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

CORAM: MANN C.J.

REGINA v. AGANA GUGUNA of DIRINNOMU.

JUDGMENT

This is a case in which the accused AGANA is charged with the wilful murder of a man named MARU. The incidents involved in the killing are not in dispute and have been adequately proved.

MARU had called upon the wife of AGANA, who was a close relative of his, and was talking to her while they were sitting on the verandah at AGANA's house. MARU produced one areca nut and cut it in half with a knife, giving half to AGANA's wife and keeping half for himself. They chewed the nut with betel and lime which were available on the verandah of the house. While they were sitting there talking they also smoked and, although there was some obscurity about this at one stage, it appears that they were smoking a bamboo pipe into which is fitted a small twist of tobacco in the form roughly of a cigar. The pipe was passed around. There is some difference in the accounts of the witnesses as to whether the pipe was passed around between three people, that is MARU, AGANA's wife and AGANA himself, or whether MARU and AGANA's wife only were smoking.

AGANA was in the house and was either at or near the door. According to his own version he had been ill and asleep, but in any event he was close to the door or doorway of the house when suddenly he got up and took a pig spear and attacked MARU. The spear was against the wall of the house, within three or four feet perhaps of where AGANA was.

The spear is of a pattern which has become popular for hunting. The head is made of a piece of steel reinforcing rod and has a large barb, raised on one side only, fairly close to a fine and sharp point. There were two spears in question, one made of a reinforcing rod about 5/3" in diameter, and the other about 5/16" in diameter. It was the heavier spear that AGANA used to attack MARU but he took both spears at once in his hands. Grasping them with his two hands, he plunged them downwards at an angle at MARU's body. The large spear entered his chest just under the armpit, probably on the left-hand side. It was so described by the witnesses, who nevertheless indicated the place by pointing to the right-hand side of their bodies. MARU endeavoured to get to his feet and cried out, and he then fell from the verandah a short distance to the ground. According to one account his descent was hastened by the breaking of one of the steps to the verandah, which led from the ground to the verandah.

AGANA followed him down and, as the witnesses described his movements, he grasped the spear again with both hands and pushed with the spear with such violence that MARU's body was more or less dragged along the ground until MARU collapsed and died. It was during this stage that the second spear, more or less accidentally, slipped and inflicted the second wound which, by all accounts, was of a superficial nature.

The accused knew what he was doing and although his evidence does not carry him into refinement of detail, it is clear that he retained a real recollection of the substance of this incident.

The defence of insanity was raised and this requires careful consideration. The question of insanity comes into the picture largely by reason of the use of the words "kava" or "kava kava" or "kava tau". The accused does not speak Motu as his own language and has, I think, been under some disadvantage in trying to express himself in Police Motu, both when making statements and giving evidence in Court. Nevertheless we have the great advantage in this case of having the services of two interpreters who not only speak English most fluently but have highly developed the art of English expression. Thus the problems of the accused in trying to express himself in Police Motu, which might, under other circumstances, be overlooked, were revealed clearly.

I am told by Mr. Romney, who translated from English into Police Motu, that the words "kava", "kava kava" and "kava tau" all amount to very much the same thing. The direct and blunt English translation would be "mad", implying an observable degree of insanity, but the same expression might be used for a wide range of conditions or attitudes of mind which may fall short of a legal definition of insanity. So the defence arises because the accused, trying to explain what was going on, was compelled to use the word "kava kava" which literally may be taken as meaning "mad". The expression was interpreted in a statement made by the accused as "silly" and "silly" does appear to be one of the appropriate translations for this ambiguous expression.

On the question of insanity, the evidence was very much in conflict. The wife of the accused gave evidence, and I think there is no doubt that she stated her husband's illness in the most favourable degree that she could. I do not think that she was trying to mislead the Court or trying to lie. I think she was being truthful, but her mental picture was somewhat subjective, and she did regard her husband as being a sick man for quite a long period of time. She may be right.

Most of the other witnesses denied anything abnormal about the accused and described him as a perfectly normal healthy inhabitant of the village. At a very late stage when some Crown witnesses were recalled and given the opportunity to re-consider their evidence in the light of the wife's evidence, some of these witnesses showed that they had knowledge of abnormal behaviour on the part of the accused, and of one or more visits to the hospital at Fort Moresby for treatment associated with abnormal behaviour, but not necessarily involving insanity.

It is difficult for me to arrive at any final view as to the number of visits that the accused made to Port Moresby. It may be that some of the witnesses were not able to fix the time of one visit and, disagreeing in their recollection, some people placed the visit before Christmas, others after Christmas, or about February. Evidence from hospital records and from a Police witness in Fort Moresby indicate that the accused did come to hospital in February and that he came with a history of double vision. Again we are in some difficulty with language because his complaint of double vision depended on his ability to express himself. However, the eye specialist in Port Moresby examined the accused, and no evidence indicating any mental condition has emerged. The accused was them to be treated and examined for a suspected chest complaint, it might have been Tuberculosis, but before his treatment he appears to have walked out of the hospital and arrived back at the village a day or two later.

Now the pattern of his behaviour is something like this. Probably before Christmas he went to the Port Moresby hospital for some kind of treatment, but no hospital records for that period have been produced and it may be that references to this visit arise out of the confusion of witnesses' recollections. At any rate there is evidence that he might have gone then, He appears to have gone to the hospital in February 1965, and just before that he spent two weeks with a Policeman, and during that time he was observed by several people to have a wild, staring expression in his eyes, and making faces and peculiar gestures; so much so that he was immediately taken out to the hospital in an ambulance, and some persuasion was needed to get him to go. It must have been on this occasion that the complaint of double vision was made and investigated. Then in April we have the attack on MARU with the spear; that was on the 6th April and, allowing for some minor uncertainty in the dates, this attack must have happened within a very few weeks of his return from hospital with the medical examination incomplete. The attack itself was a most extraordinary thing and, if there is any suggestion of insanity, the attack itself was of such a character as would support the pattern of conduct indicated in some of the evidence.

The medical evidence on this subject was given by Dr. Buxton-Bradley, whose qualifications and experience leave no doubt as to his capacity to form an opinion on the subject. The difficulty here is that the pattern of behaviour to which I have referred above was not known to Jr. Burton-Bradley when he made his examination. The examination was not directed to the defence raised in this case, and Dr. Burton-Bradley understood that it was an examination of a routine nature, undertaken as a matter of course in respect of a person committed to Bomana gaol pending trial. Dr. Burton-Bradley had no background information of particular value to him, but he did conduct a close examination of the accused, in the course of which he had some discussion about the events of the eth April. Dr. Burton-Bradley's conclusion was that the accused was normal at the time of the examination and was not insane, and that he did not reveal any condition or any recollection of earlier events of a character which would suggest that he was insane on the 6th April. He clearly remembered the substance of what had happened and the substantial reasons for it.

I think in the face of this evidence it is not possible for me to come to the conclusion that the accused was insane. A good deal of evidence leads towards or would confirm such a conclusion, but on this issue the onus is on the defence to establish insanity on the balance of probabilities. If I were to give a rough indication of how the probabilities appear to me, I would say that there is a lot to suggest the possibility and the probability that the accused was suffering from an unidentified form of recurring insanity, which would help to explain his conduct, but that that probability is considerably less than the probability that he was sane but possibly affected on the occasion in question by illness of another character. I think that the medical evidence as to insanity was inadequate and that more should have been done to try to assess the mental condition of the accused. Dr. Burton-Bradley formed a clear opinion, but without the assistance of the facts which emerged at the trial and which might have been of assistance to him. I find that the presumption of sanity applies and that the accused was not insane at the time of the killing.

The next substantial defence is provocation and this has been coupled in argument with the provisions of Section 24, which provides for the case where the accused person had at the time of his actions an honest and reasonable belief in the existence of a set of facts which, if true, would have rendered his actions innocent or less culpable. It has been put that the accused honestly and reasonably believed that the victim MARU was behaving improperly towards AGANA's wife and that even if this belief was mistaken it was honestly and reasonably held by a sick man, and that AGANA should be dealt with on the basis that the belief was true.

The evidence established to my satisfaction that a very friendly conversation was going on on the verandah between MARU and the young wife of AGANA. Some attempt was made to show that the division of a betel-nut, as it is commonly called, between the two of them, had a ritual significance involving the sharing of things between them. This kind of ceremonial is familiar enough, but I was not impressed by the evidence which sometimes suggested significance of this character. I think it much more likely, and this is supported by the evidence of the accused himself, that the accused was made angry or upset by an expression on the face of MARU, and by the fact that the accused thought that MARU was laughing at him and ridiculing him. It was again very difficult for the accused to explain what it was about the expression on MARU's face that upset him, but it is easy enough to imagine in the circumstances what that might have been, and that AGANA objected to the sharing of the betel-nut. I would think that in the circumstances existing he was not objecting to some ritual having a recognised meaning, but he was objecting to the
I

 familiar atmosphere which he thought he observed and the familiarity implied in the sharing of the betel nut.

Again, the difficulty of expression made it hard for the accused to explain just why it was that he should attack MARU with a spear. MARU was a close relative of JUMUMU, the wife of AGANA. It has been very difficult to get from the witnesses any clear definition of what the relationship was, but all agreed that the relationship was close and would be so regarded by all people. So far as is revealed, this was the only visit MARU had paid to his young kinswoman for some time, and it is only to be expected that they would both enjoy the conversation which took place on the open verandah in daylight in full view of anybody who was in a position to see them.

The accused said that he was sick and had symptoms which he tried to describe, and which would clearly indicate fever with a probability that he was to some extent delirious. He was awakened by the voices on the verandah, moved towards the door, noticed the conversation, the smoking and the empty shell of the betel nut, half alongside MARU and the other half alongside JUMUMU. There was this expression on the face of MARU and some atmosphere of familiarity, followed by MARU laughing apparently at AGANA. AGANA took this as a reference to his sick and weak condition, and thought that MARU was behaving improperly with his wife and ridiculing him on account of his sickness. It was at once that AGANA attacked MARU with the spear. Giving his account of this afterwards, AGANA did not say that MARU was misbehaving. What he said was in substance that when he came and observed the couple talking on the verandah his head was "silly" and because his head was silly, he thought that MARU was behaving improperly. There is a good deal of obscurity as to what the accused actually meant in his statement to Mr. Behr on the 9th April, 1965.

The statement alone does not help the accused a great deal in his contention that he had an honest and reasonable belief that facts existed which would amount to provocation, and that he acted on the spur of the moment in a state of uncontrolled passion. So far as the statement of the accused goes he is only saying that he mistakenly thought that MARU and his wife had fallen in love. If this were literally true it would scarcely amount to provocation. They were sitting some distance apart on the verandah and not misbehaving in any manner which would suggest that they were committing a matrimonial offence. The impression that the accused gave was that the two of them were having a very friendly conversation, and that indicated to his mind the possibility that at some other time and place something more objectionable might take place between them. If true this would not amount to provocation on the occasion in question.

I think that the strongest case for provocation arises from the evidence which the accused gave in the witness box. Although again he had difficulty in expressing himself, he did create, in my mind, a picture of a person suffering from illness with a high temperature, again, possibly, double vision or an inability from the effect of the temperature to observe things accurately, coming out and finding what he took to be MARU ridiculing him for his illness, and taunting him by the implied assertion that he was in the process of stealing his wife. The look of satisfaction on his face would be enough to enrage a suffering husband in such a situation. It is not really a question of misconduct which AGANA might have mistakenly imagined, it is rather the taunt to him as a sick and impotent husband whose wife was about to leave him that would have enraged him. Thinking this over afterwards it was clear that the accused has accepted that he was wrong in his perception. MARU as a close relative had every justification on such an occasion to behave in a friendly, light-hearted fashion. AGANA can see, as the other village people saw, that he was wrong to feel that this meeting was directed against him, or that any attitude was against him. Nevertheless as a sick man suffering from fever he might well have made the mistake which he appears to have done, and acted in a violent and sudden rage.

Although on the issue of insanity I find that the proof of that condition is less than enough to balance the probabilities, on the question of provocation the onus is the other way, and the Crown must prove beyond reasonable doubt that the elements supporting a defence of provocation were not there. I find that the medical evidence and the evidence of the village people is quite inadequate to satisfy my mind as to what the facts were. JUMUMU, the wife of AGANA, described AGANA as having been ill for a long period of time, and this is probably the way she felt, and she was possibly right. Other witnesses, including the former Village Constable, said that AGANA was not ill, and had been going about the village quite normally, whereas AGANA's wife has described him as being quite ill at this time.

It is curious that apart from the school teacher, who was required to be there, and the aged Village Constable, AGANA was the only able-bodied man in the village at that time apart from MARU, who happened to call in to visit. It is improbable that the accused would sit more or less alone in the village if he were perfectly well and perfectly normal. The medical examination last February was inconclusive because he himself walked out of the hospital, and it appears that he has not had a thorough medical examination, nor has he been made the subject of a conclusive diagnosis. Apart from the special question of insanity, Dr. Burton-Bradley said that a number of well known illnesses and medical conditions could influence the mind of a patient from time to time during recurring bouts, without forming a pattern of behaviour which would be recognised or diagnosed as constituting insanity. One or two illnesses of this kind were mentioned. There are many illnesses not uncommonly encountered here which involve some degree of fever, delirium and other conditions which might influence the mind of the person concerned.

As the evidence stands I feel that I cannot be satisfied beyond reasonable doubt that the accused was not in a medical condition in which he was likely to lose control of his actions, even though he might have known what he was doing. I cannot be satisfied that he was not suffering from a condition which would make his perception of matters going on, wildly inaccurate and inflaming to him. He is apparently a sensitive man and during the trial he has revealed in his face more than a little tension from time to time. This is perhaps understandable, but on the evidence as it stands I cannot be satisfied that he was in a condition to perceive accurately what were the circumstances or to control his movements, when he says himself his head was not good and that is why he thought something improper was going on.

I have read the judgment of my learned brother Minogue J. in the case of R. v. Iawe in which he discusses the interesting situation arising when a person loses control of himself under the influence of illness which affects the degree of restraint which he is able to impose upon himself. I do not think it is necessary for me to say in this case whether I agree with my learned brother's analysis of the law on this point because, in the present case I would not be able to find with any precision what influence the sickness of the accused had upon his thoughts and actions. It is even far from certain that he was ill at all. I do not know what the illness was and it is impossible reading the evidence to form a clear assessment of his physical or mental condition apart from the more common forms of insanity. Therefore my conclusion is that as the matter stands I am not in a position to say beyond reasonable doubt that the cause of the undoubted loss of control which took place was not to be found in offensive gestures, expressions and laughter of MARU, in circumstances suggesting to the mind of the accused a state of undue familiarity. The accused has apparently rejected in his own mind that he had any justification for what he had done because he realised that he was mistaken in his assessment of the position, and wrong in his reaction to it, as a peaceful village native. I think that this fact indicates his genuineness and the highly abhorrent nature of what he did.

My conclusion is that the accused is Not Guilty of murder as charged and that under Section 304 of the Code, he having re-acted to provocation, which is not disproved and which was, in the circumstances, of a sudden character, his responsibility is reduced to the level of manslaughter.

I therefore bring in a verdict of Guilty of the manslaughter of MARU.

I think that the verdict accurately sums up the whole case. It is a case among law abiding people in close contact with the Government, well aware of their responsibility normally and not disposed to serious crime. It is not a case of somebody going out and deliberately killing another person. It is a case in which the normal peaceful existence of the village is suddenly interrupted and a man acts in a way which dismayed himself when he thought about it afterwards, and has clearly dismayed other village people. I think his wife has given a very good overall picture of a sick man caught up largely by circumstances which he was not able to understand, or, when the final episode arose, control. He may have been insane in the legal sense, temporarily or otherwise, due to mental or physical disease, or he may have reacted to words and gestures not clearly conveyed in the evidence.

Before considering sentence, I would ask that the accused be medically examined again. I do not specify any particular tests, for it is a matter for expert advice to say whether there are any tests that might reveal any present or past condition, mental or physical that might throw any light on the actions of the accused. The outcome of the case arises from the incidence of the onus of proof, and more specific information is needed to assess the appropriate punishment fairly.