Queen v Haure-Aihake [1967] PGSC 54 (2 August 1967)

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

THE QUEEN v. HAURE-AIHAKE

Coram: Frost, J.

Port Moresby
30^th June
And

Kerema
2^nd August,
1967

REASONS FOR JUDGMENT

The accused man is before the Court upon Indictment that on or about 3rd June, 1967, in Papua, he wilfully murdered a woman called KOREPARI.

There is no dispute that the accused man killed the woman by blows delivered to the head and neck with an axe. The sole issue of this case is whether the Crown have excluded beyond reasonable doubt any element of this defence.

The crime took place near MELAUVE village in the Ihu Sub-District of Papua. The evidence called by the Crown, apart from medical evidence as to the woman's injuries, cause of death and her identity, was evidence of a confession made by the accused man to a Patrol Officer at Ihu, Mr. John Rodney Bullock. He interviewed the accused man on the 7th June, 1967, through an interpreter. The story that-the accused man told him was that for some time his wife and a man named MAPURI had been having sexual relations so he challenged his wife about it, but she only spoke of divorce. About ten days before the 3^rd June, the trouble came up again so he decided to kill MAPURI. However, the accused tried to find him, could not find him by himself at any time, so he then changed his mind.

On the morning of the 3rd June, the accused saw the deceased woman, KOREPARI, who was the wife of MAPURI, whilst she was walking down the road to the garden. She was carrying an axe, so, as the accused told Mr. Bullock, he decided to kill her with this. He went to his garden and planted about 25 banana trees. When he had finished planting the banana trees, he crept up to where the woman was chopping wood and when he was close to her he showed himself, she saw him and was frightened, dropped the axe and climbed onto some fallen logs. He walked over, picked up the axe, climbed on the logs where he took KOREPARI by the head with one hand and then used the axe to cut her about the face and neck. As he walked over to pick up the axe, and before he killed her, she called out her husband's name three times.

In answer to the charge the accused man gave evidence himself. He told the Court about MAPURI committing adultery with his wife and of his anger and how on the 3rd June when he was going his garden to plant bananas he saw KOREPARI walking along the track ahead of him carrying her axe and string bag. Whilst he was in his garden he heard a noise and he thought "this is the wife of the man who was having intercourse with my wife." He then took his knife and walked over to her garden. She saw him, she got frightened and went and stood on a log. She then threw the axe "to" him. In the witness box he demonstrated the motion of throwing the axe downwards. After the woman threw the axe, he threw his knife away and took up the axe. The woman's action in throwing the axe made him very angry, so he then took the axe and cut the woman's head.

The question was then put to him, "if the woman had not thrown the axe, would you have killed her or not killed her?" He answered, "if the woman had not thrown the axe to me I would have just turned around and gone back to my garden."

In cross-examination, however, he admitted that after planting his bananas, he left to go to the woman's garden with the purpose of killing his wife, and before he left for the woman's garden he made up his mind to kill the woman because he could not find her husband.

Mr. Luke, on behalf of the accused man, submitted that the action of the woman in throwing the axe at the accused was a wrongful act within the meaning of Section 268 of the Code, and of such a nature that, done to a native from the Gulf was such as to deprive him of the power of self-control and to induce him to assault the woman. He further submitted that the accused man acted in the heat of passion, before there was time for his passion to cool, so that the crime was one of- manslaughter only under Section 304 of the Code.

Of course, the accused does not have to establish this defence, it is for the Crown to satisfy me beyond reasonable doubt that the elements of the defence, or any one of them, have been excluded.

Mr. Luke asked me not to act upon the confession made to Mr. Bullock. From the cross-examination it appeared that Mr. Bullock had reduced the accused's statement, to writing, and had obtained the accused's mark to this statement. Since the committal proceedings however, he, being an inexperienced officer, had destroyed the statement. He admitted in the witness box that he had refreshed his memory from the deposition made at the lower court.

However, in view of the fact that the committal proceedings were taken upon the day following a further interview between Mr. Bullock and the accused when the accused was asked would he like to go through it again and the accused in substance repeated the same story, I consider that I can safely act on Mr. Bullock's evidence.

I am of the opinion that the accused man went to the garden to plant his bananas, perhaps delayed taking the fatal step whilst working in the garden, but then brooding upon the wrong done by MAPURI, he decided to kill MAPURI's wife . This was a means of "paying-back" MAPURI for this wrong which he had done the accused. So he crept up to the woman's garden and showed himself when he was close to her. She knew why he had come; and he said she was frightened. She climbed on a log and threw the axe at him. In throwing the axe at him she was acting either in self-defence, or in an appeal to his mercy by showing that she was completely defenceless. In any case I am satisfied that in proceeding to kill this unfortunate woman the accused man merely carried out an intention which he had already formed when he left to go to deceased's garden. I am satisfied beyond reasonable doubt that he was acting in vengeance and not in the heat of passion caused by KOREPARI throwing dawn the axe.

The only inference from the facts is that the accused man intended to kill KOREPARI and I am so satisfied beyond reasonable doubt. Accordingly he is convicted of the crime of wilful murder.