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Nantisantjaba, Regina v [1963] PNGLR 148 (10 October 1963)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 148 - Regina v Nantisantjaba

[1963] PNGLR 148

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

NANTISANTJABA

Kainantu

Smithers J

10 October 1963

APPLICATION OF CODE DEFINITION “PROVOCATION” - Meaning of “act done in heat of passion” - Evidence required to raise defence of provocation - Criminal Code S.S. 268, 269 and 304.

The deceased, Onkonbe, was one of three wives of the accused. She had complained to accused because of his neglecting her in preference to one of the other wives but the accused rejected her complaints. Onkonbe cut down some corn in one of the accused’s gardens, whereupon the accused, on learning of his wife’s action, became angry and killed her with knife and arrow.

The Court found as a fact that Onkonbe’s actions, though making the accused angry, were not such as to deprive an ordinary native of the power of self-control.

Held:

that:

(i)       The phrase “with reference to an offence of which an assault is an element” occurring in the definition of provocation in the Criminal Code (S. 268) does not restrict the application of that section to those offences which are expressly stated to include an assault as part of their legal constituent. These words must be given a broader interpretation so that the definition covers those offences in the commission of which an assault may be carried out.

(ii)      The defence of provocation set out in S. 269 is applicable as much to case of manslaughter as to other crimes of violence when an assault is actually committed; and in both instances the term “provocation” is defined in S. 268.

(iii)     There must be some actual evidence of provocation before the Court before a defence of provocation is properly raised but it is not necessary for the accused to satisfy the tribunal that the essential elements of the defence of provocation are established. It is sufficient for him if the tribunal on a consideration of such evidence of provocation as is given is not satisfied that all or one of those elements are missing.

(iv)     The term, an act done “in the heat of passion” in S. 304 of the Code means an act performed by a person when his mind is under the dominence of passion and an element of non-rationality is present.

The accused was found guilty of wilful murder.

Counsel:

Croft, for the Crown.

(a)      Whatever the result of the interplay of S.S. 268. 269 and 304 may be, the words “in the heat of passion caused by sudden provocation, and before there is time for his passion to cool” in S. 304 must be given full force and effect. The words “in the heat of passion” refer to a state of irrationality and not to mere anger. Hayward (1833) 6 G. & P. 157 at 159 referred to.

(b)      On the present facts there is no evidence of any of the above elements, and the defence of provocation cannot properly be raised.

(c)      There is evidence of anger, as might be expected in a crime of violence. But this of itself cannot raise the defence. Defence Counsel’s submissions and speculations on the accused’s state of mind cannot fill this gap. While there is no onus on the accused to establish any element of the defence of provocation, this defence was not available at the conclusion of the Crown case, and it could only become available if the defence introduced evidence to supply the missing elements.

Germain, for the defence.

(a)      Defence of provocation was properly raised for there was evidence (i) of a provocative incident, (ii) that the accused was thereby angered, and (iii) that his reaction followed immediately on the provocation.

(b)      Provocation for the purpose of S. 304 of the Code is not defined by 1963. the Common Law and in this particular case it matters not whether the definition of provocation is defined by reference to S. 268 or a dictionary. The term “heat of passion” infers merely a degree of anger sufficient to sweep away normal restraint and to cause loss of self control. An intent to kill may well exist in such a “heat of passion” but it would more accurately be described as a hot blooded intent.

(c)      Evidence of anger may be sufficient of itself to establish loss of self-control. The Crown has not displaced the onus of proving that a reasonable man would not have reacted as the accused did. The onus is not on the accused to prove that his actions were that of a reasonable village man of the area.

(d)      Proportion between the provocation offered and the reaction which follows is not a part of S. 304, except in so far as it would assist the Court in ascertaining whether or not the accused has reacted as a reasonable man.

C.A.V.

SMITHERS J:  Nantisantjaba is charged with the wilful murder of his wife Onkonbe. The evidence discloses that Nantisantjaba had three wives and that on one occasion he proposed to take with him into the garden for conjugal purposes a wife other than Onkonbe. Onkonbe complained about this and urged that she should be taken into the garden in lieu of the other wife. No doubt she added a complaint in general terms that she was being neglected.

Nantisantjaba rejected Onkobe’s complaint, and by way of reprisal, Onkonbe cut down an unspecified quantity of corn which was growing in one of Nantisantjaba’s gardens. Although this corn was ready for harvest, it seems to be conceded that this was misconduct on the part of Onkonbe as between her and Nantisantjaba.

It is relevant to observe that the evidence is that Nantisantjaba had “plenty” gardens.

On discovery of and by reason of Onkonbe’s misdeed, Nantisantjaba became angry and fired one arrow into her neck, and then into her side, and struck her a blow on the head with a knife, and she died.

Mr. Germaine has argued that on these facts there is sufficient evidence to support a defence of provocation and that the accused cannot be convicted of any crime more serious than manslaughter.

I would not find as a fact that the conduct of Onkonbe was not a wrongful act of such a nature as to be likely to induce an ordinary native to assault the person committing it. I assume it was done “to” the accused within the meaning of Section 268.

I find as fact that although it made the accused angry, it was not likely to deprive such a native of the power of self-control. If this finding is correct, then “provocation” as defined by Section 268 is negatived. It is argued, however, that this finding of fact is not justified and that I should deal with the case on the basis that there is sufficient evidence of provocation within Section 268 to preclude me from having a sufficient degree of satisfaction that such provocation does not exist.

It is said that on that basis I would not be able to be satisfied that the accused did not commit the fatal acts in the heat of passion caused by sudden provocation. See Section 304. It is because of the warmth of Mr. Germaine’s argument in this respect that I am moved to write this judgment.

I agree with the conclusion of my brother Ollerenshaw in The Queen v. Zariai[ccvi]¹ (7th June, 1963), that acts or insults having the characteristics set forth in Section 268 constitute provocation within the meaning of that word in Section 304. But I do not think that this follows naturally from the words of Section 268. Section 268 is a statement of the meaning to be given to the word “provocation” where it is used “with reference to an offence of which an assault is an element.” The phrase “elements of an offence” is normally used to mean the legal constituents of an offence. See Menzies, J. and Dixon, C. J. in R. v. Reynhoudt[ccvii]² and indeed the letter of Sir Samuel Griffith himself dated 29th October, 1897, and set out in Carter’s Annotations to the Criminal Code at p. 42. See also Sholl, J. in R. v. Carter[ccviii]³.

Thus in normal legal parlance the elements of wilful murder under the Code are that death was caused by the accused directly or indirectly with an intention to kill or cause grievous bodily harm and in such circumstances that the causing of death was unlawful, that is, not justified, authorized or excused by law. That is, so to speak, the pleading of the Crown.

It is true that in cases where murder is alleged an assault is commonly the cause of death. But all the elements of the offence of murder will be present in many cases where there is no assault. On the other hand, where death is caused by an assault, proof of the assault is merely proof of a fact from which by itself, or in conjunction with other facts, the inference may be drawn that one of the elements, such as intent, cause, or unlawfulness, is present.

It seems to me no more apt to say that an assault is an element of murder than to say that driving a motor car at high speed is an element of manslaughter.

It would be strange indeed that the learned authors of the Code would use the expression under discussion in a loose or, perhaps one should say, broad way to mean “an offence in the commission of which an assault may be committed.”

For myself, therefore, I would be unwilling to accept the view that the expression in question is used in this broad way unless such a view was inescapable in the light of the other provisions of the Code. I think it is inescapable. The opposing contentions appear in the judgment of Stanley, J. in R. v. Sabri Isa[ccix]⁴ perhaps more fully than in that of Ollerenshaw, J. in R. v. Zariai[ccx]⁵.

Both these learned Judges approach the matter on the basis that where in the commission of a crime of violence, such as unlawful wounding or unlawfully doing grievous bodily harm, a provoked assault has been committed and the conditions expressed in Section 269 are satisfied, the accused is entitled to be acquitted. Stanley, J. and O’Hagen, A. J. in Sabri Isa’s case[ccxi]⁶ indicate an opinion that the same is true of manslaughter. Indeed they refer to a long judicial practice, adopted apparently by Sir Samuel Griffith himself, in implementation of this view.

There is an expression of opinion by Philp J. in R. v. Martyr[ccxii]⁷ that this is not in accordance with law. His Honour states that although in a particular case Section 269 may relieve a person committing an assault from criminal responsibility for the assault, that is not material should death have resulted from the assault, to the question whether the killing was justified or excused. He adds that the Code provides specific provisions, such as Sections 23 and 24, which deal generally with responsibility and they apply to all offences including manslaughter.

With great respect to this opinion, it does appear to run counter to the authority of long practice. Also it appears to proceed without sufficient regard to the elements of the offence. The offence of unlawful killing (manslaughter) requires not only a death but that it should be proved that the accused directly or indirectly caused the death by some means or other. If in respect of the means, for instance, an assault, by which the death was caused the accused is declared by law to be free of criminal responsibility, then it is difficult to see how he can be criminally responsible for causing the death.

In addition, this view is a concession to the conception that the offence of manslaughter under the Code is a strict and brittle thing, not only bereft of the softening features of that offence at Common Law, see R. v. Longley[ccxiii]⁸ but unrelieved by reference to real life situations and incidents save to the limited extent provided in Sections 23, 24 and 25. See R. v. Martyr[ccxiv]⁹, R. v. Vallance[ccxv]¹⁰, Per Windeyer J.

It appears to me therefore that Section 269 can provide a defence to manslaughter and other crimes of violence in the course of which an assault is committed.

If this is so then the case for interpreting Section 268 in the broad way seems to me to be irresistible. If Section 269 applies to the class of crimes like unlawfully doing grievous bodily harm, of which an assault is not an element in the strict sense, as it does to those offences of which assault is an element in the strict sense, then the word “provocation” in Section 269 has to do service for both of those classes of offences. Provocation referred to in Section 269 must be that defined in Section 268. Therefore the definition in Section 268 extends to both classes of cases.

Similar considerations apply in respect of manslaughter. In the case of a charge of wilful murder arising out of a fight in which blows have been struck on both sides, it would in most cases be necessary to direct the jury that the possible verdicts were wilful murder, murder or manslaughter. In such a case the accused might well plead that he was not guilty because the relevant conduct on his part constituted an assault, that that assault was provoked, that all the conditions of Section 269 were satisfied and that he therefore was entitled to a verdict of acquittal on all counts. He might plead in the alternative that if the conditions necessary to relieve him from all criminal responsibility under Section 269 were not fulfilled, nevertheless there was provocation and he did what he did in the heat of passion, and therefore at most could be found guilty of manslaughter. It would be necessary in such a case for the Judge to direct the jury with respect to provocation both under Section 269 and Section 304. It would be extraordinary if provocation meant something different in relation to Section 304 from what it does in Section 269.

One is therefore driven to conclude that the words “with reference to an offence of which an assault is an element” are to be interpreted as “with reference to an offence in the commission of which an assault may be committed.”

This seems a very reasonable state of affairs because it could hardly be thought that a Code which was designed to dispose as far as possible with reference to the Common Law, should suddenly revert to the Common Law for the purpose of one aspect of the subject of provocation, a subject to which the authors had given detailed consideration and devised novel provisions. The other alternative would be that for the purposes of Section 304 one was relegated to an ordinary dictionary meaning. This seems equally unlikely for the same reason and also because the subject matter is one of so much technical legal learning.

If then provocation in Section 304 includes a wrongful act of such a nature as to be likely when done to an ordinary person to deprive him of the power of self-control and induce him to assault the person by whom the act was done, it is said that Onkonbe’s act falls within this category, or at least that I could not find that it did not.

As indicated above I do not agree with this view. If, however, it were the correct view, there would be provocation, but before it would operate to reduce wilful murder to manslaughter, the evidence must be such that at least the tribunal is not satisfied that the accused did not act in the heat of passion caused by such provocation considered as something sudden, and before there was time for the passion to cool.

It is true that the onus is on the Crown throughout the trial in respect of every issue, save insanity where it is raised, but before an issue of what may be compendiously called provocation arises at all, there must be evidence of provocation. Sometimes it is said that the evidence must be sufficient to raise a prima facie case to support a finding in favour of the accused. But it is not necessary for the accused to satisfy the tribunal that the essential elements of the defence of provocation are established. It is sufficient for him if the tribunal on a consideration of such evidence of provocation as is given is not satisfied that all or one of those elements are missing.

In the present case it is perhaps correct to say that the evidence to support a defence of provocation is so slight that the issue is not raised at all. There is no evidence of anything more than a provocative incident. But I am quite satisfied that the deceased did not act in the heat of passion. It seems to me that these words are critical in relation to this problem and that the argument submitted by Mr. Germaine misconceives their significance. He says that when it is established that provocation has caused anger the question is only one of degree and he asks how the tribunal can measure the degree of anger of a bush native. He says “in the heat of passion” simply means “very angry”. In my opinion it means much more than that.

Provocation referred to in Section 304, as defined by Section 268, is thought by many to provide a gateway from murder to manslaughter too wide and easy by far. If, however, its ease is conditional upon provocation having caused in the mind of the persons concerned an abdication of reason in favour of passion, an effective limit is established.

The doctrine of provocation at Common Law depends upon a negativing of malice. The Code does not deal with notions of malice but the use of the expression “in the heat of passion caused by sudden provocation” is in the traditional language of the great lawyers in their treatment of provocation in relation to the crime of murder. It does not seem improper therefore to consider what meaning was attributed to the particlular aspect of the Common Law defence of provocation in relation to which such language was used.

Constantly repeated in the language on this subject are the expressions “sudden provocation” and acting “on the sudden” and “in the heat of passion”. Tindall, C. J. in R. v. Hayward[ccxvi]¹¹ refers to “provocation so recent and so strong that the prisoner might not be considered at the moment the master of his own understanding, in which case the law in compassion of human infirmity would hold the offence as manslaughter only, or whether there had been time for the blood to cool and reason to resume its seat, before the mortal wound was given, in which case the crime would amount to murder.” See also Goddard, C. J. in R. v. Duffy[ccxvii]¹². See also the opinion of the Privy Council in Attorney General for Ceylon v. Perera[ccxviii]¹³ and Lee Chung Chuen v. Regina[ccxix]¹⁴.

According to East’s Pleas of the Crown 1803 I 238 provocation which would extenuate guilt is only such “as the law presumes might in human fraility heat the blood to a proportionable degree of resentment and keep it boiling to the moment of the fact, so that the party may rather be considered as having acted under a suspension of reason than from any deliberate malicious motive.”

It may therefore be fairly stated that an act performed in the heat of passion caused by sudden provocation for the purpose of Section 304 is an act performed when the performer is in such a state of mind that an element of non-rationality is present and the mind is under the dominance of passion.

This state of mind is something quite different from mere anger which can well exist alongside reason and often because of it.

There is no evidence in this case to cause me to think that there had occurred in the mind of the accused a transition from anger to heat of passion in the sense to which I have referred.

The requirement that the mind of the accused must be in this state of unreason may explain the absence of an express requirement in relation to murder that the accused should have been caused to lose his self-control.

In this case I would also find that the element of suddenness of the provocation is missing. When the statute talks of sudden provocation which may cause a man to act in the heat of passion, I think it contemplates an event which arises on the sudden and has in it elements of shock, surprise, or gravity which may cause spontaneous unreasoning passionate action. I cannot see these elements in the cutting down of this crop of corn.

The accused is therefore convicted of wilful murder.

It is of course true that the accused may refrain from going into the witness box and no inference is to be drawn against him for so refraining. In relation to a plea under Section 304 however, there is the danger to the silent provoked accused that there will be vital gaps in the evidence. Provocation is a matter on which there must be evidence even to put the tribunal in doubt on the issues which are involved in it. The accused knows the state of his mind. There are inevitably many cases where the gaps can be filled by no one but the accused.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the Accused: W. A. Lalor, Public Solicitor.

ence>[ccvi]R. v. Zariai (Ollerenshaw, J.) (7th June, 1963).

[ccvii](1962) C.L.R. (Menzies, J. at p. 402) (Dixon, C. J. at p. 402)

[ccviii](1959) V.R. III.

[ccix](1952) St. R. Qd. at p. 269.

[ccx]R. v. Zariai (Ollerenshaw, J.) (7th June, 1963).

[ccxi](1952) St. R. Qd. at p. 269.

[ccxii](1962) St. R. Qd. at p. 398.

[ccxiii](1962) V. R. 137.

[ccxiv](1962) St. R. Qd. at p. 398.

[ccxv]A. L. J. R. 182, 191.

[ccxvi](1833) 6 C. & P. 157.

[ccxvii](1949) 1 All E.R. at p. 932.

[ccxviii](1953) A.C. at p. 200.

[ccxix](1963) 1 All E.R. at p. 79.