Unreported National Court Decisions
N1598
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR: 848 OF 1997
THE STATE
V
NICHOLAS WESLEY
Lae
Vagi AJ
8 August 1997
12 August 1997
25 August 1997
28 August 1997
Cases Cited
The State v Hekavo [1991] PNGLR 394
Goi v The State [1991] PNGLR 161
Bratty v Attorney General (Northern Ireland) [1961] AIIER 523
R v Gottle [1958] NZLR 999
R v Brigitta Asammikan [1964] PNGLR 196
The State v Justus Taimbari Kauri (N684 1987, Unreported)
R v Toy [1960] Qd R225
Counsel
A Raymond for the State
L Siminji for the Accused
DECISION
25 August 1997
VAGI AJ:  The accused pleaded not guilty to the charge under s. 301 of the Criminal Code (The Code) that on 7th day of February 1995 at Bumbu Compound, Lae, he murdered Michael Ata.
The State tendered by consent the statements of six eyewitnesses, post-mortem examination report of Professor Patel of Angau Memorial Hospital, Lae, the record of interview in Pidgin and English and psychiatric report on the accused by Doctor Posanau.
I should say at the outset that the defence ran this trial on the premise that the accused had on the date of the killing was suffering from some mental infirmity that deprived him of capacity to control his action.
The defence let the State evidence uncontested.  At the close of its case, the defence called the accused to give oral testimony.  Mr Siminji led him with a series of questions.  I reproduce here some of the questions and answers to show what his defence is based on:
Q.       Do you know why you are here?
A.       Yes.
Q.       Tell the Court why?
A.       I heard that I was charged with murder.
Q.       When was the murder committed?
A.       I saw on file 7/2/95.
Q.       Tell in your own words, how you found out?
A.       Before the incident I was sick.  After 3 months while in jail I recovered.  When they brought my file I found that I had killed a person.
Q.       You were sick what type was that?
A.       First I got malaria.  It went worse and I did all sort of things.
Q.       Were you aware that you did these things?
A.       I don’t know about them until I was told when I recovered.
In his record of interview he conceded that on 3rd day of February, 1995, he was sick and took a piece of iron with which he hit a woman.  He was arrested and locked in the cell, but got bailed out and allowed to go back to the house.  On the next day he did not turn up in Court.  On the date of the killing he was affected again and come into town looking for his elder brother.  He did not find him.  He went back to the compound in anger.  At the same time the deceased went to his house and he said, he got up, got the axe and got involved in the incident.  At first he cut the back of deceased’s neck, front of the neck and both sides of his head.  The record of interview was taken on the night of 7th February 1995.
The facts as shown, that on the date in question, the deceased went to the accused’s house to enquire about the progress of his motor vehicle which the accused’s father, a mechanic, was working on.  When told that the accused’s father was not at home and told to return later, the deceased then walked away from the house.  While he was leaving, the accused armed with a steel handle axe came from behind and struck him at the back of his neck.  The deceased fell on the ground.  While on the ground, the accused continued striking him all over the body, eventually causing his death.  The State shows the accused intended to cause grievous bodily injury.  In so doing he caused the death of the accused thereby contravening s. 301 of the Code.
This case is a bizarre one as there is no evidence of prelude or an explanation as to why such a killing took place.  I agree with the defence contention that the issue is one that calls for the state of mind of the accused.  Mr Siminji raises the defence of automatism on the basis, the evidence had shown, that the accused at the time of the commission of the crime and after, he was suffering from mental infirmity.  In support of his contention, he relies on the decision in the The State v Hekavo [1991]PNGLR 394.  This was a case of the accused killing his wife where the medical evidence established that he was recovering from a bout of epilepsy and in a post-ical state during which state aggressive behaviour often occurs.  The court on p 396 cited a statement made in R v Foy [1960] Qd R 225.  It was said that:
“If an accused person raises the defence that an act or ommission occurred independently of the exercise of his will because at the time of his committing the act or making the omission he was though temporary or permanent derangement of his mind, unable to exercise his will or did not exercise his will, the onus is upon him to provide that condition.
In each case there must be evidence upon which a jury can properly find that the mind of the accused was affected by the mental disease or derangement at the relevant time.”
The Supreme Court in Goi v The State [1991] PNGLR 161 said at p 167:
“It is well established in the jurisdiction that the standard of proof required of an accused person to establish the defence of insanity is proof on the balance of probabilities.”
The Supreme Court referred and approved the case of Bratty v Attorney General (Northern Ireland) [1961] 3 AIIER 523 where automatism was defined at p 527 as connoting the state of mind of a person who, though capable of action:
“is not conscious of which he is doing...  It means unconscious involuntary action, and it is a defence because the mind does not go with what is being done.”
In the New Zealand case of R v Cottle [1958] NZLR 999, for the defence of automatism Viscount Kilmuir said that not only must automatism be expressly put forward as a defence, but also a proper foundation must be laid for it.
An analogy was drawn between this defence and accident or provocation.  It is not enough to raise such defence, there must be evidence for the tribunal of facts to act and find on.
In an endeavour to lay a proper foundation required, Mr Siminji made reference to some of the observations of the State witnesses of the accused’s behaviour prior to and during the time of the killing.
The first observation is that of Mrs Rose Setari, the accused’s own sister.  She is a housewife and a resident of Bumbu Compound.  She stated that on Saturday 4th February, 1995, she observed the accused had changed his personality of a normal person to that of an abnormal person.  On that day the accused told her that he was sick.  She then gave him K2.00 and asked him to go to the hospital but he refused.  From then his approach changed.  She observed him gave up eating and he accused her of poisoning  his food.  When food was offered, he refused and quoted from the Bible verse:  “Man shall not live on bread alone, but by every word that proceeds from the mouth of God”.  Mrs Setari did not state how long this went on but she continued and stated that on Sunday, while everyone was talking about rugby, the accused talked about a different subject matter and at the same time looked for objects to kill any animal that went by.
The next observation was by Wilford Naikoman.  He heard that the accused went to the 9th Street and obstructed the free flow of traffic.  Wilford stated that as soon as he heard about the killing, he ran to the compound and saw a youth armed with an axe standing over a body on the ground.  He saw the youth walked towards the swamp.
Then Benedict Boeboe stated that she was inside her house when she heard some women screaming.  She went outside to see what was happening.  She saw the accused placed the blade of the axe across his shoulder while he held the handle with his right hand.  She saw the accused going away with no expression of any sort on his face.
Mr Siminji submits that these witnesses provided evidence of their observations showing the state of mind of the accused who had mental infirmity and at the relevant time he acted out of the ordinary.  He argues that the medical evidence of Doctor Posanai’s observations done some ten months after the killing and his evidence does not give an accurate report of the state of mind of the accused.  He says the report is hearsay at the highest level and the report was based on what the doctor was told.
Mrs Raymond objects to the observations of the three State witnesses as that of lay persons and who are also related to the accused.  She says Doctor Posanau’s report is a work of true professional and qualified psychiatrist whose opinion is based on all the information he had collected.  Unlike in most other medical fields where any medical observation is laboratory tested, psychiatric opinions are formed largely from the information’s obtained from people, including the psychiatric patient.  In my view there is no other psychiatric report in rebutting Doctor Posanau’s opinion, so his report, although hearsay of the highest level, his profession requires that any psychiatric opinion he comes up with in his report is based on information he gathers from people.  Such information are not laboratory tested.
They are only weighed as what Doctor Posanau did in this case.  I therefore admit his report in evidence.
The defence must at least produce prima facie evidence of accused’s condition (Bratty, adopting R v Cottle) and if that proper foundation is laid, the defence of automatism is left to the Court.  The accused gave direct evidence.  He says that he knew about the killing when told by others and also reading about it from his file.  In assessing “insanity” under s. 28 of the Code, this piece of evidence is important insofar as showing the accused’s state of mind when he acted outside the control of his will.  There are indications that the accused was sick and abnormal prior to the killing.  He attacked a woman with a piece of iron.  He obstructed the free flow of the traffic, and he refused to eat the food offered to him.  Is it sufficient for the court to find from this type of evidence that the accused was affected by mental disease or derangement at the relevant time?
One striking feature against the accused is the findings of Doctor Posanau.  The defence disputes his evidence on the basis that it is hearsay.  I have already admitted in evidence Doctor Posanau’s report.
Doctor Posanau found that there is no abnormality in the accused’s physical condition and, in his opinion, was in good physical health.  As to the present mental state, the doctor found that the accused was well oriented for time, place and person.  His mood state was normal.  He has no dilutions (fixed, false belief), no auditory hallucinations (false, imaginary voices talking to him) and his cognitive function is not impaired.  This is what the doctor stated about the state of mind of the accused at the time of the killing:
“It is alleged by the patient and other relatives interviewed that at the time of the offence the accused was experiencing “abnormal” behaviour.  However this is hearsay only, there is no hospital out-patient notes or other medical notes documenting this behaviour.  Without the hospital notes it is difficult to confirm the “abnormal” behaviour at the time of the initial interview.”
The doctor went on to state that there is no history of epilepsy or any head injury.  There is no family history of any psychiatric illness.  There is no history of any admission to any hospital in Papua New Guinea.  There is no psychiatric diagnosis that could be given.  The doctor summarised that he questioned the accused of his knowledge of the nature, harmfulness and wrongfulness of the offence.  The accused stated to him that it was wrong to kill another person but he did this because of an abnormal behaviour.  However, the doctor concluded that the abnormal behaviour “cannot be confirm during the visit and a psychiatric diagnosis cannot be given”.  From the report it appears that it was difficult to confirm the “abnormal” behaviour without hospital notes.
In his oral evidence the accused stated that he has in him some spirits.  He did not state what effect those spirits have in him.  In his record of interview he stated that he was angered by not finding his brother in town that morning.  When he returned to his house he was still in anger when the deceased visited his house.  The evidence of how he chopped the deceased is contained in his record of interview:
“Q24.  Where did you pick up the axe?
A.       I took it inside our house.
Q25.   After you took it what have you done with it?
A.       I took it came down and chopped this man.
Q26.   What part of his body you have chopped?
A.       I chopped him at the back of his neck, his front neck, two times on both sides of his head and I turned the head of  the axe and hit his head.
Q27.   How did you know that you have chopped the deceased five times?
A.       I saw it when I chopped him.
The arresting officer Detective Corney Winjin interviewed the accused at 10:00 pm on the date of the killing.  He picked him up around 8:00 pm after hiding in the bush straight after the killing.  The arresting officer observed the accused and this is what he stated:
“However during the time of the accused’s apprehension I did carefully observed his condition and his speech and it wasn’t that of a mentally affected person.  He acted sensibly and accompanied us to the station.  And prior to the commencement of an interview I asked him whether he was mentally alright and he said he is a normal person.”
If this be the evidence on the condition of the accused’s mind, he was oriented to time, place and person.  He was conscious of his action in that it is questionable if s. 28 of the Code is applicable.  The only evidence is that he was “angered” by not finding his elder brother.  Is “anger” a condition of mind?  The Supreme Court of the Colonial era as per Mann CJ in R v Brigitta Asamikan [1964] PNGLR 196 at 198 said:
“A whole range of emotional disturbance, such as jealousy, anger, revenge or lack of self-control are excluded from s 27 (now s 28) and these are typical of matters affecting mental stability or balance, as distinct from insanity.”
Anger must have impaired the accused’s ability to control his action.  This is diminished responsibility.  Under s. 28 there must be deprivation of capacities enumerated therein.  In the State v Justus Tainibari Kauri (Kidu CJ No. N 684, 1987 unreported) said at p6:
“For the defence to succeed under s 28 of the Criminal Code, it must be shown on a balance of probability that a State of mental disease or natural mental infirmity deprived the accused of his capacity:
(a)      to understand what he is doing; or
(b)      to control his actions; or
(c)      to know that he ought not to do the act or make the omission.”
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 control his action or to know that he ought not to commit the act was taken away from him by the mental disease or natural mental infirmity: See Goi v The State.
In contrast, the accused in the State v Hekavo, suffered from “an organic brain disorder, epilepsy.  That at the material time he was materially affected by this disorder...”
In the present case Doctor Posanau concluded that there is no history of epilepsy or brain disorder.  The accused has no (fixed, false beliefs), no auditory hallucinations (false, imaginary voices talking to him)  and his cognitive function is not impaired.  The foundations laid by the defence does not couple with the doctor’s findings and the evidence of the arresting officer.  Then accused was oriented for time, place and person.  This is clearly a case of person who was in “anger”, a condition that is said to have not impaired the accused’s ability to control his action.
Professor Patil’s post-mortem report shows that the deceased had deep lacerations of the scalp, associated committed fracture across major width of the skull, intracranial haemorrhages, incision wounds of the neck and shoulder and fractures of the left scapula.  The cause of death was due to massive external haemorrhage in association with head injury.
In a layman’s eyes, the weapon used, the wounds inflicted, the deceased not having a chance to fend off the attacker are all indicative of a vicious attack by the person who intended to cause grievous bodily injury.  There was no prelude prior to the attack.  What can then be the motive behind this.  The deceased went to the accused’s premises for a very lawful purpose; to enquire about the progress of his motor vehicle.  The accused knew who he was at the time he caused his death.
I do not know of a case a man killing another unless he has mental infirmity or has a bout of epilepsy (The State v Hekavo) or “was experiencing strong emotions of anxiety and fear causing dissociation and impairing his ability to make a natural intention, and to control his actions” (Goi v The State).  In Goi’s case the defence had not been made out.  In the present case there was an attempt by Mrs Raymond by cross-examining the accused if he had been intoxicated or was affected by marijuana.  He denied taking both liquor and marijuana.  If that is so then the accused had a clear conscious of what he did.  There is no evidence that he had mental infirmity at the time of killing unless there was some hallucinogenic drug  or plant or material that affected him and which medical science has yet to discover.  I heard stories of tribal warriors, before participating in any tribal combat, taken certain plants or herbs, with hallucinogenic values that drove out fear and greatly excited them to kill their enemies wantonly.  I know of one such plant, a ginger, commonly known in pidgin as “Kawawar”.  There is no evidence that the accused took such hallucinogenic plant or material that had greatly excited him to kill another person.
The only evidence by the accused is the presence of some “spirits” in his body.  He could not say what those spirits were and how they affected him.  I have observed his demeanour in Court.  He spoke quietly and answered the questions well.  He was well composed and gave concise answers.  I just cannot workout what must have been the condition of his mind immediately prior to the killing.  I find him to be of sane mind.  No evidence of mental infirmity or disease.   He was neither intoxicated or stupefied by alcohol drink or hallucinogenic drug.  He was “angered”, a condition that did not impaired his ability to control his action.  I find that he knew his own actions which were conscious and voluntary, this “anger” was an emotional disturbance and is excluded from s. 28 and is typical of matter affecting mental stability or balance as distinct from insanity (R v Brigitta Asamikan).
This trial came before me after two years and six months from the date of the killing.  There is no report of any illness during the period he has been awaiting, his trial.  There is no very recent psychiatric examination after Doctor Posanau’s report eighteen months ago.
The only conclusion I can draw from the facts is that the accused has no mental infirmity apart from “anger” and I find he has no defence of automatism.
Accordingly I find the accused guilty of murder contrary to s. 301 of the Code.
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor