Papua New Guinea Law Reports - 1965-66
[1965-66] PNGLR 147
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V.
IAKAPO AND IAPIRIKILA
Rabaul
Mann CJ
9-10 August 1965
CRIMINAL LAW - Criminal responsibility of a child between seven and fourteen years - Whether child understood duty to disobey an order to commit criminal act.
Section 29 of The Criminal Code provides: “A person under the age of seven years is not criminally responsible for any act or omission. A person under the age of fourteen years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.”
The accused were mother and daughter and were charged with the wilful murder of a new born child of the mother. The father of the new born child was of the same moiety as the mother, a fact which brought great shame to the entire moiety. The mother ordered the daughter to bury the baby alive. The daughter protested, but after the mother threatened to beat her the daughter obeyed. Evidence was given that the mother had on previous occasions beaten her daughter cruelly. The accused daughter relied upon the provisions of s. 29 of The Criminal Code.
Held:
That while the daughter knew of the shame which the child would bring to the moiety and intended that the child should die when she obeyed her mother’s order she also knew that she should not challenge her mother’s authority and no doubt believed, further, that the action ordered would be accepted by most of her people as a practical solution to the problem. She did not have the capacity to understand that her duty was to deny her mother’s authority and disobey. Therefore, she is excused by s. 29.
Cases referred to:
R. v. Sidney Smith (1845), 1 Cox C.C. 260; B. v. R. (1958), 44 Cr. App. R. 1; R. v. Womeni-Nanagawo, [1963] P. & N.G.L.R. 72.
Trial on Indictment.
The facts are sufficiently stated in the judgment.
Counsel:
Pratt, for the Crown.
Munro, for the defence.
10 August 1965
MANN CJ:  The two accused are mother and daughter, Iapirikila being the “legitimate” daughter of Iakapo and her husband Darius, now deceased a number of years.
Since her husband’s death Iakapo has had an intimate association with the man Tokai. Tokai is a married man with a family, but there was a much greater objection to this association than would have arisen from the fact of adultery. Iakapo and Tokai both belonged to the same moiety-the Pikalaba. The rule is strictly for marriage and all sexual relationships to be established outside one’s own moiety. Thus both Iakapo and Tokai were restricted to members of the Marmar moiety for these purposes, and were prohibited to each other.
Such a prohibited relationship brought great shame not only on the parties but upon the entire moiety, for any offspring would be outside the whole pattern of inheritance, and would be regarded as members of the “fools clan”. Relatives would have an obligation to look after them, but would carry these out to the least possible extent, and unwillingly, because the child would be a constant symbol of great shame.
Iakapo became pregnant to Tokai twice over a period of some years. Until the birth of the first child this association was continued, obviously, and in spite of the strong objection of the members of their moiety. The evidence is not quite clear as to what the position was after that, but at all events Iakapo again became pregnant to Tokai, as was well known, and feeling ran high.
She worked to procure an abortion but Tokai prevented her. In June, 1965, she was due to deliver the child, and went to the garden a few yards from the village and gave birth to a male child. Iapirikila had gone with her mother, thinking they were going to collect coconuts. When the child was born Iakapo sent her daughter to fetch a spade, an incident which would not of itself give rise to suspicion. Iapirikila hurried back with the spade and her mother told her to dig a hole in the ground, which she did. Iakapo then gave her daughter the newly born baby and told her to bury it in the hole. Iapirikila protested and said she did not want to do it, but her mother insisted and threatened to beat her daughter if she did not obey.
The baby was not cleaned or cared for, and was crying. Iakapo had on previous occasions beaten her daughter cruelly, and a responsible witness, the Alualua of the Pikalaba moiety, said that on the last occasion she nearly killed her daughter, beating her with her hand for no known reason.
In this situation Iapirikila did as her mother told her and the baby, buried alive, apparently suffocated and died. Some time later Iapirikila, on her mother’s instructions, transferred the body from its burial place to the normal cemetery.
When the trial commenced each accused was charged with the wilful murder of the child. In answer to the charge Iakapo answered that the story was true, but that she was not feeling perfectly all right. Her mind and body were upset. Iapirikila said that the story was true. After some discussion with counsel as to the implications of these responses and the evident youthfulness of Iapirikila, I entered on the record a plea of not guilty of wilful murder for Iakapo, leaving the question of infanticide to be dealt with when the main facts had been investigated. I also entered a plea of not guilty for Iapirikila.
At what appeared to be an appropriate stage of the proceedings I accepted Iakapo’s statement as a plea of guilty of infanticide, and the Crown having indicated acceptance of a plea of guilty on that charge, I returned a verdict of guilty of infanticide in respect of Iakapo, and remanded her for sentence. The trial proceeded against Iapirikila alone and the only issue raised was as to her criminal responsibility.
Medical evidence called by the defence indicated an age of 12 to 13 years with a remote possibility that Iapirikila might be as much as 14.
Personally I would have put her age down as 11 or 12 at the most, and my impression was confirmed by some of the medical officer’s observations. The determination of age is a matter of considerable uncertainty, but I find, with no misgivings on the subject, that she is well under 14 years of age.
Reliance was placed by the defence on Iapirikila’s knowledge of the shamefulness of Iakapo’s situation, and there appear to me to be sufficient indications that this was fully understood by the girl. Her statement to the police shows that she knew that Tokai was the father of the child and she herself belonged to the Pikalaba moiety. She said she had compassion for the child and protested to her mother against burying it alive, but accepted her mother’s authority when threatened. I think that in spite of her tender years it would be most surprising if Iapirikila were not fully aware of all the circumstances, including the strong disapproval of the members of her moiety. I would require most cogent evidence to support any other view.
Section 29 of The Criminal Code excuses a person under 14 years of age from criminal responsibility for acts or omissions if he or she lacks the capacity to know that he or she ought not to do it.
The common law rule was addressed directly to malice but operated as a defence for the otherwise criminal acts of accused. If it only concerned intent, the rule might leave an accused person guilty of manslaughter. It is clear that Iapirikila intended that the child should die, and I cannot understand any operation of s. 29 which excused only the intent or only the act, leaving the other as a live ingredient which could be combined with other events or circumstances so as to constitute some other crime such as manslaughter. I think that looking at s. 29 as a whole, a child under 7 is immune, and one over 14 needs to find some other defence such as, for example, compulsion, s. 31 (3), but that between these ages the child’s criminal responsibility for what it actually does is so graduated as to grow up with the child, according to its proved capacity to understand that it ought not to act in the particular manner proved.
It is not in my view enough to ask whether the child had the capacity to know that (for example) it should not bury babies alive, or whether it had the capacity to understand that to do so would constitute a criminal offence. A child of much less than 14 or even 7 should well understand that in her mother’s absence, and without her permission, she should not bury her newly born baby brother in the garden, but would not be expected to know that this was because The Criminal Code forbade it. In the present case the question is whether, in a complex social situation, well knowing that her mother’s authority was not to be challenged by her, and knowing that the action ordered, though most distasteful to her, would be accepted by most of her people as a practical solution to the problem, she would have the capacity to understand that her duty was to deny her mother’s authority and run away and disobey. According to my understanding of the position, it would be impossible to convince the child of this, without affording her special protection or inducing a greater fear.
Looking at the matter without regard to the circumstances, there are enough indications to show that Iapirikila regarded her mother’s proposed course of conduct as wrong, but having regard to the circumstances it seems to me to be clear that the child was not capable of understanding that she should disobey. I would be most reluctant to read s. 29 as requiring me to ignore circumstances as powerful in their effect on a child’s mind as those present in this case. It would amount to torture. 
I find the accused Iapirikila not guilty of wilful murder.
There remains a peculiar point which arose in argument. Might Iapirikila, though not guilty of wilful murder, and not capable of directly committing infanticide, still be guilty of aiding and abetting her mother either as an accessory or as a principal to commit infanticide? The only natural meaning I can give to s. 29 is that her actions are excused, whatever they were, including any assistance she may have afforded her mother, willingly or not.
Verdict: Not Guilty.
Solicitor for the Crown: S. H. Johnson, Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.