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Womeni-Nanagawo v Regina [1963] PNGLR 72 (18 July 1962)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 72 - Womeni-Nanagawo v Regina

[1963] PNGLR 72

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

WOMENI-NANAGAWO

Kerema

Ollerenshaw J

18 July 1962

IMMATURITY - Insanity - Criminal responsibility in the Territory - The Criminal Code Sections 27 and 29.

It is no defence to a criminal charge for an Accused person of sound mind who has attained the age of fourteen years to show that he did not in fact have the capacity to know that he ought not to do the act or make the omission: Section 29 does not by inference introduce a defence available to persons who have attained the age of fourteen years.

The word “natural” in the phrase “natural mental infirmity” in Section 27 does not mean “uncultivated” or “unsophisticated”. The phrase “natural mental infirmity” embraces forms of insanity or unsoundness of mind not comprehended by the phrase “mental disease” in the same Section.

Criminal responsibility under the Code and its application to primitive peoples of Territory discussed.

Counsel:

N. H. Pratt: for the Crown.

R. W. Cruickshank: for the Accused.

JUDGMENT

OLLERENSHAW J:  The Accused is charged under Section 301 of the Criminal Code that on or about the tenth day of April, 1962, he wilfully murdered Yebo-Iabowa.

This crime is alleged to have been committed some few hundred yards from the village of Himbauwa, where Yebo lived, and on or near a track that runs from the houses of the village, past its gardens and through the bush.

The Accused person and the alleged victim were related, probably cousins. They were friends and playmates. Yebo had frequently gone with his brothers Makenaini and Pemari to Apiape, where Womeni lived. There these boys played and went about together, swimming when it was hot, and doubtless hunting together and so on and Womeni hospitably used to find them food. They usually carried their bows and arrows. Yebo, who had not yet reached puberty, was the youngest of the three brothers and was frequently referred to by the witnesses and by the Accused as “the small boy.” He had a smaller bow than Womeni, who was the eldest of these boys. Womeni’s bow, Exhibit “B”, measures 5 feet 3 inches in length. It is a stout weapon, expertly made from black palm with its ends fashioned to points. Womeni’s arrow, Exhibit “C”, of cane with a black palm head, measured 3 feet 8 inches.

Womeni sometimes returned the visits of the brothers and joined them at Himbauwa. Their friendship probably stemmed from the time when they all lived at Apiape. One witness said that the Accused was a brother of the mother of Yebo, that they had the same mother but different fathers. Whatever the relationship is it is fairly close.

The two villages were said to be about a day’s walk apart. It would appear that they are situated not deep in the hinterland from this long-established seaboard station of Kerema. However, these people of Kukukukus, feared by neighbours and famed afar, even in these primitive lands, for their treacherous savagery, their skill with the bow and otherwise as bushmen, their forays for plunder and their murderous raids.

It is not, perhaps, surprising that until recently the missions as well as the Administration have tended to prefer for their earlier attentions peoples with less intractable dispositions. Pemari said in evidence that Aeola, the native police constable who arrested Womeni, was the first official person he had ever seen in the village and Womeni was the first man known to Makenaini to have been arrested in his village - I think he meant from among his people - for killing a man.

I would think that there could be little if any doubt that the more senior inhabitants of these Kukukuku villages would have been aware that over the way or the hill there was a force, namely the Administration, that forbade killing and punished killers. How far this awareness had penetrated to the junior citizens, such as the Accused, I do not know.

The main, if not all the facts are not in dispute and to the extent to which some minor matters of detail may not be admitted my findings expressed in my recital of the facts and elsewhere in this judgment will meet the case.

Both Makenaini, who was nearby or within earshot, when Womeni’s attack on Yebo commenced, his brother Pemari, who assisted him to bring the body into the village, and Constable Aeola, who arrested Womeni, gave evidence for the Crown and Womeni’s brief statement before the committing magistrate: “My sister died so I went and killed the boy Yebo” was tendered and admitted in evidence. Womeni himself gave evidence before me and confirmed, if that were necessary, the significant facts relied upon by the Crown.

It appears clearly enough that Womeni, who admitted in evidence that he had arranged things so as to effect his purpose in secret, lured Yebo to a suitable spot under the pretext of wanting him to climb a betel nut tree and then, from a distance of some fifteen yards, shot an arrow into the front of his body just below the thoracic region. Makenaini said that Womeni came upon Yebo from hiding. I think that Womeni’s story of his enticement of Yebo is the more probable, but no matter, Yebo fell to the ground and there Womeni, pushing a pointed end of his bow into the hole made by the arrow, probed the wound several times. Womeni, who believed that he had been unobserved and that Yebo was, as he desired now dead, took up his bow and arrow and ran off to his village.

Makenaini, who said he was some fifty yards away along the track, which was straight, heard Yebo call out once only his name: “Makenaini.” He came up to Yebo’s body after Womeni had gone off and saw that Yebo was dead. I am inclined to think that Makenaini did not see the initial attack on Yebo and that after Yebo’s call of alarm he hung back until Womeni had made off. He is only a boy in the process of puberty between twelve and thirteen years of age, younger than Womeni by some three years and significantly smaller in stature.

I have no doubt that he did go to Yebo’s body after Womeni’s departure from the scene and that he saw that Yebo was dead. He then got his younger brother, Pemari, whose evidence confirmed this, to come from the village and assist him to carry the body to its burial platform in or near a small house in the village. The bow and arrows which the witnesses said they saw in or near the body and were carried back by their mother were probably Yebo’s weapons and not Womeni’s. It appears that these people were crying as they made their funeral procession back to their village. There they built a platform and placed the body of the small boy upon it. They moved out of the house, in which or associated with which they erected the platform, and went to live in another house. The body was not covered with any leaves. It remained on the platform and when the police constable Aeola came to the village its bones, amid its decomposition were identified to him by Makenaini together with the Accused.

There could be no doubt that Womeni had achieved his intention of killing Yebo.

He claimed to the police constable, the committing magistrate and in his evidence in this Court, that he did this in retaliation for, the death of his young sister, which, apparently on her deathbed, she had declared was induced by sorcery made against her by young Yebo. It was not disputed by the Crown that Womeni had believed this story and I accept his explanation for his conduct. Indeed it was Makenaini’s and Pemari’s understanding of it. Such killings that is to say by way of retaliation for the death of a relative believed to have been brought about by sorcery, commonly feature in the lives of many other primitive native peoples of these Territories as well as the Kukukukus and contribute a not inconsiderable volume to the work of this Court.

I think, too, that it is not improbable that Womeni, who had reached the age at which his parents and people would regard it as fitting that he should be blooded by a human death, seized the opportunity to make his first kill. Not only would his victim have been indicated by his sister’s deathbed accusation but such a choice would have been favourably regarded by his parents for the reason also that the chances of retaliation in a blood-feud were reduced in that Yebo’s father was dead and his brothers were still youngsters.

There is evidence that Yebo’s mother, as well as his brothers, believed the explanation for her untimely death given by Womeni’s sister from her deathbed and that she was cross with Yebo for this exercise of sorcery. It appears that Womeni’s sister was quite a child. That parents, in their inability to understand the deaths of young persons and others before their time from disease and such like causes, and in their abiding belief that sorcery is the explanation, should seriously accept the unsupported accusations of very young children, affords striking evidence of the primitive condition of these people, or as Counsel for the Accused would call it, of their lack of sophistication.

Upon his arraignment, in which the essential facts and intent upon which the charge was based were recited, the Accused pleaded guilty, saying: “It is true”. Mr. Cruickshank then announced his appearance for him and announced that the facts were not in dispute but:

(1)      He desired to submit that the Accused was not of sufficient sophistication to be criminally responsible having regard to Section 29 of the Code:

(a)      insofar as it provides that a person under the age of fourteen years is not criminally responsible for an act unless it is proved that at the time of doing the act he had capacity to know that he ought not to do it. Mr. Cruickshank said that the Accused clearly was over the age of seven years (so that the irrebuttable presumption against criminal responsibility established by the first paragraph of the section was not available to his client) but he would ask for a ruling as to whether he was fourteen or over; and

(b)      in any event Section 29 also raised an inference that before a person over that age could be held to be criminally responsible it must appear that he had the capacity to know that he ought not to have done the act which constituted the offence; and

(2)      He also desired to raise a defence under Section 27 insofar as it provides that a person is not criminally responsible for an act if at the time of doing the act he is in such a state of “. . . . natural mental infirmity as to deprive him of . . . . capacity to know that he ought not to do the act”.

In these circumstances and notwithstanding the Accused’s plea I entered a plea of: “Not Guilty”.

At the conclusion of the Crown case Mr. Cruickshank submitted that there was no cause to answer in that it had not been established that the Accused had reached the age of fourteen years and the Crown had not discharged the onus of proving that the Accused had the capacity prescribed in Section 29, which I have already mentioned.

The Crown had called and qualified Thomas Waites, the Administration Medical Assistant at Kerema, who gave what, to my mind, was convincing evidence to the effect that the Accused was at least fifteen and probably sixteen years of age.

To assist Mr. Cruickshank in the defence of the Accused I then dealt with this question of the age of the Accused and I set out here the note I made thereon in the record of the trial:

“Section 71B of the Evidence and Discovery Ordinance 1913-1957 empowers me, having seen the Accused, to determine his age if I do not consider that there is sufficient evidence to determine his age. I am dealing with this matter now so as to assist Mr. Cruickshank in his conduct of the defence.

In my opinion the evidence as to age is all one way. I consider the evidence of Thomas Waites to be entirely satisfactory and such that I have no hesitation in accepting to establish beyond reasonable doubt that the Accused is now aged over fifteen years and must have been over fourteen years when Yebo was killed.

I therefore do not consider that it is necessary for me to exercise my power under Section 71B of the Evidence and Discovery Ordinance.

I would add that my own observation of the Accused confirms, to my mind, the opinion of Mr. Waites and if it were necessary I would determine the age of the Accused to be over fifteen years; but, in doing that I would be relying greatly upon the evidence of Mr. Waites as well as upon my own observation.

I rule, therefore, that there is a case to answer there being no special onus on the Crown under Section 29, which does not apply.”

In his final address Mr. Cruickshank said that he did not dispute the essential facts but, developing the theme of his argument fore-shadowed in (1) (b) in his opening intimation he submitted that they showed that the Accused killed in response to a feeling that he should kill to remove the shame of his sister’s death and revealed that he did not have the capacity to know that he ought not to have killed. He relied upon Section 29 which he submitted introduced by inference a new defence, whether intentionally or not, to the effect that if it were shown - and the Accused having been held to have attained the age of fourteen years he conceded that the onus under this inferred defence was upon him - that the Accused in fact did not have the capacity to know that he ought not to have killed then he could not be held to be criminally responsible for the killing. When Mr. Cruickshank submitted that before the Accused could be held criminally responsible for his act it must appear that he in fact understood that he ought not to have done it, it seemed to me that he had shifted out of the field in which the word “capacity” is used in Section 29. It appeared also that he was not relying upon immaturity, with which Section 29 is concerned, but upon the, to use his own expression, “unsophisticated environment” in which the Accused had been brought up in the primitive conditions of his native village, which Mr. Cruickshank maintained set standards of understanding for its individuals.

In commencing his final address Mr. Cruickshank said that he abandoned any defence under Section 27 but later, shifting back to (2) of his opening he said that while not relying upon insanity in the sense of a state of mental disease he did rely upon Section 27 insofar as it furnished a defence to an Accused person in “.... such a state of . . . . natural mental infirmity as to deprive him of capacity to know that he ought not to do the act.” He could not point to any evidence of mental infirmity other than the casual killing itself and he volunteered that from what had been observed of the Accused in Court, as well as the other Kukukuku witnesses, it appeared that they were of a high degree of intelligence.

His argument, however, was that the word “natural” in its context in Section 27 meant unsophisticated and the word “infirmity” meant weakness and he submitted that the whole of the facts showed that the Accused and the others were mentally weak. Their customs, their beliefs, in sorcery, their indifference to life in certain circumstances pointed to a complete lack of sophistication. Their attitudes and outlooks were of a mental nature showing, by our standards, elements of mental weakness and that the Accused in his mental processes had been affected by such lack of sophistication and was therefore in the naturally mentally weak condition mentioned in the section.

Doing the best I can with these strange defences, I would say that, to my mind, it is clear beyond rational argument that Section 29 raises no defence for persons who have attained the age of fourteen years and upon a finding, as there now is in this trial, that the Accused person is of that age, the force of the section is spent.

The section, in common with such provisions to be found in all criminal systems, deals with the important matter, which I may call in the words of the heading under which is appears: “Immature Age”. Under this Code a person is deemed to have attained maturity for the purpose of criminal responsibility upon his fourteenth birthday. Thereafter the criminal law provided in the Code assumes that a person has the capacity to know that he ought not to do the act for which he may be held criminally responsible. I would add here because it seemed to me that one of the confusions from which Counsel’s arguments emerged, to the extent to which they did emerge, was, as submitted by Mr. Pratt for the Crown, the confusion between capacity to know that an act ought not to be done and actual knowledge that it is contrary to law. Knowledge of the law is not a pre-requisite to criminal responsibility in the case of homicide: See Chapter V Criminal Responsibility. Section 22.

It may add usefulness as well as emphasis to this judgment if I touch on the position that would have arisen if Womeni had been under the age of fourteen years when he shot and killed Yebo.

In that event I would have to be satisfied, I take it beyond reasonable doubt, that when he killed the Accused had the capacity to know that he ought not to have done it. Leaving aside the question of capacity in its relation to immaturity, according to what standard should he have been able to judge and should it be judged that he ought not to have done it. Is it such a common law test as whether he had the capacity to know that his act was wrong according to the ordinary principles of reasonable men? In this context would “reasonable men” mean “reasonable Kukukukus”, if such there be?

It is not necessary for me in this trial to answer these interesting legal questions. I do, however, set out here the following findings which I have made as a jury and which I consider would have been relevant:

1.       That the Accused, in fact, did know that his act was a wrong towards Yebo, whom he lured unsuspectingly to death. Yebo, as the Accused knew, would have, as far as such a child could have, resisted the attack upon his person.

2.       That the Accused did know that his act was a wrong towards Yebo’s mother and brothers: he sought concealment from them or at least conditions in which he would not be interrupted. He knew that mothers usually cry for sons killed and although he said that he did not expect Yebo’s mother to cry, possibly because he had heard that she was angry with Yebo on account of his sorcery, he did anticipate that she would be “cross” with him for killing her son.

3.       There is another finding that I think a not uninformed jury would readily make upon the evidence in this trial and the inferences properly arising from that evidence and I make that finding:

That the Accused knew that but for Yebo’s killing of their daughter by sorcery, his own parents and his people would have considered his killing of his relative Yebo to be wrong.

To come now to Section 27. I have already recited the argument for the Accused based upon this section.

It is true that one of the dictionary meanings of the word natural is “uncultivated” and it may be true that “unsophisticated” is a fair alternative to “uncultivated”. However I believe it to be clear beyond argument that “uncultivated” or “unsophisticated” is not the meaning of “natural” in its context in this section.

I would not quarrel with the meanings ascribed by Counsel to the other words, namely: “mental” and “infirmity”.

In my opinion it is clear that the phrase “natural mental infirmity” is in this section to embrace forms of insanity or unsoundness of mind not comprehended by the phrase “mental disease”.

I do not think that there is any evidence at all that the Accused was suffering from a “mental disease” or any “natural mental infirmity” nor was there any sign of anything of that sort in his demeanour. The only thing Mr. Cruickshank could point to was the killing itself but here, in my view, the Accused revealed himself as an ordinary Kukukuku youth as normal as his fellows, with whom he played and who gave evidence before me.

Mr. Cruickshank expressed the desire to link Section 27 and Section 29, particularly because of the phrase “capacity to know that he ought not to do the act”, which appears in both: under Section 27, to relieve from criminal responsibility, the mental infirmity of an Accused person must be such as (inter alia) to deprive him of this capacity and under Section 29 an Accused person who is under the age of fourteen years cannot be held criminally responsible unless the Crown shows affirmatively that he had this capacity.

In both instances Mr. Cruickshank relied upon the primitive unsophisticated condition of the Accused and his arguments really amount to this one argument and to this one defence that the Accused did not have the capacity to know that he ought not to have killed, not because he lacked maturity (Section 29) nor because he was in a state of mental disease or natural mental infirmity (Section 27) but because he was a simple savage.

To what I have already said in dealing with the defence separately under each section I would add that this argument seems to fail fully to appreciate that long ago it was decided, if I may say so I think, wisely that the criminal law to be applied to the native populations of these Territories should be substantially the law already existing in our own civilization. The criminal law of Queensland, being conveniently to hand in a Code and, therefore, of unquestionable clarity was selected.

It should be clear from what I have said that, in my opinion, there is no implied defence to be found in Section 29, with or without the aid of Section 27, for primitive natives or their offspring any more than for Europeans or their offspring in the event of it happening, e.g., that a person is brought up by his European parents to believe that wilful murder is justified by some or other belief or doctrine favoured by such parents. Sects with beliefs as odd as the belief in the magical killing powers of sorcery and retaliation to remove shame are not entirely unknown and do crop up from time to time amongst civilized people in civilized places without relieving their members of their ordinary criminal responsibility.

The Code applies here to both Europeans and native inhabitants. Whatever may have been the arguments in favour of the introduction of modifications of that Code on account of and to meet the case of the primitive standards and beliefs of the native inhabitants who are found from time to time still living amid their native customs in their native environments, that course with its innumerable difficulties and problems was not followed. It was doubtless considered that such standards, beliefs, customs and so forth, could and would be taken into consideration by the judges upon the question of the proper punishment in each case.

Section 2 of the Criminal Code Amendment Ordinance of 1907 (Papua) may be cited with fitness here as a particular instance of this consideration inasmuch as it makes special provision for recording and not passing judgment of death where the trial judge is of the opinion that, in the circumstances of the case, it is proper that the offender should be recommended for the Royal Mercy.

In my view the only sound approach to the question of guilt in this trial is substantially that submitted for the Crown by Mr. Pratt in his spirited reply to the late attempt by Mr. Cruickshank to rupture a system of criminal law that has been accepted for years by the judges of both Territories and by the High Court of Australia in appeals from those judges.

The Accused is charged with the wilful murder of Yebo under Section 301 of the Code, which requires that it must be proved that he unlawfully killed Yebo and also that he did so with the intention of causing his death, that is that he had such intention when he made his attack.

Section 300 provides that a person who so kills is guilty of a crime.

Section 293 defines killing to include direct killing by any means whatever and Section 291 provides that it is unlawful to kill any person unless such killing is authorized or justified or excused by law.

I am satisfied beyond reasonable doubt that the Accused directly killed Yebo by means of a bow and arrow (Section 293), which he used against him with the intention of causing his death (Section 301).

Was such killing unlawful? This raises the question was it authorized or justified or excused by law (Section 291).

This enquiry involves a return to Chapter V, Criminal Responsibility, from which I have already cited Section 22, which provides, in effect, that in a case of unlawful killing ignorance of the law, that is that it is a crime unlawfully to kill, does not afford a defence.

It could not possibly be suggested that it is excused by Section 23, which negatives criminal responsibility for an act occurring independently of the will of the Accused or for an event which occurs by accident, and affirms that motive, such as retaliation for an earlier killing, is immaterial.

Section 24, “Mistake of Fact”, and Section 25, “Extraordinary Emergencies”, have no application to the facts of this case. I have already considered Sections 26, “Presumption of Sanity”, and 27, “Insanity”, and I have excluded them. Section 28, “Intoxication”, does not arise and I have already held that Section 29, “Immature Age”, does not apply because the boy had attained the age of fourteen years.

The remaining sections of this chapter of general principles relating to criminal responsibility do not apply with the significant exception of Section 36 which prescribes, in effect, that the provisions of this chapter apply to all persons that is, all indigenous persons as well as all European persons, charged with any offence against the Code.

No particular defences as provided elsewhere in the Code, such as self-defence; have been raised.

I conclude, therefore, that the killing of Yebo was not authorized, justified or excused and that it was, therefore, unlawful as well as intentional. There is no question of provocation so I cannot reduce the verdict to one of manslaughter under Section 304.

I find a verdict of guilty of the crime of wilful murder as charged and convict the Accused Womeni-Nanagawo accordingly.

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

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