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KJ, Regina v [1973] PGSC 23; [1973] PNGLR 93 (17 November 1972)

Papua New Guinea Law Reports - 1973

[1973] PNGLR 93 - Regina v K.J.

[1973] PNGLR 93

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

K. J. AND ANOTHER

Port Moresby

Minogue CJ Prentice Kelly JJ

4 September 1972

17 November 1972

APPEAL - Practice and procedure - Reference of questions of law arising at or in connection with the trial - Reference where person tried and acquitted - Reference where conviction on a lesser charge - Exercise of discretion - Consideration of question not referred but of some importance - Supreme Court (Full Court) Ordinance 1968, s. 30.[lxxvi]1

CRIMINAL LAW - Wilful murder - Manslaughter - Provocation - Mistake of fact - Act of sorcery - Criminal Code (Queensland adopted), ss. 24[lxxvii]², 268[lxxviii]³, 304[lxxix]⁴ - Sorcery Ordinance 1971, s. 20.[lxxx]⁵

K. J. and Y. A. were tried on a charge of wilful murder: they were acquitted of wilful murder but convicted of manslaughter on the basis that were it not for the facts as found and ss. 4 and 20 of the Sorcery Ordinance and their effect when viewed with ss. 24, 268 and 304 of the Criminal Code (Queensland adopted) both accused would have been guilty of wilful murder. On a reference pursuant to s. 30 of the Supreme Court (Full Court) Ordinance 1968.

Held

N1>(1) (Per Minogue C.J. and Kelly J., Prentice J. not deciding) it is not necessary in order for there to be a reference under s. 30 of the Supreme Court (Full Court) Ordinance, 1968 for the accused to have been completely acquitted on the indictment and the section may be invoked in a case such as the present where the accused have been acquitted of the charges on which they have been indicted even though convicted on a lesser charge, provided that the questions referred are questions of law arising at or in connection with the trial.

N1>(2) (Per Minogue C.J. and Kelly J., Prentice J. not deciding) that although as a general rule, on a reference under s. 30 of the Supreme Court (Full Court) Ordinance, 1968 the Court would be disposed to limit itself to the questions actually referred, the importance of the real question which is involved justifies a departure where what is involved is a matter of some importance and likely to arise from time to time in the future.

Dicta in R. v. S. (1953), 53 S.R. (N.S.W.) 460 per Owen J. at p. 479 referred to.

N1>(3) (Per Minogue C.J., Kelly J., Prentice J. not deciding in the absence of argument to the contrary being addressed to the court). Section 268 of the Criminal Code (Queensland adopted) defines provocation for the purpose of s. 304 of the Criminal Code (Queensland adopted).

R v. Sabri Isa, [1952] St. R. Qd. 269, per Stanley J. at p. 283 et seq.; R. v. Iawe-Mama, [1965-66] P. & N.G.L.R. 96; R. v. Nantisantjaba, [1963] P. & N.G.L.R. 148 and R. v. Zariai-Gavene, [1963] P. & N.G.L.R. 203 followed.

N1>(4) (Per Minogue C.J. and Kelly J., Prentice J. not deciding) that the words in s. 268 of the Criminal Code (Queensland adopted) namely, “with reference to an offence of which an assault is an element” are to be interpreted as “with reference to an offence in the commission of which an assault may be committed.”

R. v. Nantisantjaba, [1963] P. & N.G.L.R. 148 per Smithers J. at p. 152 followed.

N1>(5) (Per Minogue C.J. and Kelly J., Prentice J. dissenting) that mistake of fact as set out in s. 24 of the Criminal Code (Queensland adopted) can apply in relation to provocation as defined in s. 268 of the Criminal Code (Queensland adopted). In applying s. 24 in this context the “state of things” referred to would be whether a wrongful act or insult of the nature referred to in s. 268 had been done or offered. If there were an honest and reasonable but mistaken belief that this had occurred, provocation could then operate as a defence, or in the case where s. 304 applied, to reduce wilful murder or murder to manslaughter. If the mistake was not as to the nature of the act done but merely as to whether that act was lawful, this would be a mistake of law and s. 24 would not apply.

N1>(6) Section 20 (1) of the Sorcery Ordinance 1971, is intended to be read with s. 268 of the Criminal Code (Queensland adopted), noting that the relevant fact is not that the person concerned is a sorcerer (or where s. 24 of the Criminal Code applies is honestly and reasonably but mistakenly believed to be a sorcerer) but that he has committed or is committing an act of sorcery (or, where s. 24 of the Criminal Code applies, is believed to have committed or be committing such an act). What is to be looked at is the nature of the act itself and not the personality of the actor.

Discussion of the principles in the case where s. 24 of the Criminal Code (Queensland adopted) applies and provocation is being considered for the purpose of reducing what would otherwise be wilful murder to manslaughter.

Reference

This was a reference pursuant to s. 30 of the Supreme Court (Full Court) Ordinance 1968 of certain questions arising in connection with the trial of two accused on a charge of wilful murder. A brief resumé‚ of the facts and the questions referred are to be found in the joint reasons for judgment of Minogue C.J. and Kelly J. hereunder.

Counsel

C. F. Wall, for the appellant (Crown).

J. T. Bradshaw, for the respondents.

Cur. adv. vult.

17 November 1972

MINOGUE CJ KELLY J: This is a reference pursuant to s. 30 of the Supreme Court (Full Court) Ordinance, 1968 of questions arising in connexion with the trial of K. J. and Y.A. on a charge of wilful murder. The accused were acquitted of wilful murder but each was convicted of manslaughter.

It appears that the deceased was fleeing from the scene of an accident and that he burst through the bush into a coffee garden where one of the accused fired arrows at him and the other accused hit him with an axe. The learned trial judge found that the social group of which the accused form a part believe in sorcery, and that following the accident there had been a cry of “sanguma man” within their village. In the course of his judgment the learned trial judge said that he was not satisfied beyond reasonable doubt that the accused did not have an honest and reasonable belief that powers of sorcery were about to be put into action and he found that it was a mistaken belief if so held by them. Later in his judgment his Honour said that it was clear that the accused believed the sorcerer would have been involved in “forbidden sorcery” contrary to the Sorcery Ordinance and therefore unlawful and the learned trial judge was satisfied beyond reasonable doubt that were it not for ss. 4 and 20 of the Sorcery Ordinance and their effect when viewed with ss. 24, 268 and 304 of the Criminal Code both accused would have been guilty of wilful murder. However, because of the view he took of the law as set out in those sections viewed in the light of the facts which he found, he found the accused guilty of manslaughter but not guilty of wilful murder.

Counsel for the respondents raised a preliminary point that the matter did not come within s. 30 of the Supreme Court (Full Court) Ordinance as the respondents were not persons who had been acquitted, but on the contrary they had been convicted on the indictment presented against them and sentenced to imprisonment. We do not consider that there is any substance in this point. In our view it is not necessary in order that there may be a reference under s. 30 for the accused to have been completely acquitted on the indictment and the section may be invoked in a case such as the present where the accused have been acquitted of the charges upon which they have been indicted even though convicted on a lesser charge pursuant to the power given by s. 576 of the Code, provided of course that the questions referred are questions of law arising at or in connexion with the trial. Counsel for the respondents placed reliance on sub-ss. (7) and (8) of s. 30, which are clearly designed to ensure that no publicity is given to proceedings, as indicating an intention that the section was only to apply in the case of a complete acquittal where publicity could be prejudicial. However, the fact that these provisions are thus necessary in a case where there has been a complete acquittal does not mean that it is to be inferred that it is only in such a case that the section can be availed of. We would consider that to limit the operation of the section in the way suggested would be in a large measure to defeat its purpose which as Owen J. said of the corresponding provision in New South Wales in R. v. S.[lxxxi]⁶: “is to enable the Crown to bring before this Court decisions of law, on matters of general principle, given by courts of first instance which it thinks to have been wrongly decided and which, if not corrected, may set precedents for other courts of first instance.”

The questions referred are:

N2>“(1) Having found that but for the Sorcery Ordinance it was wilful murder that was committed, did I err in law in finding for the reasons contained in my judgment the accused persons not guilty of wilful murder but guilty of manslaughter?

N2>(2) Did I err in law in my consideration of how an ‘ordinary person’ would have been likely to react to the circumstances in which the accused persons found themselves?

N2>(3) Did I err in law in holding as follows, namely that ‘it would have amounted to a wrongful act if the deceased had been a Sanguma man’?

N2>(4) Did I err in law in holding, in the context of my other findings, that if powers of sorcery were about to be put into action by the deceased this would constitute an act or insult done or offered by one person to another within the meaning of s. 268 of the Criminal Code because of the provisions of s. 20 (1) of the Sorcery Ordinance?

N2>(5) Did I err in law in holding in the context of my other findings that the ‘appearance’ of the deceased would have amounted to an act or insult done or offered by one person to another within the meaning of s. 268 of the Criminal Code, because of the provisions of s. 20 (1) of the Sorcery Ordinance?

N2>(6) Did I err in taking the law to be as stated in the following part of my judgment namely:

Thus, applying the facts or possible facts of this case to s. 24 it might read something like this, in combination with s. 20 of the Sorcery Ordinance.

‘If the accused men do acts of violence under an honest and reasonable, but mistaken belief that an act of sorcery has been committed, then, if the likely effect of that imagined act of sorcery, viewed in the light of the accuseds’ groups’ traditional belief could have serious effects, then the accused men would not be criminally responsible for their violent acts to any greater extent than if an act of sorcery actually had been committed.’?”

These questions are in the form prepared by the Crown Prosecutor. Unfortunately it appears that the procedure indicated by this Court in R. v. P. M.[lxxxii]⁷ was not followed, and the learned trial judge, who had to deal with the request for a reference on the day of his departure on leave, did not have the benefit of the respondents’ views on the form of the questions to be referred. The questions as framed failed to raise clearly the fundamental question of the combined operation of the sections of the Sorcery Ordinance and of the Code to which the learned trial judge referred in his judgment for the purpose of reducing what would otherwise be wilful murder to manslaughter. Of the questions referred in our view only Questions (3), (4) and (6) should be answered. Question (1) is a general question of the type which Jordan C.J. said in Re Van Der Lubbe[lxxxiii]⁸ it was not proper to ask under the corresponding provision in New South Wales, a view which was adopted by this Court in R. v. P. M.[lxxxiv]⁹. Questions (2) and (5) do not raise questions of law but rather the application of the law to the facts.

Whilst the remaining questions should be answered, we would think that if the court is to perform the task indicated by Owen J. in the passage already cited from R. v. S.[lxxxv]¹⁰ it should in the circumstances of this case at the same time deal with the combined operation of the sections referred to as this is a matter which is of some importance and likely to arise from time to time in the future. Although as a general rule on a reference under s. 30 the court would no doubt be disposed to limit itself to the questions actually referred, we would consider that the importance of the real question which is involved here justifies a departure from that course in this case.

As we see it in considering the combined operation of the relevant sections of the Sorcery Ordinance and of the Code there were three steps involved. The first is whether s. 268 of the Code defines provocation for the purpose of s. 304. If it does, the next step is to consider whether s. 24 can operate with s. 268. Finally, consideration is then to be given to the operation of the Sorcery Ordinance in conjunction with the provisions of the Code.

Section 268 is to be found in Ch. XXVI of the Code headed “Assaults and violence to the person generally: Justification and excuse” and is in these terms:

“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.”

Section 304 is in Ch. XXVIII headed “Homicide: Suicide: Concealment of Birth” and is as follows:

“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.”

Both of the chapters referred to are within Pt V which deals with offences against the person and other matters.

The view which has been generally adopted over the years by judges of this Court sitting at first instance is that s. 268 defines provocation for the purpose of s. 304. The contrary view prevails in Queensland and the Court of Criminal Appeal in that State considers that it should hold itself bound by the majority decision of that court in R. v. Herlihy[lxxxvi]¹¹ that the legislature in enacting s. 304 had compendiously adopted the common law concept of provocation (see R. v. Johnson [lxxxvii]¹²). In Western Australia the Court of Criminal Appeal in Mehemet Ali v. The Queen[lxxxviii]¹³ has taken the same view of the corresponding sections of the Code in that State as has generally been taken by members of this Court, and the court there criticized earlier decisions which had been taken as authority for the contrary view.

With the greatest respect to those who hold the contrary view we would consider that the reasoning of Stanley J. in R. v. Sabri Isa[lxxxix]¹⁴ in favour of adopting the definition of s. 268 for the purpose of s. 304 is to be preferred. Amongst the judgments by members of this Court in which the question has been examined we would refer in particular to R. v. Iawe-Mama[xc]¹⁵, R. v. Nantisantjaba[xci]¹⁶ and R. v. Zariai-Gavene[xcii]¹⁷. We do not consider that we could usefully add to what has been said in those judgments all of which give what to us appear compelling reasons for adopting the definition in s. 268.

We would agree with the conclusion of Smithers J. in R. v. Nantisantjaba[xciii]¹⁸ that the words in s. 268 “with reference to an offence of which an assault is an element” are to be interpreted as “with reference to an offence in the commission of which an assault may be committed”, and the passage in his judgment which immediately follows in our view sets out the position admirably. The learned judge there said:

“This seems a very reasonable state of affairs because it could hardly be thought that a Code which was designed to dispose as far as possible with reference to the Common Law, should suddenly revert to the Common Law for the purpose of one aspect of the subject of provocation, a subject to which the authors had given detailed consideration and devised novel provisions. The other alternative would be that for the purpose of s. 304 one was relegated to an ordinary dictionary meaning. This seems equally unlikely for the same reason and also because the subject matter is one of so much technical legal learning.”

We now turn to the question of whether s. 24 of the Code can operate with s. 268. Section 24 is in Ch. V of the Code headed “Criminal Responsibility” and is as follows:

“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

There is no express provision in s. 268 which would exclude the operation of s. 24 and there is nothing in s. 268 which would indicate that the operation of s. 24 is to be impliedly excluded. The matter appears to be devoid of authority and we would venture to say that that may well be because the position has always been thought to be clear, namely that mistake of fact as set out in s. 24 could apply in relation to provocation as defined in s. 268. In our view this is so. In applying s. 24 in this context the “state of things” referred to would be whether a wrongful act or insult of the nature referred to in s. 268 had been done or offered. If there were an honest and reasonable but mistaken belief that this had occurred, we would consider that provocation could then operate as a defence in cases where it constitutes a defence, or, in the case where s. 304 applied, to reduce wilful murder or murder to manslaughter. In coming to this conclusion we do not overlook the provision in s. 268 that a lawful act is not provocation to any person for an assault. However, we do not consider that such a provision would prevent reliance upon mistake of fact in a case where the act done was in fact a lawful act but the accused honestly and reasonably though mistakenly believed that an act of a different nature, and which was not lawful, had been done. Of course, if the mistake was not as to the nature of the act done but merely as to whether that act was lawful, this would be a mistake of law and s. 24 would not apply (see Horne v. Coyle; Ex parte Coyle[xciv]¹⁹ ).

We now come to consider how s. 20 of the Sorcery Ordinance 1971 operates in conjunction with s. 268 and s. 24 of the Code. Section 20 provides as follows:

N2>“(1) For the avoidance of doubt, it is hereby declared that an act of sorcery may amount to a wrongful act or insult within the meaning of s. 268 of the Criminal Code.

N2>(2) It is immaterial that the act of sorcery did not occur in the presence of the person allegedly provoked, or that it was directed at some person other than the person allegedly provoked.

N2>(3) The likely effect of an act of sorcery relied on by virtue of this section shall be judged by reference, amongst other things, to the traditional beliefs of any social group of which the person provoked is a member.

N2>(4) Any defence provided by virtue of this section is in addition to and not in derogation of any defence otherwise available to an accused person or any defence available by reason of any effect attributable, under any other law of the Territory, to the act involved.”

“Act of sorcery” is defined in s. 4 (1) as meaning (unless the contrary intention appears) any act (including a traditional ceremony or ritual) which is intended to bring, or which purports to be able or adapted to bring, powers of sorcery into action or to make them possible or carry them into effect. Regard must also be had to the preamble to the Ordinance which by s. 7 is required to be taken fully into account in all cases, and in particular to that part of the preamble which states that it is necessary for the law to distinguish between evil sorcery and innocent sorcery. Innocent sorcery is defined in the first schedule to the Ordinance.

It is clear from the terms of s. 20 (1) itself that the section is intended to be read with s. 268 of the Code. In the case where s. 24 of the Code applies and provocation is being considered, as in the present instance, for the purpose of reducing what would otherwise be wilful murder to manslaughter, the legal situation might be compendiously expressed in this way:

N2>(1) A person who kills another under circumstances which would otherwise constitute wilful murder or murder,

N2>(2) And who does so under an honest and reasonable but mistaken belief that,

N2>(3) That other has committed or is in the process of committing an act of sorcery of such a nature, judged by reference to the traditional beliefs of the social group to which the accused belongs as to be likely when directed at the accused or at some person to whom the evidence discloses the accused stood in a protective or obligatory clan relationship to deprive the accused of the power of self-control and to induce him to assault the person who he thus believes has committed or is committing that act of sorcery,

N2>(4) And who does the act which causes death in the heat of passion caused by that belief on the sudden and before there is time for his passion to cool,

N2>(5) Is guilty of manslaughter only.

It is perhaps unnecessary to add that there must of course be evidence in the trial which could lead the court to a reasonable consideration of the existence of a defence of provocation.

It is to be noted that the relevant fact is not that the person concerned is a sorcerer (or where s. 24 applies is honestly and reasonably but mistakenly believed to be a sorcerer) but that he has committed or is committing an act of sorcery (or, where s. 24 applies, is believed to have committed or be committing such an act). What must be looked at is the nature of the act itself and not the personality of the actor. The fact that a man is or is believed to be a sanguma man is not to the point except in so far as it may bear on the nature and quality of his acts. It is not to be presumed that the mere presence of such a person is evidence that a wrongful act has been or is being committed. Likewise it would not be correct to say that any particular act of sorcery would necessarily have amounted to a wrongful act if done by a sanguma man. It is not every act of sorcery which amounts to a wrongful act or insult; for example, the act may be one of innocent sorcery and, whilst from our understanding of these matters one would not expect to find a sanguma man performing an act of innocent sorcery, nevertheless it would be wrong to conclude as a matter of law that because an act of sorcery is done by a sanguma man it is therefore necessarily a wrongful act; this is a question of fact to be determined on the evidence. From the wording of Question (3) it would appear that the learned trial judge treated the matter as one of law and the question should be answered accordingly; if it should be that he did not do so it would not be necessary to answer the question.

In order for s. 20 of the Sorcery Ordinance to operate in conjunction with the relevant sections of the Code the commission of the act of sorcery relied upon must have actually at least commenced (or, where s. 24 applies, there must be an honest and reasonable though mistaken belief that it has in fact commenced). The fact that it may be intended that such an act should commence at some time in the future (or, where s. 24 applies, there is a belief that this is to occur) is not enough. It appears from one part of his judgment that the learned trial judge did in effect hold that if powers of sorcery were about to be put into action by the deceased this would constitute an act or insult (presumably a wrongful act or insult) done or offered by one person to another within the meaning of s. 268 of the Code because of the provisions of s. 20 (1) of the Sorcery Ordinance. On the basis that the learned trial judge so held as a matter of law and if by this he meant to say that this would be so where the commission of an act of sorcery had not even commenced (which is the way in which we read the relevant passage of the judgment) we would with respect consider that he fell into error. From a subsequent passage of the judgment it does appear that his Honour may have considered that the accuseds’ belief was that an act of sorcery had already occurred or had been commenced, but this did not appear to be the situation to which Question (4) is addressed in the form in which it is framed.

The definition of “act of sorcery” in s. 4 (1) tends to support the view that for s. 20 (1) to operate it is not necessary that everything be done that is required to actually carry powers of sorcery into effect (or, where s. 24 applies, that there be a belief that this has occurred). By the definition there is included an act which purports to be adapted to make powers of sorcery possible and this appears to contemplate that an act may constitute an act of sorcery for the purpose of the Ordinance even though it may only be, as it were, a step in the process of carrying powers of sorcery into effect. What is however essential is that there be some act (or, where s. 24 is invoked, a belief that there has been such an act).

The statement of the law as propounded by the learned trial judge which is the subject of Question (6) deals only with the reading together of s. 24 of the Code and s. 20 of the Sorcery Ordinance. We would consider with respect that it is in rather too general terms and we would prefer to adopt the statement which we have already set out which takes into account the joint operation of ss. 24, 268 and 304 of the Code with s. 20 of the Sorcery Ordinance.

We would answer the question as follows:

N2>(1) Should not be answered;

N2>(2) Should not be answered;

N2>(3) Yes;

N2>(4) Yes;

N2>(5) Should not be answered;

N2>(6) Yes.

PRENTICE J: Underlying the questions asked in this reference there is a basic question, namely whether the doctrine of provocation, whereby an act of wilful murder or murder can be read down to constitute manslaughter only, can be extended by the operation of s. 24 of the Code to a case where there is no provocation in fact, but provocation is thought by the assailant to have been offered by the person assailed to the said assailant. And a further, in that all the questions asked assume it to be correct that s. 268 is to be used to interpret s. 304 of the Code. The Crown through its counsel assumed the affirmative of each; so that the contrary was not argued.

Section 24 of the Code provides that:

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

The cases in which s. 24 has been applied and interpreted, appear to relate to offences set up by statutes other than the Criminal Code itself. In such cases it has been held that the “repeal by implication” rules should be applied in construing whether an exclusion from s. 24 has been worked (see the judgment of E. A. Douglas J. in Anderson v. Nystrom[xcv]²⁰).

In Geraldton Fishermen’s Co-operative Ltd. v. Munro[xcvi]²¹ the Full Court of Western Australia considered the Queensland cases and summarized the approach to be made by a court to such a problem in the following words: “. . . where there is no express exclusion then s. 24 and the section creating an offence must, if possible, be read together, and s. 24 cannot be treated as excluded by implication, unless on a fair reading of the penal section (read of course in the context of the whole Act in which it stands) it is seen that the penal section is inconsistent with the co-existence of s. 24 so that effect cannot be given to both at the same time . . . but if on a fair interpretation of the words used it can be seen that the two sections can stand together, then the fact that an exclusion would have been reasonable, or even the fact that an exclusion might have been expected, cannot, in my opinion, justify the adoption of a gloss on the words used so as to bring about such a result.”

I see no reason why this approach is not apt to the situation where as here, the provision to be read with s. 24, appears in the same Ordinance, namely the Criminal Code.

As I have mentioned above it has not been sought to be argued before this Full Court to the contrary of the numerous decisions of single judges of this Court, that for purposes of s. 304, provocation is defined by s. 268 of the Code. It would seem to me inappropriate that a decision of the Full Court should be arrived at confirming those single judge decisions, without full argument having been presented to it— when one regards the conclusions of the Supreme Court of Queensland to the contrary. For the purposes of this reference, I consider it should be assumed, without deciding, that the Papua New Guinea stream of decisions (which are in line with those in Western Australia) are correct.

Does a reading together of ss. 268 and 304 compel the court to the conclusion that s. 24 is impliedly excluded from considerations of provocation such as would reduce a charge of wilful murder or of murder to manslaughter? I consider that it does. Provocation is defined to mean and include “any wrongful act or insult” of a particular quality. The section goes on to provide that a “lawful act is not provocation to any person for an assault.” If a lawful act cannot constitute provocation, it appears to me completely inconsistent to hold that a non-existent (an imagined) act can constitute provocation. The act must be “of such a nature as to be likely when done to an ordinary person ... to deprive him of the power of self-control and to induce him ...” The test is therefore objective— not what the effect is on a particular individual (R. v. Sabri Isa [xcvii]²², per Macrossan C.J. and at p. 302, per O’Hogan A.J., which would seem to exclude questions of imagination.

Section 269 specifically restricts the defence available thereunder of provocation, to an assault committed upon the provoker. Section 268 seems to have been construed as intending when read with s. 304 qua wilful murder and murder, to import a similar restriction. Just as misdirected retaliation is not a defence under s. 269 (R. v. Tsagaroan-Kagobo[xcviii]²³), so it cannot avail the accused under s. 304. “It is an essential feature of provocation that action must be directed against the person giving the provocation” (Mann C.J. in R. v. Kauba-Paruwo[xcix]²⁴). His Honour in that case then went on (at p. 20): “Attaching responsibility for provocation to persons other than those who give the provocation, would require the introduction of some additional concept of social responsibility, and I think that this concept must be taken as being absent both at Common Law and under s. 268. If it were introduced, I do not think it would be appropriate to call the new concept provocation at all.” The section itself of course, in providing a measure of the extent to which a person must be roused makes the use of the words “and to induce him to assault the person by whom the act or insult is done or offered.” It is difficult to regard s. 268 in isolation from s. 269 which is more specific (see R. v. Tsagaroan-Kagobo, op. cit. at p. 128). Compare the decision of Clarkson J. in R. v. Oa[c]²⁵ where his Honour held that the provocative act must be directed to the person claiming protection.

The concept of provocation is obviously intended to reduce culpability (s. 304), or eliminate it (s. 269), because of the fault of the provoker. It is restricted to excusing only actions against the provoker. It is therefore completely anomalous to find excuse in an imagined “provocation” for an assault upon an “innocent” (inoffensive) person.

One notes that the heat of passion spoken of in s. 304 must be caused by sudden provocation. It does not to my mind make sense to come to a finding of causation, when no such act of provocation occurred in fact— but was merely imagined.

I am of the opinion that effect cannot be given at the same time to ss. 268 and 304 on the one hand, and s. 24 on the other— that their provisions are so inconsistent that they cannot stand together. I do not consider it curious that there are no reported decisions covering the point; having had myself to consider (in the last three months) a number of areas of the Code that appeared hitherto to have been devoid of interpretative decision. The greater degree of attention which is being given to argument on, and interpretation of, the Code in Papua New Guinea, as compared with Queensland, Western Australia and Tasmania, merely reflects I would think, the far greater number of serious crimes in Papua New Guinea, and the availability of counsel to represent the accused in one hundred per cent of the trials that result. The provision of s. 20 (2) of the Sorcery Ordinance, viz. “It is immaterial that the act of sorcery did not occur in the presence of the person allegedly provoked, or that it was directed at some person other than the person allegedly provoked”, would appear to extend the definition of provocation in s. 268 as far as acts of sorcery are concerned. But I do not consider that it affects the inability of s. 24 of the Code, as I view it, to stand in association with ss. 268 and 304 of the Code.

I have had the benefit of reading the judgment of the Chief Justice and my brother Kelly herein and I note that they have come to an opposite conclusion as to s. 24. I feel that I should therefore express my views on the position that obtains if my brothers and not I, be correct. On the assumption that they made, that s. 24 can be read together with s. 268 and s. 304 of the Code and ss. 4 and 20 of the Sorcery Ordinance, I respectfully agree with their compendious expression of their cumulative effect. I agree in their conclusion that an act of sorcery must have commenced (or, assuming the applicability of s. 24 of the Criminal Code, that the accused believed on honest and reasonable though mistaken grounds that it had done) before “provocation” could arise. I agree also in their conclusion that the learned trial judge appears to have fallen into error in finding (if he did), an act or insult to have occurred when the commission of an act of sorcery had not commenced. I agree in their conclusion that there must be an act (by a sorcerer) which at least is a step in carrying powers of sorcery into effect— that the mere presence (or a belief in the presence) of a sorcerer could not constitute an “act of sorcery” as defined in s. 41.

I have difficulty in appreciating what his Honour, the trial judge meant when he said “It would have amounted to a wrongful act if the accused had been a sanguma man.” If by it his Honour meant that the mere appearance on the scene of a sanguma man would necessarily amount to an act of sorcery, I would consider his conclusion wrong in law. It appears to me that the mere existence or presence of a person who is known to be or has been a practising sorcerer could not, as a matter of law, constitute “an act of sorcery” under s. 4 of the Sorcery Ordinance.

With respect I would also agree that the learned trial judge appears to have stated the compendious effect of the importation of s. 24 of the Code and s. 20 of the Sorcery Ordinance, too widely. The appropriate question I consider should be, not whether the act (or imagined act) “could have serious effects,”— but rather “would it be likely when done to an ordinary person (in the accuseds’ cultural background) to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult was done (or imagined to have been done).”

Certain of the questions as stated should not be answered for the reasons stated by my brothers. I agree with their comments in that regard. On either of the approaches I have adopted above, I would answer the questions— (1) should not be answered; (2) should not be answered; (3) yes; (4) yes; (5) should not be answered; (6) yes.

Questions answered:

N1>(1) Should not be answered.

N1>(2) Should not be answered.

N1>(3) Yes.

N1>(4) Yes.

N1>(5) Should not be answered.

N1>(6) Yes.

Solicitor for the appellant (Crown): P.J. Clay, Crown Solicitor.

Solicitor for the respondents: W. A. Lalor, Public Solicitor.

[lxxvi]Section 30 of the Supreme Court (Full Court) Ordinance 1968, provides:—

N2>(1) A court by which any person is tried and acquitted shall, if so requested by the prosecutor upon, or within forty days after, the conclusion of the trial, refer for decision by the Full Court any question of law arising at or in connexion with the trial.

N2>(2) No request under subsection (1) of this section shall be made without the consent of the Secretary for Law.

N2>(3) The question to which the request relates shall be referred by the Court to the Full Court for decision, together with a statement of the circumstances out of which the question arose and such further statements as the Full Court requires.

N2>(4) The Full Court may determine the question so referred.

N2>(5) The determination by the Full Court of the question referred to it does not in any way affect or invalidate any verdict or decision given at the trial.

N2>(6) Any person charged at the trial or affected by the judgment at the trial is entitled to be heard before the Full Court upon the hearing of the question referred, and if it appears that any such person does not propose to be represented upon the hearing the Secretary for Law may instruct counsel to argue the question before the Court on behalf of that person.

N2>(7) The hearing and determination of any question under this section shall be in camera.

N2>(8) No report of any request made under subsection (1) of this section shall be published, and no report of proceedings under this section shall be published which discloses the name or identity of any person charged at the trial or affected by the decision given at the trial.

N2>(9) Any publication in contravention of subsection (8) of this section is punishable as contempt of the Supreme Court.

N2>(10) In this section, a reference to the trial and acquittal of a person shall be read as including a reference to the acquittal of a person on appeal (otherwise than on appeal to the Full Court).

[lxxvii]Infra p. 97.

[lxxviii]Infra p. 98.

[lxxix]Infra p. 99.

[lxxx]Infra p. 101.

[lxxxi] (1953) 53 S.R. (N.S.W.) 460, at p. 479.

[lxxxii][1971-72] P. & N.G.L.R. 222.

[lxxxiii][1949] NSWStRp 18; (1949) 49 S.R. (N.S.W.) 309, at p. 312.

[lxxxiv][1971-72] P. & N.G.L.R. 222.

[lxxxv](1953) 53 S.R. (N.S.W.) 460.

[lxxxvi][1956] St. R. Qd. 18.

[lxxxvii] [1964] Qd. R. 1.

[lxxxviii](1957) 59 W.A.L.R. 28.