to tell you something about intoxication affecting criminal responsibility. Drunkenness is never a defence unless it amounts to unsoundness of mind. A person cannot escape liability on the ground of intoxication. If a person sets about making himself drunk and commits a crime he cannot be heard to say in relief of criminal responsibility that he was intoxicated. There might be instances where a man's drink had been secretly doctored when such an excuse would be accepted. The only relief from criminal responsibility on account of intoxication is when a conclusion can be arrived at that a person was so disordered from drink that he was deprived of the capacity to understand what he was doing or of capacity to control his actions or of capacity to know that he ought not to do the act with which he is charged. In that case, a jury could find him not guilty on the ground of insanity. If however he intentionally caused himself to become intoxicated then that defence is not open to him.

If you have found that the two men were killed by the Accused intentionally, without justification or excuse, to the exclusion of all doubt then you will consider the question of relief from criminal responsibility on the ground of insanity.

You might wonder, as I have; what reasons had the accused for shooting those men LOSI and BARANA? - if he had any animus towards them. These men had apparently come to the barge to trade, DEIVO and his companion BARANA in one canoe with baskets of gum and in the other LOSI and his fellows to trade shell. Was Accused extremely angry because of his belief that the people of this particular Island had gone over to his opposition and begun trading with a half-caste woman named LILI, or because he had the feeling that these people knew where "the girl" was and they would not tell him? Well, they came to trade with him: one with gum and the other with shell. He did ask LOSI as to the whereabouts of "the girl" but with BARANA he does not seem to have had any conversation at all. If he was merely excessively angry because of these matters and shot the two men then that would not be enough at all.

The defence is, however, as you no doubt remarked, that he was at the time suffering from such mental derangement that he did not know a thing about it. Dr. Gunther was called by the Crown really for the benefit of the defence. You heard what Dr. Gunther had to say. The doctor's evidence was to the effect that Accused has a mental disorder which is some form of epilepsy, and if he was suffering from that disorder at the time in the form of an epileptic fit then he would not have the capacity to understand what he was doing or have the capacity to control his actions or have the capacity to know that he ought not to do the act.

Dr. Gunther based his conclusion that the Accused was suffering from an epileptic condition on the history of the Accused himself as related by the Accused himself. That taken alone might not be satisfactory because the Accused could have invented this history himself. The doctor, however, had other conditions upon which to rely. One was that upon an X-ray being taken of the head of Accused a calcification appeared in the photograph, the interpretation of which disclosed a tumour - a benign tumour, it was said. These calcifications are almost positively an indication of a tumour within the brain. The first sign of this tumour is very often an epileptic seizure or convulsion.

In addition, Dr. Gunther says that Accused has a condition called rombergism, and when he stands with his feet together and shuts his eyes, he sways, which means he has an ataxia or some disorientation of his nervous system, and this would be an indication that there was a growth within the brain likely to be an astrocytoma, a tumour.

There seem to be fits and fits, some of which are of short duration when the period of automatism is short. There are other forms where the period of automatism is of long duration, lasting for hours. Dr. Gunther says that during the period of automatism the sufferer is not normal - he is unconscious, his mind is not there. In this condition a man could perform purposeful and normal functions but be unconscious afterwards of what he did. He has no memory of what had occurred during that period. His mind is blacked but for that period. He has a period of amnesia.

You heard the evidence of Father Earl and also of the wife of Accused. Perhaps the evidence of the wife is not very satisfactory in supporting the history as related to Dr. Gunther by accused. Father Earl on the other hand gave more particular evidence in this respect. As you could expect the question whether the history as related by Fr. Earl and the wife supports the theory of Dr. Gunther in so far as it is based on history is a matter for you.

From this material it would appear that it is probable that Accused suffered from some form of epilepsy. The question for you is whether he was in a state of epilepsy at the time of the shooting and whether you are satisfied on the evidence that this constituted a degree of insanity which relieved him of criminal responsibility because he was deprived of the capacity to under-stand what he was doing or of capacity to control his actions or of capacity to know that he ought not to do the things which he is charged with doing.

As it is alleged in this trail that the Accused was not of sound mind at the time when the acts occurred, you are required to find specially, if you find the Accused not guilty, whether he was of unsound mind at the time when the acts took place and to say whether he is acquitted by you on account of such unsoundness of mind. It is no use your returning a simple verdict of not guilty. You cannot find him guilty but insane. Your verdict must be not guilty but of unsound mind at the time.

If you find that he was of sound mind at the time of the occurrence and that he had no justification or excuse and intended to kill LOSI and BARANA then you will find him guilty of wilful murder.