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Rumints, Regina v [1963] PNGLR 81 (29 August 1962)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 81 - Regina v Rumints-Gorok

[1963] PNGLR 81

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

RUMINTS-GOROK

Mount Hagen

Smithers J

28-29 August 1962

CHARGE OF WILFUL MURDER - Primary cause Adultery Regulation 84 (2) - Native Administration Regulations 1924 - Defence of provocation under Section 304 of the Criminal Code (Queensland adopted) - Provocation considered with particular reference to its application in a primitive society.

The commission of adultery by one native spouse is a wrongful act done or offered by that spouse to the other within the meaning of Section 268 and in certain circumstances may constitute provocation for an assault. An assault committed after the prisoner had pondered the fact of adultery and pursuant to a decision made to kill unless the erring spouse forthwith abandoned the adulterer and returned to the prisoner and after the erring spouse had rejected this course was held not to be committed in the heat of passion caused by sudden provocation within the meaning of Section 304 of the Criminal Code.

Counsel:

Bowen: for the Crown.

Cruickshank: for the Accused.

SMITHERS J:  On the 29th August, 1962, at the Criminal Sittings of the Supreme Court at Mount Hagen in the Western Highlands District the abovenamed Accused was found guilty of the wilful murder of one Nerimp his wife.

Rumints is a man of about twenty years and his wife was about the same age. They were married about two years before the killing. The marriage had been marred by unfaithfulness on the part of Nerimp with a man called Tiki. This had occurred on a number of occasions in 1961 and Rumints had taken the guilty pair before a “Court” presided over by one called Numba-Tambuga who ordered that Tiki should pay to Rumints a well-grown female pig and a kina.

Rumints came from a village called Kainimbu, which was some considerable distance from the village of Maiaga, where the parents of Nerimp resided. For some time after the marriage the parties lived at a place a few hours’ walk from Maiaga, but after the adultery Rumints took his wife to live at Kainimbu. Before taking her to Kainimbu, he had discussed the matter with the Patrol Officer to make sure that he had a right to do this as his wife was objecting to the change. After the parties had remained at Kainimbu for about a month, the wife persuaded Rumints to return to the house of her parents at Maiaga for a visit, saying that she would return to Kainimbu later.

On arrival at the parents’ house Rumints received a cool welcome and was told by the mother that he lived too far away and that the place, Kainimbu, was too cold for Nerimp, and that she wanted Nerimp to be married to a man, Kongoba. Kongoba was known to Rumints. Kongoba and his wife and pigs had lived in one half of a house, in the other half of which Rumints and his wife had previously lived. Rumints had built this house.

Nerimp heard this talk of her mother. One day shortly after they had returned to the parents of the wife, a pig was killed and eaten by the parents and Nerimp and Rumints, but the next day the parents told him that he was no longer welcome. As he was sick, he slept in the house of some other man but returned the next day to the parents to seek food. The mother told him that she had no food. He inquired for his wife and was told by the mother that she did not know where she was.

Rumints suspected that Nerimp had gone to Kongoba at the house which he and Kongoba had previously occupied, and that night he set out to go there. He arrived “when the first fowls were crying” and took up a position to watch the two doors which gave access, one to each half of the house.

By this time he was thoroughly roused and he had decided in the course of the long walk that if his wife had really gone to Kongoba, he would kill the first one of them to come out of the house. Both came out of the same doorway. Kongoba was the first to come out; Rumints did not attack him. Nerimp emerged shortly after Kongoba and went to the privy house. Rumints followed her. She saw him and tried to run from him but the bush was too thick. He caught her by the arm and they talked.

In effect he said to her that he knew that she had had sexual intercourse with Kongoba but that he would not be cross about that if only she would go back to her parents’ house with him then. She did not deny the adultery but refused to go with him and suggested that they should have some “legal arrangements,” by which he thought that she was suggesting a divorce. He says he thought that she would tell some lies and that the marriage would be broken and he did not want that to happen. So he grabbed her left hand with his left hand, and with his right hand he took his axe and struck her on the back of the skull. She fell and he struck her two more blows, and she died.

At the trial Kongoba denied that he had slept with Nerimp on that night, but I believe that he did, and that Rumints genuinely believed that he had.

The charge in this case is wilful murder and subject to the question of provocation the Crown has proved a case of wilful murder.

The Accused killed his wife otherwise than in self-defence and the blows were intended to kill.

Section 304 says however that if he killed in the heat of passion the result of sudden provocation the crime is manslaughter and not murder.

It is a condition of this that there has not been time for his passion to cool.

The definition of provocation in Section 268 which according to some authority applies to the word “provocation” in Section 304 defines provocation as a wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive him of the power of self control and to induce him to assault the person by whom the act or insult is done or offered.

According to the law of England murder will be reduced to manslaughter if a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the violence actually used with fatal results. See Holmes’ Case[xci]¹.

It will be seen that the law of England measures the critical degree of provocation by reference to its likelihood to produce the actual violence used whereas the Queensland Code measures it by its likelihood to induce a mere assault.

In addition Section 268 of the Code recognizes that mere verbal insults may constitute a sufficient inducement and may thus constitute exculpatory provocation.

Assuming that Section 268 of the Code is applicable to murder, the question before me is whether I am satisfied beyond reasonable doubt that the Accused did not kill in the heat of passion caused by a wrongful act or insult which if done to an ordinary man would have caused him to lose the power of self control and assault the person concerned.

As in the search for the reasonable man in this Territory, the man in the lap lap takes the place of the man on the Clapham omnibus, so for the exemplification of the ordinary man one must take the ordinary native living the rural life of low standard led by the Accused and his relatives and similiar lines. See Kwaku Mensah v. Regina[xcii]².

The first question is whether there was any wrongful act or insult done or offered to the Accused.

I assume for this purpose that the Accused believed on reasonable grounds that his wife had committed adultery in the hours preceding the crime.

Whatever the position with respect to Europeans in this Territory or residents in other jurisdictions, it is unlawful for a native to commit adultery. This arises out of Regulaton 84 (2) of the Native Administration Regulations. Is then a wife’s act of adultery something “done to” the husband? Although it is not physically done to him, I think that the act so closely touches and involves the relationship established between the spouses by marriage that when performed it is necessarily something done to the other spouse, no matter how far away or even how ignorant he or she may be when it is performed.

The adultery was therefore a wrongful act done to him. The next question is whether the discovery of adultery in the circumstances of this case by an ordinary man like the Accused would be likely to cause him to lose his power of self control.

For practical purposes the law of England appears to have elevated to the status of rule of law the view that with respect to provocation based upon adultery, only the discovery of a spouse in flagrante delicto can be regarded as sufficient to induce loss of control which will lead to violence which actually kills and that a mere confession of adultery even if sudden and unexpected will not be sufficient. It is pointed out however that this depends upon the view that modern English society has reached a stage of sophistication such that it could not be thought that adultery not committed within sight could be sufficiently disturbing to induce loss of control sufficient to lead to lethal violence. See Holmes’ Case[xciii]³.

I think therefore that I must ask myself the critical question, keeping in mind that I am dealing with a society primitive in all respects. I answer the question by saying that I am not satisfied beyond reasonable doubt that the commission of adultery in the circumstances of this case and the later discovery thereof would not cause an ordinary native to be deprived of the power of self control and induce him to assault the woman.

I feel that it is quite likely that an ordinary native who found that his wife had committed adultery in his own house would lose his power of self control and assault her. I certainly cannot feel sure that he would not.

The question arises however whether the Accused did in fact kill in the heat of passion.

I am aware that exculpatory provocation has been found to exist notwithstanding the passage of quite a substantial time from the occurrence of the act constituting the provocation. See Attorney-General for Ceylon v. Kumarasinghege Don John Perera[xciv]⁴. I remember also that the passion of a member of a primitive race may remain alive and heated for periods much greater than that of a more sophisticated person.

This has been pointed out by Kriewaldt J. in relation to the aboriginal natives of Australia. See Criminal Law Review 1961[xcv]⁵, where the relevant cases are conveniently discussed by Mr. Colin Howard. See also Western Australian Law Review Vol. V P. 1. of December, 1960.

However I am satisfied beyond reasonable doubt that the Accused did not act “in the heat of passion” within the meaning of those words in Section 304.

The Accused being suspicious of his wife, walked all night to the place where he suspected she would be sleeping with Kongoba. He took up a concealed position to observe the premises. His passion was not so high that it caused him to rush the house. He was sufficiently in control of his passions either to consider and respect the perils of a serious fight with Kongoba or deliberately to exercise the role of a detective. I think the only reasonable inference is that while there he thought over the matter and he decided by reasoning, not in the heat of passion, that if she would come home with him, all would be well, but if she would not, he would kill her. After she emerged from the house he chased her and caught her and discussed the matter with her. He asked her to come home. She made it plain that she would not come with him and that she wanted a divorce. He says that he feared she would tell lies about him and he did not want that to happen. This thinking may have been connected with his problem of establishing a right to the return of the bride price he had paid for her.

However, this may be, I cannot attribute his activity in actually killing her to uncontrolled burning passion. It was more in the nature of the execution of a judgment deliberately made. There and then he gave her in effect so far as his mind is concerned, the option of coming with him, renouncing Kongoba and his works, or refusing to do so, he having made a well settled decision as to what was to happen if she refused.

When he struck it was not because he had lost the power of self control but because he had settled on that course of conduct.

It is said on his behalf that her implied admission of adultery as they talked and her refusal to give up the adulterer was either a renewed wrongful act or an insult sufficient in itself to give the provocation required. I do not think however that this does constitute such a wrongful act as the statute contemplates and I do not think that it constituted an insult. Although it would be hurtful and reduce the prestige of the Accused, it was in fact a statement of fact and intention which the woman’s decision for the future and her past acts rendered inevitable. She could not do otherwise than inform him of her decision.

In the definition of provocation in Section 268, there is no stated requirement that the Accused shall himself have been deprived of the power of self control. It is only stipulated that the wrongful act or insult shall be of a kind which would deprive an ordinary person so stimulated of the power of self control and cause him to assault the person offering the provocation. The only expressly stipulated condition of the required state of mind of the Accused is that he shall have acted in the heat of passion caused by sudden provocation. I interpret this phrase as requiring that the Accused has acted not only while in a state of extreme anger but when the passion has caused him to cease to be the master of his own understanding. I think that I could not be satisfied that this man did not act whilst still in a state of extreme anger but I am satisfied that this anger had not caused him to cease to be the master of his own understanding or in the words of Section 268 to lose the power of self control.

He must act not only while hot with anger but in the heat of his anger in the sense that anger has taken the place of reason.

It is quite possible that I am reading too much into this phrase, although in view of what is said in Perera’s Case[xcvi]⁶, I do not think so.

There is one other feature of this case which I think deprives the Accused of the benefit of Section 304. It is a stipulation that he must act in the heat of passion caused by provocation which is sudden. In this case the Accused suspected his wife all night during his long walk and during his unspecified period of vigil waiting for confirmation of his suspicions. The only sudden event was the confirmation of his suspicions. This did not take him by surprise. It was what he expected. 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 and surprise or gravity which may cause spontaneous unreasoning passionate action. I am satisfied beyond reasonable doubt that the adultery which he suspected all night and the discovery of it in such circumstances that he was acting as a kind of detective did not possess these qualities.

I am confirmed in my view that he did not act without understanding or without the power of control by the statements of the Accused which I think show rather that he reasoned out his position and adopted a rational course of action; namely, to attempt to persuade her to come with him and to act according to the result, than that he acted from passion and unreason.

If I should be looking at the question of provocation from the point of view of the features which constitute exculpatory provocation at Common Law, the facts do not provide a basis of provocation. There is much too much deliberation in the Accused’s conduct.

Accordingly the Accused will be convicted.

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

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

[xci] 1946 A.C. 588 at p. 597.

[xcii]1946 A.C. 83.

[xciii]1946 A.C. 588.

[xciv] 1953 A.C. 200.

[xcv]Criminal Law Review 1961 page 41.

[xcvi] 1953 A.C. 200.