Yanda, Regina v [1967] PGSC 50; [1967-68] PNGLR 482 (26 November 1968)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 482 - Regina v Yanda-Piaua

[1967-68] PNGLR 482

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

YANDA-PIAUA AND OTHERS

Mount Hagen

Mann CJ

27 June 1968

30 July 1968

8-9 October 1968

26 November 1968

CRIMINAL LAW - Wilful murder - Provocation reducing wilful murder to manslaughter - Whether retaliation disproportionate to original assault - Objective elements for provocation to be determined in light of cultural environment of accused - Fraternal relationship extends beyond full blood relationship - The Criminal Code, ss. 268, 304[dciv]1.

In determining whether provocation exists so as to reduce wilful murder to manslaughter under s. 304 of The Criminal Code regard must be had to the cultural environment of the accused. If the subjective elements required for the defence under s. 304 exist the objective elements required may be present even though the act relied upon as provocation consists only of a blow in the face with a fist whereas the retaliation consists of an attack with an obviously lethal weapon such as an axe carried out with such violence as to indicate a plain intention to kill provided that the ordinary peaceful citizen living in the cultural environment of the accused could be expected, almost to the point of certainty, to retaliate in such a manner.

The “fraternal” relationship referred to in s. 268 of The Criminal Code extends beyond full blood ties to the many relationships in established native society which, as a matter of common experience lead to precisely the same behaviour in response as would be encountered in the case of full blood brothers.

Trial

Yanda-Piaua, Yaboa-Tsigi, Tambai-Aro and Pauwa-Kongap were jointly indicted for the wilful murder of Jeri-Warawia. Pursuant to s. 644 of The Criminal Code each of the four accused made the following admissions:

N2>“1.      That a warder was killed near the Baiyer River on or about 13th February, 1968.

N2>2.       That the name of the deceased warder was Geri Waraura.

N2>3.       That the warder at the time of his death was employed by the Administration.

N2>4.       That what took place was that you along with others of the Nikarap people were standing around near the bridge over the Baiyer River.

N2>5.       That you along with others attacked the warder.

N2>6.       That the attack was with an axe which you had in your possession.

N2>7.       That you along with others struck at least one blow with your axe.

N2>8.       That the blow so inflicted by you was designed to cause death.

N2>9.       That the blows so inflicted did in fact cause the death of the warder.

N2>10.     That a councillor had disappeared some eight days prior to the attack on the warder.”

The remaining facts appear sufficiently in the reasons hereafter reported.

Counsel

Colclough, and later Steele, for the Crown.

Russell, and later Luke, for the accused.

Cur. adv. vult.

26 November 1968

MANN CJ:  The four accused were indicted upon a charge of the wilful murder of one Jeri-Warawia, a warder in the Corrective Institutions Service. Jeri was killed on 13th February, 1968 and there is no doubt that each of the four accused actually participated in the killing, each of them striking at least one axe blow into the body of the warder and all of them acting in concert. The defence of provocation was relied on by the defence as the sole issue.

I was told by counsel for the defence that, subject to my approving of such a course, each of the accused was prepared to make admissions under s. 644 of The Criminal Code admitting the facts but reserving a defence of provocation.

In the circumstances of the case, both counsel having had an adequate opportunity on several occasions of thoroughly investigating the case and taking adequate instructions, I did not hesitate to adopt the course proposed. A list of admissions was drawn up and each was put to each of the accused in turn in the form of the question “Is it true?” and in each case an affirmative answer was given. The questions are annexed to this judgment.

It is clear that subject to the question of provocation each accused is guilty of wilful murder so as to come within the express terms of s. 304.

Although in the main the facts are common to all four accused, it was contended at the trial that even if the accused Tambai were entitled to an acquittal on the defence of provocation, the same defence would not be available to the other accused because no provocation was offered to them by Jeri. I will, therefore, deal with Tambai’s case first and consider the availability of the defence of provocation to each of the other accused persons.

Mr. Cawthorn, a field officer of the Administration, stationed at Baiyer River, was familiar with the background of conflict between primitive native groups which provides the setting in which this case must be considered. The warder, Jeri, had been for some time in charge of a road gang engaged on road making. He worked directly under Mr. Cawthorn’s supervision. It appears that the Nikarap people living in the vicinity were greatly upset because of the disappearance, and presumed death, of their councillor, who was to them a great leader. When last seen alive the councillor went out into the bush with Jeri, who was armed with a shotgun, to hunt game. Jeri returned but the councillor did not and no explanation was given to the councillor’s people.

After a time the Nikarap people went out in considerable numbers searching for the councillor and some of his clothing and his councillor’s badge were recovered from part of the river which was then in flood. The Nikarap people were convinced that Jeri had shot the councillor. One early view was that Jeri was shooting at a bird and had missed the bird and killed the councillor, but nobody appears to have known what really happened. There was growing conviction that the councillor had been killed by Jeri and in this environment it would not be expected to make any difference to the Nikarap people what degree of homicide might be involved.

Word of the growing hostility towards Jeri reached Mr. Cawthorn, who was confident that Jeri was in a safe position. He was not in fact supervising any of the Nikarap people and was working some miles away from Nikarap territory. Nevertheless, resentment against Jeri continued to rise and Jeri, having received news of this, went into the Baiyer River patrol post with Constable Yakan, leaving his road gang working on the road. When he reported to an officer at the Patrol Post, Jeri was told that he should not have left his road camp and was told to go back to it.

The river was in a state of flood and a Bailey bridge had been swept away by the flood waters. There was next to the bridge site a rattan cane bridge erected by the local people and this afforded a means for pedestrians to cross the flooded river. Jeri and Constable Yakan travelled from Baiyer River patrol post down to the site of the cane bridge. There were some people working on the bridge and Constable Yakan called out to them to come away and make way for Jeri and the policeman to cross. A considerable number of native people were standing about in the vicinity mourning the death of the councillor and looking for any sign of his body in the flooded river. As they were approaching the rattan bridge Jeri and the constable were walking past a small group of people, which included the four accused. They had been sitting by the river bank mourning and looking for some trace of the councillor. As the policeman and the warder approached, Tambai spoke to Jeri and asked him what had become of the councillor and Jeri appears to have answered him back somewhat roughly, saying that he did not know what had happened to the councillor.

The accused, who all gave evidence on their own behalf, said that in addition to this somewhat abrupt conversation Jeri struck at Tambai with his fist, striking him severely in the face and causing him to fall. This was the subject of some dispute but Constable Yakan, who said that he did not see this happen, was unable to deny that it did and admitted that he was aware of some movement on the part of Jeri towards Tambai. I think that on the weight of evidence, given frankly and consistently by the accused, I should accept it that Jeri did strike at Tambai and struck him a severe blow on the face. Whether this was an act of aggressive officialdom to justify his authority, or whether it was the result of sudden panic because the four accused were close by and all armed with axes, I could not determine, but it was a sudden action and apparently quite unexpected.

The accused said that they had no intention of attacking Jeri and were only asking for information about their councillor. If they had received any information that might have implicated Jeri in the killing of the councillor they said that they would recognize it as their duty to report the matter so that he could be taken to court. There had been no thought of making a physical attack on Jeri.

When Jeri struck Tambai in the face, Tambai fell, or at least partly fell, to the ground and he got up instantly and struck Jeri with his axe and the other three accused immediately did likewise.

The policeman Yakan did his best to help Jeri. Apparently Tambai’s blow was struck first and the policeman grappled with Tambai and succeeded in taking his axe from him and throwing it in the river but, in the meantime, the other three accused had all attacked Jeri. The attack was in no way directed against the policeman Yakan, but when Jeri was killed the people in the vicinity became highly excited and, according to Constable Yakan’s evidence, some of them called out “kill the policeman too” and, of course, the policeman by this time had entered a situation of great danger to himself with something like a dozen primitive tribesmen armed with axes and thoroughly roused. The policeman then promptly jumped into the river from the bridge and the stream carried him away from danger.

It is an unfortunate circumstance that the tribesmen were allowed to continue in the belief that Jeri had killed their councillor without any re-assuring information to the contrary. It would have been surprising, notwithstanding Jeri’s official responsibilities and position, if the tribesmen were not convinced that Jeri had killed the councillor. Their melancholy search for the body must have placed a great strain upon their feelings and their nerves and, in the known circumstances, I can scarcely think of a more dangerous thing for Jeri to do than to brush aside the request for information, press on without stopping to meet the inquiry and actually striking the man who had asked for the information. The four accused were closely related to the councillor and they had every right and duty to make the inquiry that they did make.

It was argued that the defence of provocation is not available to Tambai because the action taken by him was disproportionate to any provocation on the part of Jeri. The fact that the four men did immediately make their attack would be a fair enough indication of the subjective elements involved and indicates that they were in fact provoked to do as they did. On the objective side of the question, it was contended that an unarmed attack, even taken at its worst, would not justify an armed attack with an obviously lethal weapon carried out with such violence as to indicate a plain intention to kill.

In answer to this I must apply the normal test by reference to a village native living as he is required to do in his primitive environment. Such a man is “culturally conditioned” to immediate reaction and especially so in response to sudden attack. He is conditioned to the presence of lethal weapons always at the ready, and to the fact that survival requires, and has required throughout the experience of his people, readiness for immediate attack or escape. In this kind of society matters can be talked about afterwards but there is no time to arrive at a fully considered decision as to the course that should be taken.

In the circumstances, I am satisfied that the ordinary peaceful (so far as this can be applicable) citizen, living in the cultural environment of the accused men, could be expected, almost to the point of certainty, to behave in the circumstances just as the accused Tambai (and the other accused) did behave.

I therefore conclude that the defence of provocation is available to Tambai and that he comes fully within the terms of s. 304 of The Criminal Code. I conclude further that the attack which Tambai launched upon Jeri comes within the prescribed characteristics of an assault for the purposes of s. 268. The result is that Tambai is not guilty of the offence charged.

Coming to the question of the remaining three accused, it is clear from the evidence that they are all closely related to the deceased councillor. The evidence was deficient in that the precise relationships were not sufficiently specified, but the question was clearly raised in the evidence and it does appear that they are all individuals who, in their own social structure, would be expected as of course to come to the aid of or act in defence of the councillor if they had been present and seen him under attack. They are amongst the persons who would be regarded as the “next of kin”, or personal representatives of the deceased on any question concerning him. This relationship extended to and included Tambai so that, although I could not say precisely what is the relationship existing between Tambai and his three co-accused, it is clear that they all stood in a relationship which, in their society, is usually referred to as fraternal, each having reciprocal obligations to the other.

The degree of relationship set out in the definition of “provocation” in s. 268, is not necessarily a direct and specific blood relationship. The words used are words in common and general use and are often used to describe relationships falling outside any strict definition. For example, the word “fraternal” has a much wider meaning in common use than could be derived from a reference to a full blood brother. The expression “conjugal” of course goes outside any blood relationship and, generally, the use of adjectives in the context with the suffix “al” in each case tends to give a wider meaning. The reference to the relationship of master and servant moreover gives the impression that the text is intended to include many recognized relationships where, in the normal course of experience, one would expect a person to assume responsibility for the safety of the other, and therefore tend to lose self-control in the face of that other being suddenly attacked or insulted.

I can see no reason why s. 268 should not extend to the many “fraternal” relationships as subsisting in established native society and which, as a matter of common experience, had lead to precisely the same behaviour or response as would be encountered in the case of full blood brothers. Should the evidence of the precise relationship involved be somewhat deficient, I conclude that the onus would be on the Crown to eliminate any deficiency on this score. As the case stands, I feel no doubt that all four accused immediately acted then as if they had been full brothers and sons of the deceased councillor.

In my view, therefore, the three remaining accused are entitled to rely on the provocation afforded to Tambai as an excuse for their natural reaction upon seeing him suddenly struck down and hurt in the situation that prevailed.

I return a verdict of Not Guilty in respect of each of the accused on the charge of wilful murder, and a verdict of Guilty of manslaughter in each case.

Verdict: All accused Not Guilty of wilful murder but Guilty of manslaughter.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for all accused: W. A. Lalor, Public Solicitor.

[dciv]* Sections 268 and 304 of The Criminal Code provide:

N1>“268.     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.

When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.

A lawful act is not provocation to any person for an assault.

An act which a person does in consequence of incitement given by another person in order to induce him to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.”

N1>“304.     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.”