Ivoro, Regina v [1971] PGSC 23; [1971-72] PNGLR 374 (30 November 1971)

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CRIMINAL LAW - Appeal - Death sentence - “Extenuating circumstances” - Admission of fresh evidence on appeal against sentence - Supreme Court (Full Court) Ordinance 1968, s. 15 (1) (c)[cdx]¹ - The Criminal Code (Queensland, adopted), s. 305[cdxi]² .

APPEAL - Appeal against sentence - Admission of fresh evidence on appeal - Supreme Court (Full Ordinance) 1968, s. 15 (1) (c)[cdxii]³ - The Criminal Code (Queensland, adopted), s. 305[cdxiii]⁴ .

On appeal against a sentence of death, held that a proper exercise of the Full Court’s discretion to hear further evidence pursuant to s. 15 (1) (c) of the Supreme Court (Full Court) Ordinance 1968 was to admit evidence which from its nature would clearly be vital to the appellant notwithstanding that no really satisfactory reason was advanced as to the reason for its not having been placed before the trial judge.

In establishing whether there are “extenuating circumstances such that it would not be just to inflict the punishment of death” within the meaning of s. 305 (2) of The Criminal Code (Queensland, adopted);

Per Frost A.C.J. and Kelly J. The concept is quite clear—the existence of some relevant circumstances which operate so as to diminish the culpability of the prisoner, not in the strict legal sense, but broadly, regard being had not only to moral considerations, but to all considerations, which might reasonably be taken into account in order to determine whether it would not be just that the law should be applied in its full rigour and the punishment of death inflicted. There is no inflexible standard for determining what are extenuating circumstances and each case must be determined on its own facts.

Per Prentice J. Any attempt to define or restrict what has been granted as an unlimited judicial discretion should be resisted. Each case must be decided upon its own special facts: One must attempt to construe and apply the section in the setting of the circumstances of this country, the dispositions and natures of its peoples, the type and prevalence of crime there, the specific pacification and the law and order situation into which it was designed to fit, and possibly that it was passed by a largely indigenous House of Assembly.

Craig v. The King [1933] HCA 41; (1933), 49 C.L.R. 429; Lakalyo’s Case (Unreported. Clarkson J.—21st July, 1971); Dugwaingikata’s Case (Unreported. Williams J.—24th June, 1971); Reg. v. Iu Ketapi [1971-72] P. & N.G.L.R. 44; Harapi’s Case (Unreported. Raine J.—24th March, 1971); Re Hame (Unreported. Prentice J.— 22nd October, 1970); Reg. v. Malopi, 1954 (1) S.A. 390 A.D.; Reg. v. Matheson, [1958] 1 W.L.R. 474; [1958] 2 All E.R. 87; Reg. v. Byrne, [1960] 2 Q.B. 396.

The appellant had been convicted of wilful murder and sentenced to death. There was evidence before the trial judge that, shortly prior to the murder, the appellant had committed two other murders, as well as other offences. Evidence called at the trial indicated that the appellant was an aggressive person who over the years had attacked many persons for trivial reasons. A psychiatrist’s report stated that the appellant was not suffering from any form of mental disorder to which one could reasonably assign any standard diagnostic category, although he considered that at the time of the offence the mind of the appellant was under the influence of factors which could reasonably be considered as reducing his capacity to control his actions. These were that he had a low threshold for aggression, that there was a heavy incidence of mental illness in his blood relatives, and that at the time of all three killings his mind was affected by alcohol. He appealed to the Full Court against both conviction and sentence. On the hearing of the appeal, counsel for the appellant abandoned all grounds of appeal relating to the appeal against conviction and the matter proceeded as an appeal against sentence.

Fresh evidence admitted on the hearing of the appeal confirmed the appellant’s aggressiveness and violence. However, there was also evidence to show that the appellant was a classical example of a psychopathic personality and that, by reason of this this condition, his capacity to control his actions would be substantially diminished. Further facts and arguments of counsel are set out in the judgments.

FROST ACJ KELLY J: The appellant Peter Ivoro has appealed to this Court against his conviction for wilful murder and against the sentence of death imposed upon him for that offence. On the hearing of the appeal counsel for the appellant abandoned those grounds of appeal relating to the appeal against conviction and the sole ground of appeal is thus that the sentence is too severe in that there were extenuating circumstances and that in all the circumstances the sentence is manifestly excessive.

The wilful murder of which the appellant was convicted was that of a native woman named Daimon Jago whom the appellant had killed in the early hours of the morning of 11th January, 1971, by stabbing her a number of times with a bayonet. Shortly prior to this the appellant had killed the woman’s companion, a European man named Wilson, by shooting him with a .22 repeating rifle and also stabbing him. Earlier that night the appellant had with the same rifle shot and killed a man named Quinn following Quinn’s return to his home sometime after the appellant had broken into it. The appellant had stolen the rifle about a month previously from the house of a Mr. and Mrs. Thomson and a week after the theft the accused wounded Mrs. Thomson with a shot fired from the rifle, the allegation being that he thereby attempted unlawfully to kill her.

In addition to the evidence of these matters with their surrounding circumstances the learned trial judge in his consideration of sentence had before him some evidence of the appellant’s history which indicated that he was an aggressive person who over the years had attacked many persons for trivial reasons. The learned trial judge also had before him a report by a specialist psychiatrist, Dr. Burton-Bradley, Assistant Director (Mental Health), although the doctor was not called as a witness. In that report Dr. Burton-Bradley expressed the opinion that the appellant was not suffering from any form of mental disorder at the time of the offence to which one could reasonably assign any standard diagnostic category, although he considered that at that time the mind of the appellant was under the influence of factors which could reasonably be considered as reducing his capacity to control his actions. Those factors were that the appellant had a low threshold for aggression, much lower than that of the average person, which had existed for the major portion of his life, that there was a heavy incidence of clear-cut mental illness in his blood relatives and that at the time of the three killings his mind was affected by alcohol.

On this material the learned trial judge was of the opinion that extenuating circumstances sufficient to invoke s. 305 (2) of the Criminal Code (Queensland, adopted) did not exist and he accordingly sentenced the appellant to death.

The relevant subsections of s. 305 which were inserted by the Criminal Code Amendment (Papua) Ordinance 1965 are as follows:

N2>“(2) If a Court finds that a person committed the crime of wilful murder it shall thereupon consider whether there existed extenuating circumstances such that it would not be just to inflict the punishment of death, and if it finds that those circumstances existed the Court may impose a sentence of imprisonment for life or for such lesser term as the Court thinks just.

N2>(3) Where the Court does not make a finding of extenuating circumstances within the meaning of the last preceding subsection, an appeal by the convicted person against the severity of sentence shall lie on the ground that such circumstances existed.

N2>(4) The questions of whether extenuating circumstances exist and, if so, what weight is to be given to them are questions to be decided in the light of the facts of, and the circumstances of and surrounding, each individual case.”

On the appeal coming before this Court counsel for the appellant sought to call further evidence upon the issue whether there existed extenuating circumstances such that it would not be just to inflict the punishment of death. Such further evidence was designed to show a history of violent and abnormal episodes in the appellant’s childhood and after he left school and it was also sought to adduce medical opinion that the appellant’s medical condition was that of a psychopath. This involved the calling of one witness who had already been examined before the learned trial judge and also of Dr. Burton-Bradley who, although not called as a witness at the trial, was then available to be called.

The Court unanimously decided to allow the calling of this evidence upon which counsel for the respondent was permitted to cross-examine and he was also allowed to call evidence in reply. At a subsequent stage the Court was divided on the admissibility of certain specific parts of the evidence of a hearsay nature and we do not feel that it is necessary at this stage to canvass the reasons which were then given.

The practice in England and in Australia seems to have been to admit new evidence upon an appeal as to sentence without the restrictions of the fresh evidence rule. However, in R. v. Lanham[cdxiv]⁵ the Court of Criminal Appeal in New South Wales applied that rule in an appeal against sentence. The Court said[cdxv]⁶: “The Court has, of course, a discretion to admit fresh evidence but that discretion is to be exercised in accordance with well-settled principles which need no reiteration here. It would seem from the argument presented to the Court in support of the submission that the fresh evidence should be received that a belief is entertained in some quarters that it is the customary practice of the Court to receive fresh evidence on matters relevant to penalty. It is necessary that we should state clearly and unequivocally that it is not the customary practice of the Court to receive fresh evidence and that in every case proper grounds must be established as a foundation for the exercise of the Court’s discretion to admit fresh evidence. Indeed, if the Court were to take any other view, it would be lending its encouragement to a situation in which evidence relevant to the issue of penalty might be withheld from a lower Court to be used on appeal in the event that the penalty imposed was thought to be too severe.”

However, regard must be had to the words of Latham C.J. in Green v. The King[cdxvi]⁷: “It has been required that the evidence should be evidence that could not with reasonable care have been discovered previously and that it should be of such a character that, if it had been tendered, it would have been of such weight as, if believed, to have an important influence on the result.” The learned Chief Justice then went on to point out[cdxvii]⁸: “But those principles are not in themselves directly applicable in the Court of Criminal Appeal. They are applicable, not as independent rules, but as related to the subject of miscarriage of justice. They should not, particularly in the Court of Criminal Appeal, be regarded as absolute or hard and fast rules.”

We do not consider it necessary to embark upon an examination of the principles which guide the Court in the exercise of its discretion under s. 15 (1) (c) of the Supreme Court (Full Court) Ordinance 1968 whether to admit fresh evidence on an appeal against sentence because in the present instance, where the appeal is against a sentence of death the Court considered that the proper exercise of its discretion was to admit this evidence which from its nature would clearly be vital to the appellant, notwithstanding that no really satisfactory reason was advanced to it as to the reason for its not having been placed before the learned trial judge. As the Court indicated at the time when it gave its ruling on this matter, it would expect that in future when the issue under s. 305 (2) arises all the evidence that is available will be placed before the trial judge so that the situation which has arisen here may be avoided.

It is not necessary to review in any detail the further evidence which was called as to various episodes in the appellant’s life. Suffice it to say that the evidence supplemented in various respects the material before the learned trial judge showing aggressiveness and violence on the part of the appellant continuing up to the present time. Evidence was given by Dr. Hall-Pike, an anthropologist with experience of the Goilala people. Medical evidence was given by three specialist psychiatrists, Dr. B. G. Burton-Bradley and Dr. Neville Parker for the appellant and Dr. John Ellard for the respondent.

Dr. Burton-Bradley was of the opinion that the appellant suffered from a psychopathic personality and described him as an aggressive psychopath. He said that in his opinion the appellant had been like that for quite some time and that he would remain like that for a long time. It may be noted that in his report which was before the learned trial judge, Dr. Burton-Bradley, although he describes the appellant as having a low threshold for aggression, nowhere used the term “psychopath”.

Dr. Parker considered the appellant to be a classical example of a psychopathic personality and he concluded “There is no doubt that we are dealing with an aggressive psychopath, and a highly dangerous one at that”. Dr. Parker based these conclusions on the appellant’s long-standing history of aggressive behaviour and on the crimes themselves referred to in the evidence which he considered fitted into the overall pattern of abnormal violence; he said that he was certain that the pattern of persistent aggression which the appellant had displayed is much more than the normal ferociousness of the Goilala people, and the substance of this was supported by the evidence of Dr. Hall-Pike. Dr. Parker did not regard the information which he had regarding the mental illness of certain of the appellant’s relatives as being significant on what was known to him. Dr. Parker referred to and adopted certain of the views of psychiatrists of eminence in their field on the subject of psychopathic personality. He was also of the opinion that by reason of this condition the capacity of the appellant to control his actions would be substantially diminished.

Dr. Ellard on the other hand did not agree that the appellant’s capacity to control his actions was diminished. In his opinion the killings were not a product of nor in any way related to any state of abnormality of the mind no matter how induced. Whilst he acknowledged that the appellant was an unusually aggressive and violent man he did not consider him to be a psychopath, which was in any event a state which, in his view, could not be satisfactorily defined. Dr. Ellard did not in fact accept the concept of psychopathy.

The matter for our determination on this appeal is whether there existed extenuating circumstances such that it would not be just to inflict the punishment of death. It will be apparent that the material on which we have now to consider this question differs materially from that presented to the learned trial judge. Having regard to this fact and also to the words of sub-s. (3) of s. 305 which in our judgment does not limit this Court in the way in which an appellate court is limited in reviewing an exercise of judicial discretion, we consider that the proper approach is to consider whether the appellant has satisfied us that on the whole of the evidence now before us such extenuating circumstances did exist.

The term “extenuating circumstances” is not defined either in s. 305 itself or elsewhere in the Code, and sub-s. (4) of s. 305 gives some indication of the reason for the legislature not attempting a definition. Counsel for the appellant referred the Court to the report of the Royal Commission on Capital Punishment 1949-1953 conducted in the United Kingdom which included in its recommendations the introduction of the concept of extenuating circumstances. Whilst this report and the recommendations made are undoubtedly of great interest we do not consider that we may properly obtain assistance from this source in determining the meaning or scope of the term “extenuating circumstances” used in an Ordinance of this Territory.

We note that the same term has been in use for some years in the criminal legislation of South Africa and that there it has been judicially defined as “A fact associated with the crime which serves, in the minds of reasonable men, to diminish, morally albeit not legally, the degree of the prisoner’s guilt”: see R. v. Biyana[cdxviii]⁹ per Lansdown J.P. cited in Gardiner and Lansdown, South African Criminal Law and Procedure, vol. II, p. 1566. The Shorter Oxford English Dictionary defines the term as “circumstances that tend to diminish culpability”. The legislature has not seen fit to define the term and we do not consider that this Court should essay this task. The concept, however, is certainly quite clear—the existence of some relevant circumstances which operate so as to diminish the culpability of the prisoner, not in the strict legal sense but broadly, regard being had not only to moral considerations but to all the considerations which might reasonably be taken into account in order to determine whether it would not be just that the law should be applied in its full rigour and the punishment of death inflicted. Further, as sub-s. (4) shows, there is no inflexible standard for determining what are extenuating circumstances and each must be determined on its own facts.

What we are required to consider as possibly constituting such extenuating circumstances is the appellant’s mental state as to which, as will be seen, the psychiatrists who gave evidence before us are not in agreement. On a consideration of the medical evidence we have come to the conclusion that we should accept the opinions put forward by Dr. Parker in preference to those advanced by Dr. Ellard. Dr. Burton-Bradley now agrees in substance with the views of Dr. Parker. The opinions expressed by Dr. Parker as to the existence and characteristics of what has been termed a psychopathic personality are amply supported by eminent authorities in this field, whereas the contrary view held by Dr. Ellard lacks any such support. Dr. Parker has the benefit of considerable experience in this particular forensic field which was obviously much greater than that of Dr. Ellard. Over a period of ten years Dr. Parker in the course of his practice has seen between seventy and eighty persons accused of murder and has given evidence in a number of trials in which the defence sought to rely on the fact that the accused suffered from a psychopathic personality. Dr. Ellard, on the other hand, admitted that his forensic experience was mainly in the field of civil litigation and that he had seen only about a dozen persons accused of murder. Dr. Parker is clearly very well qualified in the light of his experience to express the opinion which he has, both on the subject of psychopathic personality generally and of the application of that concept to the appellant. Dr. Parker also had the advantage of prior experience in this Territory which Dr. Ellard did not possess. Furthermore, Dr. Parker had a better understanding of the evidence than did Dr. Ellard who in one instance at least, that relating to the shooting of Mrs. Thomson, based a conclusion upon a recollection of the evidence which proved to be incorrect and which he then withdrew.

On the basis of Dr. Parker’s opinion we are clearly of the view that the appellant’s history of aggressiveness and violence since he was a boy, the circumstances of the crime of which he had been convicted and of the two other killings on the same night and the previous incident involving Mrs. Thomson, the shooting of whom appeared pointless, as was Dr. Parker’s opinion, and finally the recent attack on another prisoner in the corrective institution, which although subsequent to his conviction was conceded, and we think rightly so, to be relevant to the present issue, show him to be an aggressive psychopath. As was said by Dr. P. D. Scott, consultant physician, Maudsley Hospital, London, in an article entitled “The Treatment of Psychopaths” in the British Medical Journal 1960, vol. 1, p. 1641, appended by Dr. Parker to his report in evidence before us, he is “one who does not fit readily into other psychiatric categories, who is persistently anti-social or asocial and who needs specialized treatment”.

Taking as we do this view of the appellant’s condition, we find no difficulty in accepting the opinion held by Dr. Parker that by reason of this his capacity to control his actions would be substantially diminished. Such a diminution of capacity is one of the bases of the concept of diminished responsibility in cases of homicide which now forms part of the criminal law of, amongst other places, the United Kingdom and Queensland, although it is not part of the law of this Territory. Dr. Parker practises in Queensland and is familiar with this concept. Since the concept is not part of our criminal law, it cannot be applied directly in the present circumstances. However, it is proper and in our view essential to consider whether by reason of this substantial diminution in the capacity of the appellant to control his actions, brought about by his psychopathic state, his culpability for the crime of which he has been convicted is so diminished that it would not be just to inflict on him the punishment of death.

In our view this question admits of only one answer. We are not concerned with the merits or demerits of the death penalty as such, but only with whether in the circumstances of this case it is just that this penalty should be imposed. Nor should we be concerned with the fact that the appellant is described as being highly dangerous and that as a prisoner he is likely to impose a continual problem for those responsible for his care and custody; whilst we are not unmindful of this problem that obviously cannot be allowed to influence us in any way in our determination of the question which we have to consider. Our conclusion is that it would not be in accordance with the moral and ethical standards of this community to execute a man, however heinous his crime might be, whose capacity to control his actions was affected in the way in which the appellant’s capacity has been shown to be affected.

We therefore consider extenuating circumstances exist such that it would not be just to inflict the punishment of death. In our view the sentence which should be imposed is one of imprisonment with hard labour for life. The order of the Court should be that the appeal be allowed, the sentence of death quashed and that in lieu thereof a sentence of imprisonment with hard labour for life be imposed.

PRENTICE J: This appeal is against a conviction for wilful murder and sentence of death. The appellant’s counsel abandoned all grounds of appeal except the seventh, that against severity of sentence. The appeal lies, without the necessity of leave, under s. 305 (3) of The Criminal Code (Papua). The subsection refers to an appeal thereunder as one “against the severity of sentence”; but the death penalty imposed by his Honour was mandatory under the Code, unless it could have been found that “there existed extenuating circumstances such that it would not be just to inflict punishment of death”. This Court is empowered by s. 15 (1) of the Supreme Court (Full Court) Ordinance 1968 to hear further evidence on an appeal, if it thinks it necessary or expedient in the interests of justice.

The appeal which lasted three and a half days involved the leading and reception of a considerable body of fresh evidence, which process took up the bulk of the time elapsed. For myself, I would wish to enter a caveat against the continued reception of fresh evidence in appeals before this Court. A check which I have made indicates that in effect, of twelve criminal appeals brought to this Court from decisions of single judges of the Court, in eight thereof, fresh evidence has been allowed. It might be considered that in this country it is of more importance perhaps than in many others, that people be encouraged to accept and have confidence in the finality of decisions properly arrived at. (There is of course no sanction as to costs upon litigants in criminal matters.) A process which led practitioners to think it was open to them in effect, to have a rehearing or second trial of an issue before a bench of three judges, ought to be effectively discouraged in my opinion; lest the decisions of single judges become universally disparaged, and the reputation of the law and of this Court be greatly diminished. I would respectfully apply the injunctions of the High Court in Green v. The King[cdxix]¹⁰ and Craig v. The King[cdxx]¹¹ (in regard to new trial applications, it is true), with some modifications, to the stream of cases which have been developing in our jurisdiction. As Latham C.J. stated: “There is grave risk of impeding the administration of justice if new trials are granted upon the ground of discovery of fresh evidence. If persons who become subject to the processes of the law were allowed to try again because they had chosen not to use evidence which was available or which with reasonable diligence could have been discovered by them, legal proceedings would tend to become interminable and grave injustice would, in practice, result in many cases.”

A very strong bench of the Court of Criminal Appeal of New South Wales, where appeal provisions very similar to our own apply, has enunciated: “It would seem from the argument presented to the Court in support of the submission that fresh evidence should be received, that a belief is entertained in some quarters that it is the customary practice of the Court to receive fresh evidence on matters relevant to penalty. It is necessary that we should state clearly and unequivocally that it is not the customary practice of the Court to receive fresh evidence and that in every case proper grounds must be established as a foundation for the exercise of the Court’s discretion to admit fresh evidence”: R. v. Lanham[cdxxi]¹². I conceive that this is the approach which this Court should insist on; more particularly on an appeal of this kind which is not so much one “on penalty” stricto sensu, as a reconsideration of a special issue of fact and law, namely “whether extenuating circumstances” existed within the meaning of the section. This issue is in Papua New Guinea entrusted to the Judiciary. No doubt when an executive is called upon to consider whether Royal clemency should be exercised, it advises itself from every possible source. In so far as at this preliminary stage our Courts are required to decide an issue of whether extenuating circumstances exist, I consider that when objection is taken to the form of evidence, this issue should ordinarily (without interference with discretion to do otherwise in very special circumstances) be judicially decided in accordance with the rules of evidence.

In the event, on this appeal, a bulk of evidence has been called which, setting aside that relating to an incident occurring since sentence in Bomana gaol, appears to me to have been plainly discoverable and obtainable prior to trial. (It must have been apparent to Ivoro’s legal advisers from the beginning that the s. 305 (2) issue was likely to become a principal issue at the trial.) The result has been that a witness examined and cross-examined at the trial has been recalled to amplify his evidence; a witness has been called who collected hearsay upon hearsay as to events in Ivoro’s past occurring many years ago, his evidence being quite incapable of test by cross-examination; an anthropologist with experience of the appellant’s original area was called; and a psychiatrist who was available but not called at the trial, but whose full report was there relied upon to establish extenuating circumstances, was called to explain and qualify his said report and to set up a view of the appellant which could be said to be clean contrary to that expressed in his report. Obviously this does not comply with the “fresh evidence” rules as accepted in relation to new trial applications. The appeal has in reality been conducted as a new trial of this issue. The course which has been taken leaves me with some apprehension as to the future course of criminal law procedure; but it has been justified on the basis that the supreme issue of the death penalty is here involved.

Following the amendment introduced by The Criminal Code Amendment Ordinance of 1907 the punishment for wilful murder remained as a sentence of death, that for murder a life sentence. Section 2 of that amending Ordinance provided that instead of being “pronounced”, the death sentence might be merely “recorded”, where the Court was of opinion that a recommendation should be made for Royal mercy. The way in which the Code as thereby amended was interpreted prior to the 1965 amendment introducing the “extenuating circumstances” provision, was indicated by Sir Hubert Murray in 1924 in “Papua of Today”: “A native murder (is generally punished) with a term of imprisonment varying from life to the rising of the Court, according to the circumstances of the case, and particularly according to the standard of civilization which the accused has reached. A native of the Port Moresby villages would be, and indeed has been, hanged for a native murder, for he knows the law as well as a white man; whereas a native less familiar with our ways might get a term of five or seven years imprisonment, and another, who had hardly been brought under control, might get off with six months, and a thoroughly untaught savage might receive only a nominal sentence. . . .”

Some years later Gore J. set out the main considerations for determining punishment for native crime as:

N2>“(1) No previous knowledge of the Government or only a vague idea of Government existing;

N2>(2) some knowledge of the existence of the Government but inability to resort thereto for the punishment of crime;

All the judges of this Court have an unhappily extensive experience in trying to assess degrees of moral or social culpability of offenders and of trying to balance punishment against the requirements of pacification and social security, among varying communities in this land. All are repeatedly engaged in the application of the provisions of s. 305 (2). Some of the considerations which have weighed with them have been expressed in reported judgments:

primitiveness, absence from village, ignorance of Government, upbringing, tribal custom demanding killing: Lakalyo’s case[cdxxii]¹³; lack of formal education, primitiveness, family situation, tribal setting: Dogwaingikata’s case[cdxxiii]¹⁴; immediate circumstances, state of sophistication, development of community, knowledge of Government, accessibility to and protection by Government, force of custom, ignorance, upbringing, obedience to tribe: R. v. Ketapi[cdxxiv]¹⁵; lack of sophistication, remoteness, lack of contact, commerce, ignorance of Government law, little Government influence: Harape’s case[cdxxv]¹⁶; some doubt of degree of knowledge of illegality under administration law, youthfulness of most accused who were not from normal decision-making age group, tribal excitement, first contact outside Highlands, some doubt as to degree of ritual association: Re Hame[cdxxvi]¹⁷ my own decision.

Usually the question has been dealt with informally without regard to much more than the facts of the trial record and brief evidence from administration and mission sources. The contention in favour of extenuating circumstances is not usually opposed by the Crown.

We were informed by counsel that s. 305 (2) probably had its genesis in the recommendations of the Royal Commission into Capital Punishment (U.K. 1949)—that no other country has such a provision, except South Africa. The evidence of Dr. Lansdown before the Commission stated that for purposes of the South African provision, under which the question remains a separate issue for the jury subject to a judicial direction, factors diminishing moral culpability were accepted as “extenuating circumstances”. I would be of the opinion that a restriction to the concept of “moral culpability” might be inapt and too restrictive for purposes of Papua New Guinea’s legislation and social circumstances.

I consider that any attempt to define or restrict what has been granted as an unlimited judicial discretion to the judges—should be resisted. Each case must be decided upon its own special facts.

It has been held in South Africa that in a murder trial evidence of extenuating circumstances must be given during the trial, save in exceptional circumstances (R. v. Malopi[cdxxvii]¹⁸); and also that where the question has been considered by the trial court the appellate division will not substitute its own opinion: Gardiner and Lansdown, 6th ed., p. 1567. One of the learned authors of the work last cited suggests that inter alia, “degeneracy of mind as might be seen in extreme old age or in neuropathic or psychopathic persons who are not definitely insane” might afford grounds of extenuation. In Papua New Guinea an appeal against the trial judge’s decision on this issue is specially provided for. And of course as this Court has heard further evidence, the question now has to be considered anew in the light of the transcript of the trial and of the new evidence.

In contending that extenuating circumstances have been shown, defence counsel points to all the factors of the appellant’s background and history, as constituting such of themselves, and also as establishing the probability that the appellant is either possessed of, what would be described by those who accept the existence of psychopathy as a form of mental illness (a true illness for which no explanation is yet offered)—a psychopathic personality; or is subject to intermittent brain disturbance akin to an epileptic disorder or to electrical brain abnormality. Glanville Williams in Criminal Law, 2nd ed., reports that in the U.K. the Home Secretary generally did not respite the death penalty for those cases described as psychopaths.

One must attempt to construe and apply the section in the setting of the circumstances of this country, the dispositions and natures of its peoples, the type and prevalence of crime therein, the specific pacification and the law and order situation into which it was designed to fit, and possibly, that it was passed by a largely indigenous House of Assembly. I have difficulty envisaging that the section was intended to cover the very worst of crimes—those committed by persistent, violent, wicked-tempered men with the utmost ferocity and with cunning. Should it nevertheless be applied to the sentence for this murder?

No witness suggests Ivoro was at any time psychotic, neurotic or mentally retarded nor positively that he was suffering from epilepsy. (Dr. Burton-Bradley and a Dr. Ellard both clinically exclude epilepsy.) It is clear that the E.E.G. taken of him can establish no more than that he is within (though just within) normal limits of recordings for Australians. He is the only Goilala to have been subjected to an E.E.G. so that his record cannot be fitted into any Goilala pattern. If Dr. Ellard’s evidence is to be accepted he is not the subject of abnormal electrical discharges of the brain of a lesser degree than clinical epilepsy.

Dr. Parker has no doubt that he is a classical “psychopathic personality”—an aggressive psychopath and a highly dangerous one at that. In making such a classification he finds no difficulty in that it can be said that the appellant acted with deliberation. In Reg. v. Matheson[cdxxviii]¹⁹ the Court of Criminal Appeal noted that an element of deliberation did not negative an abnormality of mind. Dr. Burton-Bradley agrees with Dr. Parker in effect, though he had previously stated in his report: “He is not suffering from any form of mental disorder at the present time, other than an aggressive and immature personality . . . he was not suffering from any form of mental disorder at the time of the offences. His account of this period is consistent with his being strongly under the influence of alcohol particularly in the earlier stages. This would have had the effect of heightening self-confidence and reducing whatever sense of responsibility there may have existed beforehand. . . . He was not suffering from any form of mental disorder at the time of the offences to which one could reasonably assign any standard diagnostic category.” Dr. Burton-Bradley explained the difference between his statement and his evidence by informing the Court that when preparing his earlier statement his mind was attuned only to the issue of mental capacity under s. 27 of the Code. Even at that time he said that he considered reduced capacity to control his actions may have resulted to Peter Ivoro from a low threshold of aggression, a predisposition to mental illness which had not yet had overt expression, and alcohol.

In Dr. Denis Hill’s description of psychopaths he states “they have had a very large number of jobs. They go from one job to another, forty, fifty or sixty jobs for a man aged thirty”. This man’s work record consists of five jobs in all, one lasting two years, one eighteen months, one six months and another at the time of the offence. He had spent six months in gaol. On this score as well as others he does not to my mind fit the description of a psychopath.

He is some twenty-five years of age and is said to have had six years’ schooling. He appears to have worked in Port Moresby for over five years.

It is noteworthy that under the 1957 Homicide Act, (U.K.) the standard form of directions to the jury which must consider whether abnormality of mind exists such as to “substantially impair mental responsibility” of an accused, are phrased so that the jury men ask themselves do they regard his mental state as amounting to partial insanity or being on the border-line of insanity. This direction was cited with approval by the Court of Criminal Appeal in Reg. v. Byrne[cdxxix]²⁰, a case involving a sexual psychopath.

I found myself impressed with Dr. Ellard’s description of the appellant’s motivation in regard to the murder of Daimon Jago and the two other killings the appellant effected that night. Given the occasion created by his foray armed, in search of property to steal (and this would appear to explain also the Moitaka incident) the killings do not appear to me to be of the “pointless type”, which are commonly debited against people described as psychopaths. He was surprised when committing robbery in a condition affected by drink, he used weapons to escape. He became enraged when his antipathy to inter-racial sex was aroused and when he felt himself insulted. He pursued and eliminated a witness to his second killing. The defence relies on the facts which it assumes to be established—the two earlier killings and the attempted killing to support the existence of that mental condition in Peter Ivoro for which it contends. Looking at those facts as established at the trial and uncontroverted, I consider they tell against a finding of extenuating circumstances.

It is clear that Peter Ivoro appreciated keenly what he was doing when he killed the woman (and when he killed twice, earlier that same night). He knew it was against the law. The killing of Quinn in the midst of a robbery does not paint a picture to me of sudden uncontrollable impulse. Thereafter it is clear self-interest was operating, he was not indifferent to consequences, he moved off the road, into hiding, after a further killing he pursued relentlessly some 500 yards, and eliminated a witness by murdering her silently with a bayonet, deliberately avoiding firing another shot, he hid the rifle and bayonet, he lied to the police. It is not suggested that the earlier shooting of Mrs. Thomson was committed in a transport of passion. Dr. Burton-Bradley is satisfied from his discussions that it was deliberate. He himself (p. 188) stated his intention was to demand money. I accept that Ivoro is an intelligent, cunning man.

Dr. Parker stated that psychopaths are capable of trying to hide their crimes but not from remorse—they have no feeling of remorse whatever. The transcript establishes I consider, that Ivoro was not indifferent to the consequences of his killings at the time, and indeed he expressed remorse repeatedly. I instance: “I have made the name of the Goilalas bad and that is not good. I am a man of the Church and I want to follow the way of the Church and when I receive my punishment for this and have come out of gaol I will not do this again. I am a Christian” (p. 192). “I am sorry for what I have done, I am a Christian man and I think I will die as my punishment in heaven” (p. 193). “I will sign because I committed a very serious crime in this country” (p. 196). “I am very sorry about it and I don’t want to go back inside again” (Quinn’s house) (p. 193). “I do not want to go back to this place again” (the roadside) “where I killed these people. I will take my punishment and whatever they give me gaol or whether they hang me that is something for the judge to decide” (p. 203). “I have done something very bad, I have been worrying a lot about this. I am glad now that it is all finished, I am not worrying anymore and the judge can do with me what he likes.”

I am satisfied that Peter Ivoro is a man of great volatility. Possibly, as popular opinion would have it, and Dr. Burton-Bradley would appear to hold, a majority of his people, the Goilala, are very volatile in personality. I am not satisfied on the balance of probabilities that he suffered from a brain abnormality that calls for a finding of diminished responsibility. I would agree with the phrase used at the trial that he had a low threshold of aggression. I accept Dr. Ellard’s assessment that he is naturally habituated to excessive violence and will always be capable of excessive aggression. I accept that he has exhibited violent bad temper since youth, and has indulged in a number of ferocious, aggressive acts over the years. I have given the matter most anxious consideration, but I am unable to find in his background, his personality, the facts of the killings or any of the matters urged, extenuating circumstances such that it would not be just to inflict the punishment of death.

I come to this conclusion in attempting to carry out the duty laid upon me by the legislature; even though as an individual I shrink from the concept of capital punishment, and would hope that the legislature might see fit to abolish it.

Appeal allowed. Sentence of death quashed and in lieu thereof sentence of imprisonment with hard labour for life imposed.

[cdx]Section 15 (1) (c) of the Supreme Court (Full Court) Ordinance 1968 empowers the Full Court to hear further evidence on an appeal if it thinks it necessary or expedient in the interests of justice.

[cdxi]The relevant subsections of s. 305 of The Criminal Code (Queensland adopted) are set out infra at p. 377.

[cdxii]Section 15 (1) (c) of the Supreme Court (Full Court) Ordinance 1968 empowers the Full Court to hear further evidence on an appeal if it thinks it necessary or expedient in the interests of justice.

[cdxiii]The relevant subsections of s. 305 of The Criminal Code (Queensland adopted) are set out infra at p. 377.

[cdxiv][1970] 2 N.S.W.R. 217.

[cdxv][1970] 2 N.S.W.R., at p. 218.

[cdxvi][1939] HCA 4; (1939) 61 C.L.R. 167, at p. 174.

[cdxvii](1939) 61 C.L.R., at p. 175.

[cdxviii][1938] E.D.L. 310.

[cdxix](1939) 61 C.L.R., at p. 176.

[cdxx][1933] HCA 41; (1933) 49 C.L.R. 429, at p. 439.

[cdxxi][1970] 2 N.S.W.R., at p. 218.

[cdxxii]Unreported. (Clarkson J.—21st July, 1971.)

[cdxxiii]Unreported. (Williams J.—26th June, 1971.)

[cdxxiv][1971-72] P. & N.G.L.R. 44.