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Regina v Bomai [1961] PGLawRp 5; [1964] PNGLR 278 (11 August 1961)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 278 - Regina v John Bomai

[1964] PNGLR 278

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

JOHN BOMAI

Goroka

Selby AJ

11 August 1961

CRIMINAL LAW - Wilful murder - Manslaughter - Provocation - �Sudden� - �Heat of passion� - Criminal Code ss. 268, 269, 304.

The accused, a Chimbu native, whilst serving a sentence for an offence involving alcohol was accused of sodomy with one Inova. He strenuously denied the charge but was convicted of behaving in an indecent manner towards Inova and sentenced to four months� imprisonment. At this hearing he alleged that he was convicted on the false evidence of Inova and the interpreter, whereupon he was silenced and placed in police custody. At the conclusion of these proceedings he threatened the interpreter with violence but was restrained and led away. He escaped by trickery and, whilst fleeing, met three youths, one of whom was Inova. The accused seized an axe left on the road by a workman and with it struck Inova three times killing him.

On an indictment for wilful murder.

Held:

N1>(1)����� The word �provocation� in section 304 of the Criminal Code must be construed as it is found in that section alone, and is to be given its ordinary dictionary meaning. Reference should not be made to the definition of �provocation� in section 268 because:

N2>(a)����� the two sections are in different chapters of the Code and there is no indication therein that the definition in section 268 is intended to apply to the later chapter; and

N2>(b)����� �provocation� in section 269 as defined in section 268 is completely exculpatory and accordingly is rigidly defined and hedged with provisos.

N1>(2)����� On the facts the accused was under an aggravated sense of grievance and was brought to �boiling point� in such a manner as to justify describing the provocation as �sudden� and in �the heat of passion�.

The arguments of counsel appear sufficiently from the judgment.

Counsel:

Quinlivan, for the Crown.

Kelliher, for the accused.

SELBY AJ:� John Bomai is charged with the wilful murder of one Inova on the 20th June, 1961. Apart from some conflict of evidence as to the date of the occurrence there is no material conflict of evidence and I am satisfied the incidents referred to by the witnesses did occur on the 20th June, 1961, as alleged.

Putting the relevant incidents in their chronological order, the history of the matter may be summarised as follows. On some unspecified date Bomai was convicted of an offence involving alcohol. The exact nature of the offence is not clear but a constable was also involved and convicted. Bomai was sentenced to three months� gaol at Lufa; the constable to one month�s gaol at Goroka. Whilst in gaol, Bomai was accused of sodomy with his subsequent victim, Inova, and though he strenuously denied the charge he was, on the 20th June, 1961, convicted of behaving in an indecent manner towards Inova and sentenced to four months� imprisonment at Lufa. He argued strongly with the member of the Court for Native Affairs who convicted him, alleging that he was convicted on the false evidence of Inova and the interpreter, protesting at being sentenced to a further four months after he had already served three months and insisting that he should serve the term at Goroka and not at Lufa. He was told to �shut up� and placed in the custody of a Police Sergeant who handed him into the custody of a constable. At the end of the Court proceedings he had threatened the interpreter with violence for what he alleged was the false evidence given by the interpreter, but was restrained.

As he was being taken along the road to be put to work he tricked the constable by telling him he wanted to go to the lavatory but, in fact, made his escape and ran away. Running down the road, he saw in front of him three youths, one of whom was Inova. An axe had been left lying on the road by a road-worker and Bomai picked this up and aimed a blow at Inova who raised his arm in an attempt to ward off the blow which severed the bone of the forearm. A second blow on the side of the neck severed the spinal column and jugular vein and as Inova lay on the ground a third blow on the chest severed the sternum and penetrated the chest cavity. These injuries were of course, fatal. Bomai claimed, in effect, that the injustice which he considered he had suffered as a result of Inova�s allegedly false evidence made him so angry as to rob him of his self-control. This was, to some extent, corroborated by Sergeant Kombia who was present at the trial for the sexual offence. Kombia, whom I consider an impressive and intelligent witness, said in cross-examination that he was afraid that Bomai would escape and kill Inova and said so when Bomai was placed in his custody. He said that at this time Bomai�s eyes were going from side to side and had a funny look and that he appeared to be mad. He could see that Bomai was very angry. Kombia has had 23 years police experience and stated that he thought strongly that Bomai would attack Inova with an axe after the fashion of the Chimbu people.

The account of the attack outlined above accords in general with the evidence of two eye-witnesses and with the evidence of Bomai himself given before me today and on the Committal proceedings (his statement there was tendered in evidence). On the evidence, I am satisfied beyond any doubt, that all the elements of wilful murder have been conclusively established.

Mr. Kelliher, however, who appears for the defence contends the evidence establishes provocation of a kind to reduce the crime to manslaughter pursuant to the provisions of section 304 of the Criminal Code. He claims that, on the depositions (which were also tendered) the case on the indecency proceedings was not a strong one; that the accused was suffering from a multiple grievance by reason of the charge of sodomy which is considered insulting by the Chimbu people; by reason of the wrong conviction on false evidence and by reason of the earlier discrimination between Bomai and the constable in the proceedings in connection with intoxicating liquor. Counsel submits that this was sufficient to deprive the accused, regarded as a reasonable Chimbu, of self-control and did, in fact, have that effect. He relies on Sergeant Kombia�s evidence as some corroboration.

Mr. Quinlivan, for the Crown, whilst agreeing that Bomai was very irate, contends that the facts do not indicate provocation for the purpose of the operation of section 304. If the allegation of sodomy is relied on as provocation it is not sufficient because of the lapse of time between the making of that allegation and the commission of the crime. It could not be regarded as �sudden�. Provocation, it is argued, must, for the purposes of section 304, result from a �wrongful� act or insult. The conviction of a sexual offence cannot be regarded as �wrongful�. No appeal from that conviction was taken and no such appeal is before this court. Mr. Quinlivan contends that the requirement that provocation results from a �wrongful� act or insult follows whether the definition in section 268 or the Common Law definition is applied. He further contends that the facts do not support the claim that the control of the accused was overborne and he relies for this contention on the logical argument which the accused put up when convicted of the sexual offence, his tricking of the police constable and his selection of his victim from a group of three. His claim is that the killing was a straight-out act of vengeance.

This aspect of the matter has caused me considerable difficulty but I may say at the outset that I do not consider that any rage into which the accused may have been thrown as a result of a false accusation of sodomy could in itself amount to provocation. I agree with the contention of the prosecution that the lapse of time between this allegation and the commission of the crime was too great to allow any provocation thereby arising to justify a verdict of manslaughter pursuant to section 304. My chief difficulty is in deciding whether, as a question of fact, the series of wrongs which the accused alleges he suffered did culminate in something which eventually deprived him of his self-control and could be said to amount to sudden provocation. Allied to this difficulty is the fact that I am not in a position to decide whether the accused was rightly or wrongly convicted of the sexual offence. I am not sitting on appeal from that conviction, but I might say that although I agree that the case appeared to be a weak one there was sufficient prima facie evidence to support the conviction. I am aware of the possibility that the accused might have killed his victim as an act of calculated vengeance for being informed on and then cunningly concocted the whole story of imaginery grievances. The accused appears to be of above average intelligence but I do not consider that the evidence supports this theory. I am satisfied that he was labouring under a deep sense of grievance, whether real or imagined.

It therefore becomes necessary to construe the word �provocation� as appearing in section 304. In so doing I do not consider that it was the intention of the legislature that this word should be construed in the light of the definition in section 268. That section appears in Chapter XXVI of the Code, a different chapter from that in which section 304 is contained. This in itself, is by no means conclusive but there is nothing in Chapter XXVI which indicates that the definition in section 268 is intended to apply to the word when it appears in a later chapter.

Furthermore, it is important to note that by virtue of section 269, provocation as defined in section 268 is made completely exculpatory. It is therefore understandable that it should be rigidly defined and hedged with certain provisos. One such proviso is that the force used should not be disproportionate to the provocation, nor intended, nor likely to cause death or grievous bodily harm: section 269. If this proviso also applied to section 304, that section could not, of course, be relied on in the present case as it could not be said that the force used was not likely to cause at least grievous bodily harm. By reason of the different effect given to provocation in section 269 and section 304 I consider that the word, when appearing in section 304 must be construed as it appears in that section alone, without regard to the definition in section 268.

Section 304 does not purport to set out in detail the full common law concept of provocation and in my opinion the word, where it appears in that section should be read in its ordinary dictionary meaning. If a person is suddenly induced to do an act which causes death, and if the inducement causes him to act in the heat of passion and before there is time for his passion to cool, then I consider that such inducement constitutes provocation within the meaning of section 304. It remains, then, to consider whether such provocation arose in the present case. Taking into consideration all the facts which I have reviewed earlier, I have come to the conclusion that the accused was smarting under a sense of grievance at what he considered the injustice of the differentiation between him and the constable, both as to the term of imprisonment and the place of confinement in respect of the conviction relating to intoxicating liquor. This sense of grievance was aggravated by what he considered to be deliberately fabricated evidence given against him by Inova and the interpreter at the sodomy proceedings. While these grievances were simmering in his mind they were brought to boiling point when his pleas were not listened to and he was told to �shut up� and was taken away in custody. The net result of this amounts, in my opinion, to provocation and the fact that he was brought to boiling point and reduced to the condition described by Sergeant Kombia justifies, in my opinion, the description of such provocation as �sudden�. Regarding him as �a reasonable Chimbu� I am satisfied that his self-control was overborne and the crime committed in �the heat of passion�. Had he deliberately sought out a weapon for his attack, my view might well have been otherwise, but in his case the weapon, unfortunately, was lying in his path whilst he was engaged in hot pursuit, and his action in picking it up and using it as he did was the inevitable reaction of a man in all the circumstances in which the accused found himself.

For these reasons I find the accused, John Bomai, guilty of manslaughter.

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

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