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State v Tindap [2014] PGNC 92; N5635 (19 June 2014)

N5635

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 830 OF 2012

THE STATE

V

BON PAUL TINDAP

Madang: Cannings J
2013:20 August, 10, 26 September, 21 October,
2014: 11 February, 11 March, 19 June

CRIMINAL LAW – practice and procedure – procedure to adopt after the Court finds that an accused person is not capable of understanding the proceedings – Criminal Code, Section 569(3)(c) – whether the accused should be discharged or kept in custody.

The Court, having found that an accused was not capable of understanding the proceedings, conducted a further hearing to determine whether he should be discharged or kept in custody.

Held:

(1) Relevant considerations to be taken into account in deciding whether an accused person found to be of unsound mind should be discharged include: whether it is safe to release the accused into the community and whether the interests of the accused would better be advanced by his being discharged.

(2) Here, it was not clear that it would be safe for the community for the accused to be discharged and it was in his best interests that he be detained at a psychiatric hospital.

Case cited

The following case is cited in the judgment:

The State v Samson Yauling (2009) N5514

RULING

This was a ruling on whether an accused found incapable of understanding the proceedings should be discharged from custody.

Counsel

J Morog, for the State
A Meten, for the accused

19th June, 2014

1. CANNINGS J: This is a ruling under Section 569(3)(c) of the Criminal Code on whether the accused, Bon Paul Tindap, should be discharged from custody.

2. The accused, aged 26 and single, is charged with the wilful murder of a woman, Agnes Borup, at his village, Pier, Bogia District, Madang Province, on 11 June 2012. He surrendered to the Police, with the assistance of his father, Jude Kamtuan, the next day. He was placed in custody and he has been in custody continuously since then. Though the issue of his guilt has not yet been determined, no one is contending, at this stage, that the accused did not kill the deceased.

3. The accused was committed for trial by Madang District Court on 3 December 2012. While he was in remand at Beon Jail he was showing signs of mental illness. On 4 March 2013 I ordered the Secretary of the National Department of Health to organise a psychiatric assessment of the accused. A psychiatric assessment was undertaken by Dr Monica Kakirau-Hagali, Acting Clinical Coordinator, Psychiatry Division, Port Moresby General Hospital, who came to Madang and interviewed and made a thorough assessment of the accused. Dr Kakirau-Hagali concluded that he was of unsound mind and unfit to stand trial.

4. I conducted an inquiry into the question of whether the accused is capable of understanding the criminal court proceedings that have been instituted against him. The inquiry was conducted under Section 569(1) of the Criminal Code, which states:

If, where the accused person is called on to plead to the indictment it appears to be uncertain whether he is capable of understanding the proceedings at the trial so as to be able to make a proper defence, then before a plea is entered to the indictment the court shall enquire into the matter in order to discover whether or not he is capable.

5. On 20 June 2013 I relied on Dr Kakirau-Hagali's assessment and ruled that the accused is not capable of understanding the proceedings for the reason that he is of unsound mind. This finding was made and recorded under Section 569(3)(a) and (b) of the Criminal Code, which state:

If the court finds that the accused person is not capable of understanding the proceedings:

(a) The court shall say whether he is so found by it for the reason that he is of unsound mind or for some other specified reason; and

(b) The finding shall be recorded.

6. As a result the accused has not been called on to plead to the charge. The Criminal Code provides that in such situations the Court is to make a decision to either discharge the accused or order that he be kept in custody. Section 569(3)(c) states:

If the court finds that the accused person is not capable of understanding the proceedings ... the court may order the accused person—

(i) to be discharged; or

(ii) be kept in custody in such place and in such manner as the court thinks proper until he can be dealt with according to law.

7. A further hearing has been conducted for the purpose of making a decision under Section 569(3)(c).

EVIDENCE

8. Six main pieces of evidence have been considered.

A: Forensic report by Terence Kuaru, Clinical Psychologist, Modilon General Hospital

Mr Kuaru made a preliminary assessment in February 2013 that the accused appeared to be suffering from paranoid schizophrenia. He prescribed some medication. His opinion was that the accused was of unsound mind and should be transferred to Laloki Psychiatric Hospital.

B: Psychiatric assessment by Dr Kakirau-Hagali, acting Clinical Coordinator, Psychiatry Division, Port Moresby General Hospital

9. Dr Kakirau-Hagali in her assessment dated 7 May 2013 confirmed Mr Kuaru's preliminary assessment that the accused "has active symptoms and signs consistent with schizophrenia". She concluded that the accused "should be admitted to Laloki Psychiatric Hospital to receive quality psychiatric care".

C: Report by Joseph Bande, Assistant Director, Community Development Branch, Madang Provincial Administration

10. At the request of the Court Mr Bande interviewed a number of persons with an interest in the matter:

(1) The accused's parents. They now live in Madang town, having fled the village for their own safety following retaliatory action taken by the deceased's relatives immediately after the incident in June 2012. They say that the accused had been exhibiting signs of mental illness when he was 17 years old in 2006. They care for him very much. They realise that the best thing might be for him to be transferred to Laloki but they would like to be given the chance to care for him in town. They want to engage the services of a "herbal doctor" who has a good track record in treating people with mental illness.

(2) Paul Kamtuam, Ward Councillor, Yawar Local-level Government. He is responsible for Pier village. He is also the accused's uncle. He is familiar with the situation. He says that the accused had committed a number of other serious offences before the June 12 incident. The matters were referred to the Bogia Police but nothing was done. The general feeling of people in the local community is that they do not want to see the accused released into their community; at least not unless he is cured of his mental illness. There is no guarantee that he would not cause further deaths.

(3) Poilep Pondros, "herbal doctor". This is the person who the accused's parents wish to engage to treat their son. Mrs Pondros is from Manus and claims to have successfully treated many people in Manus and Lae who were suffering from mental illnesses.

(4) Borup Kwiva, the husband of the deceased. He says that the accused should not be released into the community as he "may attack at any time and will cause further deaths". He should be sent to Laloki Psychiatric Hospital, which is "the right place for such people".

(5) Bob Sewa, Kukurai (Chief), the deceased's village, Temnung. The deceased came from Temnung village, which is a neighbouring village to Pier. Reconciliation is still to take place between the accused's family and the people of Temnung who do not want to see the accused released into the community.

(6) Sinex Gumadek, a brother of the deceased. He regards reconciliation as the most important thing that needs to happen.

(7) Lois Powi, Community Health Worker, Beon Correctional Institution. She has monitored the accused's mental state since he was first remanded in custody. She has observed no improvement: "He does not talk and listen, but only stares". He should be sent to Laloki Psychiatric Hospital.

D: Report by Ignatius Ingke, Probation Officer, Community Corrections & Rehabilitation Service, Madang

11. He spoke to a number of community leaders from Pier village who expressed fear for the safety of the community if the accused was permitted to go back to live at Pier.

E: Evidence of Jude Kamtuan, father of accused

12. Mr Kamtuan was interviewed by Mr Bande. He also expressed his views in an affidavit and gave oral testimony. He appreciates that the best thing might eventually be for his son to be treated at Laloki Psychiatric Hospital. However, he and his wife are very concerned about losing contact with their son, who they care for very much. They will find it difficult to meet the cost of travelling to Port Moresby to visit him. They want to be given the chance to have him treated by the herbal doctor, Mrs Pondros. They are asking that they be given three weeks so that they can look after their son and arrange for him to be treated by Mrs Pondros. If that does not work, he can then be taken back into custody and transferred to Laloki. Supporting this proposal is Pastor Chris Pius of the Madang Reformation Centre. He is also from Pier village and is the brother-in-law of the accused's father. He stated in an affidavit that he and the accused's family live together in the same community at Wagol-Fikus, in Madang town. The accused will be able to live in his house. He and his family are willing to assist in the care and supervision of the accused.

F: The accused

13. I now record my observations of the accused. He has appeared before me on numerous occasions when the court has been conducting this hearing and the earlier hearing to determine his ability to understand the proceedings. He responds with alertness when his name is called in court or when he is called into the dock or he is excused. But he almost invariably makes no response if he is asked a question. The only time I recall him orally answering a question was when I asked him "Do you want to go to Laloki?" and he answered quickly and firmly "No".

SUBMISSIONS

14. Mrs Meten for the accused submitted that the Court should allow the accused to be released from custody on a trial basis. He would be put under the care of his parents and live in Madang town at Wagol-Fikus. The accused would also benefit from the spiritual guidance and support by Pastor Pius. His parents have a lot of faith in the herbal doctor, Mrs Pondros, who is confident that she will be able to successfully treat the accused. Transferring him to Laloki would be a drastic step to take, without at least attempting to cure him by applying an alternative medical regime. Mrs Meten stressed that the parents of the accused have no intention of taking themselves or the accused back to Pier.

15. Mr Morog for the State submitted that the only viable option was to transfer the accused to Laloki Psychiatric Hospital. The herbal doctor option was not scientifically sound. It is not safe to release him into the community. Anything could happen, even if the accused stays in Madang town.

DETERMINATION

16. As I indicated in The State v Samson Yauling (2009) N5514 there are two main factors to take into account when deciding whether an accused, in particular an accused who is facing a homicide charge, who is incapable of understanding the proceedings, should be discharged:

• whether it is safe to release the accused into the community, and
• whether the interests of the accused would better be advanced by his being discharged.
  

17. I agree with Mr Morog that the safety of the community cannot be guaranteed if the accused were to be discharged from custody. The accused's parents and Pastor Pius are confident that they could look after the accused but frankly I consider that they are in no position to ensure that the accused does not cause further trouble. I accept that they are not proposing to take the accused back to the village but in his current condition I consider that there is a risk that he would attempt to find his way back there.

18. I have earnestly considered the proposal of releasing the accused for a limited time so that he might be treated by the herbal doctor, Mrs Pondros. If this proposal were supported by psychiatric experts such as Dr Kakirau-Hagali and Mr Kuaru I might be persuaded to give it a try. But in the absence of such support, Mrs Meten has fallen short of persuading me that that would be a responsible and proper thing to do.

19. It is in the best interests of the accused if he is given intensive, controlled, scientifically-based psychiatric treatment; and that the only way that can happen is if he remains in custody and is transferred to Laloki Psychiatric Hospital. This will make life difficult for the accused's parents and I am sympathetic to their concerns. If there were such a facility in the Momase Region I would have no hesitation in transferring the accused to it. 20. Unfortunately Laloki is the only place in the country where the accused can be properly treated. It might turn out that after some intensive treatment he will be able to recover from the psychiatric illness that plagues him. His condition might be able to be stabilised. As soon as that happens he can apply to be released from Laloki. I will allow four months for the transfer to be effected.

ORDER

21. The National Court orders under Section 569(3)(c)(ii) of the Criminal Code that the accused shall continue to be kept in custody on the following terms:

(1) The Commissioner of the Correctional Service and the Jail Commander, Beon Correctional Institution, Madang Province, shall take all steps necessary to transfer the accused from Beon Correctional Institution, Madang Province, within four months after the date of this order, into the care and custody of the Officer-in-Charge of the Laloki Psychiatric Long Stay Hospital, National Capital District.

(2) The accused shall only be released from the care and custody of the Officer-in-Charge of the Laloki Psychiatric Long Stay Hospital, National Capital District by order of the National Court; and seven days notice of any application for the accused to be released from such care and custody shall be given to the Public Prosecutor.

(3) In the meantime the accused shall continue to be detained in custody at Beon Correctional Institution.

Ordered accordingly.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused