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State v Waime [1981] PGNC 25; N305 (21 May 1981)

Unreported National Court Decisions

N305

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
TRESA WAIME

Waigani

Kidu CJ
19-21 May 1981

KIDU CJ: The accused is charged with the wilful murder of her husband on 31 December, 1980. She has not denied that she intentionally killed him. However, through her counsel, she has raised the defence of provocation which she says should reduce her conviction to manslaughter.

On the afternoon of 30th December last the accused, the deceased and their children were in their house at Sogeri Senior High School. About 6 p.m. two men visited them. The deceased got a carton of beer and they sat in the kitchen talking and drinking. The accused made some tea and then joined the three men. She stayed with them until about midnight and then went to bed with her three months old baby and two older children. She says at about 2 a.m. the deceased came into the place where she was sleeping with the baby, took the baby and put him near the two older children - one 8 years old and the other 4 years old at the time.

The deceased lifted her dress and lay on top of her and started having sexual intercourse with her. She thought she was dreaming but woke and indeed found the accused on top of her. She got up and went and got her baby. She was crying. The deceased said to her “Why are you crying in the middle of the night?” and went and stopped her. He hit her she was then sitting down with the baby. He hit her several times. In her own words:

“Every time he punched me I fell down with the baby and got up with the baby”.

He then said the following to her:

“You big mouth and you are crying. I didn’t give you blood or hit you hard. If you keep on crying I’ll get this axe and cut you with the baby.”

She says when the deceased said this it reminded her of the times when he used to get the axe and say to her “I will kill you”. So she pulled the axe from him. The deceased then punched her and they started struggling until she was lying on the ground. When she was on the ground he had carnal knowledge of her by force. After this she went and picked up the baby and was crying. She said to him:

“This is your baby. It is not anybody’s baby. The baby is not walking or sitting down. Why are you doing this to me”?

The deceased then said to her:

“If you worry about you and your kids you can take them and go. But you got no way to take them away. You will be my servant. You will work for all of us and bear children but you will have no way to get out of here. You will keep on having kids until you die. You will not go home to see your parents”.

When the accused said this he was lying down. After he said this the deceased went to sleep where he was. The accused stood where she was for a while thinking about what he said.

“I was a bit mad inside and I was not thinking properly. So I went and grabbed the axe. I got the axe and said to him ‘This axe you used to show me when we had our arguments’.”

She then cut the deceased twice on the neck. The post mortem report states there were four wounds and I accept this - that is the accused hit the deceased on the neck four times. She then left the house and went to the Sogeri Police Station where she was found by the Police when they went to the station. She was interviewed that afternoon at the Port Moresby Police Station. The interview commenced at 2.16 p.m. and went on for four hours.

The accused and the deceased left their village (Yari) in Gumine electorate of the Chimbu Province in 1972 and went to Sogeri and had been there up to 31 December 1980. He had never been employed nor did he seek employment. She had been working as a domestic servant and supporting the husband and the children. This caused resentment on her part.

Before the 31st December 1980 the deceased had assaulted her nearly every day and sometimes threatened her with an axe. On three of these occasions she reported the threats to the Police but did not get any help from them. On the day she killed the deceased she says she thought of going to the Police but didn’t because they would not do anything.

Miss Cox submitted that from the evidence the defence of provocation was raised and that the accused had, when she killed the deceased, acted in the heat of passion and caused by sudden provocation and before there was time for her passion to cool (s.308 of the Criminal Code).

Ms Bourke for the State conceded that there was provocation but the accused had not acted in the heat of passion caused by sudden provocation. She based her submission on the accused’s evidence that she had been continually assaulted before the day of the killing and that she did not lose total control of herself. This she submitted was shown by her evidence that before she cut the deceased she thought of going to the Police but then changed her mind because Police would not do anything. This was a case of a person being angry and took the law in her own hands. Ms Bourke relies on R. v. Moses-RobertsN305.html#_edn544" title="">[dxliv]¹, where Frost C.J. (as he then was) said at p. 185:

“In my opinion, for the act to be done in the heat of passion, the accused must have ceased to be the master of his own understanding. R. v. Rumints-Gorok ((1963) P. & N.G.L.R. 81). In New South Wales the relevant statute refers to the act being ‘done suddenly in the heat of passion caused by such provocation ...’ (Crimes Act, s.23). This section was considered by the Privy Council in Parker v. The Queen ((1964) A.C. 1369). Care must be used in applying the principles of this case as the Privy Council had regard to the common law at the date of the statute in its interpretation (Ibid., p. 77). Different principles apply to the interpretation of our Code. But I consider that the meaning given by the Privy Council to the phrase ‘in the heat of passion’ involving ‘a temporary suspension of the reason’ supplies a correct interpretation of the same words, in s.304.

Of course the accused was angry. He had found the deceased in Upi’s boi-house, where he had expected to find her. So he scuffled with Upi and pulled his wife away. But mere anger is not sufficient, there must be passion taking the place of reason, R. v. Rumits-Gorok ((1963) P. & N.G.L.R. 81, at p. 85).”

But in that case the learned Judge then went through the evidence and on the facts concluded that the accused did not act in the heat of passion. In that case the prisoner had gone looking for the deceased, his wife, and killed her. The facts of this case are quite different from that. In this case the accused who had been ill-treated and assaulted by the deceased nearly every day and on the day of the killing had forced her to have sexual intercourse and then abused her thereafter. The accused had no right to have carnal knowledge of her by force. She is not an object. She is a simple village woman with human feelings. Being subject to sexual intercourse when she had just had a baby was against her custom and his. She felt great shame. At the moment before she wielded the axe and delivered the fatal blows, her mind had been full of past injustices to her by the deceased. Her bride price had not been paid as required by her custom; the deceased had not paid her family for the “head” of her three children as required by their custom and she had since 1972 worked to support the deceased and the children whilst he demanded money for beer and did nothing to secure employment. To cap it all he shamed her by having carnal knowledge of her against custom and by force at that.

I look at all these incidents which led up to the killing to determine whether s.308 applies. As Clarkson J. said in R. v. Manga-KitaiN305.html#_edn545" title="">[dxlv]² at

“There wase was a series of incidents to which I have referred culminating in the struggle between Aia and Manga and although the provocation mustudden, I think I am entitled to, as I do, look at all thesethese incidents as setting the stage for what is said to be the sudden provocation (Mehemet Ali v. The Queen ((1957) [1957] WALawRp 3; 59 W.A.L.R. 28); R. v. Duffy ((1949) 1 All E.R. 932)”.

To say that the fact that the accused, before she delivered the fatal axe blows, thought about going to the Police then changed her mind, shows she had acted out of anger rather than loss of control or passion taking the place of reason ignores the total effect on the accused of the facts surrounding the killing, which show quite clearly that she was provoked beyond what any person could endure. If the circumstances of this case do not show a person acting out of control rather than out of mere anger I don’t know what circumstances will satisfy section 308 of the Criminal Code.

I find that the State has failed to prove beyond a reasonable doubt that the accused did not act in the heat of passion caused by sudden provocation and before there was time for her passion to cool.

I therefore acquit the accused of wilful murder and convict of manslaughter.

SENTENCE

You killed the father of your children and your own husband. The law says we must not kill other human beings. However, you were under great emotional strain when you killed him. You had been subjected to physical assault nearly every day and on the day of the trouble you had been twice carnally known by your late husband by force, punched and verbally abused. These factors I hold in your favour for purposes of considering what sentence I should impose.

There are various theories for punishment evolved through cases by Judges in the past. It seems that one of the main purposes is deterrent of those who commit offences and those who might think of doing so. In this case, on the facts before me, I am of the view that the sentence I impose should be based on that principle.

Your husband was a human being. Whatever his failings or actions towards you, he did not deserve to die by your hands.

The law says that a person who commits the offence of manslaughter is liable to go to jail for life. In this country, however, Judges have not sent anyone to jail for life for the offence of unlawful killing. The sentence for this offence varies from rising of the court, good behaviour bonds to as much as 7 years, depending on circumstances of particular cases.

In your case, taking into account what I have said before in giving reasons for finding you guilty of manslaughter and what your lawyer has submitted on your behalf in mitigation, I consider that you should go to jail for a period of three years but since you have been in custody for 5 months you will serve 2 years 7 months.

Solicitor for the Accused: A. Amet Public Solicitor

Counsel: S. Cox

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

Counsel: C. Bourke

<44">N305.html#_ednref544" title="">[dxliv]^{(1965-66) P. & N.G.L.R. 180}

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