N6608
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.No.197 OF 2012

THE STATE

V

WILLIAM SONI

Kokopo: Lenalia, J
2016: 5th, 6th, 7th, 8th&21st December

CRIMINAL LAW – Charge – Willful Murder – Plea of not guilty – Trial – 
Evidence – Charge – Elements of willful murder – Criminal Code s.299.  

CRIMINAL LAW – Evidence on trial – Onus of proof – Whether evidence 
shows if the accused actually administered fatal blows on victim causing his death.

CRIMINAL LAW – Finding of facts shows no one else was on the scene when the fatal cut was administered on the victim’s head –Evidence of accused may have been mentally affected prior to the killing of his father – No evidence to confirm that – Accused found guilty of lesser charge of murder.

Cases cited:

Devlyn David-v-The State (2006) SC881
Goi v The State [1991] PNGLR 161
John Beng-v-The State [1977] PNGLR 115
Paulus Pawa-v-The State [1981] PNGLR 498 
R v Agana Guguna (1965) N364
The State v Enakuan Salaiau [1994] PNGLR 388
The State-v-Tom Morris [1981] PNGLR 493

Counsel:

Mr. L. J. Rangan,for State
Ms. J. M. Ainui, for Accused.

21st December, 2016

1.	LENALIA J:  The accused is charged with one count of willful murder contrary to s.299of the Criminal Code. After arraignment, he pleaded not guilty. Apart from the oral testimony that came from the two witnesses that were called, the following documents were tendered by consent during the trial. 

•	Statement of Constable Francis Mawoko is Ex. “1” 
•	Statement of Sergeant Dorcas Marnakat, Ex. “2”.
•	Pidgin record of interview Ex. “3”.
•	English translation Ex. “4”. 
•	Post mortem examination report, Ex. “5”.
•	Affidavit by Dr. Abraham, Ex. “6”.

Prosecution Evidence

2.	The court has read all the above documents and accepted them as part of the prosecution evidence. Oral evidence before this court came from two witness. They are, Lucy Soni, she is the wife of the deceased Kelly Soni. She is also the biological mother of the accused. In her evidence, Lucy recalls that on 4thday of October 2011, she was with her husband and their grandson at their house at Ratavul No.2 village Toma/Vunadidir Local Level Government in the Gazelle District. 

3.	She recalls that between 2pm and 3pm, on the above date, while her and her husband (deceased) were inside their house, the grand-son was playing outside their house. When the child was playing outside walking and crawling, the accused William Soni came to where the baby was playing and he slapped him and the grandchild started to cry. When they heard their grandson cried, her husband told her to go and bring their grandchild into the house. When she returned, she was upset about what the accused did to the child and told Kelly that, he would stay in the house and look after their food. The food was still in the pot over the fire as it was not yet cooked. 

4.	The reason for her wanting to leave was to go and look for their other son. She referred to him as Rodney Soni. Rodney was cutting grass just near their house. She quickly walked out to where Rodney was cutting grass and she told him about the story of what the accused did to their bubu (grandchild). When Lucy and Rodney return a couple of minutes later, they found that the victim was lying flat on the ground with a bush knife wound across his head. 
She was shocked and started to weep and ran up to her brother’s house to ask for assistance. When she returned with her brother, they took the victim up quickly in a vehicle to Napapar Health Centre. On arrival at the hospital, the victim was pronounced death on arrival.

5.	Lucy revealed in cross-examination that, the accused had had a distorted memory prior to committing the alleged crime. The witness said, the accused was not usually normal as sometimes he would sit and just linger around like there was not one sitting with him. Asked if the accused had been taken to the hospital to check his condition. 

6.	 Lucy said, they had noticed this for some time and they thought that the accused would recover but he did not until the alleged crime was committed. She confirmed that the accused may have been suffering from a mental condition before as previously, but there was no confirmation of such condition until the accused committed the crime. 

7.	The court has read the documents tendered. The record of interview is total denial. (See Exhibits “4” & “5” Pidgin & English translation). After all these documents were tendered, Mr. Rangan closed the State’s case.  

8.	The accused was informed of his right to give evidence, make a statement or remain silent. (See s.572 of the Criminal Code). He indicated he wanted to remain silent. Asked if he had any witnesses to be called. The accused said, he did not have any witnesses. The defence counsel confirmed this and the defence closed their case. 
Submission on Verdict

9.	Mr. Rangan addressed the court first as the defence did not call any evidence. Counsel submitted that, this was the case where the offence alleged was committed in or around the family house of the victim and the accused. Counsel addressed the court on the issue of the accused being on the scene that day and there was no other persons around at that time and place and it may be inferred that, when the mother of the accused left to look for Rodney and there was no one else around the family house. 

10.	Counsel argued that, according to the only witness Lucy, she left the accused, the victim and their bubu (grandson) in the house.  Counsel asked the court to infer that because, the accused was upset about the food not being ready, he took the action he did to hurt his own father and the Court should return a  guilty verdict to the charge of wilful murder. 

11.	Ms. Ainui submitted on the condition of the offender before the offence was committed. Counsel based her argument on sections 28 and 592 of the Criminal Code for the accused being in condition of insanity during the time he is alleged to have committed the crime of unlawful killing of his father. The court will return to these arguments later. 

Application of law

12.	The trial of this case is complicated by the fact that, the defence did not call any witnesses and even the accused himself never gave any evidence. The accused himself did not give evidence about his condition of health. The prosecution evidence establishes that the accused at the time the offence was committed, may have had a mental disorder. 

13.	There was no medical evidence of the accused condition before or at the time the offence is alleged to have been committed. This is the reason why the trial of this case has been lengthened for a long time since 2012. The defence relied on the defence of insanity. This is defined in s.28 of the Criminal Code in the following terms:

“28. Insanity.

(1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of 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.

(2) A person—

(a) whose mind, at the time of his doing or omitting to do an act is affected by delusions on some specific matter or matters; and

(b) who is not otherwise entitled to the benefit of the provisions of Subsection (1),

is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.”

14.	Under the above section, an accused person is not criminally responsible for an act or omission if at the time of doing the act or making the omission alleged against him if he was in such a state of mental disease or natural mental infirmity which had deprived him of his mental capacity to control his actions or understand that what he was doing was wrong in law. In the Supreme Court case of Goi v The State [1991] PNGLR 161 at 169 the Court there said:

“Clearly, therefore, in a defence based on s.28 of the Criminal Code, 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 infirmity.”	

15.	In the case of The State v Enakuan Salaiau [1994] PNGLR 388 at 390, Justice Doherty said:

“A finding under s.28 is a very drastic one. Once such a finding is made, it brings into play a different provision of the Code, s.592. This provides that once a court finds a is not of sound mind, it must find him not guilty and order him to be kept in strict at a place and in a manner as it thinks proper pending a decision of the Head of State.”

16.	Where an accused raises the defence of insanity under s.28 of the Code, it means that he did not have the will or could not make up a decision about what he was doing due to his or her diseased mind. This was not the case where the accused was unfit to plea a defined by s.569 of the Code. Before the accused was taken to Laloki, he was examined at Nonga Base Hospital by Dr. George Pariwa on 17th February 2014. On the middle of that report the doctor reported the following:
	
“Full mental status Assessment was done and confirmed;

•	General Appearance and Behaviour – self kept,
•	Thought of Speech -  not logic,
•	Mood – kept low, 
•	Intelligence – Only short term and impaired,
•	Insight – Not Intact,
•	Memory – Poor.”

17.	On 19th February 2014, this court issued an order for the offender to be transferred to Laloki Psychiatric Centre in Port Moresby to be medically examined by a psychiatrist. 

18.	The report from Laloki hospital shows that the accused was admitted to Laloki Psychiatric Centre on 14th April 2015. He was discharged on 10th November that year. According to that report, the accused physical ability and condition referred to by the doctor as “physically stable” and his and mental condition was described as “mental capacity stable.”

19.	If the accused had a mental condition before he committed the offence, he is entitled to an acquittal in terms of s.28 of the Criminal Code. Case law authorities establish that there is a presumption on sanity, and the onus is on the defence to establish insanity on the balance of probabilities: R v Agana Guguna (1965) N364. The Criminal Code further provides that on a trial of an accused person of an indictable offence who at the relevant time was not of sound mind, on such grounds, he may be acquitted. The above provision states:

	“592.	Acquittal on grounds of insanity.

(1) If on the trial of a person charged with an indictable offence it is alleged or appears that he was not of sound mind at the time when the act or omission alleged to constitute the offence occurred, the court shall—

(a) if it finds him not guilty, find specifically whether or not he was of unsound mind at the time when the act or omission took place; and

(b) whether he is acquitted on account of such unsoundness of mind.

(2) If in a case to which Subsection (1) applies the court—

(a) finds that the accused person was of unsound mind at the time when the act or omission took place; and

(b) says that he is acquitted on account of that unsoundness of mind,
it shall order him to be kept in strict custody in such place and in such manner as the court thinks proper pending a decision by the Head of State, acting on advice.

(3) In a case referred to in Subsection (1), the Head of State, acting on advice, may give such order for the safe custody of the person pending a decision by the Head of State, acting on advice, in such place or confinement and in such manner as the Head of State, acting on advice, thinks proper.

(4) Where a person is confined under this section, the Head of State, acting on advice, may at any time order that he be released from custody either unconditionally or on such conditions as are laid down by the National Executive Council.”

20.	The accused’s mother gave evidence of the accused having a distorted memory and she said, sometimes before the offence, he would sit and just ignore those sitting and talking to him and he sits and just looks around. To this court this would not be usual circumstances in a family environment. Obviously, there is no confirmed medical evidence from the accused or any witness to confirm the accused’s condition when he committed the omission. 

21.	There is no issue about identification and recognition. The accused was on the scene. He was in his house sleeping on the floor when his mother returned with Rodney. There is no evidence from the defence as to any other person who could have cut the victim on his head. 

22.	 The victim died from severe head injuries caused by a bush-knife. The court finds that the evidence by the prosecution leads this court to one conclusion that the accused committed the crime of murder: Devlyn David-v-The State (2006) SC881, see also John Beng-v-The State [1977] PNGLR 115 and The State v Tom Morris [1981] PNGLR 493.

23.	The issue now is that can the court find the accused guilty for what he did to the victim who was his own father? On the two medical reports, the one conducted at the Nonga Base Hospital was conducted first. It confirmed the status of the accused condition then saying at the time he was examined, he had a distorted memory. On his first appearance in court, the court observed that, his appearance was not normal. Due to his medical condition his lawyer requested the court to direct C. S Commander at Keravat to take the accused to a doctor for medical examination. The court gave orders accordingly. 

24.	Upon return from Laloki Psychiatric Centre, counsel advised the court that the accused condition was stable. This was not the case where the accused was unfit to plea in terms of s.569 of the Code. The matter was set for trial. The prosecution tendered documentary evidence and call two witnesses on the trial. After closing the prosecution case, the accused was warned to give evidence or make a statement or he could remain silent. He chose to remain silent. He also chose not to call any witness. There was no evidence from the defence about his condition prior to committing the crime.  

25.	The next issue is did the accused intend to kill the victim. The case of The State v Raphael Kuanande [1994] PNGLR 512 at 514, AJ Injia (as he then was) said:
“Intention is a matter which goes to the state of the accused’s mind at the time he acted. It may be proven by direct evidence of the accused’s expression of intention followed by the act itself or circumstantial evidence.”

26.	 As the Courts finds, for the accused to qualify and claim the defence of insanity under s.28 and s.592 of the Criminal Code, he ought to establish that, prior to the time he committed the offence, he was suffering from a mental condition. On the instant trial, though the prosecution evidence particularly that of the accused’s mother suggest that the accused may have been having mental disorder, there is no evidence to confirm if he was suffering from insanity condition. The later provision, i. e. s.592 may only be applicable where the court finds that the accused person was of unsound mind at the time when the act or omission took place. (SeeThe State v Enakuan Salaiausee also Goi v The Statesupra). 

27.	The accused raised a general denial. Where an offender raises the defence of insanity under s.28 of the Code, it means that he did not have the will or could not make up a decision about what he was doing due to his or her diseased mind. I bear in mind, the standard of proof required to prove insanity. According to case law authorities, it is the criminal standard. 

28.	 It cannot be mere assertions or mere allegations which fall short of such standard. The Court ought to be satisfied on reasonable grounds and must not have any doubts that the accused at that time was mentally affected and incapable of understanding what he did to his own father:

29.	Under s.592 (1) (a) (b) & (2) (a) (b) of the Code, if the court finds the accused not guilty because, he was of unsound mind at the time he committed the offence, or if the court finds that on account of such unsoundness of mind, this court is further required to order the accused to be kept in strict custody in a place and in a manner as the court thinks proper pending a decision by the Head of State acting on advice.

30.	 From all evidence, the court finds that the above situation was not the case here and s.592 (1) (2) is not applicable. Having said that, the court finds that on this killing, there is no evidence to show that, there was any intention on the part of the accused to establish that, the accused had any intention to kill the victim. This element must be established by the prosecution evidence. Evidence of intention or will to kill the victim is lacking on this trial.

31.   On the basis of the foregoing findings, the Court is of the view that, the accused be found guilty of a lesser charge. The Court returns a verdict of guilty to the lesser charge of murder. He is found guilty and convicted for the crime of murder under s.300 of the Criminal Code. 

_________________________________________________________________
The Public Prosecutor :	Lawyer for the State
The Public Solicitor     :	Lawyer for the Accused