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Ulo, The State v [1980] PNGLR 350 (20 October 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 350 - The State v Tendi Kalio Ulo 

[1980] PNGLR 350

N271

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

TENDI KALIO ULO OF LADULAM

Wabag

Narokobi AJ

16 October 1980

20 October 1980

CRIMINAL LAW - Unlawful killing - Murder - Provocation as defence - Effective only to reduce murder to manslaughter - Not complete defence - Criminal Code, ss. 271, 308, 551[dcxiv]1.

CRIMINAL LAW - Sentencing - Payment of compensation as punishment - Not contrary or repugnant to Constitution - Not repugnant to principles of humanity - Payment taken into account in sentencing for manslaughter.

One Kepo, an adult Engan, whose small daughter had died of natural causes whilst in the care of the accused (the child’s grandfather, and Kepo’s father-in-law), during the “mourning” procedures attacked his own wife and then attacked the wife of the accused. This second attack consisted of striking with his boots on the hands and face, forcing a child she was holding from her arms, chasing her for some distance, and grabbing her legs and dragging her down a slope. The accused, following in the path of this attack, thought his wife was dead and stabbed Kepo, who subsequently died. The accused was charged with murder.

Held

(1)      Provocation as defined in s. 271 of the Criminal Code is available as a defence to a charge of wilful murder or murder pursuant to s. 308 of the Code, and has the effect, if successfuly pleaded, that the accused should be acquitted of murder but found guilty of manslaughter.

PLAR No. 1 of 1980 [1980] P.N.G.L.R. 326;

R. v. S.M. and Ors. [1973] P.N.G.L.R. 304;

R. v. Gamumu [1963] P. & N.G.L.R. 1 at p. 7; and

R. v. Nantisantjaba [1963] P. & N.G.L.R. 148 at pp. 151, 152, referred to.

(2)      In the circumstances, the defence of provocation had been established.

(3)      Accordingly, in view of s. 308 and s. 551 of the Code, the accused should be convicted of manslaughter.

(4)      The custom of payment of compensation as a form of deterrent punishment is neither contrary nor repugnant to the Constitution or any Statute, nor is it repugnant to the general principles of humanity.

(5)      Having regard to all the circumstances of the killing and the payment, according to custom, of compensation in kind worth K30,000, the accused should be placed on a good behaviour bond for a term of one year in his own surety of K100.00.

Trial

This was the trial of an accused on a charge of murder.

Counsel

J. Karczewski, for the State.

D. J. McDermott, for the accused.

Cur. adv. vult.

20 October 1980

INTRODUCTION

NAROKOBI AJ: Engans, like most Melanesians are reputed to be inclined towards violence. Looking around Papua New Guinea today, one notices that violence is sadly a way of life among many Papua New Guinean people. Almost every day a man, a woman or a child falls victim following a domestic dispute, a land dispute or following an argument after an unexpected death. This case arises out of one such violent attack.

Primary Facts

On May 24th, at Pore Village in Enga, an adult Engan man by the name of Kepo fell victim to a violent attack by the accused. The deceased was married to the accused’s daughter who had left her father’s village of Ladulam and lived with her husband at Pore.

Sad events had befallen Kepo and his wife when in the morning of that same day, their daughter became ill and died at Laiagam hospital. The little girl had gone with her mother Kadara and the accused’s wife, Rumbion Kandara to Lai Valley on Friday where provincial elections voting would take place. There, the girl fell ill. At that time, Kadara, it seems went to her mother and father for assistance.

On Saturday the accused who is the grandfather of the little sick girl noticed that the girl was getting worse. So he took her to an aid post. At 5.00 p.m. she got worse and her grandfather did what can be described as a very responsible thing. He hired a vehicle for K30 and took his granddaughter to Laiagam hospital. Unfortunately for all concerned, the girl’s life slipped off before professional medical care could be offered her.

The accused again acted responsibly by sending the vehicle immediately for his son-in-law, the father of the now dead girl. The father arrived and the body of the child was taken to Pore Village, together with the accused and his wife, Rumbion. The vehicle came to a stop at the end of the road and the mourners took the dead child some three hundred yards up a steep slope, to the village.

On the way up, while they were weeping, Kepo who at that stage had a big stick, attacked his own wife Kadara. She ran away and the party entered Pore, taking the dead child to Kepo’s house. The house proved too small for the mourners and the body was laid outside where people gathered according to universal Melanesian custom and cried over the body.

Kepo, who tragedy following tragedy would have him dead, naturally was in grief. After attacking his own wife, he turned on his mother-in-law, the wife of the accused—Rumbion. It was late at night, but there was moonlight. The accused was inside Kepo’s house. He and his wife were among a few people from Ladulam at Pore Village that night. It is clear, Kepo attacked Kadara, the daughter of the accused because he blamed her for the death of his daughter.

Kepo had twisted Kadara’s neck. Kepo’s relatives also attacked Kadara. Tendi the accused, saw all this happening, but restrained himself, reasoning that his daughter was now a member of another village and “they were assaulting their wife and watched” (Tendi’s evidence).

Kadara struggled, freed herself and ran away. Kepo then turned upon the accused’s wife Rumbion. Now Rumbion had a six month old daughter in her arms at that time. It is clear that Kepo’s assault upon Rumbion was quite violent, and though understandable, it was quite unjustified. The attack must have been quite severe as it forced open Rumbion’s arms and her daughter fell to the ground, and cried. She was picked up by another woman. That was the time when the accused’s “heart was really angered or upset” (his own evidence).

State witness Koros Piapon, who is actually the brother of Rumbion, testified to Kepo’s attack on his sister Rumbion. His evidence suggests that Kepo had attacked his wife in the past. From his evidence I know too that other relatives of Kepo had assisted Kepo in chasing Rumbion.

It is clear from evidence, Kepo did more than just demonstrate his anger at Rumbion. First he struck her with his boots on the ribs and her hands and face, forcing the baby to fall to the ground. Next he chased her for some distance—one hundred to two hundred yards down a slope. He had actually grabbed her by her legs and was dragging her down the slope.

Koros who had gone after Kepo, caught up with him and hit Kepo twice to stop him from attacking Rumbion. But he was held back by Kuna while Kepo was free to continue his unlawful assault upon his mother-in-law. All this took place in the bush, and at midnight. Kepo’s two brothers, Kilipali and Lida had followed Kepo. They did nothing to stop his attack upon Rumbion.

State witness Korak Uli also spoke of Kepo’s assault upon Rumbion. He says Kepo assaulted her with his hands by slapping her at her back. That wasn’t all. Kepo held onto her and they were struggling. He also heard from inside Kepo’s house, Rumbion call or cry out—“Kepo is hitting me.” She cried loudly enough because her husband heard it and went to the scene.

The Enga words State witness Korak Uli heard from Rumbion were —“Kepo am nam pliam o”. In Enga language, killing is represented by the words “Kumen pielam”.

State witness Kondambiam Tindikali also spoke of Kepo’s attack on Rumbion. At the first attack, Kepo was warned and advised that his complaint should be brought to the village court. She spoke clearly of Kepo “holding onto Rumbion’s breasts”. She also spoke of a brief dialogue between Rumbion and the accused. The accused had asked his wife—“What happened to you, Rumbion?” and she replied—“Are you Tendi Kalio, the one who is talking? I am badly hurt.” At that stage the “accused came and stabbed Kepo, and moved the knife around the body”. Kepo gave his last breath and died.

According to Kondambiam’s evidence, “Kepo was dragging her (Rumbion) from the back, hanging onto her clothes when the accused came and stabbed him.” This witness is the actual eye witness. She was pulling Kepo on his red belt while he, Kepo, was dragging Rumbion from her back, hanging onto her clothes. Kondambiam also testified to the short dialogue between the accused and his wife. She heard Rumbion say— “Tendi Kalio, I am badly hurt.” According to her evidence on cross-examination, Rumbion did say or cry out—“They are killing me” in Enga language—“Namba Kepo Pliamo.”

It is clear from the evidence of all the witnesses that only a short time elapsed between the time Kepo first hit Rumbion and the time he was stabbed. He was stabbed, if not while he was still dragging Rumbion down a slope, then it was certainly a matter of seconds or a minute after he must have let her free, to attack her husband. That turned out to be his fatal error. It is clear too that Rumbion cried out loudly and everybody heard it. The accused approached his wife and heard no more after the brief dialogue, and in his own words, “thinking she must have died, I approached closer and stabbed him”. According to the accused, his wife had said—“Mama, papa, they are hitting me to death” which in Enga language is—“Mamo aiao namba pio kumasiyamino namba kumio”. Such are words used when people are dying.

Defences

Mr. Kopunye for the accused argued several defences from the Criminal Code. In particular, he relies upon ss. 31(c), 274, 276 and 308.

Section 31(c) reads as follows:

“A person is not criminally responsible for an act or omission, if he does or omits to do the act under any of the following circumstances that is to say:

(c)      When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him or to another person in his presence.”

Defence counsel seeks to combine this section with ss. 274 and 276.

Section 274 reads:

“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely to cause death or grievous bodily harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though that force may cause death or grievous bodily harm.”

Section 276 reads:

“In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a little degree of force for the purpose of defending the first-mentioned person.”

Defence counsel submits alternatively that this was a killing through provocation and s. 308 of the Code is available with the result that not only would I acquit of murder, but also of manslaughter following the majority decision of the Supreme Court in In the Matter of a request by the Principal Legal Adviser to the National Executive for the opinion of the Supreme Court of Justice on a point of law arising in a case where a person tried upon indictment has been acquitted and In the Matter of s. 41(1) of the Supreme Court Act 1975 (PLAR No. 1 of 1980)[dcxv]².

Section 308 reads:

“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 within the meaning of s. 271, and before there is time for his passion to cool, he is guilty of manslaughter only.”

Provocation is actually defined in s. 271 of the Code, although there have been differences of opinion as to whether it does in fact define provocation for s. 308, that is for homicides. (See R. O’Regan, Provocation and Homicide in Papua New Guinea (1971) 10 W.A.L. Rev. 1; this difference is no longer present, following an amendment to the old s. 304, new Code, s. 308.) Section 271 does define provocation for homicide.

Section 272 of the Code provides a defence of provocation to assaults, subject to the restrictions first that the force used following provocation is not intended and is not disproportionate to the provocation, secondly that it does not cause death and thirdly that it does not cause grievous bodily harm. This section, like s. 271, is a departure from the common law whereby provocation was available only as a mitigating factor in punishment. It was not an excuse to an unlawful assault (see R. v. Gamumu[dcxvi]³).

Mr. Kopunye for defence argues that the effect of the majority view in PLAR No. 1 of 1980[dcxvii]⁴) is that Kaporonovski v. The Queen[dcxviii]⁵ is no longer authority in Papua New Guinea. The majority view in Kaporonovski’s case can be understood as stating that provocation cannot result in total acquittal of the accused whose charge is manslaughter. The effect of the majority view in PLAR No. 1 of 1980 (supra) is that on a manslaughter charge, a finding of provocation is a total defence to that charge.

Mr. Kopunye thus submits that if I find that the accused has been provoked within the meaning of s. 271, I would have to acquit the accused not only of murder, but also of manslaughter.

Mr. Karczewski for the State argues that on the facts of this case, the accused had at least an intention to cause grievous bodily harm. The accused thought his wife was dead. He ran to where he thought she was. He saw her being beaten and dragged and so he stabbed the deceased. But for any defences that might succeed, the accused should be convicted of murder. In reply to a defence under s. 31(c), the State relies on s. 31(d) on sentence, starting with—“But this protection does not extend to an act or an omission ...”

In brief, counsel for the State argues that this is a pay-back killing. The accused “thinking she must have died”, stabbed the deceased. Self-defence must fail because the deceased was unarmed, and as between the accused and the deceased, the former was the aggressor.

State counsel concedes that if established, provocation would result in a verdict of not guilty of murder, but that he would be guilty of manslaughter. However, provocation could not be used twice to result in an acquittal on manslaughter. If defence counsel wishes to argue provocation as a total defence, he should have made out a no case submission at the conclusion of the State’s evidence on the murder charge. If that submission was upheld, I would have then ruled that the accused had no case to answer on murder, but a case to answer on manslaughter. At that stage, the State would proceed on a manslaughter charge and following the decision in PLAR No. 1 of 1980[dcxix]⁶, if provocation succeeds, the accused would be acquitted.

Reasons for judgment

The law in Papua New Guinea has always been that once the defence raises a defence which is supported in some material way by evidence or as a matter of law, it is up to the prosecution to negative it. It is not law that he has to prove his defence, as might be inferred from the State’s case. Before I deal with the defences, I should deal with the State counsel’s submission on the defence’s conduct of its case whereby no submission was made in a no case submission.

At the conclusion of the State’s case, the accused or his counsel may offer a no case submission. This need not happen in every case. It depends on what the accused or his counsel considers to be the state of the facts. The accused may make a statement to the court. He may adduce evidence in his defence. He may make a statement from the dock, without calling any evidence. He may give evidence himself from the witness box under oath.

I think these are “tactical rights” open to the accused. In choosing not to make a no case submission, he is not prevented from arguing that if his defence of provocation succeeds on a murder charge, he is entitled to an acquittal even on manslaughter. That legal argument depends for its success on the view one takes of the operation of the Code.

With respect to defence counsel, it seems to me that s. 308, insofar as it talks about provocation as defined in s. 271 for the offence of killing a human being (s. 294), is clear in its wording. It simply says that if it was not for provocation, a person who unlawfully kills another would be guilty of wilful murder or murder. But, and depending on circumstances, because of provocation, in the facts of a case before the court, murder would be reduced to manslaughter only.

The crux of the issue in this case is this. If the accused, assuming all the facts prior to the deceased’s attack on the accused’s wife were the same, had gone, the next day in broad daylight and killed the deceased with the same knife, either the accused would have been guilty of wilful murder or murder, depending on intent. But because the facts are such that provocation in law arises, I would hold that if proved in a murder charge, the defendant is entitled to be acquitted of murder. But he may be convicted of manslaughter. It does not follow that on an acquittal on murder, based on provocation, the accused is completely acquitted. I take this to be the clear intention of s. 308. Section 551 of the Code also makes it clear that on a murder charge, an accused may be convicted of the crime of manslaughter only. But, s. 552 suggests that even for a murder charge, upon the return of a verdict of not guilty, the court may nevertheless find the accused guilty of unlawfully doing grievous bodily harm; or unlawfully wounding; or unlawfully assaulting another person (see R. v. S.M. and Ors.[dcxx]⁷).

If provocation is to result in a complete acquittal in a murder case, then it requires the sort of reasoning the majority of their Honours took in PLAR No. 1 of 1980[dcxxi]⁸. However, it is evident that in that case the relevance or even the applicability of s. 551 and how it has been applied in R. v. S.M. and Ors.[dcxxii]⁹, was not discussed. Provocation was however applied by Mann C.J. in R. v. Gamumu[dcxxiii]¹⁰ on a manslaughter charge to reduce manslaughter to an unlawful assault.

Andrew J. has adequately covered the decisions of the pre-Independence Supreme Court in the interpretation of the Code insofar as provocation is concerned in its application to manslaughter. However, I have found no case in which the possibility of “double application” of provocation to murder and manslaughter was discussed.

Undoubtedly, the resolution of this issue will eventually turn upon the same question their honours were faced with in Kaporonovski v. The Queen[dcxxiv]¹¹ and in PLAR No. 1 of 1980[dcxxv]¹².

Speaking of manslaughter, Smithers J. said in R. v. Nantisantjaba[dcxxvi]¹³:

“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.”

His Honour there held the view that s. 269 (present s. 272) would provide a defence to manslaughter and other crimes of violence in the course of which an assault is committed.

Logically, the issues which arise in respect of manslaughter arise in respect of murder. Indeed, Smithers J. was of the view in R. v. Nantisantjaba[dcxxvii]¹⁴ that:

“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.”

The view I take of the Code in the facts of this case, is that on a successful plea of provocation in a charge of murder, the accused will be acquitted of murder, but is guilty of manslaughter. It may be that in other cases, he may even be acquitted of manslaughter. I recognize that where assault is an element of murder, a defence that excuses an assault will. excuse murder. I do not think however that it follows naturally that the accused is excused of manslaughter or unlawful wounding.

...

[His Honour then dealt with questions of the underlying law, law reform, other defences excluding self defence, which is rejected, and concluded with the following edited comments on sentence.]

Sentence

I have heard what your lawyer says on your behalf. You are a married man with one wife and four children. You have lived a good life before and would no doubt continue to live a good life.

The incident occurred between you and your son-in-law. I am satisfied you did not plan this killing. You yourself reported this trouble to the police the next day, following this trouble.

I note that you have been in custody for four months. You were released on bail on 25th September. This to me indicates that the judge who released you on bail thought well of you and also that the people of the victim’s side would not retaliate.

You are a punctual worker and have a good work record. You have been a driver for the Department of Primary Industries. I take note too of the fact that compensation in kind, worth K30,000 has been paid to the deceased’s side.

One of the factors that influences my mind most is the circumstance surrounding this killing. I think any Papua New Guinean, if not any man, would have been provoked in the way you have been. Your wife was struck and your child fell off its mother’s hands. Your child cried. The deceased chased your wife into the bush in the middle of the night. He could have killed her. The deceased also blamed your family unreasonably for the death of his daughter.

 ...

Underlying Law

Customary law forms part of the unwritten or the underlying law of this country. Principles governing sentencing and customary perceptions governing punishment and crime must be developed. It is my constitutional duty as a National Court judge to develop the underlying law.

The formal definition of the underlying law in the context of custom is simply that it is the body of law, practices, customs and usage of all the indigenous inhabitants of this country, from wherever they emerge, but are prevailing and acknowledged by a given community of people at the time of the offence.

The nature of that underlying law, that is to say, its full scope, its utility and application, depends on the constitutional criteria and on the circumstances surrrounding a particular case. By virtue of the Native Customs Recognition Act 1969, custom may also be taken into account in determining punishment.

To my mind, underlying law may be developed at the formal level of determining criminal liability or at the level of determining adequate sentences or penalties or punishments or at both levels.

Compensation is not a way of buying one’s liberty. It may be, in the hands of wealthy wrong-doers. But in the Melanesian context, it is accepting moral and legal responsibility. In a real way, it is an effective deterrent. It creates continuing obligations in the accused. He has to live with the people he has wronged. He in a very deep way, has to live at his best conduct among those he has wronged, for if he makes one wrong move, he may face the inevitable punishment, death.

In my view, if I lock this offender away, I would be taking an easy way out. Were I to impose anything between one year and ten years, I am almost certain his family would suffer. He himself would not be relieved of the continuing obligation arising out of the compensation.

I see nothing in the custom of compensation paid as a form of deterrent punishment, being contrary or repugnant to the Constitution or a statute. Nor do I see it as being repugnant to the general principles of humanity.

The essence of humanity is that it represents all the good values of all the peoples of all cultures and races. It, in my view, is of little use pretending to be Englishmen when we are not. The essence of Melanesian humanity is a constituent of the humanity of the entire human race.

In Papua New Guinea, death tends to be viewed with strict liability. On the basis of legal defences available, a killing is diminished from murder or wilful murder to manslaughter. By written law, this offender is guilty of the lowest type of killing. But in the eyes of Engans, it is no less a killing. It has been paid for in no uncertain terms.

What one has to face up to then, is the imposition of an appropriate punishment. The Criminal Code sets out a list of punishments that could be imposed. But the Code is subordinate to the Constitution. The Constitution establishes a regime of unwritten or underlying law, which includes English common law and equity and the customary law.

In my view, criminal law which sets out the offences and consequences upon those offences is based on perceptions of moral culpability. It follows, in my view, that whenever a man is found to have done a wrong, his punishment must give due regard to his and his community’s moral attitudes towards punishment.

In this case, I come to the conclusion that I should place the offender on a good behaviour bond for a term of one year and oblige him to owe the State K100. I do so in the light of all the matters I have set out.

Verdict of guilty of manslaughter.

Sentenced to be of good behaviour for one year and to owe the State K100.

Solicitor for the State: L. Gavara-Nanu, Acting Public Prosecutor.

Solicitor for the accused: D. J. McDermott, Acting Public Solicitor.

[dcxiv] Section 551 of the Criminal Code provides:—

Upon an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter, if either of those crimes is established by the evidence, but not, except as herein expressly provided, of any other offence than that with which he is charged.

Upon an indictment charging a person with the crime of murder, he may be convicted of the charge of manslaughter, if that crime is established by the evidence, but not, except as herein expressly provided, of any other offence than that with which he is charged.

[dcxv] [1980] P.N.G.L.R. 326.

[dcxvi] [1963] P.N.G.L.R. 1 at p. 7.

[dcxvii] [1980] P.N.G.L.R. 326.

[dcxviii] (1973) 133 C.L.R. 209.

[dcxix] [1980] P.N.G.L.R. 326.

[dcxx] [1973] P.N.G.L.R. 304 at pp. 310-11.

[dcxxi] [1980] P.N.G.L.R. 326.

[dcxxii] [1973] P.N.G.L.R. 304.

[dcxxiii] [1963] P.N.G.L.R. 1.

[dcxxiv] (1973) 133 C.L.R. 209.

[dcxxv] [1980] P.N.G.L.R. 326.

[dcxxvi] [1963] P.N.G.L.R. 148 at p. 151.

[dcxxvii] [1963] P.N.G.L.R. 148 at p. 151-2.