Unreported National Court Decisions
N214
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
JOSEPH MAKAPI
Waigani
Prentice CJ
11 March 1980
17 March 1980
19 March 1980
CRIMINAL LAW - insanity - s.27 Code - deprivation capacity control actions - impairment only of capacity insufficient.
EVIDENCE - insanity - medical evidence approach to.
Cases Referred To
The State v. Bakau Kaija (Unreported) Judgment N213 6 March 1980, Prentice, C.J.
Wray v. The King (1931) 33 W.A.L.R. 67
Armanasco v. The King (1951) 52 W.A.L.R. 78
R. v. Moore (1908) 10 W.A.L.R. 64
Philp J. in Q.J.P. 1945/46 p.33.
PRENTICE CJ:  The accused man stands charged with the wilful murder of his awi (“uncle”). Indisputably, he killed his victim at night, with many blows of a knife specially sharpned for the purpose - in a house in which others were then apparently sleeping.
The sole issue presented to me is whether the accused was at the time “in such a state of mental disease ... as to deprive him ... of the capacity to control his actions” (s.27 Criminal Code). Such a defence must be established by the accused’s counsel - but it is sufficient to establish it on a balance of probabilities only. In furtherance of this object, reliance was placed on the bizarre nature of the accused’s act seen in the light of the evidence of Dr. Burton-Bradley and Dr. Wilfred Moi. The latter examined the accused at the request of the Public Prosecutor who then very properly made Dr. Moi’s report available to the Public Solicitor.
In the early hours of the morning after the killing, the accused gave an interview to Sergeant Simioni of the C.I.B. At that time he appeared “normal” to the sergeant and gave his answers quickly, without taking time to think over the questions. He stated that he stabbed the victim three times on the bed and again when he ran (in fact the post-mortem shows nine distinct stab wounds). He gave as a reason: “he has been living with me for one month and also he didn’t have a job so I always feed him with food and he always sleeps on my bed and I told him to go away but he never listen and at 12 o’clock today I was sleeping” (I pause to say that the accused was a City Council security guard - with apparently some night duties) ...”when he put the radio on and made a lot of noise and I was very upset about that and I cried and I told him to go but he didn’t listen, I then had my bath and went to work. When I came back to the house, he was still in the house so I was very upset about it so I killed him with the knife”. Asked was there any other reason he replied: “I got cross because he usually sleep on my bed.” He repeated that was the only reason for the stabbing and stated that he got the idea to stab him at 12 o’clock (midday). Apparently, having decided that, he took his knife to the Council workshop and sharpened it. He described in some detail the parts of the body he stabbed.
After the record was read back to him the accused, without questioning, retailed an ancient story of a fight over land involving his father and grandfather. He then said that he formed the idea that the land antagonists came to Moresby and tried to kill him by making him drunk. (I may say that a similar such set of facts was before me some years ago- it is by no means a fantastic possibility.) He went to Kupiano for five years, and on his return to Moresby these people made similar attempts on his life. He gave no indication that his victim was connected with the supposed conspirators; but said of him: “I was afraid he might kill me so I told him to go but he didn’t so I killed him”. The defendant had tied some cloth around the handle of the knife - presumably to allow a better grip.
Dr. Burton-Bradley examined the accused on 30th November, i.e. some two months after the killing. He found him well-oriented - conversing rationally. I emphasise this because under cross examination he stated the accused was not rational in the medical sense. He went on, in his report, to say accused had no hallucinations nor overt delusions, but had “over-determined ideas”. His memory was adequate but his mood depressed. His diagnosis was that accused then suffered from Reactive Depression (dating from the offence) and a long-standing Paranoid Personality. It is not clear however whether the history Dr. Burton-Bradley summarises represents questioning of the patient or is abstracted partly from the Record of Interview to which he had access.
In two places in his report the doctor speaks of the Paranoid Personality impairing accused’s capacity to control his actions on that occasion - and expressed his opinion that “he could not be considered responsible for his actions in the same way as a normal person would be”. He had developed a “paranoid personality greater than that shown by the ordinary suspicions and fears of the average person”.
Despite the formulations of his report, Dr. Burton-Bradley in evidence went on to say: “he would be suffering from a delusion”, and later: “completed lacked capacity to control his actions on that occasion”. And further: “I think it’s unlikely that he knew it” (that what he was doing was wrong) “to that extent at that time”. The witness then went on to say that by impaired capacity he had meant “no residual capacity at all. The operation of his mental disorder at that time was overwhelming”.
It is clear that under the stimulation of counsel’s questioning Dr. Burton-Bradley’s opinion has undergone something of a sea-change from his original assessment of “impairment”. His report seems clearly to have used the word ‘impair’ in its usual sense of “damage, weaken, worsen, deteriorate” - the sense in my experience always used by doctors when they speak of “impairment of vision” (hearing, agility etc.), as contrasted with total loss. Despite his explanation in cross examination to the contrary, I believe Dr. Burton-Bradley was in his report using the word ‘impair’ in its usual medical and everyday sense. And it became clear that he doesn’t think much of the concept of jurymen or policemen trying to assess questions of insanity as it is defined by law; a view shared by many psychiatrists and some legal theorists. Unfortunately I must sit on this case as a juryman would under directions from a judge. I should pay all due respect to medical opinions and evidence; but ultimately try to decide as a juryman would, in accordance with the interpretation (my own in this case) given him of the law, and the effect of s.27. Perhaps in the future all such questions will be decided by psychiatrists - but that time has not yet come under our present law.
I should say that the evidence of Dr. Moi was confusing in the extreme. At one point he described the accused as a paranoid schizophrenic - at another he repeated Dr. Burton-Bradley’s diagnostic terms. I found his evidence expressed contradictory notions - at one time that the accused’s capacity to control his actions was merely impaired (that he was not totally deprived of such capacity). At another, he appeared to be equating “impairment with “no capacity to control”. He too found the accused “rational in his thought processes”, and he stated: “it is very hard for us to tell whether he suffers from any form of mental disorder”. The doctors do not agree in the histories they took or in the opinions they expressed. I study their evidence therefore with caution.
The law in Papua New Guinea as expressed in s.27, does not make diminished responsibility the equivalent of insanity. Deprivation of capacity to control actions is not coeval with mere impairment of capacity to control - which may be of a slight or greater degree in different cases.
The accused’s offence was not one done impulsively on the spur of the moment. He has at no time recounted that he was acting under the “orders” or “control” of some external force or person; or that he had no knowledge of what he was doing or no knowledge that it was wrong. His action was premeditated. Many hours elapsed between his taking his knife to the workshop to be sharpened and carrying out his deed. There is no evidence that he was in any state of daze or apparent irrationality.
As I mentioned in the recent case of The State v. Bakau Kaija[clxxvi]1, the medical evidence on such a point cannot be conclusive but must be regarded with respect. With respect I believe Dr. Burton-Bradley’s and Dr. Moi’s opinions though formed after years of experience, insofar as they assert that at the time accused was unable to control his actions, are speculative only. With respect I do not accept them except to the extent as expressed in their initial reports as indicating that at the time of the commission of the offence accused possibly suffered (from mental trouble) some impairment of capacity to control his anger. But accused’s description of the event and the nature of the facts, while bizarre by Western standards, are by no means startling in a Papua New Guinean setting. I have experienced many quite as strange. I think a lot of work perhaps remains to be done in the exploration of Papua New Guinean motivation, thought processes and social attitudes.
I find myself unable to conclude on the balance of probabilities that the accused was at the relevant time deprived of the capacity to control his actions within the meaning of s.27. Indeed I consider the facts and his admissions show him to have been well in control of his actions, though fired by violent anger following a long period of quite understandable frustration and keen annoyance with the deceased - all coming at the end of years of worry about his own safety.
Consequently I do not find the defence established and I convict the accused as charged.
Solicitor for the State: C. Maino-Aoae, Public Prosecutor
Counsel: J.E. Byrne and G.G.P. Salika
Solicitor for the Accused: D.J. McDermott, A/Public Solicitor
Counsel: K.A. Wilson

[clxxvi](Ureported) Judgment N213, 6 March 1980, Prentice, C.J.