Hatenave, Regina v [1965] PGSC 15; [1965-66] PNGLR 336 (16 August 1966)

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CRIMINAL LAW - Wilful murder - Parties - Automatism - Onus of proof - Criminal Code, ss. 7, 9, 23.

Hatenave and Loso of the same clan were jointly charged with the wilful murder of Sepaya-Horanupai. A kinsman, Ahuhie, and two other young relatives of the accused had recently died and their deaths were generally attributed to sorcery. Hatenave suspected Sepaya of causing these deaths by sorcery and on the day in question Loso began to tremble and jump and shout in a manner consistent with one possessed of the spirit of a recently deceased relative. The local belief is that when one is so possessed she is capable of identifying the sorcerer or leading a party of the deceased’s friends to where the sorcerer lives. It was in this condition that Loso led a group of people to the first house of Sepaya, searched it and announced that Sepaya had gone away. The group, of which Hatenave was also a member, then gathered arms and was led, amid great excitement, by Loso to Ketarabo, a course which took them through Goroka itself. The group comprised about fifty people at this stage and was stopped by police in Goroka, disarmed, and allowed to continue. The group, still led by Loso, continued on to Ketarabo, where Loso beat with her staff on the sides of Sepaya’s second house and denounced him to the assembly as the sorcerer responsible for the death of Ahuhie. Sepaya was at the rear of the house at this time and ran away in fear. Hatenave chased Sepaya and slew him with a knife which Hatenave had kept concealed in his clothing.

N1>(1) There was a reasonable doubt that Loso intended the death of Sepaya or foresaw it as a probable consequence of her conduct.

N1>(2) “Automatism” exists as a defence in the common law as distinct from, though concurrently with, the defence of insanity. Under the Criminal Code the position is the same and where the defence is raised on the evidence the onus remains with the Crown to prove beyond reasonable doubt that the accused was not acting independently of her will.

N1>(3) In the circumstances of this case the possibility of a state of “automatism” fairly did arise and a reasonable doubt existed that she was not acting independently of her will.

OLLERENSHAW J: The two accused persons are charged under s. 301 of the Criminal Code that on the 5th day of March, 1966, they wilfully murdered Sepaya-Horanupai.

The case for the Crown has closed and counsel for the defence has invited me to acquit the female accused, Loso, submitting in effect that there is no case to go to a jury and that, even if there is evidence upon which a jury could convict, no reasonable jury would or should do so.

Both the accused persons belong to the village of Asariyufa, situated upon the outskirts of this town and about a quarter of a mile away from this court house.

It would appear not only that they are of the same clan but also that they are of the same “house-line”. The deceased, Sepaya, belonged to their clan but to a different division or sub-clan of it and so he was said to be of a different “house-line”. He had two houses, one near the market, some little distance from Asariyufa, and the other at Ketarabo, some nine miles from Goroka, through which runs the road to it from Asariyufa.

On a Saturday morning there was a congregation of the people at Asariyufa, concerned with matters arising from the death of Ahuhie, who was a close relative of the male accused, Hatenave, and had been buried the previous day. There may have been some suspicion, at least in the mind of Hatenave, that Sepaya was responsible for the death by sorcery of his kinsman, Ahuhie, and likewise for the earlier deaths of two young relatives, who also appear to have come to untimely ends.

Be that as it may, at some stage of the meeting Loso began to tremble, “apparently in fear”, said one witness for the Crown, and jump and shout, and thereupon she led the people to Sepaya’s house near the market, searched it and announced that he had gone away. At this stage, if they had not already done so, the people armed themselves with bows and arrows, spears, axes and knives, and Loso led them in great excitement towards Ketarabo, a course that took them through the town itself. They made up a disorderly troop, between forty and sixty excited people strung out along the road: “there was a lot of confusion, everybody running about and shouting”, and, armed as they were, they must have presented an unusual sight in Goroka these days.

Loso was leading this procession and a police officer described her thus: “. . . she held a hooked staff. She was moaning, trembling all over and generally jumping up and down.”

They were stopped in the town by the police, disarmed and allowed to continue. Senior Constable Ornopisa was told that they wanted to take a sorcerer to the patrol officer. Nevertheless he followed with other constables in a police vehicle, just in case. When they reached Ketarabo, Loso beat with her staff the sides of Sepaya’s house there and denounced him to the assembly as the sorcerer responsible for the death of Ahuhie. Sepaya, who was engaged at the time in building a fence at the rear of his house, ran away in fear. Some of the group made to chase him but appear to have shown no great effort in this direction. Hatenave had a particular interest in the matter. Instead of surrendering his knife to the police in Goroka, he had concealed it in his clothing and thereafter travelled to Ketarabo, like some of the others, in a hired vehicle. He caught Sepaya at some distance from his house and, notwithstanding Sepaya’s resistance, he slew him. Two of the three witnesses for the Crown who were at Ketarabo at the time said that they were frightened when they saw Hatenave pull out his knife and they turned away.

When questioned later by the police officer Loso explained her actions thus: “I burnt the ‘cargo’ of Ahuhie when he died at hospital. This is what our people used to do before. When I burnt his ‘cargo’ his spirit entered inside me. . . . The spirit of Ahuhie entered my body. The spirit told me that both of us should go to the house of Sepaya. This spirit told me that Sepaya had given him ‘poison’. . . . When this happened I went to Sepaya’s house and everybody followed me. . . . I told all those present that Sepaya had killed Ahuhie.”

The Crown also called the Land Titles Commissioner at Goroka, an officer with qualifications in anthropology, who has had very considerable experience of the practice and belief in sorcery of the peoples of this Territory and particularly, as such Commissioner, of the people of the lower Asaro Valley, in which this town lies. The people of the Asariyufa or Asarozuha clan belong to the Gahuka-Gama people, who comprise about two of the twenty or so tribal groups of the valley. These people, he went on to say, have a traditional belief in sorcery. It is not necessary for me to refer to his evidence about the different types of sorcery involved and I come to what he said that concerns Loso’s situation.

This witness did say that it is believed that, in certain circumstances, a woman could identify the sorcerer: following the death of a person and an acceptance by his relatives that his death was due to sorcery a mourning ceremony would be held, a sort of wake, and it is believed that the spirit, called Horosi, of the deceased could enter or possess a close friend or relative, who could be a woman of the same “line”. “If this did happen,” he continued, “if a person were possessed by the spirit of the deceased that person would tremble violently, dance up and down, jig around, utter cries of anguish and would be believed by the people who saw her or him to be capable of identifying the sorcerer or leading a party of the deceased’s friends to where the sorcerer lived.”

He said, further, that when a person possessed of the spirit commenced to tremble this would engender extreme excitement in her clan. It was an infectious sort of thing, one person starts to tremble or shake and others may do likewise in extreme excitement.

“It would be,” he said, “an unconscious excitement, the person starting to shake would have no control over himself or herself, they couldn’t help themselves. This sort of frenzy would communicate itself to other people.”

Finally, the Commissioner said that, normally, some sort of redress would be sought. In pre-European times these people would have killed a sorcerer who had been identified in such circumstances, a close relative being the most likely killer, although the chances were that more than one person would attack him. Even now, he said, that sometimes happens. Some times they report it to an officer of the Department of District Administration or sometimes they might even be content with some sort of compensation.

Counsel for the Crown did not pursue a question directed to the state of mind or knowledge of the person possessed of the spirit of the deceased person, probably because this witness could throw no more light upon it in any material sense.

Notwithstanding that the people of Asariyufu have lived close to civilization for a number of years and notwithstanding some minor variations, into which I need not here go, it seems clear enough that on this Saturday morning they were engaged in a traditional and, possibly, very ancient usage and to some extent under the influence of traditional beliefs and there is no suggestion that Loso’s was not a genuine performance.

In charging her with the wilful murder of Sepaya, the Crown relies upon s. 7 of the Code and counsel for the Crown presses items (b), (c) and (d) with a preference, I gather, for (b) and (c). It is submitted that Loso knew and intended that her conduct would lead to the death of Sepaya, that she aided Hatenave to it and also, or alternatively, instigated it and incited him to it by indicating the sorcerer and so on. I have come to conclusions that make it unnecessary for me to consider the application of s. 7 more closely.

The invitation and submission of counsel for the accused requires me to ask myself whether I should convict Loso upon the evidence as it stands.

This involves two questions, firstly, because, it has been his main point, which counsel for the accused brought out clearly in his cross-examination: assuming Loso had any intention for which she could be criminally responsible, was it the intention that Sepaya should be killed? Whatever may have been the intention before these people of Asariyufa were disarmed by the police in the town, thereafter, he submits, there is, at least, considerable doubt about it. Although I am inclined to think that I should and would leave the case upon this to a jury, I feel that I would be careful to point to the alternative forms of redress that may have been in mind and the facts, that the people had surrendered their arms, upon request, to the police in the presence of Loso, that the police were content to allow them to proceed, that there was nothing to suggest that Loso knew of Hatenave’s concealed weapon and so on.

In all the circumstances I, myself, as a jury am not satisfied beyond what I consider to be a reasonable doubt that Loso, whatever was the state of her mind, intended the death of Sepaya or foresaw it as a probable consequence of her conduct. (See s. 9 of the Code.)

The other and, perhaps, more interesting question arises under s. 23 of the Code: was Loso acting independently of the exercise of her will?

She was not in a somnambulistic state, leading her people to Sepaya’s house in her sleep: R. v. Cogdon[cccxxvii]¹, nor in that state of “automatism” claimed in R. v. Harrison-Owen[cccxxviii]², nor, as far as we know, was her conduct caused by a tumour in her brain: R. v. Charlson[cccxxix]³, or the result of a traumatic loss of consciousness: R. v. Carter[cccxxx]⁴, and Cooper v. McKenna, Ex parte Cooper[cccxxxi]⁵, or the hardening of her arteries: R. v. Holmes[cccxxxii]⁶, nor was she under the influence of an epileptic seizure: R. v. Foy[cccxxxiii]⁷.

This does not purport to be a complete list of the cases, reported and unreported, illustrating the defence of automatism. There are others, for instance, mentioned in Bratty v. Attorney-General for Northern Ireland[cccxxxiv]⁸, in which counsel for the Crown bravely sees the last word upon the subject. I accept this for my present purposes. Notwithstanding the views of lawyers commanding my greatest respect: see The Australian Law Journal, vol. 31, pp. 255 to 263, it is to be accepted as established that this defence exists in the common law as distinct from, although concurrently with the defence of insanity, in which the burden (on a preponderance of probability) is placed, exceptionally, upon the accused. Under our Code the position is the same. Section 23 is there more or less cheek by jowl with ss. 26 and 27. Although, if this were a case of “unsoundness of mind” the onus would be upon the accused person, in Loso’s case I must be satisfied beyond reasonable doubt that she was not acting independently of her will, that hers was not involuntary conduct, that she was not insensible or unconscious of what she was doing, that she had control over her actions in the sense that her mind went with them, that her conduct was conscious and voluntary or whatever phraseology one cares to use: Woolmington v. Director of Public Prosecutions[cccxxxv]⁹ and Bratty’s case[cccxxxvi]¹⁰.

Counsel for the Crown, relying upon his construction of some words that fell from Lord Denning in Bratty’s case[cccxxxvii]¹¹, has stressed that the defence has adduced no evidence about Loso’s condition and he submits, as I understand him, that I should exclude from consideration the evidence led for the Crown. I think that, upon reflection, he would withdraw this submission and, indeed, in the Lord Chancellor’s speech in Bratty’s case[cccxxxviii]¹², express provision is made for the instance where the evidence pointing to the possibility of a state of automatism emanates from the case for the Crown, as I think it does here.

One can understand, if I may say so with very great respect, the caution behind such phrases as “a proper foundation” (for the defence of automatism) and “real doubt”, which were employed in Bratty’s case[cccxxxix]¹³, and see also R. v. Tsigos[cccxl]¹⁴. Does “real doubt” mean any more than that it must not be a fantastic doubt or the doubt of a person who cannot make up his mind about anything? I would ask myself as a judge: does the defence fairly arise upon the evidence at this stage and, if it does, have I, as a jury, a reasonable doubt that Loso was acting independently of her will.

It is true that no direct evidence has been led to inform me as to her state of mind - as I have said, counsel for the Crown did not pursue this question - nor would I think that any evidence, scientific or otherwise, is available. I do not think that from any evidence that she may give, or, as is more likely, from any statement that she may make from the dock there would be any material addition to what she told the police officer.

Counsel for the Crown has stressed that it is obvious from the statement made to the police officer that she knows what she did. However, this does not help me because, if for no other reason, I apprehend that many people suffering even from such a defect of reason as is involved in the defence of insanity are perfectly aware of what they have done.

Counsel for the Crown has used the word “trance” in referring to Loso’s behaviour. I do not take him to concede that she was the victim of that form of catalepsy associated with a loss of will power; nevertheless, looking at the description of Loso at the time, supplemented by the expert evidence, it does seem to me, uninformed as I am, that it may not be an inapt use of words to refer to her condition as a “trance”, in a general way and in an objective sense, at least.

In the circumstances of this case I think that the possibility of a state of “automatism” fairly does arise. I do not know if Loso was the willing victim of the spirit of Ahuhie, by what process it came to possess her, nor if she was its conscious agent. I am not satisfied beyond what I believe to be a reasonable doubt that she was not acting independently of her will. I would recall what I have said upon the other question and say that I am not satisfied beyond a reasonable doubt that she was the conscious perpetrator of any crime.

This is not at all like the cases of recurrent insanity and it is now my pleasure, as well as my duty, to find, upon the case against Loso, a verdict of not guilty and she is discharged.

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[cccxxvii]Victoria 1950, unreported.

[cccxxviii][1951] 2 All E.R. 726.

[cccxxix][1955] 1 W.L.R. 317; [1955] 1 All E.R. 859.

[cccxxx][1959] VicRp 19; [1959] V.R. 105.

[cccxxxi](1960) Qd.R. 406.

[cccxxxii][1960] W.A.R. 122.

[cccxxxiii][1960] Qd.R. 225.

[cccxxxiv][1963] A.C. 386.

[cccxxxv][1935] A.C. 462.

[cccxxxvi]Supra.

[cccxxxvii]Supra.

[cccxxxviii]Supra.

[cccxxxix]Supra.

[cccxl] [1964-5] N.S.W.R. 1607.

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Supreme Court of Papua New Guinea

Hatenave, Regina v [1965] PGSC 15; [1965-66] PNGLR 336 (16 August 1966)

Papua New Guinea Law Reports - 1965-66