Mama, Regina v [1965-66] PNGLR 96 (27 May 1965)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 96 - Regina v Iawe Mama

[1965-66] PNGLR 96

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

IAWE-MAMA

Mendi and Port Moresby

Minogue J

9 March 1965

1-2 April 1965

27 May 1965

CRIMINAL LAW - Murder - Provocation - The Criminal Code, ss. 268, 269, 301, 304.

By s. 268 of The Criminal Code: “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 the illegality.”

By s. 304 of The Criminal Code: “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.”

Held:

That for the purposes of s. 304, “provocation” is defined by s. 268, although in considering whether the act in causing death is done in the heat of passion caused by sudden provocation the court may have regard to the nature and quality of the act.

Semble:

In deciding who is the “ordinary person” in s. 268 one must take such a person in ordinary sickness and in ordinary health. Long before The Criminal Code of Queensland was enacted, provocation existed as a defence to murder to allow for the frailty of human nature. The Code intended not only to preserve the common law concession to human frailty but to extend it, as it does, in s. 269. It is natural that that frailty should increase in times of sickness. Allowance should be made for a person’s loss of ability to control his emotional responses brought about by the normal ills to which mankind is subject.

Trial on Indictment.

The facts and submissions of counsel appear sufficiently from the judgment.

Counsel:

Chaney, for the Crown.

Munro, for the accused.

27 May 1965

MINOGUE J:  The accused, Iawe, was tried before me at Mendi on 9th March, 1965, on a charge under s. 301 of the Criminal Code of wilfully murdering his wife Magami on the 7th August, 1964. Mr. Munro who appeared for Iawe submitted to me that I should find him not guilty of wilful murder but guilty of manslaughter under the provisions of s. 304 of the Code because, as he said, Iawe in killing his wife did so in the heat of passion caused by sudden provocation and before there was time for his passion to cool. I adjourned the further hearing to Port Moresby and heard argument on the 1st and 2nd of April.

The facts I find to be as follows: On the 7th August, 1964, Iawe was a sick and under-nourished man. He was weak and short of breath and had been ailing for an appreciable time although I am unable to say precisely for how long. His wife, the deceased Magami, had lost interest in him-whether because of his poor physical condition and his illness or because she had found another man more to her liking or because of a combination of these and other factors I have no material before me upon which I could make a positive finding. During his illness Magami, although she gave food to Iawe, did not look after him as a wife should and instead of staying in the house she was out walking about. Iawe is convinced that she was being unfaithful to him with another man. I am satisfied that there is a belief in Iawe’s area in the Erave Sub-District that if a woman is unfaithful to her husband and she brings food to him, eating such food will cause him to become ill. Thinking about his wife as Iawe did, this belief was fortified in his case by the fact that after eating the food Magami gave him his face and testicles became swollen and he became really ill. This of course confirmed his conclusion as to his wife’s unfaithfulness. To exacerbate the situation Magami then offered to give him some money to buy a new wife as, so she said, she wanted to marry a new man. There was no evidence as to whether she had a particular man in view. This offer was made on the afternoon prior to her death and Iawe concluded, not unnaturally, that his wife fully intended leaving him.

It appears that amongst the particular group of people to which Iawe belongs if a woman moves her eyes and eyebrows in a particular way at a man - a way which was well demonstrated to me by the village constable of the Waima area in which Iawe lived-it signifies her view that her husband is of no account and also her intention of leaving him. In addition to her spoken words of intention Magami also gave these traditional or customary signs. Iawe brooded over the situation overnight and in the morning he commanded Magami to come with him to the village constable to, as he put it, “hold a court”. This meant in effect that the assistance of the constable would be sought to settle the dispute between them. Iawe I think also felt that he would be able to have the man who was breaking up his home “named “ or identified. At this time he was suffering from a deep anger and a sense of resentment. I am satisfied that the thought of killing his wife had entered his head but he had his anger under control.

Magami agreed to go with Iawe and they set off sometime in mid-morning to visit the home of the village constable about an hour’s walk distant. Initially Magami was leading but later she dropped behind and when about half way between the marital home and the village constable’s home Iawe turned round and found her some yards behind him. It seems probable that at this point Magami had decided not to go any further with the project of “holding a court”. Iawe walked back to where Magami was and stood on a slight rise above her. She came up about seven feet distant from him, moved her eyes and eyebrows again with this double significance and spat at him. Her spittle failed to reach him but I am satisfied that the action was a most insulting one. At this point Iawe suddenly lost complete control of himself and with his axe hit her in the face; then when she had fallen he hit her on the back, shoulder and thighs. Magami died almost instantaneously and her death was the direct result of Iawe’s blows.

After the killing Iawe went to the house of a fellow villager and reported what he had done and was subsequently taken by Foara, the village constable, to the patrol post at Erave. Although it is not a great distance to this patrol post Iawe was in such a weak condition that they had to rest overnight on the way and on arrival he was observed by the patrol officer, Mr. Sanderson, to be in a very sick condition and in the latter’s opinion suffering from malnutrition.

The Administration first established a patrol post at Erave in 1953 and although the people of that area are still quite primitive they are well aware that killing is forbidden by law. Spitting in the manner adopted by Magami could require compensation according to native custom, and repetition of such conduct would justify a husband sending his wife back to her relatives and obtaining return of the bride price or some part of it. However, I am of opinion that behaviour of that kind might well provoke an ordinary villager of Iawe’s environment to loss of self-control sufficient to lead him to assault his wife and administer a beating to her. In my view it would not provoke such a villager in ordinary health to lose his self-control to the extent that Iawe in fact did. The degree of violence exhibited by him would denote in this area a man out of the ordinary and one of unusually excitable, violent or pugnacious disposition. On the other hand it seems to me that such loss of self-control would not be extraordinary in a villager who should fall prey to the illnesses to which ordinary villagers are subject-and in the area from which Iawe comes malnutrition could well be such an illness. A villager sick and under-nourished would, I think, be less able by reason of his illness to control his emotional responses to conduct which an ordinary man would endure without violent reaction.

Mr. Munro submitted that whatever view I took of the interpretation to be placed upon s. 304 Iawe was entitled to a verdict of manslaughter because of the provocation which he had received. Mr. Chaney, to the contrary, argued that whatever view I took of this section I should be satisfied that the defence of provocation was not open in this case. Neither counsel as I understood him attempted to resolve the conflict as to the proper construction of this section.

However, as this conflict still exists and my brothers of this court have each had occasion to consider the matter and publish their opinions^*[lxxvii]¹, I think I should express my own views particularly as it may be that if the section is to be read as giving compendious expression to the common law the proper view may be that words or gestures can never, save in the most exceptional circumstances, amount to provocation so as to reduce a crime from murder to manslaughter. The English Homicide Act, 1957, makes it unlikely that there will ever be a final solution to this problem emanating from the fount of the common law. I do not propose to add further confusion to this already confused field of common law because I have come to the conclusion that for the purposes of s. 304 provocation finds its definition in s. 268 of the Code. The three other members of this court take the same view, as did Smithers J. when sitting in this jurisdiction, and I am happy for the sake of uniformity in this Territory to be able to join them.

The arguments for and against have been so well canvassed both in Queensland and in the Territory in recent times that I do not propose to attempt to cover the ground as fully as has been done and can state my reasons quite shortly.

Stanley J., in R. v. Sabri Isa[lxxviii]², has set out reasons for preferring the definition in s. 268, with which I am in substantial agreement, and his criticism of the opposing view in R. v. Johnson[lxxix]³, I find compelling. The fallacy in the opposing view seems to me to lie in its acceptance of s. 304 as a compendious statement of the common law rather than in seeking a definition of or a meaning to be ascribed to the word “provocation” where it appears in the section.

Like Smithers J. in R. v. Nantisantjaba[lxxx]⁴, I have been troubled by the use of the word “element” in s. 268, but I arrive at the same conclusion as he does that the expression in the section “an offence of which an assault is an element” is used in a broad way to mean “an offence in the commission of which an assault may be committed”. Apart from authority a perusal of the section in its context leads me to this result. It is not a section enacted in a vacuum but of course was designed to deal with human beings in the various situations in which they might find themselves. It is to be noticed that in defining the term “provocation” the section defines it for the purpose of “an offence” (not “offences”) of which “an assault” (not “assaults”) is an element. These words I think must have reference to a particular offence being considered by the court in which particular offence an assault is an integral part of the act which renders the doer of the act liable to punishment (see s. 2 of the Code). In fact, I can find no case in which in the long history of provocation at common law an assault has not been the act which brought about the death of the victim, and I think it would have been inconceivable to Sir Samuel Griffith and those who eventually enacted the Code that the defence of provocation would be raised in a killing brought about by any other means. (See Russell on Crime, 11th edition, pp. 575 et seq.) I am not impressed by the arguments that s. 268 was enacted merely to supply a definition of “provocation” for the purpose of construing s. 269. Section 269 provides a novel ground of exculpation and it seems quite natural that it should be placed immediately after the definition section. But both sections are general in their application and neither, it is clear, deals only with the offence of “assault” simpliciter. Section 269 was not intended to apply to wilful murder or murder because offences where there is an intention to cause death or grievous bodily harm are specifically excluded by the section itself. But the defence given by the section, which appears in Chapter XXVI of the Code, may be and has been for long availed of in the case of some offences under s. 317, of offences under ss. 320 and 323 (1) in Chapter XXIX, and of offences under ss. 335 and 339 in Chapter XXX. Whether it is denied any exculpatory effect in a prosecution for manslaughter as stated by Philp A.C.J. in R. v. Johnson[lxxxi]⁵ (supra) is something I would wish to reserve for consideration when such a case arises. To have set out the defence and the accompanying definition in each of these chapters or a fortiori appended to each of the sections which I have quoted, would have provided a very cumbersome form of drafting. To have set out a separate definition of provocation in Chapter XVIII or appended to s. 304 itself would have been equally cumbersome, and in my opinion the intention of the draftsman and of the legislature was to make s. 268 of general application.

Again when one looks at s. 304 the excuse given by that section is for the doing of the act causing death; i.e., it is the act causing death which is to be performed in the heat of passion caused by sudden provocation. I cannot conceive of such an act being any other than an assault and to take advantage of the section there must be provocation for that assault. It seems entirely natural and logical to me in asking what can be provocation for an assault to turn to s. 268 where the answer to that question is set out.

Mr. Munro submitted that if I found the definition of provocation to be contained in s. 268 the quality of the assault was immaterial. He argued that provided there was a wrongful act or insult which would be likely to deprive an ordinary man of self-control so as to assault the provoker no matter how lightly or grievously, the tribunal should not concern itself with the assault actually committed. I am inclined to agree that in looking to see whether such provocation as defined by the section exists the quality of the assault is immaterial, but I do not think that that necessarily concludes the matter so far as concerns s. 304.

Whilst s. 268 refers only to “an assault” the quality or nature of the assault is delimited by s. 269 in cases to which that section is applicable. What has come to be referred to as the doctrine of proportionate retaliation is specifically incorporated into that section and that this should be so is understandable in a section which provides complete exculpation from criminal responsibility for an assault which may bring grievous bodily harm in its train. However, in s. 304 it is the act which causes death which is to be done in the heat of passion caused by sudden provocation. The provocation as I have already held is the provocation defined in s. 268, but in looking at the act and in considering whether it was in fact done in the heat of passion caused by the sudden provocation in my opinion the tribunal of fact may and in many cases ought to have regard both to the nature and quality of the act; i.e., of the assault. As Stanley J. said in R. v. Sabri Isa[lxxxii]⁶ (supra), at p. 294: “If an examination of the method of using force or the degree of force used in alleged retaliation discloses that the alleged wrongful act or insult was not really provocation at all in the sense that the accused had not been deprived of his power of self-control but had seized the alleged provocation as an excuse or pretext for otherwise unrelated violence, then provocation in terms of Sections 268 and 304 does not exist.”

Mr. Chaney submitted to me that the correct analysis of the evidence in this case is that Iawe was a man made angry by his wife’s decision to leave him and to some extent made confused in mind by such decision; that he was out of his depth in dealing with the situation and that he took the traditional course of a man of his type in difficulties; that is, to go to see the village constable. When she lagged behind him and spat at him on the way he reasoned that the journey was not going to avail him and thereupon decided to kill her. I agree that he was angry and I am satisfied that the thought of killing her had entered his mind before he decided to seek the assistance of the village constable. But I am also satisfied that he had his anger under control at the outset of the journey and that he completely lost control of himself in the face of her provocative behaviour when they confronted each other. That his state of health was responsible for this upsurge of violent emotional reaction is, I think, not to the point. The degree of violence and savagery exhibited by him does not bring to my mind any conviction that his actions were dictated by a pre-conceived design and not by a sudden and complete loss of self-control, albeit leading to a far more serious assault than would have been the case had he been in ordinary health. It is not necessary for me to decide in this case whether the word “wrongful” in s. 268 qualifies both act and insult, as I am satisfied that the insult was wrongful. Regulation 71 (3) of the Native Regulations 1939 (Papua) makes it an offence to use threatening language or to act in an indecent, threatening or insulting manner towards any person, and I am satisfied that Magami offended against this regulation.

During argument I expressed concern whether authorities such as R. v. Lesbini[lxxxiii]⁷, Mancini v. Director of Public Prosecutions[lxxxiv]⁸, and Bedder v. Director of Public Prosecutions[lxxxv]⁹, precluded me from taking into account Iawe’s state of health at the time he killed Magami. In my opinion they are concerned with the elucidation of who is the “ordinary man” referred to in s. 268. And in law I could not hold that there was no evidence to go to a jury that an ordinary villager in Iawe’s environment and faced with Magami’s conduct would not be provoked to lose self-control sufficient to lead him to assault his wife. As a tribunal of fact I could certainly not be satisfied that such a villager would not lose his self-control in this way and indeed I rather think that he would. Had it been necessary I would have been prepared to hold that this case is distinguishable from the cases to which I have just referred, for they seem to me to be all dealing with a person abnormal in some way or another. In deciding who is the ordinary person I am of the view that one must take such a person in ordinary sickness and in ordinary health. Long before The Criminal Code of Queensland was enacted, provocation existed as a defence to murder to allow for the frailty of human nature. It seems to me that the Code intended not only to preserve that concession to human frailty but to extend it, as it does, in s. 269. To me it is natural that that frailty should increase in times of sickness and I would think that the ordinary man must be regarded both in sickness and in health and that allowance should be made for his loss of ability to control his emotional responses brought about by the normal ills to which mankind is subject.

For the reasons which I have set out I am of opinion Iawe is entitled to the benefit of s. 304 and I find him not guilty of wilful murder but guilty of manslaughter.

Verdict: Guilty of manslaughter.

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

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

[lxxvii]* R. v. Hamo-Tine [1963] P. & N.G.L.R. 9, (Mann C.J.); R. v. Kauba-Paruwo [1963] P. & N.G.L.R. 18, (Mann C.J.); R. v. Zariai-Gavene [1963] P. & N.G.L.R. 203, (Ollerenshaw J.); R. v. Nantisantjaba [1963] P. & N.G.L.R. 148, (Smithers J.); R. v. Moses Robert [1965-66] P. & N.G.L.R. 180 (Frost J.). Cameron-Smith A.J., whilst he never found it necessary to commit his views to writing, concurred when an acting member of the court.

[lxxviii] [1952] Q.S.R. 269, at pp. 283 et seq.

[lxxix] [1964] Qd.R. 1 at pp. 14 et seq.

[lxxx][1963] P. & N.G.L.R. 148.

[lxxxi][1964] Qd.R. 1.

[lxxxii][1952] Q.S.R. 269.

[lxxxiii][1914] 3 K.B. 1116.

[lxxxiv][1942] A.C. 1.

[lxxxv] [1954] 1 W.L.R. 1119; [1954] 2 All E.R. 801.