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Hekavo, The State v [1991] PNGLR 394 (11 November 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 394 - State v Hekavo 

[1991] PNGLR 394

N1038

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

HEKAVO

Lae

Doherty J

11 November 1991

CRIMINAL LAW - Criminal liability and responsibility - Intention - Act occurring independently of will - Epileptic in post-ictal state - Defence made out - Criminal Code (Ch No 262), s 24(1)(a).

The Criminal Code (Ch No 262), s 24(1)(a), provides that “a person is not criminally responsible for: (a) an act or omission that occurs independently of the exercise of his will”.

Held

(1)      A defence under s 24(1)(a) of the Criminal Code cannot be considered unless a proper foundation is laid for it by the defence: there must be evidence of the accused’s state at the time and medical evidence in support.

Bratty v Attorney-General (Northern Ireland) [1961] UKHL 3; [1963] AC 386; [1961] 3 All ER 523, R v Foy [1960] Qd R 225 and R v Hatenave-Tete and Loso Sarafu [1965-66] PNGLR 336, considered.

(2)      The defence had been made out to a charge of murder where the accused had decapitated his wife, where the State evidence showed normal behaviour prior to an unprovoked attack and the medical evidence showed the accused was recovering from a bout of epilepsy and in a post-ictal state during which state aggressive behaviour often occurs.

Cases Cited

Bratty v Attorney-General (Northern Ireland) [1961] UKHL 3; [1963] AC 386; [1961] 3 All ER 523.

Goi v The State [1991] PNGLR 161.

Hill v Baxter [1958] 1 All ER 193.

Hocking v Ahlquist Bros Ltd [1944] 1 KB 120.

R v Cottle [1958] NZPoliceLawRp 16; [1958] NZLR 999.

R v Foy [1960] Qd R 225.

R v Hatenave-Tete and Loso Sarafu [1965-66] P & NGLR 336.

Trial

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

Counsel

M Peter and N Miviri, for the State.

C Inkisopo, for the defendant.

11 November 1991

DOHERTY J: The defendant is indicted on one count of murder. He was originally committed and charged for wilful murder of Wailke Mapini; the Public Prosecutor elected to indict for murder.

In the lower court when the defendant was committed to stand trial he was asked, in accordance with s 96 of the District Courts Act (Ch No 40), if he had anything to say and replied, in an unsworn statement not subject to cross-examination, “em het bilong mi longlong na mi kilim meri pinis na mi wet long kot tasol”. No official translation of this statement has been made but I would interpret it to mean “my head deranged and I killed the woman and I am only waiting for court”.

In his record of interview, he conceded that his wife was killed by him by chopping her head off and said to the police “my head was longlong so I cut her with the knife”.

There has been a medical report submitted by Dr Brother Andrew that the defendant is fit to plead in the court and accordingly the defendant was arraigned in this Court where he said on arraignment “I killed her, I killed her, that is all”. Following that plea, defence counsel applied in accordance with s 563 of the Criminal Code (Ch No 262) for the court to exercise its discretion and enter a plea of not guilty on the basis that evidence would be adduced in relation to the defendant’s mental state at the time of the crime. This was opposed by Mr Miviri who said intent was not an element of murder. This is an incorrect statement of the law and the application was allowed. A plea of not guilty was entered by the court despite the defendant’s statement.

The facts were tendered by consent and showed the defendant, his wife (now the deceased) their children and other family members went from their home and spent the night in their garden-house to start work next day. The defendant directed the work to be undertaken by the wife and children and started working himself. We are not told how far the garden is from the main house or what kind of garden-house was used. In submission, counsel merely said that the court knew the local conditions and no further evidence was raised in submission. I can only say I am aware of the practice in many areas in this and other provinces of having a small basic shelter away from home that is used when families are gardening and, in the defendant’s district, gardens can be in mountainous areas away from home.

The facts showed that the defendant called his wife over. She immediately came to him. He pushed her to the ground, she resisted, he bit her on the breast, pushed his hand into her vagina and she screamed in pain. Other men came and tried to get the defendant off the woman but “he was too strong for them”. They also say they were scared and ran away. They were scared because the defendant wanted to cut them with a bush knife. They initially got the defendant off the deceased who got up and ran off. The defendant followed the deceased who tripped down a “small valley”; the defendant came upon her and hit her several times. He cut off her head. He then took the head leaving the trunk and walked or ran off. He went to a different village, went into a chicken house and remained there from mid morning until later. It is not clear when he left but he was still there when it got dark. He was seen by people peeking through the walls to be putting blood from the head on his face, teeth and head.

It will be noted from the above facts there is no evidence from witnesses that the defendant was other than normal prior to the incident. There was no reference to his prior behaviour other than that of directing the family members to work; the prosecution has not called evidence and is unable to clarify his behaviour prior to this incident.

The defendant called Dr Brother Andrew (whose proper name is Dr Andrew Ince-Jones) a medical practitioner specialising in psychiatry and mental conditions since 1976. He made three examinations of the defendant and compiled a report and gave oral evidence before the Court. On the basis of this, defence counsel had raised a defence pursuant to s 24(1)(a) of the Criminal Code Act that the defendant acted outside the control of his will. Counsel referred to this as a defence of “automatism” which, counsel says, exists in common law independent of the defence of insanity. The statutory provisions for a plea of insanity are provided for in s 27 and s 28 of the Criminal Code (Ch No 262).

It is undisputed that s 27 of the Criminal Code Act clearly provides that a person is presumed to be of sound mind. Defence counsel was emphathic in submission that he was not raising insanity under s 28 of the Criminal Code Act but relying solely on the fact that the defendant was in a state of automatism because he was recovering from an epileptic fit at the time of the incident.

As was said in the Supreme Court in Goi v The State [1991] PNGLR 161 at 167: “... It is well established in this jurisdiction that the standard of proof required of an accused person to establish the defence of insanity is proof on the balance of probabilities.” Evidence necessary for an accused person to displace a presumption of insanity was referred to in Goi v The State which in turn referred to and approved the Northern Ireland case of Bratty v Attorney-General (Northern Ireland) [1961] UKHL 3; [1961] 3 All ER 523.

Automatism was defined in Bratty’s case (at 527) as connoting the state of a person who, though capable of action, “is not conscious of what he is doing ... It means unconscious involuntary action, and it is a defence because the mind does not go with what is being done”.

In considering the defence of automatism Viscount Kilmuir said, referring to the New Zealand case of R v Cottle [1958] NZPoliceLawRp 16; [1958] NZLR 999, that not only must automatism be expressedly put forward as a defence, but also a proper foundation must be laid for it. An analogy was drawn between this defence and accident or provocation. It is not enough to raise such defences, there must be evidence for the tribunal of fact to act and find on. A similar statement was made in R v Foy [1960] Qd R 225 referred to by both counsel before me where the appellant Foy also suffered occasional bouts of epilepsy. It was said (at 232) that:

“If an accused person raises the defence that an act or omission occurred independently of the exercise of his will because at the time of his committing the act or making the omission he was through temporary or permanent derangement of his mind, unable to exercise his will or did not exercise his will the onus is upon him to prove that condition.

In each case there must be evidence upon which a jury can properly find that the mind of the accused was affected by the mental disease or derangement at the relevant time.”

If the defence that automatism rendered an act non-voluntary or not the conscious exercise of the will is to be established the foundation must be first laid and that foundation is not forthcoming merely by making a statement that the defendant’s reason was defective due to disease of the mind or a defect of reason. As Lord Goddard said, in Hill v Baxter [1958] 1 All ER 193, proving that the defendant was in a state of automatism is on him because automatism is akin to insanity and further is a state exclusively within his knowledge. In considering that proof — (as said in R v Foy) — there has to be evidence fit to be left to the jury and it must be evidence after “one subtracts the medical evidence directed to the establishment of a phychomotor epilepsy”.

As I have noted the standard of proof in establishing automatism is on the balance of probabilities as has been held by R v Hatenave-Tete and Loso Sarafu [1965-66] P & NGLR 336 at 341 (where it is referred to “on a preponderance of probability”), and in Goi v The State. Nevertheless the over-riding principle remains that the State must prove every element of an offence charged and that includes the state of mind of the defendant. Contrary to what Mr Mirivi for the State, who presented the original indictment, argued intention is an element in a charge of murder. Reducing the charge from wilful murder to murder does not eliminate the element of intent.

In applying this law to the situation before me it is “the proper foundation of fact” to find what was the defendant’s state of mind at the relevant time that is causing me the greatest concern. Precedents show the defence must produce at least prima facie evidence of the defendant’s condition (Bratty (at 535) adopting R v Cottle) and if that proper foundation is not laid the defence of automatism need not be left to the jury (here to the Court as the tribunal of law and fact).

The facts presented by the State give no indication at all that the defendant was other than normal prior to the incident. The description shows the family going to the garden and the defendant directing persons to do various jobs of work. There is no description, as is given in Goi v The State by the prosecution witnesses and the defendant describing the defendant burning houses and acting in a most unusual manner. Similarly, in R v Hatenave-Tete, there is a description from the State and defence witnesses of the defendant becoming possessed of the spirit of a deceased and leading a group of people through the town in an excited condition.

In contrast, in the instant case, all that there is before this Court are the two statements by the defendant quoted in full above which, according to the records, were made in Menya language. We cannot even be sure what exactly he said. For example the statement made under s 96 in the District Court is capable of translation connoting a continuing state or an isolated state. The defendant gave no evidence at all before me.

It has been said (Hocking v Ahlquist Bros Ltd [1944] 1 KB 120) that in all cases it is necessary to produce the best evidence available to prove any particular fact. This became known as the “best evidence rule” and is referred to by J M E Garrow & J D Willis in the text The Principles of the Law of Evidence in New Zealand (at 17) “as the best evidence must be given which the nature of the case admits”. It must be brought to the court in the form which gives the best guarantee of its credibility and that the circumstances of the case admit. The learned writers go on to say that nowadays it is not true that the best evidence must be given though failure to produce it may be a matter of comment which will affect the weight of the evidence that is produced.

No direct evidence has been adduced at all by the defendant. The picture presented by State witnesses is of a quite normal situation until the assault and the medical report on the deceased shows more than one blow was rendered; it indicates a deliberate beating at several parts of the body prior to the death.

Hence, virtually all the evidence about the defendant’s mental and physical state before and during the incident comes almost entirely from the medical evidence and this is obviously hearsay based on what the doctor was told. It is hearsay at the highest level; it was privileged information but it was still hearsay. The two statements, quoted, concerning his mental state both come from him. They are both translations of translations and could be open to question whether the defendant meant he was “longlong” at the time or was continuously in that state; an important distinction in assessing “insanity” under s 28 or temporary epileptic condition leading to the defendant acting outside the control of his will. Evidence of what the defendant says about his condition at the relevant time is most important as has been said and adopted in Goi v The State (at 168) “a black out is one of the first refuges of a guilty conscious and a popular case excuse”. “I didn’t mean to do it” would be one of the oldest excuses known to man.

THE MEDICAL EVIDENCE

A comprehensive and meticulous report was prepared and presented by Dr Brother Andrew. He found, on examination of the defendant, that the defendant suffered from “an organic brain disorder, epilepsy. That at the relevant time he was materially affected by this disorder ...”. He explained generally that the defendant would not know the nature or quality of the act he was committing and was not able to control his actions which are material to the offence in which he was charged. He was told by James Hekavo that he had an epileptic fit in the course of the evening before and it was during the “post-ictal periods that events occurred which are the matter of the offence charged. That is, it was after the epileptic discharge and epileptic convulsions that [your clients] states he attacked and killed his wife” he was informed by the defendant James Hekavo that he was in the recovery stage of this epileptic fit and it was in this recovery stage, at least an hour after the epileptic convulsion, that the incident occurred.

The doctor explained that the epileptic convulsion or fit is an electric chemical event and builds up quickly in the brain, discharges abruptly and spreads almost instantaneously throughout the brain. It quickly leads to unconsciousness when it is manifested by strong convulsive movement of the limbs. The sufferer remains unconscious for minutes or hours and slowly regains consciousness. It is during the regaining of consciousness that confusion as to time and place and in recognising other people can occur. The period for regaining of consciousness can vary. Dr Andrew mentioned from one to two hours and up to four hours and even five hours is not unknown. The period of recovery can vary in time and in behaviour; some people slowly and quietly, others can be aggressive. This aggression was known in the past as “epilepticus furorous”. Such a person recovering can be aggressive and can be experiencing great emotional disturbance. Even people going to his aid can be at risk and, according to the doctor, there are many examples in literature and from his own experience of a person waking from a stupor having attacked and killed a person who was attempting to help him. In such a confused state a person is likely to interpret what occurs as he recovers in terms of his most recent experience and be very frightened.

The doctor said that there can be a conflict of medical and legal opinion as to whether this condition is a mental disease or a natural mental infirmity; whether a person suffering from epileptic seizure can be said to be insane in law. It is this difference of legal and medical opinion which in the past has led to differences. The doctor did not wish to use the word “automatism” which was being used considerably by defence counsel, he considered that it obscures rather than helps the issues that have to be defined before the Court.

However, he was convinced, after having examined the defendant James Hekavo, that he had suffered an epileptic fit in the course of the night prior to the incident. He said such attacks could be precipitated by cold, hunger and possibly even an argument with the wife. A person recovering from such an incident would not recall what he did.

This aspect of the medical evidence when set against the defendant’s statements in the record of interview caused me some concern. The doctor explained that the defendant having come out of the epileptic state and finding himself with his wife’s head would know something was wrong and, that coupled with statements made to him by those who found him, would account for the simple answers given by him to the police. The fact that he was able to answer those questions did not mean that he was not recovering from the epileptic seizure and did not mean that he had a recollection or knowledge of what actually happened. The doctor gave an opinion that at sometime in the early morning the accused had an epileptic seizure, which was accompanied by convulsions and unconsciousness:

“It is not known how long he remained completely unconscious as it appears that the victim was the only witness to this. As he began slowly to recover consciousness, the disruption and exhaustion of cerebral processes would have meant that such awareness as he regained would have been at a low conscious level with lack of orientation to time, place or person, disorder perception and lack of memory. The person nearest to him was his wife, whom he may or may not have recognised, but who seemed to be the source of the disorder of thought and feeling, which could have included panic, he was experiencing; he accordingly commenced to attack this person. It was a primitive response (in the developmental sense) and could appropriately be termed ‘automatism’ at this stage as it was without considered intent or memory. Attempts by others to restrain him probably only increased his confusion and sense of danger. As the level of consciousness increased without knowing why, but with a subconscious idea that he must have a good reason for doing so.”

He suggested that:

“... in a person to whom homicide was completely foreign, when the level of consciousness lightened to this level of awareness, it might be expected that he would realise he should desist from this action, but in a society where homicide is a common response to irrational fear, the attacker would need a far greater level of awareness to recognise the situation he was in. This level of consciousness, while it may not be automatism, would fall under another recognised altered state of consciousness, sometimes designated a ‘twilight state’. During this interference can precipitate outbursts of primitive rage ... memory is usually incomplete and fragmentary.”

He considered the accused’s subsequent behaviour bore out and confirmed that he was in a recovery state, viz, the long period of reduced pychomotor activity following a period of aggressive behaviour.

His condition from the medical point of view was not that the defendant was in a state of mental disease but that the cause was a neurological disease, applicable to epilepsy and his mind at that time was affected by this neurological disease. The conclusion on the medical evidence appears to be at that particular time the defendant was recovering from an epileptic state which rendered him into a situation where he could not appreciate his actions or be capable of controlling those reactions. He lacked recognition of the time and the people that he was dealing with.

I stress again that case law, which reflects a common sense approach, indicates that there must be a foundation of facts coupled with medical expert evidence in order to determine whether a defendant was insane or that his actions were not willed because of automatism or neurological defect. There must be a foundation laid for this. As I have pointed out to counsel in submission it is this aspect of this case that causes me the greatest concern. An unsworn statement to the police and from the dock in the District Court do not, to my mind, accord with full and best evidence. However it is clear from the evidence presented by Dr Brother Andrew that the defendant was in a state of epileptic fit.

I have obviously given considerable thought to the strength of submission on the part of the State that the defendant acted outside the maximum period of four to five hours recovery period described by Dr Andrew in evidence. This is borne out by the times given by prosecution witnesses but their evidence conflicts. I accept submissions by both counsel that the witnesses and the defendant come from a very remote part of the country and are unlikely to have an exact assessment of time of death. They mention different times in the morning but it is clear that it was daylight and they were all working in the garden.

Despite the reservations which I stressed and which I consider fundamental to any case relating to the defendant’s state of mind, in justice to the defendant, I must rely on the facts presented to me that he was unaware of what he was doing because he was recovering from an epileptic fit, that he was subject to several epileptic fits in the course of the year and that that had been his condition over many years. Accordingly I must find that he acted outside the control of his will and that he has made out the defence under s 24(1)(a) of the Criminal Code. Accordingly, the Court is obliged to acquit him of the charge of murder. I do so however with concern in the light of the duty of the Court to the community and stress that he continue to take the medicines that Dr Andrew referred to in evidence which have been prescribed for him.

Finding of not guilty; the defendant acquitted

Lawyers for the State: Public Prosecutor.

Lawyers for the defendant: Public Solicitor.