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Maima, Regina v [1974] PNGLR 78 (30 May 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 78 - Regina v Lipo Maima

[1974] PNGLR 78

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

LIPO MAIMA

Port Moresby

Frost ACJ

8-9 May 1974

14-17 May 1974

20-24 May 1974

30 May 1974

CRIMINAL LAW - Wilful murder - Provocation as defence - “Pay back” killing - Criminal Code (Queensland adopted) ss. 24[xcv]1, 268[xcvi]² and 304[xcvii]³.

Two deceased were driving in a motor vehicle which collided with and killed a woman who had come onto the road in circumstances where no negligence on the part of the driver of the vehicle was established. Both deceased were attacked shortly afterwards by several men (including the accused) from the nearby village, who upon hearing of the accident, armed themselves with axes, knives and blunt objects and set out to avenge the death by way of payback. The accused, the brother of the deceased woman, was charged on two counts with wilful murder and set up the defence of provocation.

Held

That the defence of provocation under s. 304 of the Criminal Code was not available to the accused because:

(a)      there was no evidence of any wrongful act on the part of either deceased sufficient to raise the defence;

(b)      the only belief held by the accused was that the two deceased had been occupants of a car which was in collision with his sister, which was sufficient in his eyes to justify action by way of payback, but which fell short of the honest and reasonable belief on the part of an accused that either deceased had done any wrongful act required under s. 24 of the Criminal Code;

(c)      the actions of the accused were done in revenge against the men he believed responsible for the death of his sister were controlled and deliberate, and were not therefore done in the heat of passion because of sudden provocation and before there was time for his passion to cool within the meaning of the section.

R. v. Oa [1967-1968] P. & N.G.L.R. 26, at p. 29 and Parker v. The Queen [1964] A.C. 1369, at p. 1391 applied.

Trial

The accused and four others were charged upon indictment on two counts of wilful murder. The defence of provocation was raised in all cases. The trial is reported in respect of the accused only.

Counsel

C. F. Wall, for the Crown.

M. Kapi, for the accused.

Cur. adv. vult.

30 May 1974

FROST ACJ: In this case five accused were charged upon indictment upon the first count that on 9th December, 1973, each wilfully murdered one Philip Thomas Lee, and upon the second count that on the same day each wilfully murdered one Francis Anthony Leo.

There is ample evidence that on the day in question on the Highway near Brown River the two deceased, who were young men of Chinese extraction, were killed by a group of men intending to kill them. The only issues in this case are whether the Crown has proved beyond reasonable doubt that each of the accused men was involved as a principal. I take the surrounding circumstances of the case, as to which I am satisfied beyond reasonable doubt, from the evidence of one Ufa Bal and a woman Aitepe Kide who were both called as witnesses for the Crown. The fatal journey upon which both deceased set out started in the early morning of Sunday the 9th December, 1973, when accompanied by Ufa Bal, who is from the Kundiawa Sub-District, they left Port Moresby to go on a hunting expedition. They drove in a Valiant sedan down the Brown River Road over the Brown River bridge, did some shooting, and then after some refreshment started on their return journey. The deceased, Leo, was driving, the deceased, Lee, was also in the front seat and Ufa Bal was seated in the back. As they approached the Brown River bridge along the highway the car struck a woman called Kenean who had come to the roadway to leave food to be taken to market. The car was brought to a stop a short distance into the bushes on the right hand side of the road. The deceased, Kenean, unfortunately suffered injuries from which she died. There is no evidence whatever as to the circumstances of the collision from which negligence could be inferred on the part of Leo in the manner of his driving. The collision occurred on a straight and level stretch of road at a point measured later that morning by Inspector Stuckey, who led the police investigation, as being 2,304 feet approximately southwest from a school sign at the village on the western side of the Brown River bridge. This village seems to be inhabited by people from the Tapini and Woitape Sub-Districts. The two deceased men and Ufa Bal alighted from the car after it was brought to rest and started walking towards the bridge. Shouts in their place talk were heard from the villagers that Kenean had been killed by the two Chinese and they also must be killed. Although Ufa’s evidence as to identification was strongly challenged and I shall deal with it later, I am satisfied that the two deceased men and Ufa Bal were attacked on the roadway by a small group of men—Ufa Bal said there were six. As the three men moved towards the bridge and as they got close to the bridge another larger party of men then attacked the three of them. The motive was of course that of payback for the injuries and subsequent death of Kenean. The deceased, Leo was killed first then the deceased, Lee. Whilst the two deceased men were attacked, other men were attacking Ufa Bal. Ufa was struck several times on the head with a bush knife and eventually rendered unconscious. When he revived later he saw that both the deceased men were lying near the roadway. He was then helped by a Goilala man who led him to the forestry station on the Port Moresby side of the river where one John Turia immediately communicated with the police.

[Evidence was given that the bodies of the deceased were examined by a pathologist at the Port Moresby General Hospital, where conclusions accepted by his Honour were that the skull injuries occurred after the neck injuries, and were the cause of death in both cases.]

Upon this evidence I am thus satisfied beyond reasonable doubt that the deaths of the two men were caused by men wielding axes or knives and also blunt objects such as axe handles or sticks, and that the men who engaged in this attack thus armed intended to kill. Accordingly the crime of wilful murder was committed in respect of the death of each man subject to the defence of provocation.

The case against the five accused consists of records of interviews (except in the case of the accused, Moropa, who made no admissions), and also upon the evidence of Ufa Bal, two alleged eye witnesses, Bobo and Koga, and of the woman, Aitepe, whose evidence is especially relevant to the Crown case against the accused Aita-Koga.

[His Honour then dealt with the evidence of Ufa Bal, whose evidence he accepted as to the broad sequence of events, but found unacceptable as to positive identification of the five accused, having regard to the limited opportunities available to him, and who he stated were attacking the two deceased men when he himself was trying to defend himself against his attackers.

His Honour then dealt with the evidence of two further alleged eye witnesses and rejected their evidence.]

His Honour continued: I have thus been unable to accept the evidence of the eye witnesses that the five accused were all involved in the fight. I now turn to the remaining evidence which consists mainly of the records of interview. So far as Lipo and Paulo are concerned each admitted in his unsworn statement his complicity in the attack on each of the deceased men. There is ample evidence in his record of interview that each accused attacked and struck each of the deceased men. Such a conclusion was not challenged by their counsel. The only issue in the Crown case against each of these accused is whether the Crown have excluded a defence of provocation under s. 304 of the Criminal Code. That section reads as follows:

“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”

Taking first Lipo’s statement he stated that having heard the message that the woman had been killed by a car he got up in his house and taking an axe ran to the scene, where he saw Kenean dead by the roadway. He then with Paulo turned round and came after the two deceased men, shouting out that, “Mother is dead so kill these three men and we can go to Bomana”. He admitted that he hit the two deceased men on the neck with the back end of the axe and they fell to the ground whereupon Paulo took the axe and cut the first man in the face and the other on the back of his head. When asked why on leaving the house he took his axe with him he said, “When I heard my sister’s name, I got the axe to kill anyone who had killed her”. He also said that when he saw what had happened to his sister he got angry and he came after the men so that he could kill them. Asked when Paulo and he were coming towards the deceased men did they talk about killing them, the accused Lipo admitted that he said that both of us would go and kill the two of them.

There is thus ample evidence against the accused of the intention to kill. A full and learned argument was addressed to me upon the effect upon the interpretation of s. 304 of the Code of the recent decision of the High Court of Australia in Kaporonovski v. The Queen[xcviii]⁴ and whether it was necessary that there should be evidence that the act of provocation took place in the presence of the accused. I am inclined to the opinion that if the law applicable is the common law the accused must see the act done or at least it must be done in his presence (see Russell on Crime 12th ed. Vol. 1 at p. 532), or if s. 268 of the Code is applicable, it must be done in the presence of the accused (see R. v. Oa)[xcix]⁵. On either view of the law the defence of provocation would not avail any accused before the court. However I do not find it necessary finally to decide this issue. I am satisfied that there is no evidence of any wrongful act on the part of either deceased sufficient to raise the defence of provocation in the case of any accused, before the court. I am also satisfied that there was no honest and reasonable belief on the part of any accused that either deceased man had done any such wrongful act because none of the accused before the court who relies upon the defence addressed his mind to the question. The only belief held by any such accused was that the two deceased had been occupants of the car which was in collision with the deceased woman which was sufficient in their eyes to justify action by way of payback, but which falls short of that belief required under s. 24 of the Code. Even assuming that any of the accused believed that the two deceased men had committed a wrongful act in relation to Kenean, I am satisfied that such belief would not have been a reasonable one, as there is no evidence that the facts known to the accused extended to which deceased man was driving or the circumstances of the collision. However the main conclusion which I have reached upon the issue of provocation, as to which I am satisfied beyond reasonable doubt, is that Lipo’s attack upon the two deceased men was not done in the heat of passion because of sudden provocation and before there was time for his passion to cool within the meaning of s. 304. Giving due consideration to the accused’s unsworn statement that he was made very angry by the sight of his sister lying dead on the road and that was the reason for his action, I am satisfied to accept the statements made in his record of interview which lead me to the conclusion that he was acting in revenge against the men he believed responsible for the death of his sister.

The words of Clarkson J. in R. v. Oa[c]⁶ I would adopt as being entirely applicable to the case against this accused. Clarkson J. said:

“I am satisfied that the accused did not spear the deceased in the heat of passion. He was angry, indeed, very angry, but he was not overwhelmed suddenly by any transport of passion. There was no temporary suspension or unseating of reason—to use some of the well-known phrases. The homicidal act was not the result of a “passionate impetus” (Parker v. The Queen[ci]⁷). He was the angry executioner enforcing his own law”.

I am satisfied that Lipo’s actions were not done in the heat of passion but were controlled and deliberate (see Parker v. The Queen (supra)), and that for this reason also the defence of provocation has been excluded. The accused Lipo is thus in my judgment guilty of the crime of wilful murder on both counts.

Accused Lipo Maima, convicted upon both counts of wilful murder.

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

Solicitor for the accused: G. R. Keenan, Acting Public Solicitor.

[xcvi]Section 268 of the Criminal Code provides: The term “provocation” used with reference to any offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master and servant, 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.

[xcvii]Infra p. 81.

[xcviii](1973) 47 A.L.J.R. 472.

[xcix][1967-68] P. & N.G.L.R. 26, at p. 29-30.

[c][1967-68] P. & N.G.L.R. 26, at p. 29.

[ci] [1964] A.C. 1369, at p. 1391.

[cii][1972] VicRp 90; [1972] V.R. 758.