Papua New Guinea Law Reports - 1965-66
[1965-66] PNGLR 284
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V.
KOIYARI-IYEVA
Port Moresby
Minogue J
17-18 February 1966
22 February 1966
12-13 May 1966
30 May 1966
CRIMINAL LAW - Fitness to plead - “Not of sound mind” - Power of trial judge to call evidence during enquiry into soundness of accused - Criminal Code, ss. 27, 598, 613, 645, 647.
Section 613 of the Criminal Code provides, inter alia, as follows:
“If, when the accused person is called upon to plead to the indictment, it appears to be uncertain, for any reason, whether he is capable of understanding the proceedings at the trial, so as to be able to make a proper defence, a jury of twelve men, to be chosen from the panel of jurors, are to be impanelled forthwith, who are to be sworn to find whether he is so capable or no ...”
Section 645 of the Criminal Code provides, inter alia, as follows:
“If on the trial of any person charged with an indictable offence it is alleged or appears that he is not of sound mind, the jury are to be required to consider the matter, and if the jury find that he is not of sound mind, the finding is to be recorded, and thereupon the court is required to order him to be kept in strict custody, in such place and in such manner as the court thinks fit, until he is dealt with under the laws relating to insane persons ...”
Criminal trials in the Supreme Court of the Territory are held before a judge sitting alone, who performs the functions of a jury: The Criminal Procedure Ordinance of 1889 of Papua, adopted for New Guinea, and the Jury Ordinances (Repeal Ordinance), 1964.
The accused was indicted on a charge of wilful murder. The Crown prosecutor informed the court that shortly after the alleged offence (and some eight years before the indictment was presented) the accused had been certified as insane under the Insanity Ordinance, 1912 (see now the Mental Disorders and Treatment Ordinance, 1960) but that he had now been certified as fit to plead. The trial judge entered upon an enquiry under s. 613 of the Criminal Code, found that the accused was fit to plead and entered a plea of not guilty on his behalf. During the course of the trial the judge elicited evidence from the Crown witnesses as to the mental condition of the accused and directed that further evidence on this point be led before him. Such further evidence established that the accused was a high grade mental defective.
Held:
(1)      The test for deciding whether an accused person is fit to plead under s. 613 of the Criminal Code is not the same as the test for deciding whether he is of unsound mind under s. 645. Accordingly a finding under s. 613 that the accused was fit to plead did not preclude the trial judge from later enquiring under s. 645 as to whether the accused was of unsound mind.
(2)      Section 613 contemplates at the same time a wider and a narrower set of circumstances than does s. 645 - wider because it contemplates the man who may not be of unsound mind at all and whom the court may discharge even if only to stand trial at a later date, when circumstances have changed; and narrower, because it takes no account of the schizophrenic or the paranoic who may at the time of his trial well be able to understand the proceedings so as to be able to make a proper defence but whom it would be unsafe to allow abroad in the community. Section 645 is designed to deal with just such a case if the accused’s condition comes to the notice of the court.
R. v. Pritchard (1836), 7 Car. & P. 303 (173 E.R. 135; R. v. Berry (1876), 1 Q.B.D. 147; R. v. Presser, [1958] V.R. 45; and R. v. Podola, [1960] 1 Q.B. 325, referred to.
(3)      In the course of an enquiry under s. 645 the trial judge is entitled to call evidence.
Titheridge v. The Queen (1917), 24 C.L.R. 107; and Shaw v. The Queen (1952), 85 C.L.R. 365, referred to.
(4)      The accused was “not of sound mind” within the meaning of that phrase in s. 645.
Trial on Indictment.
The facts sufficiently appear from the judgment.
Counsel:
Shaw, for the Crown.
Lalor and Munro, for the accused.
Cur. adv. vult.
30 May 1966
MINOGUE J:  The accused was indicted before me at Goroka on the 17th February, 1966, on a charge of the wilful murder of a child named Simbani-Kosa’Eva. He was represented by Mr. Munro of the Public Solicitor’s staff, who initially asked me to accept a plea of guilty of murder. The Crown consented to such a plea being made under s. 598 of the Criminal Code and I was inclined to accept it. However, Mr. Shaw, for the Crown, then related the circumstances of the crime to me and further informed me that the accused had been in custody since very early in the year 1958, having been very shortly after the crime certified as insane under the Insanity Ordinance, but that he had now been certified as fit to plead to the indictment. From the appearance and demeanour of the accused in the dock, I was uncertain as to whether he was capable of understanding the proceedings at the trial and I decided to enter upon an enquiry under s. 613 of the Code. At this stage I had no medical evidence before me although I was informed by Mr. Shaw that the psychiatrists in Port Moresby were of the view that Koiyari was fit to plead.
I examined Koiyari myself. He, in the course of such examination, informed me that he had killed the child Simbani, that he was mad at the time and that the policeman came and got him. He further informed me that he had been waiting for the court for eight years, that he did not want to go back to gaol, but that he wanted to go back to his own village. After expressing a wish to speak in Pidgin rather than in his own local language, he went on to tell me that he had been on the coast for seven years (that is Port Moresby) and in the eighth year he was taken to Goroka. He had not wanted to stop there, but wanted to go to his home. He was, he said, not sick in the head but wanted to go to his own place where the native medicine was good. He realized that Mr. Munro was there to help him and he had been speaking to him about the case previously. He knew he was in court. The general trend of his conversation with me was that he had killed the child but that he had been long enough in gaol and now wanted to go home. With some hesitation I concluded as a jury that Koiyari was fit to plead. He seemed to me a man of poor intelligence, but he had a general awareness that he was in court to have his case disposed of. I was referred by Mr. Munro to R. v. Podola[cclxiv]1 but I did not find it particularly helpful in the circumstances of this case. It appeared to me at the time that Koiyari was capable of understanding the proceedings at the trial so as to be able to make a proper defence. It further appeared that Mr. Munro, in asking me to accept a plea of guilty, would later submit to me that having found the accused guilty of the charge of murder, I should then proceed to sentence and take into account the eight years which he had already spent in custody. I was informed at this time that a number of years, in fact about five, had been spent at the Bomana Mental Institution.
Having decided as I did, and after discussion with and with the consent of counsel, I entered a plea of not guilty on behalf of the accused and proceeded to hear the evidence as to the facts. This evidence does not need repetition and it was clear that the accused for no apparent reason killed the child Simbani with an axe. Mr. Munro objected to my asking any questions of the witnesses as to the mental state of the accused at the time of the killing but I overruled his objection. On questioning the first witness, Igio, as to the accused’s appearance at the time of the killing, the accused interjected to the effect that if he went to gaol there would be more trouble. He had spent seven years away and if he were to spend more time in gaol as he said “I can play up”. The witnesses were giving their recollection as to happenings eight years old, and I could not through their evidence come to any comfortable conclusion that the accused was at the time of the offence of unsound mind as defined in s. 27 of the Code. The accused’s own statement, made on committal proceedings in Goroka in August, 1965, which was tendered in evidence, read, “The luluai, Igio, killed my second father Nogoda. I was sorry. I backed this killing and killed Simbani with an axe. That is all.” At the close of the case for the Crown, Mr. Munro announced his intention not to call any evidence and I adjourned the hearing and directed that such evidence as to his mental state as was available in Goroka be led before me. Subsequently, I heard evidence from Mr. McGowan, the officer in charge of the corrective institution in Goroka where the accused had been since late August, 1965, Nusai, the sergeant-major at that institution, and Dr. Riley, who had examined him on two occasions within the previous week. Both Mr. McGowan and Nusai gave evidence of his withdrawn behaviour and of the need for constant supervision. Koiyari had attempted to run away on several occasions and on one such occasion in the course of recapture had attacked and wounded Nusai with a saref (a long steel implement used by prisoners in cutting grass). Dr. Riley thought that the accused was thinking reasonably clearly but felt that he was probably having episodes of an acute psychotic nature. He also felt that these episodes may be due to a large extent to his long and forced exile from his home environment. He preferred to have a qualified psychiatrist’s opinion on the extent to which these episodes would disappear if Koiyari were returned to his own village. In the result he felt unable to evaluate him. At the conclusion of the doctor’s evidence the accused then interjected, saying, “I am alright. I am not stupid now. I am alright-if I go back to my village I can take a local medicine. I will be alright.”
From my observation of the accused during the trial and from the evidence which I had called for, I had some real doubts as to Koiyari’s present mental condition. At times he appeared to me to be completely withdrawn and taking no interest in the proceedings whatever. At other times he appeared intensely interested even to the point of excitement. It seemed to me that I should satisfy myself as to his soundness of mind under s. 645 of the Code and accordingly I directed that the trial be adjourned to Port Moresby and that before its continuance the accused be examined by a psychiatrist and that evidence be placed before me as to his soundness of mind. I should add that after I had issued this direction, which of course was translated to the accused, he again interjected to this effect, “After I have been to Port Moresby and I come back, I will kill this line that have got me into court”. I resumed the hearing at Port Moresby on the 12th May and heard evidence from Dr. Burton-Bradley, a well qualified phychiatrist, and also from Mr. Wright, a psychologist employed by the Department of Health of the Territory. Dr. Burton-Bradley has had Koiyari under observation for a number of years and he informed me that whilst he thought Koiyari had sufficient intelligence to comprehend the course of proceedings at his trial and that he would be fit to question any evidence which may be untrue and that he could follow the evidence in detail, at the same time he was of the view that the accused suffered from high grade mental deficiency with immature, impulsive and sadistic tendencies. In his opinion Koiyari has a low threshold for violence and to minor frustrations. He informed me that whilst in the mental hospital between the years 1958 and 1963 he had on a number of occasions killed birds, cats and dogs in fits of pique. He was of the view that Koiyari was a potential danger to the public although, in his opinion, under proper supervision with proper facilities he could live a reasonably conflict-free existence. This, he said, could only be effected in a corrective institution with access to medical care. The existing mental hospitals in the Territory are quite inadequate to ensure protection to the public. He took the view that any minor frustration would make Koiyari uncontrollable. He further thought that during his periods of uncontrollability Koiyari would not have ordinary awareness. He did not think it possible to arrange adequate supervision and control in his home village and he regarded Koiyari as having no ability to exercise this control over himself. Further, his condition of mental deficiency is one that does not change for the better. It will be with him all his life. Despite his fitness to plead he regards him as suffering from mental disturbance or mental infirmity so as to deprive him of the capacity to control his actions and he went on to say that in his opinion Koiyari is certifiable under the mental health legislation. Mr. Wright regarded Koiyari’s condition as having a number of permanent features, namely a high grade mental deficiency, impulsive behaviour, low tolerance to frustration and deep-rooted sadistic tendencies. He thought that he can be considered a danger to others if exposed to the commonplace pressures and frustrations of normal life. He had himself observed two examples of his sadistic tendencies, one of which appeared to be an apparently unprovoked attack on a much smaller and very confused patient at the mental hospital in 1963. Upon questioning, Koiyari gave no explanation for this behaviour.
Mr. Lalor submitted in effect that having found Koiyari fit to plead under s. 613 of the Criminal Code, in the absence of any change in his condition I could not go on to decide he was of unsound mind under s. 645 with the consequences that such a decision entails. The tests, he said, were the same under both sections and he submitted that this was so was shown by R. v. Pritchard[cclxv]2, R. v. Berry[cclxvi]3, R. v. Presser[cclxvii]4 and R. v. Podola[cclxviii]5. In the first of these cases the accused was deaf and dumb and Alderson B. first directed the jury to try whether the accused was mute of malice or by visitation of God, then whether he was able to plead to the indictment and, lastly, whether he was sane or not, and by the latter he meant whether he was of sufficient intellect to comprehend the course of proceedings at the trial so as to make a proper defence, to know that he may challenge any of the jurors to whom he may object and to comprehend the details of the evidence which in the particular case would involve a minute investigation. He directed the jury that if they thought there was no certain mode of communicating the details of the trial to the prisoner so that he could clearly understand them and properly make his defence to the charge they ought to find that he was not of sound mind. The jury so found and the prisoner was confined during His Majesty’s pleasure. In R. v. Presser[cclxix]6, Smith J. considered the relevant Victorian legislation (Crimes Act 1928, s. 426, now Crimes Act 1958, s. 393), which read, “If any person presented, indicted or informed against for any indictable offence is insane and is upon arraignment so found by a jury lawfully impanelled for that purpose so that such person cannot be tried upon such presentment indictment or information, or if upon the trial of any person so presented indicted or informed against such person appears to the jury charged with such presentment indictment or information to be insane, it shall be lawful for the court before whom any such person is brought to be arraigned or tried as aforesaid to direct such finding to be recorded; and thereupon to order such person to be kept in strict custody until the Governor’s pleasure be known . . .” Smith J. decided to have the issue of the accused’s fitness to plead under this section tried, and for the purpose of such an enquiry he held that “insanity” means “of impaired mentality to such a degree as to be unfit to be tried” and he went on to consider (at p. 48) what minimum standards the accused needed to equal before he could be tried without unfairness and injustice to him. He said, “He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.” But whilst these cases may assist in showing what “not of sound mind” means in s. 645 I do not think that they necessarily provide either a comprehensive or exclusive definition. The expression itself is not a term of art and as Dr. Glanville Williams points out in Criminal Law: The General Part, 2nd ed., at pp. 428 et seq., the difficulty of giving a precise meaning to the concepts of mental illness or severe subnormality are well known and there never has been a legal test of insanity for the purpose of compulsory treatment in hospital. The term “mental illness”, which is the euphemistic successor in English legislation to “insanity”, is a term of uncertain import. The special powers of the criminal courts by way of criminal commitments are in Glanville Williams’ view, sometimes an additional safeguard to the public safety.
Looking at The Criminal Code (which governs in this case) “not of sound mind” in s. 645 obviously bears a different meaning to that which it bears in s. 647, for in the latter section the term is directed to the situation where the accused is to be freed from criminal responsibility and it must clearly be interpreted by reference to s. 27. Section 645 is not directed to such a case but to the condition of the accused, not for example as it was eight years earlier but his condition at the time of trial. Further, if exactly the same considerations were to apply in s. 645 as in s. 613, one would expect the language to be the same. Section 613 seems to contemplate at the same time a wider and a narrower set of circumstances than does s. 645. Wider, because it contemplates the man who may not be of unsound mind at all and whom the court may discharge even if only to stand his trial at a later date when circumstances may have changed. In this more enlightened age one could envisage the case of the intelligent deaf mute with whom it may be temporarily impossible to establish communication being discharged under the section. Narrower, because it takes no account of the schizophrenic or the paranoic who may at the time of his trial well be able to understand the proceedings so as to be able to make a proper defence in the sense explained by Smith J. but whom it would be unsafe to allow abroad in the community. Section 645 to me seems to be designed to deal with just such a case if the accused’s condition comes to the notice of the court.
Mr. Lalor argued that I had no right to call the evidence which I did. Having found the accused fit to plead, entered a plea of not guilty and heard the evidence, I should, he submitted, have proceeded to verdict and if I found the accused guilty of wilful murder I should sentence accordingly. Having regard to the general range of sentences imposed on primitive people of the accused’s type for offence of this nature, I have no doubt that he would then have urged, the accused having been in custody for eight years, that I should, if not release him forthwith, at least impose a very short sentence. It was not the function of the court, so he argued, to enter upon the province of the mental health authorities. His position was I think dictated to a large extent by the unfortunate situation in which Koiyari finds himself. I have a great deal of sympathy for him. He has a likeable personality and for long periods has worked well and amenably. He has been in an institution for many years and naturally has an overwhelming desire to be back in an environment of freedom and what he believes to be pleasure. Unfortunately, in this Territory no adequate provisions exist for such as he. His fate is to be detained in the maximum security block at the Bomana Corrective Institution-that being as I understand the only place where he can be kept sufficiently under restraint. There is no institution in the Territory where he could lead a reasonably happy conflict-free and probably useful existence. But no matter how sympathetic I am for his unfortunate plight I must interpret the law as I see it and in my view “a person not of sound mind” within the meaning of s. 645, whatever the limits of its meaning may be, includes a high grade mental defective of the type I believe Koiyari to be. Without entering into a jurisprudential dissertation on the province and function of the law, I am of the opinion that s. 645 is designed in part at least for the protection of the community and in aid of the mental health legislation. If it appears for any reason that the accused is not of sound mind then I take the duty of the court to be clear. It is to conduct an enquiry into the soundness of mind of the accused and if satisfied that he is not of sound mind then to act according to the section. That enquiry I have conducted and I am so satisfied. I do not think that the cases of Shaw v. The Queen[cclxx]7 or Titheridge v. The Queen[cclxxi]8 are relevant to my power to call evidence on such an enquiry. Having found that Koiyari is not of sound mind I order him to be kept in strict custody at the Bomana Corrective Institution until he is dealt with under the laws relating to insane persons.
Solicitor for the Crown: S. H. Johnson, Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[cclxiv][1960] 1 Q.B. 325.
[cclxv](1836) 7 Car. & P. 303 (173 E.R. 135).
[cclxvi](1876) 1 Q.B.D. 147.
[cclxvii][1958] V.R. 45.
[cclxviii][1960] 1 Q.B. 325.
[cclxix][1958] V.R. 45.
[cclxx](1952) 85 C.L.R. 379.
[cclxxi](1917) 24 C.L.R. 107.