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Sarufa, Regina v [1974] PNGLR 173 (26 August 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 173 - Regina v Sarufa

[1974] PNGLR 173

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

JOSEPH HAIAI SARUFA

Samarai & Port Moresby

Williams J

15-16 July 1974

21 August 1974

26 August 1974

CRIMINAL LAW AND PROCEDURE - Evidence - Confessions and admissions - Self serving statements induced therein by prosecution - Admissibility - Weight - Whole statement as evidence for accused.

EVIDENCE - Confessions and admissions - Self serving statements induced therein by prosecution - Admissibility - Weight - Whole statement as evidence for accused.

CRIMINAL LAW AND PROCEDURE - Wilful murder - Defences - Provocation - Failure of accused to testify to loss of self control not fatal - Inference may be drawn from surrounding facts.

On a trial for wilful murder in which the defence of provocation was raised,

Held

(1)      Facts, including self serving statements, related by an accused in a signed statement to the police put in evidence by the Crown, and in a statement made on oath pursuant to s. 103 of the District Courts Act 1963-69 and subjected to cross examination, are evidence in favour of the accused but must be considered along with all the other evidence in the trial, and the weight to be attached is a jury matter.

Reg. v. Williamson, [1972] 2 N.S.W.L.R. 281 followed.

Reg. v. Higgins[1828] EngR 201; , [1829] 3 C. & P. 603 referred to.

Reg. v. Sparrow, [1973] 1 W.L.R. 488 not followed.

(2)      Failure by an accused to testify to loss of control is not fatal to a defence of provocation: loss of self control can be shown by inference from the surrounding facts.

Lee Chun-Chuen v. The Queen, [1963] A.C. 220 followed.

Consideration of circumstances where defence of provocation held not to have been negatived by the Crown and verdict of manslaughter entered.

Trial

Joseph Haiai Sarufa was charged with the wilful murder of one Moe Allen, allegedly his customary wife and raised the defence of provocation.

Counsel

K. Egan, for the Crown.

J. McMaster, for the accused.

Cur. adv. vult.

26 August 1974

WILLIAMS J: This man is charged with the wilful murder of one Moe Allen on the 21st November, 1973 at Fife Bay.

[His Honour then outlined] “the background of the matter in order to show that there had been some months of matrimonial discord attended apparently with animosity between the parties and culminating in an unresolved question of the custody of the infant child.”

[His Honour then dealt with the evidence of some of the Crown witnesses and continued:] Constable Bunoda Gairai was another Crown witness. He said that upon hearing of the death of Moe he went to Suau Patrol Post with Mr. Quinn, the Assistant District Commissioner at Samarai. At the hospital he saw the dead body of Moe and also saw the accused who was wounded. The accused was then taken to Samarai Hospital. There the witness asked the accused how he had received his wounds. The accused replied, “When I killed my wife I ran away to the bush. I heard people were crying so I was sorry about her so I stabbed myself.” He then arrested the accused. The witness then went back to the Patrol Post at Suau and searched unsuccessfully for the knife. He found a suitcase apparently belonging to the accused and in this case found some papers. These he presented to the Coroner at a subsequent Coronial Inquiry and to the Magistrate on the committal proceedings.

These papers were put in evidence before me. They consist of four documents, one headed “To whom it may concern” dated 13th November, 1973, another headed “Message to the people in this house” dated 15th November, 1973, another (undated) is headed “English law and P.N.G. Custom”, and the last a letter dated 30th October, 1973 addressed to “Dear Moe”.

Dealing with the first of these documents it is admitted by the accused that it is in his handwriting and signed by him. It is a lengthy document but in substance it contains an account of domestic difficulties between himself and Moe and statements of complete dissatisfaction with the steps taken to sort out their domestic troubles and his non-acceptance of orders said to have been made in favour of Moe regarding the custody of the child. He also alleged unwarranted interference by Moe’s mother, Lauva Paul, and infidelity on the part of Moe. In this latter respect he referred to the letter to Moe dated 30th October, 1973 to which I have already referred. Towards the end of this document it is stated:

“... but this won’t come about the child, X and I won’t live to see Xmas. I have decided for the following reasons:

(1)      The dissolution of the marriage has been forced on us by X’s mother and relatives.

(2)      My wife has been forced into prostitution by the people we respected and trusted.

(3)      I don’t want my son to live with a prostitute so I am going to kill my child (Sarufa Joseph) X alias Mrs. Sarufa nee Moe Allen (my wife) and myself Joseph Haiai Sarufa.”

Written on the back of this document appear the words “Whoever finds this in my shirt pocket please give it to the nearest Government officer.”

The document dated 15th November, 1973, is also in the accused’s handwriting. This document contains statements that he could not tolerate the attitudes of Moe and her family and makes further charges of immorality against Moe. A number of side notes have been made on the document including, “Moe is going to have her throat cut tonight” and “Sarufa is going to be killed tonight”.

The document headed “English Law and (P.N.G.) Native Custom” is also in the accused’s handwriting. In substance it contains an account of the proceedings taken in the Local Court to resolve the marital difficulties between himself and Moe, and expresses the view that the “white man’s law is not suitable for the black man”. It states that “the Courts of law have been no help and when native customary law has been applied X and her relatives have refused to accept them too. I have therefore no other alternative but to take the matter into my own hands and settle it in my own way once and for all. X and her people have threatened to use sorcery on me if I don’t leave their village. If I die I will make sure that X and our baby dies too.”

I turn now to the medical evidence. Moe’s body was examined by Dr. Moore. He observed several wounds, the main one being at the base of the neck extending down to the chest cavity and which had completely severed the jugular vein. Other wounds observed were a small laceration over the thyroid cartilage, a penetrating wound to the left shoulder, a small wound over the left sternum and multiple lacerations to both hands. Dr. Moore had no doubt that death was caused by the wound to the base of the neck which severed the jugular vein. He expressed the view that assuming this wound to have been caused by a knife it would have required a considerable degree of force.

Dr. Moore also examined the accused. He observed three wounds to the body, one to the neck, one near the left postural margin, and one to the stomach. He described the wounds as very serious and such as to be likely to cause death. He also said the wounds were in areas accessible to a person wishing to stab himself.

I come now to the evidence of Constable Bogama Vai. He said that on 13th May, 1974 he formally charged the accused with the wilful murder of Moe. He was cautioned and then made a lengthy statement. This was written in English partly by the witness and partly by the accused. It was tendered in evidence by the Crown.

The document contains a long and detailed account of history of domestic difficulties between the accused and Moe. Then follows an account of events at Pastor Allen’s house on the afternoon of 21st November, 1973. The accused said he arrived at the house when Lauva Paul said angry words to him to which the accused replied that he did not come to quarrel but to collect some things. Moe then told him to collect his things. Whilst he was searching for his things Moe followed him into the house and told him to get out. She then used insulting words to him whereupon he became “very angry” and slapped her across the face. She then grabbed a knife from amongst other things on a table and tried to stab him. In the accused’s words, “I wrestled with her and took the knife from her and stabbed her. This all happened very quickly and just as her father arrived I suddenly realised what I had done and tried to take my own life. I ran into the bush and slept in the bush and in the morning I came to the hospital and gave myself up to the police.”

At the committal proceedings held in May, 1974 the accused made a statement under s. 103 of the District Courts Act. This statement was given on oath. It was tendered in evidence by the Crown. In this statement the accused said that during the afternoon of the 21st November, 1973 he and Moe went to the Patrol Post to hear what the Assistant District Commissioner Samarai had ascertained from the District Office in Port Moresby. It is not specifically stated in the document but in context this must refer to the result of the proceedings taken in Port Moresby in connection with the dissolution of the marriage between the accused and Moe and the custody of the child. They were told that Mr. Fitzer was on leave but that the matter was being investigated. They then left the Patrol Post Office whereupon Moe informed the accused that her uncles were very cross with him and that if he did not stop making trouble they would beat him up. He then asked her to get her relatives to send to him some things which she had omitted to pack the previous night. She then left him and he went to the boi-house at which he was living. He slept there for a time. Upon awakening and finding that his things had not been sent down he decided to go and collect them himself. He first went to Constable Bogajuva’s house to tell him where he was going. The constable was not at home so he told his wife. He then went to Pastor Allen Benoma’s house. On his arrival Lauva Paul spoke to him some words in Suau which he did not understand. He told her he had not come to quarrel but to get his things from the house. She told him to go and collect them. He went into the house to look for his things. About two minutes later Moe walked into the room, closed the door and told him to get out. He said he would get out as soon as he had collected his things. She then uttered very insulting words to him whereupon he became very angry and upset and slapped her on the face. She then called out to her father and grabbed a knife from a nearby table. She tried to stab him with the knife. He wrestled with her and knocked the knife out of her hand and turned around and stabbed her. After realizing what he had done he stabbed himself in the stomach. He heard her father coming, went out the back door, jumped off the house and ran into the bush. He was so sorry for what he had done that he wanted to take his own life so he stabbed himself twice. He fell unconscious and remained in the bush until the next morning.

The accused was cross-examined by the Police Prosecutor and then questioned at length by the Presiding Magistrate. In the course of his questioning he stated that after Moe had tried to stab him he struggled with her and the knife fell to the floor. He retrieved it from the floor and stabbed her in the throat. He said he could not remember if he stabbed her again. The whole incident occupied only a very short space of time. In answer to questions by the Presiding Magistrate he described the knife as being about 10 inches long, the handle (wooden) being 4 to 5 inches long and the blade about 1 inch wide. The steel blade was not rusty but was quite old.

At the conclusion of the Crown case the accused did not give evidence nor did he make a statement from the dock.

Mr. Egan for the Crown made several submissions of law in relation to the statement made by the accused to the police and to the s. 103 statement. As to the former he contended that so much of it as did not contain admissions by the accused should be disregarded by me as being “self-serving” statements. He relied upon the authority of Reg. v. Sparrow[ccxxxvii]¹. Very properly he referred me to other authorities (in particular those set out in Cross on Evidence (Australian ed.) at pp. 548-550 and to Reg. v. Williamson[ccxxxviii]²) which are not in accord with Sparrow’s case[ccxxxix]³. Mr. Egan submitted that I should follow Sparrow’s case[ccxl]⁴ in preference to the other authorities cited. He also submitted that Sparrow’s case[ccxli]⁵ had been followed in this Court in Reg. v. Apa Kal[ccxlii]⁶ and Reg. v. Iako Kuto[ccxliii]⁷. I have been unable to find any written judgment in the former case. In the latter case Raine J. after citing with approval a passage from the judgment in Sparrow’s case[ccxliv]⁸ nevertheless went on to express some reservation in the practical application of the principle expressed in the passage.

It is to be noted that in Sparrow’s case[ccxlv]⁹ the authorities on the question were not referred to. In that case the Court of Appeal was primarily concerned with the question of the limits permitted to a trial judge in commenting to a jury on the absence of sworn evidence by the accused. The statements relied on by the Crown in the present case appear to be passing references without reference to authority. In contrast, however, the New South Wales Court of Criminal Appeal in Reg. v. Williamson[ccxlvi]¹⁰ decided before Sparrow’s case[ccxlvii]¹¹ examined the authorities in detail (see the judgment of Maguire J. at p. 289 and Lee J. at pp. 295 and 296). I am disposed to follow the view expressed in Williamson’s case[ccxlviii]¹² as it seems to me that that view is supported by a number of authorities commencing with Reg. v. Higgins[ccxlix]¹³. The result is that I think the facts related in the accused’s statement to the police are evidence in his favour but they must be considered along with all the other evidence in the trial and the weight to be attached to them is a jury matter. A fortiori I think I should regard his statements made pursuant to s. 103 of the District Courts Act, which were made on oath and subjected to cross-examination, similarly.

Upon the evidence there can be no doubt that Moe died as a result of stab wounds inflicted by the accused. To my mind the real issue which now arises for determination is whether, as alleged by the Crown, the stabbing was a result of a preconceived plan by the accused as evidenced by the letters written by him, and whether a defence of provocation arises entitling the accused to an acquittal on the charge of wilful murder and rendering him liable to conviction for manslaughter.

The Crown as might be expected placed considerable reliance upon the documents written by the accused. It was said that the documents clearly showed that the accused had become considerably upset over his domestic difficulties and resolved to take matters into his own hands by killing Moe, the infant and himself. He carried out his plan by killing Moe and very nearly succeeded in taking his own life.

I have given anxious consideration to the contents of these documents. It is not apparent from the evidence just when they were written. Two of them bear dates, e.g. 13th November, 1973 and 15th November, 1973. The former bears a footnote setting out the names and dates of birth of the accused, Moe and the child beside which is written “Died 13th November, 1973”. The latter bears a marginal notation, “Moe is going to have her throat cut tonight” and “Sarufa is going to be killed tonight”. In the result, of course, Moe died on 21st November, 1973 so that the threats contained in these documents, if they may be so termed, were not, in fact, carried out on the nominated days. I gather the overall impression from the documents that the accused had become (rightly or wrongly) obsessed by his domestic problems and had resolved that, if he did not eventually succeed in obtaining custody of the child, he would take the drastic steps set out in the documents. It should be kept in mind that, on the day of the killing of Moe, the domestic problems had not been finally resolved in that word of some decision was still awaited from the Assistant District Commissioner at Samarai. In the light of the events which occurred on 21st November, 1973 preceding Moe’s killing I entertain some doubt as to whether the accused went to the residence of Moe’s parents with the object of killing her. Moe and the child had, on the previous day, left her parents’ home and were to his knowledge living at a policeman’s house so that there could be no assurance that the accused would find Moe at her parents’ home when he went there. It must also be kept in mind that on arrival at Pastor Allen’s house the accused went upstairs alone to be followed (voluntarily apparently) by Moe. Thus the circumstance of getting her on her own was somewhat fortuitous. Further it is evident that he must have had many opportunities of killing Moe subsequent to the writing of the documents and no particular reason appears to me why he should suddenly decide, on the afternoon of 21st November, 1973, to go to her parents’ house and kill her.

What happened in Moe’s bedroom at Pastor Allen’s house is now something peculiarly within the knowledge of the accused. The members of Moe’s family were not in a position to see what occurred in the few minutes that preceded Moe’s death. They said they did not hear anything other than Moe calling out, “The man is hitting me”. It is evident from the medical evidence that some quite violent activity occurred. I have in mind particularly the evidence that Moe had multiple cuts on her hands which suggests that she may have resisted strongly. According to the evidence of Pastor Allen, Moe was upstairs with the accused for about five minutes before he heard her call out. According to Lauva Paul the time interval was fifteen minutes. However this difference may be reconciled it would seem that the accused and Moe were alone for some appreciable period. In this background and on the evidence as a whole I am unable to exclude beyond reasonable doubt that a provocative incident of the kind claimed by the accused did not occur.

For the Crown it was asserted that even if the provocative incident did occur then the evidence fell short of a defence of provocation for it went no further than to show that the accused in his own words was “very angry”. This it was said did not amount to evidence that the accused had acted in the heat of passion in circumstances where he had lost his self-control.

It has been held by the Judicial Committee of the Privy Council that failure by an accused to testify to loss of control is not fatal to a defence of provocation. Loss of self-control can be shown by inference from the surrounding facts (Lee Chun-Chuen v. The Queen[ccl]¹⁴).

Upon a consideration of all the background of this case it seems to me to be evident that the accused had, over a period of time, reached a stage of obsession concerning what he considered to be injustices suffered by him arising from the action of Moe and her family. That this is so is, I think, clearly evidenced by the documents written by him. In saying this I am not saying that all that has been alleged against Moe and her family is true but I think that the accused had, over a period of time, persuaded himself that he had been badly treated. In this state of obsession I think that he had reached a position where his self-control had worn very thin indeed. As I have said I am unable to exclude beyond reasonable doubt that the provocative incident alleged by the accused did not occur. If it did, then, having regard to his apparent state of mind at the time, I think that it is a real possibility that the accused’s reaction was more than that of mere anger and that he acted in the heat of passion in circumstances where he had lost control of himself. I am thus unable to feel, on a consideration of the whole of the evidence, that a defence of provocation has been negatived by the Crown.

For the foregoing reasons I find the accused not guilty of wilful murder but guilty of manslaughter.

I should say in conclusion that I have found this an unusual and difficult case notwithstanding the fact that I received considerable assistance from the Crown Prosecutor, Mr. Egan, and Mr. McMaster for the accused.

Verdict: not guilty of murder, guilty of manslaughter.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.

Solicitor for the accused: Williams & Williams.

[ccxxxviii][1972] 2 N.S.W.L.R. 281.

[ccxxxix][1973] 1 W.L.R. 488.

[ccxl][1973] 1 W.L.R. 488.

[ccxli][1973] 1 W.L.R. 488.

[ccxlii](Unreported).

[ccxliii](Unreported, Raine J.).

[ccxliv][1973] 1 W.L.R. 488.

[ccxlv][1973] 1 W.L.R. 488.

[ccxlvi][1972] 2 N.S.W.L.R. 281.

[ccxlvii][1973] 1 W.L.R. 488.

[ccxlviii][1972] 2 N.S.W.L.R. 281.

[ccxlix](1829) 3 C. & P. 603.

[ccl][1963] A.C. 220.

[ccli]Infra p. 186.