Queen v Sem [1964] PGSC 34 (19 February 1964)

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

BETWEEN

THE QUEEN

v.

BORAUDA SEM

Smithers J.

Port Moresby
19^th February, 1964.

REASONS

The accused has been convicted of manslaughter of his wife. He is married to and has a family by a woman not being the deceased. His first wife lives in Popondetta. He also married and lived with the deceased woman in Port Moresby for about seven months.

On Tuesday, 5^th November, 1963, the parties were living in a boi house in the centre of Port Moresby. An aunt of the deceased also lived with them at the relevant time. The deceased and the aunt went to Koki market on that day and the deceased took with her in a purse belonging to the accused £1.10s.0d. provided by him. Later in the day the accused met them at the market and he discovered that there was an additional £1.0.0d. in the purse. He enquired how this had come about. She did not give him a satisfactory answer and a serious quarrel ensued in which she was abusive to him. The parties returned to Port Moresby in separate buses. During the evening there appears to have been little talk but a strained atmosphere persisted.

On the 6^th November, the accused had to leave the house at 3:30a.m as he was engaged in the night duty in his employment. Before he went the wife asked him to lock the door of the house as the aunt had disturbed them all the night before by going in and out. He did this. On his return from work about midday on the 6^th November, a man from Lae called alleging that some men had given the wife betel nut, bananas and £1.0.0d. the previous day at Koki. The wife said it was only her brother in law who had given her the betel nut. She became very angry and I am not able to say what precise position she took up concerning the additional £1.0.0d. About the same time the next door neighbor arrived to complain that the wife and the aunt had got out of the window at 5.30 a.m. and entertained two men singing and talking outside the house.

The wife admitted that a man had come in the early morning after the accused went to work with food and they had eaten. The accused appears to have replied that she was to stop in the house and not make a noise as he had to work at night. It seems they continued to quarrel and the wife said that she was not the wife of the accused and that her "husband" was elsewhere and she made offensive remarks about the accused's mother and family.

In the course of the afternoon the accused prepared rice and other food and then asked the wife to serve it out to the three of them. She declined saying it was his food and that she and the aunt had no food. The accused asked her repeatedly to do this. She maintained the same attitude. At the last time of asking she got up and went inside to distribute the food saying "You are only a woman. If you were a man you would kill me but you are only a woman. I will give you a dress." With that she took off her dress and flung it into his face. The accused appears to have taken no action at this stage; the wife donned another dress and the "cross" continued. About half an hour later she told the accused to go and have intercourse with his mother. She had made use of this offensive remark the previous day but on this occasion it was too much for the accused. He grabbed a knife, plunged it into the right side of his wife, threw her out of the house on the ground and stabbed her twice more. She died of these wounds and head injuries suffered when she was flung to the ground.

The accused is found guilty of manslaughter rather than murder because in the circumstances the Crown is not able to prove that the accused did not kill the woman in the heat of passion caused by sudden provocation. The question is what penalty?

The effect of provocation in this case is to reduce to manslaughter what would without it have been wilful murder. Provocation, although not a defence, is, of course, very relevant to the question of punishment. The punishment for manslaughter may vary from a light fine to imprisonment for life. Provocation reduces murder to manslaughter because it eliminates the kind of malice inherent in murder. The accused says "I did what I did in a moment when passion caused by the conduct of the deceased took the place of reason and therefore my punishment should be light indeed." I do not think that it follows that the sentence should be other than substantial.

The criminal law is concerned to protect one citizen against another. It is designed above all to prevent the killing by one person of another. To my mind, except in cases of self defence, there are few deliberate killings in civilized communities which should escape substantial punishment.

In the case of arguments between unsatisfactory and offensive wives and their husbands, extravagant and provocative talk is common and I think the law requires that husbands should refrain from surrendering to passion to extent that they kill. After a death it is the easiest thing in the world to forget the deceased. She has no voice and she is gone. But for the firm enforcement of the law many people now walking about would be in the same condition, gone and forgotten. The inherent weakness and utter finality of the destruction of life must ever be uppermost in the mind of the living. To kill, even in passion caused by sudden provocation is a breach of the law and breach of a natural law arising from the sanctity of human life. This does not seem to be a case in which the primary cause of the actions of the accused was a sudden reaction to a conviction on his part that she had committed adultery. He says in his statement that when she threw at him he wanted to kill her. This was well after the talk about the £1.0.0d. or the man who came in the early morning. The killing seems to have been caused by the final piece of abuse working on the mind of a man dealing with an intransigent, abusive and provocative woman.

To say that he had been patient and suffered much at the wife's hands is to create a certain sympathy for him but to say he killed at the time and in the savage way he did is to say that he took action of a cruel and final kind out of all proportion to the occasion. I think the accused was gravely at fault in giving way in the way he did. It is clear that at all times the accused knew what he was doing. He describes the number and the place where each stabbing took place and after the event he promptly and calmly went to the police station and reported it in full.

Disputes between husbands and wives are common, they normally subside. In the accused's community, abuse quickly proceeds to the kind of talk which occurred in this case. The notion in this community that the death of a wife guilty of this kind of conduct is not a wicked and serious crime meriting serious punishment should not be tolerated. The results would be tragic. Disputes of this kind must not end in death even of an adulterous, insulting woman. Husbands may have a difficult time handling situations of this kind but killing, which one fears is an idea which quickly comes to the mind of a person of accused's category, is not to be permitted. It is necessary that all such persons, and they are numerous, should understand this very clearly. It is when looked at against the background of a whole life that the wickedness of killing in connection with a domestic argument and its attendant insults is to be judged.

It has to be remembered that I am not dealing with a primitive highlander. The accused is an established town dweller accustomed to organised civilized life. He was employed from 1953 1956 as a cook at the R.S.L., Lao, from 1956 1961 as a Cook in a good private home in Port Moresby and from 1961 to the present time as a Cook at P.M.E. Catering. He has long been closely connected with the church. His intelligence is quite high. He performed war service as a carrier for the Australian Army for the years in 1944 1945. Some of these matters speak on his favour whilst others indicate that he should have had a complete respect for human life.

This is a crime which merits severe punishment because of its serious nature and it is one in which I consider it of the utmost importance to take into account the deterrent effect of the punishment and the harmful effects which any appearance of compromising with the taking of human life will have in this community. Other methods of resolving serious marital conflict must be sought.

The sentence will be seven (7) years.