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Regina v Kauba [1960] PGLawRp 3; [1963] PNGLR 18 (23 July 1960)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 18 - Regina v Kauba-Paruwo

[1963] PNGLR 18

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

KAUBA-PARUWO

Kundiawa

Mann CJ

23 July 1960

QUEENSLAND CRIMINAL CODE - Wilful Murder - Provocation offered by a person other than the person killed - Killing according to tribal custom - Retaliation for killing of close blood relation of Accused - Victim of the killing by the Accused a close blood relation of person who slew Accused�s close relation - Sections 268 and 304 of the Criminal Code (Queensland, adopted).

A defence of provocation is not open to a person charged with wilful murder or murder if the only provocation which induced the Accused person to kill his victim was offered not by the victim but by a third person, albeit that the third person was closely related to the victim. The existence of a tribal custom requiring the Accused person to kill some person related to the slayer of the Accused�s father is not of significance for the purpose of Section 304.

The Accused was charged with the wilful murder of Kamo Nuabo. A plea of not guilty was entered.

Counsel:

Pratt, Crown Prosecutor, for the Crown.

Mathieson, Assistant District Officer (by leave) for the Defence.

Note: This case arises out of the same inter-clan fighting that gave rise to the previous case of Regina v. Hamo-Tine[xxxii]¹. The identity of the participants in the actions involved in both of these cases is not apparent from the names under which they were indicted. This is due to the habit of the people concerned of addressing each other not by name, but in terms of their clan relationships to each other, and for individuals to adopt for the purpose of their dealings with persons outside the clan, names which may in fact belong to other members of their family. Since there is no written language, and individuals pronounce personal names quite differently, it is often impossible to arrive at a �correct� spelling of a personal name.

From the evidence in Kauba�s Case it appeared that the Accused in the first case is Hamo or Kamo and is the son of Tine, who was not the person of that name who was called as a witness in that case. The victim in the case was Baluwo or Paruwo (two attempted spellings of the same name, variously pronounced), who was the father of the Accused in the second case, Kauba. The victim in the second case, referred to as Kamo Nuabo, was the son of Kamo the Accused in the first case. The more orthodox way of representing his name would be Nuabo-Kamo, the second name identifying his father. However the son as well as the father was known as Kamo, and each was regarded by the witnesses as the son of Tine. This is probably due to the fact that Tine, the senior living member of the paternal line, would be addressed by both Kamo and his son Nuabo as �Father�. Upon the death of Tine, Hamo would be addressed by his son and succeeding generations as �Father�.

MANN CJ:� The events which occurred in this case, followed naturally upon those which occurred in the previous case of Regina v. Hamo-Tine (1). A girl of the Baroma Clan was �marked for marriage� into the Mirima Clan and was handed over to the latter when she was very young. When she reached marriable age, the girl went to another clan, with the result that the Mirima people, who had been looking after her in the meantime, were disappointed and angry and made claims against the Baroma Clan. During the negotiations which ensued, fighting broke out on an extensive scale and the place where fighting occurred was described as being full of clansmen from both groups. So far as the evidence showed the fighting was in the main limited to angry abuse and the use of fists and sticks. Nevertheless the sticks chosen for this type of fighting by these people are usually of considerable weight and size and the damage inflicted is often considerable.

There is no dispute as to the substantial facts. The Accused Kauba was standing close by when he saw Hamo attacked by his father Baluwo (of Paruwo) and saw Hamo seize a bow and arrow from a man standing nearby, and shoot Baluwo. Kauba was greatly upset to see his father killed and apart from his natural emotional reactions, his response to the situation would be largely conditioned by his cultural background, which would require him as a matter of honour to retaliate immediately by killing the person who had just killed his father, or, if he could not reach him, by killing the nearest available relative of the killer. If time, space or distance intervened and the immediate sense of anger were thereby mitigated, the matter might resolve itself into a claim for compensation between the rival clans, which might in turn lead to more fighting, if it were not settled to the satisfaction of all concerned. The immediate reaction however, in the heat of the moment, would be for a person in the position of the Accused to kill either Hamo or his nearest available relative.

Hamo, having himself reacted to the situation in which he found himself, by killing Baluwo, of course realized the danger in which he would be placing himself if he remained in close proximity to his victim whilst members of the Baroma clan were within range. He therefore made off as quickly as possible after firing his arrow, as is the usual practice in such circumstances. In this situation Kauba was deprived of his first choice of victim, but seeing that Nuabo the son of Kamo was standing nearby, he immediately ran to a nearby house and got a bow and arrows, and shot an arrow into Nuabo, which killed him instantly.

At the time when Nuabo was killed, he was standing with a substantial stick in his hand, measuring about five feet long and about two inches thick, but the evidence does not remotely suggest that Nuabo in any way threatened the Accused, or took any action in relation to the Accused which would have justified any retaliation, or that he was acting in concert with anybody in such a situation.

I would be prepared to hold on the present facts, that Kauba satisfies in all respects the requirements of Section 304 as to provocation, because he was in fact provoked by what he saw, into taking the action which he did, which according to the social and cultural conditions under which he lived, would be regarded as natural and proper consequences of the killing of his father in his presence. The difficulty is, that Section 304 only affords a defence, to the extent of reducing what would otherwise be a case of wilful murder to the level of manslaughter, if the provocation under which the Accused acted was provocation of the kind contemplated by that Section.

Applying the definition of provocation set out in Section 268, the situtation in which the Accused found himself satisfies all the requirements of that Section except that his actions were not directed against the person by whom the provocation was offered, but against another person who as an individual, offered no provocation at all, and was, as an individual, entirely innocent.

It would be possible to take the view that since Section 268 only specifies the kind of provocation which is contemplated, and that if it was likely to produce a counter-attack against the person who offered the provocation (in this case Hamo), there is nothing in either Section which says that the Accused may not, according to the fashion of his people, also direct his actions against any other victim. Upon such a view the requirements of Section 268 would be fully met, because the provocation would, in the society to which the Accused belonged, undoubtedly result in an attack being made on Hamo, if he were present. There is nothing in Section 304 which says expressly that the attack must be made against any particular person.

If the Court were free to evolve a Common Law basis for the operation of the defence of provocation suitable for the primitive state in which many of the natives of the Territory are at present living, and are indeed required by circumstances to live, it might appear that the established practice of striking back against the nearest clan relative ought to be recognized as carrying a different degree of criminal responsibility from wilful murder, and it might be thought that the penalty prescribed for manslaughter carried sufficient sanction as a matter of public policy to lead the people to a more advanced standard; but in applying the provisions of the Criminal Code as they stand, there seems to me to be no justification for going outside the terms of Section 268 for a definition of provocation.

Another difficulty is that, even if the Court were free to turn to the Common Law instead of Section 268, it could not do so for the purpose of extending the application of a lower degree of criminal responsibility to a set of circumstances which fall outside the concept of provocation at Common Law.

Although Section 268 recognizes that provocation may affect and sanction retaliation by a third party, who is in a parental, filial or other appropriate relationship to the person provoked, it is an essential feature of provocation that the action be directed against the person giving the provocation. Attaching responsibility for provocation to persons other than those who give the provocation, would require the introduction of some additional concept of social responsibility, and I think that this concept must be taken as being absent both at Common Law and under Section 268. If it were introduced, I do not think it would be appropriate to call the new concept provocation at all.

The Criminal Code was drawn up and enacted in the light of many centuries� experience in the English community, during which time the community was thereby enabled to advance to a much higher social status. The Code inevitably expresses concepts of social responsibility in terms known to an advanced and civilized society. The kind of clan structure which gives rise to concepts of social responsibilities of the type in question in this case, has been absent from English society for a very long time and in my opinion there is no foundation upon which I can afford any appropriate relief to the Accused in applying the provisions of the Criminal Code.

Note: Since this Judgment was given, I have been referred to the article on Provocation and Homicide in Australia, by C. Howard, Esq., LL.M. published in Vol. 33, A.L.J., at pages 323-330 and 355-361 and in particular his comments on page 328, on the Victorian case of R. v. Scriva (No. 2) [1951] VicLawRp 2; 1951, V.L.R. 298 at p. 301.

VERDICT

Guilty of Wilful Murder.

Order that Sentence of Death be Recorded.

Had that case decided that the Accused was justified in attacking somebody other than the person who gave provocation, it might have afforded me sufficient justification for adopting the construction of Sections 268 and 304 of the Code indicated in the course of my judgment, there being no clearly expressed intention to the contrary. The general situation arising in Scriva�s Case, is by no means uncommon in the Territory and occasion may arise for the question to be decided in an appellate jurisdicton. On the present state of authority, I do not think that I would be justified in departing from the view which I expressed in this case.

I should add that in the two cases of Regina v. Hamo-Tine and Regina v. Kauba-Paruwo, there was no basis in fact for treating the contesting parties as members of two hostile groups engaged in actual fighting in the ordinary sense. The kind of fighting which occurred, commonly occurs in several distinct degrees of violence ranging from the shouting of abuse, through the whole scale to the use of lethal weapons. Although members of each clan invariably support each other as the immediate occasion may arise, the fighting as a whole is sporadic and may stop or start at any time, the actual incidents commencing with the attack on Hamo and including the subsequent killing of the two men, represented a self-contained conflict which flared up suddenly and stopped as suddenly, due to its own circumstances, without being sufficiently related to the more general state of hostility between the two clans as to justify a conclusion that all members of the clan were engaged in any common purpose which would include in its contemplation the three sudden incidents referred to.

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

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

[xxxii]1963 P. & N.G.L.R. p. 9.