National Court of Papua New Guinea

In Sch.2.1. Recognition, etc. of custom:

“(1) ټ Subject to Subsectisections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.

(2) &##160;ection (1) does not not apply in respect of any custocustom that is, and to the extent that it is, inconsistent with a constitul law stator repugnant to the general principles of humanity.”

The cThe customustom of b of bride-price, as far as I know, is not inconsistent with a constitutional law or statute, or repugnant to the general principles of humanity. It is a worthy custom and should be protected.

In almost all societies of Papua New Guinea one has to pay bride-price as a basis of marriage. It is an act of formalising the relationship of man and wife in the marriage. Some bride-prices in some areas are of course getting too high. However the Constitution has also recognised this and directed that such aspects as the amounts and limits of bride-price are to be regulated by legislation. And I envisage that this aspect can come within the legislative area of provincial government as they would be in a better position to set the limits of bride-price according to their respective practices in their areas. You might yearn and say why keep such a practice, that it is archaic or primative of by gone ages, and that it is cruel. Well, with the impasse that you found yourself in, customs would have compromised with you had you paid the bride-price or worked towards paying it off, and the fact that the girl had already been betrothed would have been dropped. So you see, such custom is not that incongruous that you might have thought it was.

The Constitution proclaims in its preamble the highest virtues and values that the country must pursue. One of these is that the societies of Papua New Guinea must be based on the family unit to the extended family; and from the clan to the tribe. The family unit is formed by marriage. And the gist of it is that the family unit is based upon kinship morality which is the basis of traditional social order in Papua New Guinea societies. The requirement of the payment of bride-price therefore is to formalise your relationship to be part of that moral order. Bride-price is not just an expression of economic wealth, tangible as one can see. It means more than that. It represents the approval of the community of the birth of the marriage, and when children are bred, they are legitimate and belong to a society which is stable and thereby provides security for their upbringing. It encompasses numerous social relationships which guarantee the stability of marriage since it is inextricably bound up with how the traditional social order is created and maintained.

In an attempt to develop the underlying law, one of the processes involved is this - that where a custom is considered worthy of recognition, as bride-price, it should be given effect and applied to a given set of facts, to which that particular custom in question relates. One of the main tests that should be applied is the effect of the ultimate good it would have in our society. As far as bride-price is concerned, it is inherent and inextricably bound up in the processes of constructing and consolidating the social or moral order in society. In my view, it is this moral order that guarantees the continuity of society. It is therefore proper for the court to enhance the development of this traditional institution because of the valuable role it plays and does to society. It must enhance it by giving effect to it, in a sense that the law should not allow as an excuse a man’s own failure to pay bride-price the consequences of which gives himself the humiliation and acts upon it to commit murder as a revenge. When the Constitution in its preamble speaks that traditional villages and communities should remain as viable units of Papua New Guinea society, and for active steps to be taken to improve their cultural, social, economic and ethnical quality, it means that the customary institution which brings their foundation into existence must be cultivated and strengthened by the law. Customs are natural cultural constructs that provide the ideas in terms of which the people of that culture conceive the facts of their existence and also define their values. These provide the living law underlying the modern legal order to a greater extent.

I have to canvass that background because I have been asked to consider your action in the light of how an ordinary person from your environment and culture would react under the circumstance of your case. The law says that is what I should do. However, it must not be confused here that what I am doing is to establish the nature of provocation in the strict legal sense. I am merely trying to assess how an ordinary man would react in the general sense, which is quite proper to do. In this case, I consider that the background which I have examined is the proper one in which I should see whether or not your action was that of an ordinary man of your own village. As far as I am concerned, your action in murdering this young girl was completely out of place. The reaction was not of a reasonable man of your village. And people from your own culture and environment would laugh at you for what you did.

But you seemed to have adopted a course of conduct to persist in staying with the girl hoping that the traditional demands upon you would just disappear and good relations with your in-laws would develop. Unfortunately when the traditional ways of life, or in other words, the normative order exerts itself as you discovered it, you found yourself in such a hopeless position that in a blind reaction you chose to get even with it by taking the girl’s innocent life away.

In any case, the legal defence of provocation under the Criminal Code was not raised and rightly so. Anyway, as I have stated I have found that you were provoked in the general sense and I will take that into account as a mitigation. However I have concluded that the degree of mitigation I would allow in this case will not be such as to save you from the full force of punishment when considering the background which I have discussed and the manner in which the crime was committed in this particular case. And even if I were wrong in giving you the proper degree of mitigation for this aspect, as far as I am concerned, it will not make much difference as to the ultimate effect that I will allow for all the mitigating factors when I come to the appropriate sentence I will impose in this case.

I come now to the third matter which was pleaded in mitigation. This was in relation to the state of mind of the prisoner based upon expert medical evidence by a psychiatrist, Dr. B.G. Burton-Bradley, Professor of Psychiatry and a specialist in this type of medico-legal work, and who has had long experience in this country. He examined the accused on the 16th May, 1983, some fourteen months after the incident and prepared a report of his findings, which was tendered and admitted into evidence. I quote the report which reads:

“URE HANE, Aged 24 years D81-84

I have examined the above as requested.

I have read the depositions.

PRESENT MENTAL STATE:

He is orientated for time, place, and person. There is no evidence of hallucinations nor delusions. His memory is adequate except for some parts of the period of the alleged offence. His mood state is depressed. He converses freely in a rational manner but suffers from an Anxiety-Depressive Psychoneurosis at the present time.

PRESENT PHYSICAL STATE:

His cardiovascular, respiratory, alimentary and other bodily systems show no abnormality. In my opinion he is in good physical health at present.

STATE OF MIND AT TIME OF ALLEGED OFFENCE:

Ure Hane gives the following account of the events at the time of the alleged offence. Everything happened very quickly. On the morning of 8th March 1982 he was dressing for work and his wife told him that she wished to come with him, as she wanted him to assist her in finding work. They argued and left with some hard feelings. He was very angry because they had not discussed these matters at night. They both stayed in the office all day. She insisted that he look for job for her. He did this. He asked her to go and buy him some lunch as he had no breakfast and was feeling miserable. She refused. At 4 o’clock when he was packing up to go home she was accusing him of causing all the problems occurring within the marriage and within the household in her village. He countered her with the same sort of argument indicating that it was her fault. It was getting towards 5 o’clock as he says it was always her feeling that she did not want to be seen walking out with him. He took one of the knives out of the bag (he says there were knives in both their bags) and they fought over it. He stabbed her many times. All this happened in the State Prosecutor’s Section of the Justice Department in Waigani about 5 p.m. Everybody else had already left and no one came in during the scuffle.

The events prior to the alleged offence are pertinent to this heading. He gives the following account. All his in-laws were against him because his wife was already betrothed and they made him feel inferior. His mother-in-law said ‘you married our daughter and it has ended up like this’. His own relatives were also against the marriage. There was no communication between the two families and his parents were reluctant to pay bride price. ‘My people would have preferred me to have married someone of my own village’, he says.

SUMMARY:

Mr. Ure Hane, a well educated young man, is a graduate in law and comes from a distinguished missionary family. Up till the time of the alleged offence his record has been impeccable. On one occasion he was charged with drinking by the police but was only cautioned and discharged indicating rather trivial nature of that occasion. While at the University he was President of Law Students of Papua New Guinea Society as well as President of the University of Papua New Guinea Branch of Papua Besena. He had the responsibility of looking after many of the problems in his extended family while living in his brother’s house. The evidence points to the fact that although he was always considered the outspoken member of his family, violence had not been a characteristic of his personality.

There is in the above, evidence of provocation but no evidence of premeditation beforehand. There was not enough time for this. I note in the depositions taken at the time that he stated that he wanted revenge and was prepared to take the consequences. This statement was taken at a time when he was not examined by any doctor (in fact, as far as I can ascertain I am the first doctor to see him some twelve months later). In view of his statement indicating that he had no food for twenty four hours, I am of the opinion that he was then suffering from Hypoglycaemic Irritability which was compounded by a long history of tension and current provocation. He was clearly in the state of marked confusion of Organic Brain Syndrome. Under these circumstances I feel that the statement in the depositions referred to above can only be looked at as retrospective reconstruction when his mind was not functioning properly. In view of the biochemical consequences of hypoglycaemia on the brain and the other attendant circumstances referred to above, although he may have had some confused knowledge of what he was doing at the precise time of the alleged offence, he lacked the capacity to control his actions and therefore could not reasonably be considered responsible.

(SIGNED) BURTON G. BURTON-BRADLEY, M.D.

16th May, 1983.”

The specialist was not called to elaborate further on his findings and for purposes of cross-examination because the State Prosecutor saw no need for it. Counsel for the defence however did not specify what the report attempted to establish. It was not clarified whether this was a case of diminished responsibility or a case merely explaining the state of mind of the prisoner in regard to provocation at the time of the killing.

In my view the medical evidence does not establish that this is a case of actual diminished responsibility, which is to say that you acted by reason of a personality or mental disorder in such a state of abnormality of mind as substantially to impair your capacity to know what you were doing or to control your actions. Diminished responsibility is not a defence under the Criminal Code of Papua New Guinea, however if established it ought to be taken into account in mitigation of sentence. That has been taken as the law, first in R. v. Peter Ivoro (1971-72) P.N.G.L.R. 374, and later in The State v. Eric Gordon Berry (1977) P.N.G.L.R. 128.

In some jurisdictions like the State of Queensland and the United Kingdom, diminished responsibility is not only available as a mitigation but as an actual defence to a person charged with murder. Hence s.304a of the Queensland Criminal Code has perhaps best expressed the term thus:

“(1) ҈ When a person who uwho unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time ing the act or making the omission which causes death in suin such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair his capacity to understand what he is doing, or his capacity to control his actions, or his capacity to know that he ought not to do the act or make the omission, he is guilty of manslaughter only.”

In 1960 Lord Parker (the then Lord Chief Justice of England) in the leading case of Byrne’s case (1960) 2 Q.B. 396 construed the constituent elements of diminished responsibility of the English Homicide Act thus:

“ ‘Abnormality of mind’ ... means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgement as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgement. The expression ‘mental responsibility for his acts’ points to a consideration of the extent to which the accused’s mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts.”

These authorities show what the term means, which I will adopt in this case.

However as I have pointed out earlier the conclusion which the psychiatric report came to, does not come within what one would term mental disorder, permanent or transitory. The specialist found that the prisoner was then at the time of the offence suffering from Hypoglycaemic Irritability as a result of his not having any food for twenty-four hours, and which was compounded by a long history of tension and current provocation.

Blakiston’s Gould Medical Dictionary, 3rd ed. defines the term “Hypoglycaemia” thus: “1. A reduction below normal in blood glucose. 2. The clinical state associated with decrease of blood glucose below a critical level for the individual, characterized by hunger, nervousness, profuse sweating, faintness, and sometimes convulsions.” The same learned dictionary also defines the word “Irritability” as, “1. A condition or quality of being excitable; the power of responding to a stimulus. 2. A condition of abnormal excitability of an organism, organ, or part, when it reacts excessively to a slight stimulation.”

The specialist’s conclusion may be the case. But in my opinion it is not in such a degree of mind to be properly termed mental disorder in a sense that the state of mind is so different from that of ordinary human beings that the reasonable man would term it abnormal. It must be borne in mind that substantial impairment is a question of degree which English common law says, and which I shall adopt as also appropriate for this country, should be approached by the jury or tribunal of fact in a broad, common sense way, since such matters as a person’s ability to resist his impulses are incapable of scientific proof. In any case, I do not think that your case falls within any psychiatric categories, who needs specialised treatment.

In this case I do not consider that your state of mind at the time was such as to come within the definitions of diminished responsibility that I have quoted. In my view it is more relevant to explain the state of mind of the prisoner in a situation when you were under provocation; and to strengthen the averment that when you were in that situation you could be very easily provoked. Also the averment that you did not have any food for twenty-four hours further increased the frailty of human nature to quickly react at the time. In the circumstances you were easily induced to lose your ability to control your emotional responses. The effect of it all however merely comes to this - that you acted under the state of provocation not as understood in the strict legal sense but broadly. The medical evidence can also go to support the view that with the pressures and tension from the traditional demands upon you, which you have clearly described in your record of interview, made you susceptible to collapse under the weight of them.

However even if I were wrong in my analysis of the psychiatric evidence due to my lack of medical knowledge, and without the assistance of the doctor who was not called to elaborate on his report, let me say this: the existence of an abnormality of mind is a question for the tribunal of fact, on which medical evidence is important but not decisive; the tribunal of fact is quite entitled to disagree with even unanimous medical evidence if in its opinion other evidence, including the accused’s acts or statements and his demeanour, conflicts with and outweighs it. First, it must be remembered that the prisoner was examined some fourteen months after the offence. Unless the prisoner was suffering from a permanent and continuing mental disorder, there would be no question of any lapse of time as to the examination of the prisoner since the findings may relatively, still be the same whether it was made immediately after the incident or at a later stage. The findings in the report relate to a transient aspect which I think an immediate examination would be more valuable in a sense that the doctor would be able to assess as a matter of fact the actual state of mind of the prisoner at the time. Of course there is nothing wrong with the prisoner being examined at a later stage. However such findings would be in restrospect, which could make the conclusion uncertain. The other aspect that I can have a look at is the conduct of the prisoner immediately after the offence, which can be deduced from his behaviour, from the way he approached his record of interview and from a statement which was written by the prisoner either before or after the killing, and of course from his demeanour in court. His behaviour at the time was that straight after the offence the prisoner telephoned the police to report the crime and to give himself up as well as for his own protection and safety. When the policemen arrived at the scene, he talked with them and showed them where the deceased was lying. He never went berserk or acted in some confused state of mind, or had any symptom of mental abnormality. Of course the policemen or any of the persons present were not qualified to observe any such features. However if there were any signs of such, I am sure any ordinary man could have picked up whatever type of behaviour or condition of the prisoner at the time. It might be that his state of abnormality had ceased after the killing and that his mind had gone back to normal. Nevertheless if it were a severe case of personality or mental disorder, it would be probable the aftermath of it could still be evident at the time. Now, in his record of interview taken on the same day the prisoner evaded questions the answers to which would be damaging to him, by refusing to answer them. One would have thought that he would still be in a state of confusion at that stage and would just answer questions that were put to him. However, it appeared he was already in his full faculty to know how to handle the questions put to him by the police. Then there is the interesting piece of evidence in his record of interview which I have already quoted. As the medical opinion suggests, such could have been a retrospective reconstruction when his mind was not functioning properly. However, the statement was certainly well articulated and with a lot of thought behind it, and if they were not his preconceived ideas, I am sure they would not have come out clearly and vividly as such. The same is true with the letter or statement that he wrote at the time of the offence, which I will discuss later. This was definitely written with a great deal of thought behind it. Then as to his demeanour, which I will later discuss, also points to the contrary. All I can say at this stage is that all these show that such behaviour was quite normal as that of a reasonable man.

I have come to the conclusion therefore that your mental state at the time of the offence was not in such a nature or degree of abnormality that would bring your case within what we know as diminished responsibility, which if established would have diminished, morally albeit not legally, the degree of your culpability. But I will however take the medical evidence as I have found, into account in so far as to help to show that, as an individual, you collapsed under the pressures and tension from the traditional demands upon you and from the fact that you did not have any food at the time. That the tension and provocation had induced you to lose your ability to control your emotional responses at the time, not as understood in the strict legal sense but broadly, which I have already considered and taken into account as a mitigation on sentence.

In any case, even if diminished responsibility is established, it has been held in Berry’s case (supra) that there is a limit to the weight that can be given to diminished responsibility as an extenuating circumstance. In the words of Bray, C.J. in R. v. Masollati (Unreported) Judgment of Full Court of Supreme Court of South Australia, 22 June, 1976, followed by Frost, C.J. in Berry’s case, I quote:

“The deterrent effect of punishment, or what we must assume, ... to be its deterrent effect, is not limited to its effect on persons of intelligence, responsibility and psychological and physical condition similar to those of the defendant under sentence. The court has to look at the effect generally of its sentences on those minded to commit the crime under consideration, no matter what their motives or their physical or mental state.”

There were other matters too which were pleaded. One was that you went through a period of frustration looking for accommodation. But in Papua New Guinea and elsewhere every young couple has to go through the same path of life. And I think young married couples from other provinces trying to find accommodation in the National Capital District would be in a much more agonizing position than you were because in your case you had a choice of staying at the village and coming to work from there. Couples from other provinces had to settle with whatever accommodation arrangements they would be fortunate to have with friends or relatives. Some had to take the unfortunate situation of leaving their wives at their home provinces until they find housing in the National Capital District. So there is nothing really exceptional about your case. The others are that you have pleaded guilty to this charge; that you are a first offender; that you are just 24 years old; that you were under pressure of work at the time; that you have paid some compensation to the deceased’s people; that you have been in custody for a long time now; and all that your learned counsel has urged me to consider, and also those that the court could possibly conceived of to take into account in mitigation of sentence - so far I have outlined and considered the various mitigating factors that should be taken into account in sentence.

I come now to consider the gravity of the case. It is indeed a bizarre one, as appears from the evidence which I shall now mention. At the time in question you were 23 years old, living in a de facto relationship with this girl Toutu Mea. Bride-price had yet to be paid which would formalize your marriage into a legal entity under customary law. Whilst this was still up in the air, you took another step and went and lived with the girl at her parents’ place at their village. At that time the girl had also been betrothed to another man. All these naturally created tension and ill-feelings among all the related parties concerned. The girl’s people fell out with you and sometime before and up to the offence the girl had also fallen out with you. You described your experience and feelings very clearly in your record of interview, which I have already discussed. There had been violent incidents that you had with the girl before the time of the offence. On the 6th March, 1982, you had a fight with the girl at the house in which you were staying at the village.

In the early morning of the day in question, Monday, 8th March, 1982, you had another fight with the girl again in the room that the two of you were occupying. On the morning of that day you took the girl Toutu along with you to work so that she could go and have her interviews for employment. But after taking all that trouble you never let her go and have her interviews, instead she stayed in your office all day. You never gave any explanation about these. As you mentioned in your record of interview, what was said by Toutu that she would tell her mother because you had not taken her to have her interviews and she would chase you out of the house, by itself could not have ignited you into an uncontrollable passion to kill, though when looked at in the train of causation it might be. The crime was committed at the very corridor of power, at the premises of the Public Prosecutor’s Office who is the top court officer in the administration of criminal justice in the country.

I have come to conclude that this was not a spur-of-the moment urged reaction. This was the culmination of the tension, ill-feelings, anguish and humiliation which you had vividly described in your record of interview. The stabbing was inflicted with great determination. They were not just one or two stab wounds but many. I outline here the medical evidence of this by Dr. R.C. Purchit who conducted the post-mortem at the Port Moresby General Hospital, on the 9th March, 1982. The medical report reads:

“External examination - The body was of an average built female of about 20 years old clothed in panties only. Dried blood was present on the neck, more on the right side. Multiple stab and incised wounds were present. The details are as follows:

(1) &#1tab wound on the upper pper part of the right side of the neck, behind the right ear 1.0 cms.

(2) ;ټ Stab woab wound ovnd over the anglehe riandib0 cm nally and 7.0 cm deep directerected dowd downwardnwards.

(3) & Stab woab wound anterior to (2) 1.0xternand 1.5 cm deep, eep, direcdirected downwards.

(4) Snab aci in woedds in the the right sub-mandr reg.5 cmrnally and 6.5 cm deep directed medially.

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(5)&#(5) Soab walnd thngrigh ster sternomastoidle 0.exter and 1.5 cm deep deep direcdirected dted downwards.

(6) ټ Stab anab and incised wound on the upper part of the riide ok 1.8xternally and 6.8d 6.8 cm d cm deep deep directed downwards.

(7) ـ Stab woend medial tial to (6) 1.4 cm externally andcm derected posteriorlriorly.

(8) ;ټ Incisedcised woundwound interior to (6) 1.6 cm long superficial.

160;&ـ&#160 Stab woub wound posterior rior to (6) 1.6 cm externally and 3.2 cm deep directed downwards.

(10) Stab in wounteposr tio(9) (9) 2.0 cm externally and 1.8 cm deep directed medially and tapering ofng off laterally.

(11) & Supeal in woun total of n of nine wounds over the nose, cheek and upper lip rang ranging fing from 1rom 1.0 cm to 6.0 cm.

(12) ҈ en stunds on the lehe left side of the next and shoulder region, externally rangiranging frng from 0.6 cm to 1.8 cm. The deepest woun 7.0 cm.

(13) &#160 stabds on s on the lehe left lateral wall of the abdo abdomen 1.0 cm externally and 4.0 cm deep directed posteriorly; 1.5 cm externally and 6.5 cm deep posteriorly.

(14) Multipcised wounds over ther the left forearm just above the wrist joint, ranging from 1.3 cm to 5.0 cm.

(15) Incised wounds 1.7 dm an c1.5 cthe p aspe little and ring finger on the left sidt side.

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(16) &#16ab wo.2 cm e cm externaternally over the 8th intetal s in td-axillary line directed downwards.

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(17)&#17) &#160tusiothe pohe posterioterior aspect of right shoulder ring 1.2 cms.

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(18)&(18) &#16ab wo.0 cm e cm externaternally over the anterior aspect of right side in the lower th.0 cm.

InterInternal enal examination:

On exploring the stab wound on the chest (16), the stab entered the chest wall; through the diaphragm and entered the liver. The entire track was 8.7 cm long. There was no bleeding in the abdomen.

The exploration of the stab wounds in the neck revealed two puncture wounds on the anterior surface of the oesophagus. The stab wound in the left side of the neck severed the anterior wall of the trachea just below the vocal cords. The biggest stab wound in the left side of the neck severed the external jugalar vein and the external carotid artery.

The examination of the heart did not reveal evidence of air embolism.

CAUSE OF DEATH - Haemorrhagic shock due to multiple stab wounds.”

Two sharp-pointed knives were used to inflict those wounds. The knives were very similar. The wooden handles were 10 cm long and the actual blades were about 11 cm in length. They were not weapons of murderers however they were quite lethal that when used with sufficient force could kill human beings as evident in this case. You said that these knives were in your briefcase. You used both of them and when one of them went crooked while being used, you used the other one, or it might be that you were using both at the same time until the other one went crooked. Surely, when the knife went crooked and therefore could not be of much use, such would have prompted you to desist but you did not when one sees the multiple stab wounds on the deceased’s body. As an educated man you know that even just one stab wound to a vital part of the body could kill a person. However, the multiple stab wounds that you inflicted were evident of your determination and savagery that this girl must die. It was a cold-blooded murder. You have categorically stated in your record of interview what your feelings and thought processes were. As I could not do better than your own words, I would quote the same passage again:

“I had a very tough and painful life when I stayed with my in-laws. Funny and dirty remarks were always made on me. They always had comments and made comments on me. They always rejected and disliked my presence among them. All the relatives despised me because I was not the one they wanted to marry their daughter. They wanted somebody else from the village to marry her. My wife helped me along to live in the family. But she began to change her attitude and behaved like the others. This treatment became so unbearable because I was always living in shame and misery. My parents also rejected me from marrying my wife. Due to the fact that my wife’s relatives’ behaviour caused me so much pain, shame and embarrassment and due to the fact my wife never listen or respected me. Causing these so much pain, shame and suffering and due to the fact that none of my relatives accepted my marriage, I killed my wife because I wanted to have my revenge and suffer the consequences for the rest of my life.”

It is clear from that that you had made up your mind to kill the girl Toutu as a revenge and face the consequences thereafter.

Then we have your note or statement which was handwritten in Motu by you and left at your office. It was later translated into English. Counsel for the prosecution, Mr. Sakora submitted that this was written before you killed Toutu. However I should give you the benefit of the doubt and find that it was written just after the murder. The note reads:

“KONON I IPAI (evidence established that she was the mother of the deceased girl Toutu)

Talks too much.

Talks too much behind people’s back.

Greedy to help biggest share of things to herself/himself.

Has no respect for her/his son-in-law.

When it is time to sleep, peeps in to see if her/his daughter is being made love to.

Persuades people into believing her/him by much lying.

This is the result of your loquaciousness, take it. When she gets married, you can have all the goods. You made my life miserable and made me live in much agony.

Because of your talkativeness, you have always made me angry, that is the result.

Take your daughter and let her get married so that you can have money and goods.

LOHIA MURI (evidence established that he was the brother of the deceased girl Toutu)

Gets angry for no reason at all.

Does not buy any food for the house.

Has no money.

Has no respect for his brother-in-law.

You are always angry about your sister getting married to me, so there she is take her and marry her to a young man of your choice. But sorry, because you have made me suffer, it is too late.

TOUTU M. HANE (evidence established that she was the deceased girl)

You have no respect for your husband.

Does not care about her husband.

Goodbye darling, no man will make love to you.

Because of our love for each other, I have seen every part of your beautiful body. If you had listened to me, we might have divorced.

But for making me live in much agony, this is what you deserve and must disappear this way. That is all, goodbye bastard.

BOERA (evidence established that it was the village where the deceased girl Toutu came from, and where the prisoner and the girl were living at the time of the offence)

Every young man of Boera, you have always been very angry about my marrying Toutu.

Some of you even think that she would leave me and marry one of you. Sorry boys, tough luck. It’s too late. I don’t care if I die.

I have enjoyed every moment of my company with my wife TOUTU MEA. If you want to, you can marry her while she is dead.

(SIGNED)

ERRICK URE HANE”

Again this confirms to some extent what you said in your record of interview. It appears from that statement that you had had a great deal of thought about your course of action. It shows that you had no remorse and love for the girl. It exhibited your contempt for her and her people; and shows your obsessional desire for her beauty and when she was falling out with you at the time you were jealous and made up your mind to kill her so that no one else would have her love and company.

Finally, your demeanour in court confirms further the impressions which I have outlined. In your allocutus you said nothing. Your counsel advised the court that you were ashamed. That may be so but that would not assist you. The court deals with human affairs and feelings and/it would have been in your own interest that you expressed any genuine remorse for what you have done, and love for the deceased, from your own heart. But I am not surprised. Your conduct shows your total disregard for the life of this young girl who had once loved you and cared for you.

I have come to find that taking everything together, your case comes within the worst category of cases. And amongst educated Papua New Guineans, this is a rare case of a man who committed wilful murder for the love of a woman, that is for the love of her beauty and being. In my humble opinion, not one, or even the combined effect of all the mitigating factors that I have canvassed is sufficient to save you from the full rigour of the law. Even if I were to find that diminished responsibility existed in your case, the nature of the medical evidence is such that substantial impairment of your state of mind could not be attributed to you, so as to substantially diminish the gravity of your punishment. In other words, impairment could not be in such a degree that would warrant substantial mitigation. Lastly, if you were a youth the ultimate result may have been different.

Your case calls for public deterrent sentence and retribution as overriding considerations. The approach to sentencing in Papua New Guinea as I see it is this. (This of course does not cover an approach in sentencing offenders operating in criminal activities in the towns of this country who must receive severe punishments). The approach here would be in relation to ordinary people in Papua New Guinea who would commit crimes as in this case. For an ordinary untutored and uncultured villager of a backward area the full rigour of the law should not be unleashed on him. This is because he would still be very much the product of his traditional environment and culture. He could not yet control his violent nature as we would have liked him to, because he could not have yet shaken off the blood lust of ages in him. His nature and the traditional impulses and custom that act upon him and supply the motive are such an ingrained part of his social system that to him it is not wrong to commit crime in obedience to it. His mental aptitude is such that he is unable to refrain from committing an offence and the fear of punishment cannot make him avoid doing so. The urge is so great that although he may have acquired a sufficient conception of the law’s demands, he is mentally incapable of resisting the impulse of his tribal creed. This situation is still evident in most societies of this country, and will remain the same for some time to come. In this context a moderate sentence range would be appropriate, just sufficient to meet retribution and the interest of the State, and aimed mainly at Public deterrence and for the offender’s own education. This is of course what I believe the Court has been approaching sentence in this country up to date. I believe this to be the proper view as to do otherwise would not be humane. Of course it would appear that sentence must be very heavy to meet the traditional mentality of retributive justice which still corresponds very much with the idea of an eye for an eye and a tooth for a tooth. But this view overlooks the inherent nature of the people concerned, which I have discussed. This view should not blind the path of justice. The approach should be as I have discussed, which is based upon humanity and justice.

But for an educated person as you are, tutored in other cultures and has had for a long time the benefit of outside civilizations and influences like Christianity and other social disciplines, which should make one, if he is not a social misfit, to refine and moderate his conduct, and restrain his behaviour, the full rigour of the law must be set in motion, when there is no substantial mitigation present. It must be because he would be in a position to know and appreciate fully that what he is doing is wrong or supposed to know it to be wrong and can help doing it. In this context as your case, retribution in sentence must be applied to the fullest extent. This is the proper view of jurisprudence as I see it. As I have said, general deterrence and retribution are the ultimate consideration that must be emphasized in your case.

I find that you are not a dangerous offender. I have also found your case to be properly categorized as amongst the “worst type” of cases, which would fully justify the sentence of life imprisonment which is the maximum punishment fixed under the criminal law. The law is clear on this. In Avia Aihi No. 3 (Unreported Supreme Court Judgment) SC 221 of 5th March 1982, the Supreme Court has established beyond doubt, first, that the basic sentencing principle of proportionality applies when considering sentences of life imprisonment, which, as the maximum punishment, should be imposed only in cases properly categorized as “worst type” cases. Secondly, that it is not a requirement of the law in the country that life imprisonment be reserved only for “dangerous” offenders. The reasoning of the Honourable Chief Justice, Sir Buri, especially, properly articulated the bases of these principles. After rejecting the view that only dangerous offenders should receive life imprisonment for the protection of society, His Honour, the Chief Justice said: (at p.7)

“... There are murderers of normal mental condition who deserve the maximum penalty of life imprisonment. For example, a man of normal mental capacity, who cold-bloodedly kills another man in order to marry his wife, in my opinion, would deserve the maximum penalty of life imprisonment. It should not be laid down categorically by this Court that only murderers with mental conditions making it probable that they will kill again deserve the maximum penalty of life imprisonment. If this Court were to pronounce such a principle, ‘smart’ murderers would receive lower penalties on proof that they would not commit murder again. Each murder case must be considered on its own facts. I consider, however, that a person who is shown to be unlikely to offend again should merit consideration more favourable than one thought to be likely to offend again.”

I am bound by the authority of the Supreme Court and I will apply the law as laid down therein, with which I agree. I will only add this. The gravity of the crime itself and the circumstances under which it was executed are the relevant considerations to determine whether the offender should get the maximum penalty prescribed by law. The view that life imprisonment should be used only where the mental condition of the offender is such that he will probably commit grave offences again in the future, in my opinion, is quite a separate issue that will only come into consideration when an offender of this category is in question. This would necessitate the application of the preventive principle of sentencing as the paramount consideration, for the protection of society. It should not be confused with a case, for instance, like the present case, where this aspect is not in issue.

What about the mercy component of justice? I do not know anyone who does not need mercy. It is precisely because of this that the court is given the discretionary powers to impose appropriate sentences in each individual case. But mercy must not be confused. As a fellow lawyer, I sympathize with you. However, mercy is not a personal matter. I am commissioned to do right to all manner of people in accordance with the Constitution and the laws of this country without fear or favour, affection or ill-will. When mercy has to flow from the well of the court, as I understand, the circumstances of the case itself must dictate it. This unfortunate girl had loved you and cared for you. She had even had the courage and daring to take you to live with her at her parents’ place and village for your sake, in defiance of her people’s opposition and the traditional normative order. However, in return for this, you took her youthful life away. You cold-bloodedly and mercilessly and in ferocious determination murdered her for the reasons which I have mentioned already. The multiple stab wounds were quite unnecessary. However you did it, and you did it because you wanted to destroy her appearance even after death, so that when she laid at rest no one nor her people would admire her. You did not even have the human kindness to have pity for her. In all you despised her. You are a callous man indeed. How on earth then can you expect the Court to be merciful to you when you yourself had not shown the slightest degree of human kindness, pity and love for this innocent girl?

It would be a bad day for the criminal law if I had not taken account of everything. But I think I have done what is humanly possible for me to do. “The purpose of the law is to give every man his due”, says the celebrated maxim of Roman law, and Salmond adds, “The civil law gives to the plaintiff, the criminal law to the defendant, what he deserve”. (Salmond on Jurisprudence, 8th ed. (1930), p.117).

I accordingly sentence you to imprisonment in hard labour for life.

SENTENCE

Imprisonment in hard labour for life.

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

Counsel: B. Sakora

Lawyer for the Accused: B. M. Narokobi

Counsel: B. M. Narokobi