Oa, Regina v [1967] PGSC 34; [1967-68] PNGLR 26 (16 March 1967)

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CRIMINAL LAW - Wilful murder - Provocation - Heat of passion - Whether admission of crime unaccompanied by act or words threatening or reflecting on hearer may amount to provocation - The Criminal Code, ss. 268^*[xxxviii]¹, 304^*[xxxix]^2* .

The body of the accused’s father had been found in circumstances which justified some suspicion that he had died an unnatural death. The accused who had been searching for his father was in his village when this discovery was reported and had ample opportunity to learn of it. In his searches the accused had not been accompanied by any armed men. Next day the accused carrying a knife and a spear and with a group of armed companions sought out Naroa who made, as the trial judge assumed, an admission that he was responsible for the death. Thereupon the accused attacked Naroa with his knife and, as he fled, speared him to death. Upon his trial for the wilful murder of Naroa:

That the defence of provocation was not available to the accused because, though very angry, he had not speared the deceased in the “heat of passion” within the meaning of s. 304 of The Criminal Code.

If s. 268 of The Criminal Code defines provocation for the purposes of s. 304 of the Code the provocative act or words must be directed to the person claiming protection or in his presence to a person who stands in a special relationship to him. The mere admission of a crime unaccompanied by any act or words threatening or reflecting on the hearer does not amount to provocation.

Oa, charged that on 7th March, 1967, he wilfully murdered one Naroa-Haia, set up that he was provoked to kill in circumstances that would reduce the crime to manslaughter. The relevant facts appear in the reasons for judgment.

CLARKSON J: The accused is charged with the wilful murder of Naroa-Haia on 7th March, 1967.

It was not seriously contested that the deceased died as the result of a spear wound inflicted by the accused, but the defence sets up that the accused was provoked to kill in circumstances which would reduce the crime from wilful murder to manslaughter.

To examine this contention, it is necessary to consider many of the surrounding circumstances, including indirectly, two other deaths.

The father of the accused Oa, was Nirere. Nirere was concerned about the health of one of his grand-daughters and apparently tried unsuccessfully to improve her by making spells. Eventually he consulted Naroa, the deceased. What passed between them is not clear but I am satisfied that Nirere visited Naroa and discussed his grand-daughter’s health. Nirere disappeared. In due course Oa commenced searching for him. The grandchild of Nirere died on about 5th October and on 6th October, the body of Nirere was found in circumstances which justify some suspicion that he died an unnatural death. Whether he did or did not I do not know and I certainly make no attempt to guess. The importance of the matter in this case is that Oa thought that Naroa had killed Nirere. When he formed this belief is in dispute and I will return to this later.

On the day of the killing, Oa came to Naroa’s house. He did not give evidence before me, but his statement to patrol officer Mack on the day after the killing, and his deposition taken in December 1966 were put in evidence.

The substance of his story was that he went to Naroa on 7th October, alone, still seeking news of his father, that after some questions Naroa admitted having killed Nirere, that Oa became angry and Naroa, seeing this ran away, and that Oa pursued him into a nearby river and speared him.

The killing of Oa’s father by Naroa and the admission of it to Oa’s face, are said to constitute provocation for the killing.

When the accused’s version of the events are tested against the other evidence, however, several significant discrepancies appear.

It is clear that he did not go alone to Naroa’s place. I accept the evidence of the deceased’s wife and daughter that he came accompanied by a number of armed men. He himself carried a knife and a hunting spear. For all I know he might have always carried these but in his previous searches for his father he was not accompanied by armed companions. It may well be as suggested by his counsel, that he said he was unaccompanied in order to protect his companions. Certainly the story that he was still only searching for his father is more convincing if he were alone.

Further, I have considerable doubt whether any conversation which occupied any appreciable time took place between Oa and Naroa. Again, I accept the evidence of the deceased’s wife and daughter that the band appeared suddenly and that aggression was almost immediately displayed towards Naroa. I also accept the evidence that before Naroa broke away and ran for the river, Oa attacked him with a knife. Even at this stage, the situation was sufficiently ugly for the girl Josephine to run away in fright. If the admission of murder said to have been made by Naroa was made on Oa’s arrival and before there was any violence, the wife Elizabeth must surely have heard it. By implication, her story denies it and none of Oa’s companions was called to give evidence of it.

On the following day the accused told his uncle that he had killed Naroa because Naroa had killed Nirere. This is not necessarily inconsistent with the accused’s version but his description to patrol officer Mack of his running up the river bank in anger towards Naroa fits more easily with the view that he was already before arrival bent on revenge. Certainly he had had ample opportunity to learn of his father’s death and the evidence shows that when news of Nirere’s death reached the village, Oa was there.

I do not pursue this further. In spite of my suspicions I was in this case worried whether I was being told exactly what some of the witnesses were saying. In particular, the evidence of the OA wife Elizabeth was at times confused and I am prepared to assume in the accused’s favour that he obtained what he thought to be some sort of admission from Nirere and I therefore turn to the defence of provocation.

In a recent case in February in Port Moresby, R. v. Manga Kitai[xl]³, I had occasion to consider some aspects of this defence which are relevant here. I do not think anything I said there was inconsistent with the opinions of other judges of this Court to which I was referred and I adhere to what I said in that case.

Whether ss. 304 and 268 of The Criminal Code should be read together or not does not become a relevant question in a particular case until it is shown that the result would differ according to whether the one construction or the other was adopted.

In my view no such difficulty arises here. If it did, and I were in doubt, I would be strongly inclined in comity to follow the views adopted by the other judges of this Court, but in the present case, even adopting the construction most favourable to the accused I am satisfied that the defence of provocation has been effectively excluded by the evidence.

I am satisfied that the accused did not spear the deceased in the heat of passion. He was angry, indeed, very angry, but he was not overwhelmed suddenly by any transport of passion. There was no temporary suspension or unseating of reason—to use some of the well-known phrases. The homicidal act was not the result of a “passionate impetus” (Parker v. The Queen[xli]⁴). He was the angry executioner enforcing his own law.

This is sufficient to dispose of the defence, but in deference to counsel I comment on another matter argued, namely, whether anything done or said by the accused falls within the terms of the definition of provocation. I do not think it does.

I do not have access to the reports but I am unable to recall a case where a mere admission of a crime, unaccompanied by any act or words threatening or reflecting on the hearer, has been held to be provocation reducing wilful murder to manslaughter. Neither counsel was able to cite one, although my attention was drawn to the decision of this Court in R. v. Rumints-Gorok[xlii]⁵. There, Smithers J. expressed the view that adultery committed by a wife and subsequently admitted was, because of the marriage relationship an “act done” by the wife to the husband within the definition. Such a view seems to me to raise formidable difficulties. If a wife admits to her husband adultery committed many years before, what is the act—the adultery or its mere verbal disclosure? I am inclined to think, at least if s. 268 is read with s. 304, that the provocative act or words must be directed to the person claiming protection or in his presence to a person who stands in a special relationship to him. But I express no concluded view because it is unnecessary for the present case to do so. I mention the matter because it was argued at some length by counsel.

I consider that the defence of provocation fails and my verdict is that the accused is guilty of wilful murder.

[xxxviii]>* Section 268 of The Criminal Code provides: “The term ‘provocation’, used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered. . . .”

[xxxix]** Section 304 of The Criminal Code provides: “When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”

[xl][1967-68] P. & N.G.L.R. 1.

[xli] [1964] A.C. 1369, at p. 1391; [1964] UKPCHCA 1; (1964) 111 C.L.R. 665, at p. 681.

[xlii][1963] P. & N.G.L.R. 81, at p. 83.

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Supreme Court of Papua New Guinea

Oa, Regina v [1967] PGSC 34; [1967-68] PNGLR 26 (16 March 1967)

Papua New Guinea Law Reports - 1967-68