[Home] [Databases] [WorldLII] [Search] [Copyright] [Privacy] [Disclaimers] [Help] [Feedback] Papua New Guinea - Magistrates' Manual

You are here:  PacLII >> Papua New Guinea>> Magistrates' Manual

CHAPTER 7 – CRIMINAL RESPONSIBILITY AND GENERAL DEFENCES

7.1 OFFENCES AND THE CRIMINAL CODE

The question “what is an offence?” has been discussed in 6.3. Criminal responsibility for, and defences to, offences under the statute law of Papua New Guinea is dealt with primarily in the Criminal Code (CC), and the Summary Offences Act (SOA) is relevant in some cases.

If there must be a guilty mind as well as forbidden behaviour, then it follows that only people free to choose between right and wrong, and who have chosen to do wrong, should be punished. It also follows that there must be special rules to exclude people unable to choose freely. For example, a person who is insane or too young to understand, or forced to act against his or her will may be excused for what would otherwise be an offence.

Criminal Code, Div 5: Unlike much of the Criminal Code, Div 5 applies to summary offences and the criminal jurisdiction of the District Courts. Division 5 (ss 22-36) applies to all persons charged with offences against any law: s 22. Division 5 and certain other sections of the Criminal Code constitute a comprehensive statement of the law covering responsibility for crime in Papua New Guinea, so that the English common law approach to proving criminal intention (mens rea) does not apply. The Papua New Guinea equivalent to criminal intention is discussed in 7.4 below.

7.2 PARTIES TO OFFENCES: ACCOMPLICES

The provisions of the Interpretation Act referred to in this section apply to all offences, including summary offences. The provisions of the Criminal Code are designed to apply to indictable offences.

7.2.1 General principle relating to accomplices

A person who aids, abets, counsels or procures an offence, or by an act or omission is in any way directly or indirectly concerned in the commission of an offence, is deemed to have committed the offence and is punishable accordingly: Interpretation Act, s 23.

7.2.2 Principal offenders

Section 7 of the Criminal Code extends the range of persons who may be charged with committing an offence.

Involvement in any of these ways entails the same consequences.

As far as counselling or advising another person to commit an offence is concerned, if an offence is actually committed in accordance with that advice by the person to whom the advice is given, it is immaterial whether the offence actually committed by that person is the same as the one actually counselled, or whether the offence is committed in a different way from that which was counselled. All that is necessary is that the facts constituting the offence which was actually committed are the probable consequence of carrying out the counsel given to that person. The person who gave the counsel is deemed to have counselled the other person to commit the offence which that person actually committed: CC, s 9.

7.2.3 Common purpose

Where two or more persons form a common intention to pursue an unlawful purpose in conjunction with one another, and if an offence is committed which was a probable consequence of that purpose, each of them is deemed to have committed the offence: CC, s 8.

7.2.4 Accessory after the fact

A person who receives or assists another person, who is, to his or her knowledge, guilty of an offence, in order to enable him or her to escape punishment, is an accessory after the fact to the offence. Wives and husbands are excluded from this provision: CC, s 10.

7.3 ATTEMPTS TO COMMIT OFFENCES

A person who attempts to commit an offence against any law is guilty of an offence and is liable to trial and punishment as if the attempted offence had been committed: Interpretation Act, s 24. This applies to all offences.

What constitutes an offence? There are two aspects. First, it must be proved that the defendant intended to commit the full offence. Secondly, the defendant must have done some act which was a step towards the commission of the specific offence. The act must be immediately, rather than remotely, connected with the commission of the offence. Further, the doing of the act must be regarded as having no other purpose than the commission of the specific offence. Because of these rules, charges of attempting to commit a summary offence are very seldom laid.

Section 4 of the Criminal Code details the circumstances in which a person who intends to commit an offence, and has begun to put that intention into practice, will be guilty of attempting to commit the offence.

7.4 PROOF OF CRIMINAL RESPONSIBILITY: INTENTION

A presumption of innocence underpins the Papua New Guinea justice system: Constitution, s 37(4)(a). The burden or onus is on the prosecutor/complainant to prove every element of the offence against the defendant beyond reasonable doubt. For discussion of burden of proof and standard of proof, see Chapter 5.

Unless the statute provides otherwise, the intention of the defendant to commit the act or omission is one such element which must be proved. For most offences, the prosecution must prove not only that the defendant did the act constituting the offence, but that he or she intended to do that act. In the great majority of cases, the defendant’s intention to do the act will be obvious from the facts surrounding the case. However, in some cases the defendant’s intention will be an important issue in the case, and the prosecution will have to lead evidence to prove it. This is dealt with below.

Sometimes, a statute provides for a possible defence or excuse. The second part of s 37(4)(a) of the Constitution makes it clear that a statute “may place upon a person charged with an offence the burden of proving particular facts which are, or would with the exercise of reasonable care be, peculiarly within his/her knowledge”. Section 2 of the Summary Offences Act puts it this way:

<Legislation Quotation>

“Where under the provisions of this Act, any act, if done without lawful excuse or lawful cause is an offence, the burden of proof that the act was done with lawful excuse or lawful cause, as the case may be, is on the person charged with the offence.”

<End Legislation Quotation>

An example is s 14 of the Summary Offences Act, where paying for goods with a cheque which “bounces” (which is not paid on presentation at the bank) is an offence. However, it is a good defence if the defendant can show that he or she had reasonable grounds for believing that the cheque would be paid in full on presentation. An analysis of the more common examples of statutory justification and excuse is provided in 7.13 below.

Another type of offence is designed to make the defendant liable whether or not he or she intended to do the act complained of. This is called “strict liability”, or an offence of “strict responsibility”. The defendant will be convicted for the act or omission even if the prosecution cannot prove intent to commit an offence. However, such a statutory provision is rare. Also, the defence of “honest and reasonable” mistake is open to the defendant unless it is excluded by statute: CC, s 25; and see 7.6 below.

7.4.1 Intention

Apart from any specific intention indicated by the statute creating an offence, a person is not criminally responsible for an unintentional “act” or an accidental “event” unless the statute imposes strict responsibility.

The section goes on to say that, unless intention to cause a particular result is declared by law to be an element of the offence, “the result intended to be caused by an act or omission is immaterial”.

7.4.2 Motive

Section 24 of the Criminal Code also states that the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial as far as criminal responsibility is concerned.

7.4.3 Accident

It is often difficult to decide what is accidental. Generally, an event is accidental if it was not foreseen and could not reasonably have been foreseen by the person causing the event to happen.

7.4.4 Examples

7.5 INTENTION AND AUTOMATISM

Generally, a person is blamed for having the knowledge of what he or she is doing and the intention to carry out the act. Apart from the defence of insanity, referred to in 7.10, there is the possibility that the defendant was acting without conscious mental activity – perhaps hypnotised, sleep-walking or in some other way mentally incapable of intending the act. There is no disease of the mind or insanity in such cases.

The defence of automatism has become established in Papua New Guinea, but the rules relating to proof should be examined carefully. The overriding principle remains that the state must prove every element of the offence charged, and that includes the state of mind of the defendant. Nevertheless, if that state of mind is contested, the burden is on the defendant to prove that he or she was in a state of automatism, on the balance of the probabilities. (See the cases of The State v Hekavo [1991] PNGLR 394 and The State v Enakuan Salaiau [1994] PNGLR 338. See also the cases annotated at s 24 of the Criminal Code in Criminal Law Practice and Procedure). Evidence of the defendant alone will not normally be sufficient, and the defence will fail without an expert witness who can give satisfactory evidence on the subject of automatism.

7.6 HONEST AND REASONABLE MISTAKE OF FACT

A person may do an act under an honest and reasonable, but mistaken, belief in the existence of a certain state of things. Such a person is not criminally responsible for the act to a greater extent than if the real state of things had been such as he or she believed to exist: see CC, s 25. Mistake is more than mere ignorance, and there must be a positive belief rather than an absence of thought on the subject. For example, if the defendant was charged with permitting an unlicensed person to drive his car, the defendant could only raise the defence of mistake by saying that he had thought about whether the driver held a licence and “honestly” believed that the driver did hold a licence (a subjective test). The belief might not be “reasonable” if the driver seemed very young (an objective test). If the defendant raises this defence in cross-examining the prosecution witnesses, it is up to the prosecution to prove that the defence does not exist in relation to the offence charged. Of course, if the defendant later goes into the witness box, claims to have been mistaken and gives evidence about the appearance of the driver which the Magistrate finds hard to believe, the defence may be negatived.

The distinction between mistakes of fact and mistakes of law is important. For example, take the case of a citizen of Fiji who has entered Papua New Guinea as a tourist without a visa and has taken employment in Waigani. She is arrested and charged with not holding the necessary employment visa. In her defence, she claims that her travel agent in Suva had told her that she would not need a work visa until she had been working in the country for over a year. This would be a mistake of law, which would not absolve her of criminal responsibility. It could be said to be “ignorance of the law”: see 7.7.

7.7 IGNORANCE OF THE LAW AND HONEST CLAIM OF RIGHT

Ignorance of the law does not afford an excuse to an act that would otherwise be an offence: CC, s 23(1). This may be a harsh provision in parts of Papua New Guinea where people have little access to the written law and often only a poor understanding of its meaning and implications. The original common law doctrine “ignorance of the law is no excuse” assumed that the “law” referred to would be published and accessible to all citizens. Unfortunately, s 23(1) of the Criminal Code does not mention this assumption, and so lack of access to the laws is no excuse either. However, if the defendant can justify ignorance of the law in a particular case, the Magistrate may take this into account in passing sentence.

The defence of “claim of right” in relation to property is an extension to the law governing ignorance or mistake of law. Section 23(2) of the Criminal Code makes it clear that if a person “honestly” believes that he or she is entitled to property taken, and if there is no intention to defraud, that person is not criminally responsible for the property offence. The courts have applied this defence to a customary law right: see 7.16.

7.8 PRIOR CONVICTION / ACQUITTAL / SENTENCE

It is logical, and a fundamental principle of justice, that a person cannot be charged twice for the same offence, nor punished twice for the same act or omission. The citizen is entitled not to be placed in a situation of “double jeopardy”.

A person may plead “already convicted” (“autrefois convict”) or “already acquitted” (“autrefois acquit”). Section 37(8) of the Constitution makes it clear in respect of all offences – and s 15 of the Criminal Code makes it clear in respect of indictable offences – that it is for the defendant to prove that he or she has already been dealt with by the court for the same offence. The time to raise this defence is when the defendant is asked to plead. It should not be a plea of “not guilty”, but either “already convicted” or “ already acquitted”. Unless the prosecutor consents, the defendant may have to summons earlier court records to satisfy the Magistrate.

Sometimes an act or omission constitutes an offence under two or more statutory provisions. In this situation, the offender is liable to be prosecuted and punished under either or any of those provisions, but is not liable to be punished twice for the same offence: Interpretation Act, s 20.

Of course, it goes without saying that a person cannot be punished twice under the provisions of any law for the same act or omission: CC, s 16. This section of the Criminal Code seems to be of wider effect than s 20 of the Interpretation Act. If there are two different statutory provisions – perhaps two different descriptions of an offence under the same statute – the Magistrate should look carefully at the elements of the “offence” as described by the statute, and see whether the same act or omission is the central theme or basic act in each of the offences described. The police sometimes charge an offender under two or more provisions, and if the defendant is unrepresented, it is the responsibility of the Magistrate to ensure that the defendant is punished only once for the same basic act or omission: see also 8.7.

7.9 EXTRAORDINARY EMERGENCY

Apart from the law relating to compulsion, provocation and self-defence, a person is not criminally responsible “for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise”: CC, s 26. This section gives effect to the principle that no-one is expected (at least for the purposes of the criminal law) to be wiser or better than all mankind.

If this defence is raised as a real issue in the case, the conduct of the defendant should be judged by assuming the facts as they reasonably appeared to the defendant at the time. In Pagawa v Mathew [1986] PNGLR 154, a person had entered Papua New Guinea from Irian Jaya without an entry permit, and claimed, in his defence, that he was forced to cross the border in order to avoid being killed by soldiers. He gave evidence as to the emergency and as to his fear. The court held that the defence of “extraordinary emergency” had been proved in his case.

7.10 INSANITY

7.10.1 Presumption of sanity

“Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved”: CC, s 27. If a defendant wishes to rebut this presumption, the defendant must prove the defence on the balance of probabilities. The question of whether a person is sane or insane is a matter of fact to be decided by the court. The court usually requires that a qualified person should give expert evidence, but this amounts to opinion evidence and the court must reach its own decision. The court may be assisted by non-experts who may give evidence as to the conduct of the defendant before and after the alleged offence.

It is important to note that the defence of insanity is a complete defence and, as a defence to a summary offence, it entitles the defendant to an acquittal and release. There is no provision for the District Courts to deal with a person who has been found to be insane. After leaving the court the person may be examined by medical practitioners and committed to a mental institution under the Public Health Act, but that is not the responsibility of the Magistrate. The situation is different in relation to persons acquitted of an indictable offence on the grounds of insanity, where the court is required to order the person to be kept in custody pending a decision by the Head of State, acting on advice: CC, s 592.

7.10.2 Insanity

It is helpful to approach the proof of the defence of insanity in two steps.

1.         At the time of the alleged offence the defendant must have been in a state of:

·           mental disease; or

·           natural mental infirmity, and further

2.         As a result of the mental disease or natural mental infirmity, he or she was deprived of -

·           the capacity to understand what he or she was doing; or

·           the capacity to control his or her actions; or

·           the capacity to know that he or she ought not to do the act said to constitute the offence.

An accused will sometimes claim to have been in a state of “diminished responsibility”. This is not equivalent to insanity. It is not a recognised defence and is more likely to be relevant to penalty. The court should also be careful to distinguish “automatism” (7.5 above) and “intoxication” (7.11 below).

In Goi v The State [1991] PNGLR 161 the court said (at 169):

<Case Quotation>

“In a defence based on s 28 …, it must be shown by the defence that the accused person’s capacity to understand what he was doing or to control his actions or to know that he ought not to commit the act was taken away from him by the state of his mental disease or natural mental infirmity … Deprivation of capacity to understand or control actions is not the same as mere impairment of such capacity.”

<End Case Quotation>

The court, in The State v Enakuan Salaiau [1994] PNGLR 388, noted the drastic consequences of a finding of insanity under s 28, which obliges the court to order that the person be held at the pleasure of the government. This may mean, in effect, detention in a psychiatric hospital where there may not be a review of the person’s condition for some years. On the other hand, a finding of automatism or some other state under s 24 could lead to acquittal without further consequences.

The question of whether an accused is fit to plead because of “unsoundness of mind” is a different issue: see Chapter 11.

7.11 INTOXICATION

Section 29 of the Criminal Code is a definitive and exhaustive statement of all defences of intoxication which may be raised. As in the case of insanity, intoxication is raised in order to negative intention on the part of the accused. Section 29 refers back to s 28 on insanity: see 7.10.

Intoxication and stupefaction mean a condition graver and more extreme than is conveyed by the words “drunk” or “under the influence of drink”. Sections 3-5 of the Summary Offences Act provide for offences of “drunkenness”, which may be based upon non-expert opinion. “Drunkenness”, in the Summary Offences Act sense of the word, will often be insufficient as a defence to excuse the commission of other offences.

Section 18 of the Motor Traffic Act provides for the offence of driving “under the influence of intoxicating liquor or a drug”. Section 19 gives the police power to stop a person from driving who is, “by reason of physical or mental condition, incapable of having proper control of a vehicle”. Again, such a person may not be so intoxicated as to give rise to an excuse which would provide a defence to the commission of other offences.

“Intoxication” is the stupefied condition of a person, for example, who has imbibed alcoholic liquor in sufficient quantity to make him or her lose, totally or partially, the use of his or her mental or nervous faculties. The person no longer has his or her normal intellectual or physical control, nor his or her powers of judgment.

With regard to s 29(2) of the Criminal Code, it is often difficult to decide whether a person who has gone drinking, and has consumed more liquor than originally intended, has “intentionally caused himself to become intoxicated”. Once the defence has established that s 29(1) applies, on the balance of the probabilities, it seems that if the prosecution wants to negative the defence it must establish that the accused intentionally caused himself or herself to become intoxicated.

With regard to s 29(3), there are several offences under the Summary Offences Act which require proof of intention to cause a “specific result”. For example, ss 7, 13, 17, 18, 19 and 23 all require proof of intention, and it seems that the question of whether the accused was intoxicated may be relevant in determining whether an offence was committed.

7.12 IMMATURE AGE

In the case of a person under the age of seven years, there is a presumption of law that cannot be rebutted that the person is not criminally responsible for an act or omission: CC, s 30(1).

In the case of a person under the age of 14 years, the question is whether the person knew the difference between “right and wrong”. Section 30(2) provides that such a person is not criminally responsible unless it is proved that at the time of doing the act or making the omission the person “had capacity to know that he/she ought not to do the act or make the omission”. The capacity of a child to know must be considered in the light of the child’s maturity and in the light of social, parental and other pressures on the child. The capacity to know should be proved by the prosecution beyond reasonable doubt.

Section 30(3) provides that a male under the age of 14 years is presumed to be incapable of having carnal knowledge, but that this presumption is rebuttable.

In respect of children of 14 years and over, the question of the jurisdiction of the court becomes relevant, and reference should be made to 6.8.

7.13 JUSTIFICATION AND EXCUSE

As indicated in 7.4 above, a number of separate statutory provisions offer possible defences or excuses. It has been pointed out that the burden of proving that an act was done with lawful excuse is on the defendant: Summary Offences Act, s 4. The more common lawful excuses are set out here.

7.13.1 Justification

7.13.1.1 Execution of the law

A person is not criminally responsible for doing an act in execution of the law, such as carrying out a sentence of the court: CC, s 32(1)(a).

7.13.1.2 Obedience to an order

Similarly, a person is not criminally responsible for doing an act in obedience to the order of a competent authority which he or she is bound by law to obey, unless the order is manifestly unlawful: CC, s 32(1)(b).

7.13.1.3 Judicial officers

Except as expressly provided in the Criminal Code, a judicial officer is not criminally responsible for anything done in the exercise of his or her judicial functions. This applies even if the act done is in excess of his or her judicial authority, and whether or not he or she is bound to do the act: CC, s 31. However, Magistrates who act oppressively and maliciously may be subject to discipline and may be removed from office by the Legal and Judicial Services Commission: see Chapter 1. Also, there is a penal section relating to Magistrates requiring excessive bail and acting in their personal interest: CC, s 132. This section provides for defences such as “reasonable excuse”.

7.13.1.4 Domestic discipline

It is lawful for a parent, or a person in the place of a parent, or for a school master, to use, by way of correction, towards a child, pupil, or apprentice under his or her care, such force as is reasonable under the circumstances: CC, s 278. The question of what is reasonable involves the age, physique and mentality of the child, and the punishment must be carried out with reasonable means or with a reasonable instrument. Even where the use of force by one person on another is lawful, the use of more force than is justified by law under the circumstances is unlawful: CC, s 281.

7.13.2 Compulsion/duress

7.13.2.1 Compelled to commit offence

Section 32(1)(d) of the Criminal Code absolves a person of criminal responsibility if he or she commits what would otherwise be an offence, under compulsion of threats and fear of personal harm.

While the defendant must believe that obeying the threats is the only way to save himself or herself from immediate death or grievous bodily harm, this belief is subjective. Thus, even if there was a reasonable opportunity for the defendant to escape, the defence would still be available to him or her if he or she genuinely believed that escape was impossible.

This excuse does not protect the threatened person from liability if the act he or she carries out is so serious that it would constitute the offence of grievous bodily harm: s 32(1) proviso.

7.13.2.2 Compulsion by husband

A married woman is not free from criminal responsibility for doing an act merely because the act takes place in the presence of her husband. However, a married woman is not criminally responsible for doing an act which she is actually compelled by her husband to do, and which is done in his presence. An exception to this protection applies if the act which the married woman was compelled to do was such a serious offence that it amounted to grievous bodily harm, or intention to cause such harm. In that case, the presence of her husband is immaterial: CC, s 33.

7.13.3 Offences to property between husband and wife

When a husband and wife are living together neither of them incurs any criminal responsibility for doing any act with respect to the property of the other, except in the case of an act of which an intention to injure or defraud some other person is an element. This protection does not apply in the case of an act done by either of them when leaving or deserting, or about to leave or desert, the other. Also, neither of them can institute criminal proceedings against the other while they are living together: CC, s 36.

7.14 DEFENCE OF SELF OR PROPERTY

The use of force to defend oneself or protect one’s property may be excused if it is reasonably necessary and not excessive. This section looks at the different circumstances in which self-defence may arise and the rules governing how self- defence may remove criminal responsibility for such use of force.

7.14.1 Self-defence

7.14.1.1 Justifiable assault

Assault is unlawful unless justified: CC, s 244 and SOA, s 6. Assault committed by a person in self-defence will not be unlawful where the act of assault is reasonably necessary by that person in order to resist actual and unlawful violence threatened to him or her, or to another person in his or her presence (CC, s 32(1)(c)), and provided the use of force is not more than is justified by law under the circumstances (CC, s 281).

Once self-defence is raised, the prosecution must exclude beyond reasonable doubt any of the elements of the defence. The onus is never on the defendant to establish a plea of self-defence. Throughout the whole of the trial the onus remains on the prosecution. Finally, self-defence is a complete defence. If the prosecution cannot prove beyond reasonable doubt that one of the conditions for self-defence does not exist, then the defendant must be acquitted.

7.14.1.2 Self-defence against unprovoked and provoked assault

The detailed provisions contained in ss 269 and 270 of the Criminal Code set out rules for determining whether self-defence is available, making the distinction between provoked and unprovoked assault.

7.14.1.3 Aiding in self-defence

Where it is lawful for a person to use force of any degree for the purpose of defending himself or herself against an assault, it is lawful for any other person acting in good faith in his or her aid to use force of a like degree for the purpose of defending him or her: CC, s 271.

7.14.2 Defence of property

It is usually unlawful, as a matter of legal policy reflected in the Criminal Code, for a person to take something by force, even if he or she has the right to possession of it. If the person cannot obtain possession of it without disturbing the peace or forcibly entering the land of another, he or she should make application to the appropriate court. Magistrates should note the provisions under the District Courts Act and the Village Courts Act which empower them to help conciliate such differences between people.

If forcible entry is made, then the person doing it could be charged with an offence under s 71 of the Criminal Code.

The legal policy is that generally a person in possession of property may defend that possession. However, there are limits on how far he or she can go in doing so. This is because the criminal law is not so much concerned with rights to property in these circumstances as with the need to discourage aggression and to ensure that disputes are settled according to law. Thus, the criminal law will often excuse a person defending property under a claim of right, even against the rightful owner, and will usually support a person already in possession.

7.14.2.1 Defence of dwelling-house

It is lawful for any person who is in peaceable possession of a dwelling-house, and for any person lawfully assisting him or her or acting by his or her authority, to use such force as that person believes, on reasonable grounds, to be necessary in order to prevent the forcible breaking and entering of the dwelling-house, either by night or day. Such force can be used against any person whom he or she believes, on reasonable grounds, to be attempting to break and enter the dwelling-house with intent to commit any indictable offence CC, s 265.

7.14.2.2 Defence against trespass

It is similarly lawful to use force in order to remove any person who conducts himself or herself in a disorderly manner, but, again, without doing bodily harm: CC, s 275.

7.15 PROVOCATION

7.15.1 Statutory basis

If a person is provoked into assaulting another person, or is provoked into committing an offence which involves an assault, he or she may be excused from criminal responsibility as a result of that provocation, provided that ss 266 and 267 of the Criminal Code are complied with. Section 266 defines provocation and s 267 states the conditions which must be met for the defence to succeed. Provocation is also available to a charge of unlawful assault under s 6 of the Summary Offences Act: see Supreme Court Reference No 6 of 1984; Re Provocation and Summary Offences Act 1977, Section 6 [1985] PNGLR 31.

The detailed provisions of ss 266 and 267 should be referred to, and the following analysis may be helpful.

7.15.2 Wrongful act or insult

A lawful act on its own can never be provocation that will excuse an assault. “Wrongful” applies to the “act” but not to the ‘“insult”: R v Zariai-Gavene [1963] PNGLR 203. In extreme circumstances, insult alone may be sufficient.

Words alone have been accepted in Papua New Guinea as amounting to provocation, as where a wife or husband has boasted in explicit terms to a spouse of an adulterous affair. Further, the discovery of an adulterous affair can be sufficient to ground provocation, but there will be no provocation unless the accused has acted in the heat of passion. In R v Moses-Robert [1965-1966] PNGLR 180, the accused heard about his wife’s adultery but wilfully killed the man some time later, and the defence was not sustained. Civil trespass to personal property may be a wrongful act grounding provocation, and this should be compared with the “defence against trespass” referred to in 7.14.2.2.

7.15.3 Sorcery

Section 16 of the Sorcery Act provides that an act of sorcery may amount to a wrongful act or insult within the meaning of s 266 of the Criminal Code, and it is immaterial that the act of sorcery did not occur in the presence of the person provoked, or that it was directed at someone else. However, the mere presence of a sorcerer is not enough to amount to provocation. In order for s 16 of the Sorcery Act to operate, the act of sorcery relied upon must have actually commenced. The fact that it may be intended that such an act may commence some time in the future is not enough.

In sorcery cases, much turns on the state of mind or belief of the defendant. In the leading case of R v KJ [1973] PNGLR 93, the question was whether the defendant could also rely on s 25 of the Criminal Code on the ground that, although the person he attacked had not committed an act of sorcery, he honestly and reasonably, but mistakenly, believed that his victim had done so: see 7.6 above, as to mistaken belief.

When it comes to sentencing, the Supreme Court has made it absolutely clear that a customary belief in the power of sorcery is available as a mitigating factor, and that the Sorcery Act is entirely consistent with such an approach to sentencing: Kwayawako v The State [1990] PNGLR 6, and see 13.5.7.6.

7.15.4 Relative or other person in close relationship

The defendant may be provoked by a wrongful act or insult to a person described in s 266 of the Criminal Code as being in his or her immediate care, or to whom he or she stands in a “conjugal, parental, filial or fraternal relation, or in the relation of master or servant”: see the box in 7.15.1 above and the analysis there in point 1. It has been accepted that, in Papua New Guinea, the relationship is not necessarily a direct and specific blood relationship. The words in s 266 are often used to describe relationships falling outside any strict definition. For example, the word “fraternal” has a wider meaning in common use than could be derived from a reference to a full blood brother. The expression “conjugal” of course goes outside any blood relationship. Also, the reference to the relationship of master and servant (employer and employee) gives the impression that the text is intended to include many recognised relationships where, in the normal course of experience, one would expect a person to assume some responsibility for the safety of the other, and therefore tend to lose self-control in the face of that other person being suddenly attacked or insulted: R v Yanda-Piana [1967-1968] PNGLR 482.

7.15.5 Loss of power of self-control

For the defence of provocation to succeed, there must be evidence that an ordinary person would have been deprived of his or her self-control in the circumstances. The “ordinary person” in this context is the ordinary Papua New Guinean living in the same cultural environment as the defendant. The test, while objective to a degree, will vary from the reaction of the ordinary rural villager living at a lower standard, to the reaction of the educated sophisticated urban dweller: R v Gamumu [1963] PNGLR 1.

In the case of an act of sorcery, s 16 of the Sorcery Act provides:

<Legislation Quotation>

“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.”

<End Legislation Quotation>

Two further points should be noted. The “loss of self-control” is not an absolute loss of all control, but a loss related both to the degree of provocation and to the degree and form of retaliation. Further, the test is objective, so as to take into account the environment and culture of the defendant, but care must be taken that it does not become subjective and that it does not take account of facts personal to the accused: R v Hand [1963] PNGLR 9.

7.15.6 Before there is time for passion to cool

The defendant must have reacted quickly: see R v Moses-Robert [1965-1966] PNGLR 180, cited in 7.15.2.

7.15.7 Force not disproportionate to the provocation

A punch on the nose would not justify a murderous retaliation. However, because it is assumed that the defendant has, in fact, lost his or her self-control, it cannot be expected that the defendant will always have kept the retaliation in exact proportion to the provocation.

7.15.8 Provocation and mistake

It has been held that s 25 of the Criminal Code may operate in conjunction with s 266 to provide a defence. That is to say, if the defendant honestly and reasonably thought that a person had done something that would amount to provocation, even if he or she had not, this could be “provocation sufficient to excuse an assault”: see R v KJ [1973] PNGLR 93 at 7.15.3.

7.15.9 Prevention of repetition of the insult

When an act or insult which is likely to amount to provocation is committed or offered, the person to whom it could be provocation may lawfully use such force as is reasonably necessary to prevent repetition of the act or insult: CC, s 268.

7.15.10 Burden of proof of provocation

Once the defence has raised provocation in its evidence, the onus is on the prosecution to prove, beyond reasonable doubt, the absence of provocation and of its alleged effects in the case.

7.16 CUSTOM

7.16.1 Custom in criminal matters

As discussed in 2.4, custom has wide effect outside the formal legal system and is also one of the main sources of law. However, until the underlying law is developed and declared under the Constitution and the Underlying Law Act, the application of custom in Papua New Guinea is limited by legislation such as the Customs Recognition Act. The effect of this Act is to exclude custom generally in criminal cases, both as to prosecution and defence, but some very significant exceptions remain: see 2.4.2.2. These exceptions provide headings under which custom may be considered, particularly where defences and penalties are concerned.

As to the importance of proving custom, see 5.13, but also note the responsibilities placed on the court to apply custom and develop the underlying law (2.3.8 and 2.4).

7.16.2 Ascertaining a state of mind

In some circumstances the court needs to be very aware of the particular custom setting within which the defendant’s belief system operates. Without this knowledge the court may not be able to ascertain whether a particular state of mind existed at the time of the alleged offence: see 7.4.1.

7.16.3 Honest claim of right

In Tidden v Tokavanamur-Topaparik [1967-1968] PNGLR 231, a person accused of stealing was found not guilty on the ground that he honestly believed that he had a right under custom to take the coconuts from a plantation: see 7.7.

7.16.4 Justification and excuse

Custom may have relevance in deciding the reasonableness or otherwise of an excuse: Customs Recognition Act, s 4; see also 7.13 above. Custom may be particularly relevant with regard to situations of compulsion or duress.

7.16.5 Defence of self or property

The question of whether it is reasonable to take action to defend self or property, and the reasonableness of the force used, are matters in which custom may be taken into account.

7.16.6 Provocation

Similarly, custom may be relevant in answering questions about reasonableness in relation to the defence of provocation. Sorcery has been mentioned, but that is only one example which might arise in this area.

7.16.7 Injustice

The court is given discretion, which should be exercised judicially, as to whether custom should be taken into account in any particular case where, by not doing so, “injustice will or may be done to a person”: Customs Recognition Act, s 4.