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State v Meseko [2016] PGNC 204; N6414 (12 February 2016)

N6414

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.412 OF 2009

THE STATE

V

MICHAEL MESEKO
Alotau: Toliken, J
2015: 06^th, 07^th, 13^th and 17^th April
2016: 12^th February

CRIMINAL LAW – Particular offence – Wilful murder – Trial – Defence of Insanity – Accused shows on balance of probability that he was of unsound mind – Not negatived beyond reasonable doubt by the State – Verdict – Not guilty by reason of insanity or unsoundness of mind – Section 592 of the Code invoked – Accused to be kept in CIS custody awaiting decision and order of Head of State – Criminal Code Ch. 262, ss 27, 28, 299, 562, 592.

Cases Cited:
Goi v The State [1991] PNGLR 161
R v Koiyari – Iyeva [1965–66] PNGLR 28
The State v Enakuan Salaiau [1994] PNGLR 388

Counsel:
L.Kuvi and H Roalakona, for the State
P. Palek, for the Accused

JUDGMENT ON VERDICT

12^th February, 2016

1. TOLIKEN J: The accused Michael Meseko was indicted with the wilful murder of one Jeremiah Emanuel on the 09^th of July 2008 at Kimuta Island, Misima, Milne Bay Province.
   

BACKGROUND

2. The indictment was presented before Kariko, J. by State Prosecutor JW Tamate on the 22^nd of September 2011. It appears from the record that an issue arose before the accused was arraigned regarding his capacity to understand the proceedings against him, so His Honour ordered an enquiry under Section 569 of the Criminal Code to ascertain that. His Honour also directed a Dr. Ludwig Nanawar, a Consultant Psychiatrist at the Port Moresby General Hospital, to furnish an updated Report to the Court regarding the accused’s mental condition.
   
3. It appears that the enquiry which was fixed for the 07^th of November 2011 but never eventuated.
   
4. On 19^th of March 2012 His Honour Sakora J. ordered that the accused be conveyed to the Laloki Psychiatric Hospital for treatment and assessment as to his fitness to plead to any charge preferred against him and for Dr. Ludwig Nanawar to furnish the Court with a progressive Report at his convenience. It is not clear from the record or file endorsements when the accused was conveyed to Laloki, but when the matter came before me on 05^th March 2013 I was advised that the accused was already there. He remained there for the rest of 2013 and a good part of 2014. On the 04^th of March 2014 Dr. Nanawar furnished an updated Report on the accused. He basically was of the opinion that after treatment with appropriate antipsychotics the accused was fit to plead.
   
5. On 19^th of November 2014 the accused appeared before me again after he was discharged from Laloki. I pre-trialled the matter on 10^th of February 2015 and recommenced the trial at Misima on 06^th of April 2015.
   

THE ALLEGATIONS

6. The State allegations are that on the 09^th day of July 2008 between 5.00 – 7.00p.m. one Beatrice Emmanuel was bathing her 1 month old baby. She left the child in a bucket and went up to her house to get a towel. At that time the accused approached the child. He was armed with a bush knife. He picked up the child and threw him on the ground and then cut off the child’s hands and legs using the bush knife, completely severing the limbs from the torso and then left. Only the left hand of the deceased was ever found. The rest of his limbs and the torso were never found.
   

PLEA

7. The accused was arraigned on the indictment presented on the 22^nd of September 2011 on the above facts. He appeared to sufficiently understand the charge and the allegations of facts in support of the charge and entered a plea of Not Guilty. Mr. Palek raised the defence of insanity (Section 28 of the Code) in behalf of the accused.
   

ELEMENTS

8. For a conviction on the charge of wilful murder the State must prove beyond reasonable doubt that the accused intended to cause the death of the deceased and indeed killed him and that he had no lawful excuse for doing so.
   
9. The defence does not dispute that the accused caused the death of the deceased, but says that he was insane at the time he killed the deceased, and therefore could not have known what he was doing, hence, the absence of the requisite intention to kill.
   

ISSUES

10. The issue for trial is whether the accused was of sound mind when he killed the deceased.
    

THE EVIDENCE

The State

11. The State’s case consisted of the following witnesses and documentary and photographic evidence which were tendered by consent: –
    
    1. Evidence of Beatrice Emmanuel
    2. Evidence of Bernard Apinai and his statement to the Police dated 11/07/08 (Exh. G).
    3. Evidence of Nathaniel Joseph and his statement to the police dated 11/07/08 (Exh. H)
       4. Accused’s Record of Interview dated 25/09/08 (Exh. A)
    5. Statement of Chief Sergeant Moses Hilibobodated 28/09/08 (Exh. B)
    6. Statement of Senior Constable RonahLemek dated 29/09/08 (Exh. C)
       7. A Photograph of the left limb of the deceased (Exh. D)
       8. Medical Report of Dr.LosaVatiDaunugu dated 04/03/14 (Exh. E)
       9. Medical Report of Dr.LudwickNanawar dated 03/08/09 (Exh. F)
          

Defence

12. The accused elected to testify on oath and called the following witnesses:
    
    1. Michael Daniel
    2. Gada Nigu
       

THE FACTS

13. Much of the facts surrounding the incident are not disputed. The accused is from Kimuta Island in the Samarai/Murua District of Milne Bay. He grew up a normal child on the Island. Sometimes before the offence was committed he left the village and travelled through Lae to Ramu Sugar where he stayed with his uncle James Manasa who was working there. While there he got involved in alcohol and drugs. He speaks of an incident where he lost his mind during a Christian fellowship meeting and punched through a wall, not knowing exactly though why he did it. Soon after that he, however, became sick and mentally disturbed.
    
14. He returned home sometime in early 2008. Defence witness Gada Nigu received him at the Misima Airstrip when he arrived from Lae via Port Moresby. Nigu notice that the accused had blood shot eyes and looked very sick. He said this was not malaria, but something more serious. He would not even shake hands with Nigu. Nigu took him home to await a boat to travel back to Kimuta. He observed that the accused acted abnormally and that he had a blank look about him. He would not eat or sit well. At dawn he would stand completely still – as if frozen - on his left leg with his right hand crossed at his chin and would gaze blankly toward Kimuta Island. He would only come back to his senses when he was touched.
    
15. The accused eventually returned to Kimuta. He was, however, not well and would become aggressive towards his family members, chasing them with spears, knives and axes. His father Michael Daniel testified that the accused forced him and his mother to sleep with him in the same room so that they could become his witnesses. He never told them, however, what they were to witness. It came to a stage where the accused became such a threat to his family and the community that his parents had to seek assistance from the Police at Bwagaoia Police Station on Misima. The police apprehended the accused and kept him in custody at the Police Station for about a month. After that he was released and returned to the Island. His condition did not improve though.
    
16. On the afternoon of 09^th July 2008 between 5.00 – 6.00p.m., State witness Beatrice Emmanuel was bathing her child Jeremiah Emmanuel (deceased). Leaving the baby in the bucket in which she was bathing him, she went up to the house to fetch a towel when the accused arrived. The accused picked up the child from the bucket and threw him on the ground and begun chopping off all his limbs. Beatrice was scared so she fled to Bernard Apenai’s house some distance away for help. She did not return to her house and baby after that.
    
17. Bernard Apenai proceeded straight to the Beatrice’s house. When he arrived he noticed that the accused was still armed with the knife and the child was lying on the ground crying. He told the accused that he had come to take the child to its mother. The accused did not reply though. He just stood there without saying a word. Bernard did not attempt to take the child because he was afraid of the accused. Bernard then ran off to Nathaniel Joseph’s house for help. Nathaniel was not home so Bernard returned to Beatrice’s house. It was already getting dark. As he approached the house the accused was walking away to towards a hamlet on the eastern part of the Island. Bernard could no longer hear the child crying and as he got closer he saw the child lying on the ground. The child’s limbs were completely chopped off. There was a lot of blood on the ground – the child was dead. Bernard left the scene without doing anything and returned to his house. He and his wife then walked to the Councillor’s house to report the matter.
    
18. Nathaniel Joseph was informed later that evening what happened. He then proceeded with two other men (including Michael, the accused’s father) to the scene under hurricane lamp light. They noticed that the life-less and limb-less body of the child lying on the ground. Nathaniel and another man then walked off to alert other villagers, but when they returned the child’s body was no longer there. They suspected that the accused may have returned and took it away.
    
19. The villagers immediately searched for the accused. They, however, called the search off at midnight when they failed to locate him. They resumed the search the next morning. The police arrived at 2.00p.m. the next day and joined in the search. At 4.30p.m. they were informed that the accused had returned to the village. The only part of the deceased’s body ever found was a lower part of his left hand with fingers amputated.
    
20. The accused was apprehended and taken away the next day to Misima where he was arrested and charged for wilful murder. He was later conveyed to Alotau.
    
21. He appeared before the District Court on 14^th of August 2008 and was committed for trial 20^th November 2008. A Record of Interview was conducted on 28^th of September 2008. It appears that by then the accused was well enough to understand and answer the questions put to him by the police investigator.
    
22. At this juncture it is clear that the accused was suffering from some mental condition at the time he caused the death of the deceased. However, was he of sound mind – did he know or understand what he was doing or the nature of his actions? These raise the issue of whether or not the accused was of sound mind when he killed the deceased.
    

ISSUE: Whether the accused was of sound mind when he killed the deceased.

23. At this juncture I must state that there seems to be no dispute that the accused had been mentally affected from the time after he returned from Lae until the day he killed the deceased. There is general agreement that he was never really normal during that period. Despite that, the State argues that on the day in question he was of sound mind and knew exactly what he was doing. To support this the State relied upon answers given by the accused to the arresting officer in his record of interview some two months after he was arrested when he was well enough, and on the opinions of two psychiatrist who examined the accused, namely Dr. Ludwig Nanawaron 20^th July 2009 at Giligil Corrective Institution and Dr. Bosavati Wilbur Daunugu dated 04/03/14.
    

Record of Interview

24. Below are the pertinent questions and answers in the Record of Interview:

...
Q15: Where were you on the 09^th of July 2009?
Ans. I was walking on the road.
Q16. Did you ever walk back to your house?
Ans. Yes
Q17. What did you do at your house?
Ans. I did not do anything

Q18. I was told by Beatrice the wife of Emmanuel that you walked to their area, would that be correct?
Ans. Yes

Q19. When you walked to their area, you were carrying a bush knife. Would that be correct?

Ans. Yes

Q20. I have with me ... which was given to me by the Peace Officer of Kimuta Island. Would this the bush knife you were carrying that day? (Bush knife shown to accused)

Ans. Yes

Q21. I was also told by Beatrice Emmanuel that you carried this bush knife and went to the place where she left her son sitting in the bucket. Would that be correct?

Ans. Yes

Q.22. What was your reason for carrying the bush knife? (Bush knife shown

Ans. I was just staying and something came into my mind so I just carried this bush knife

Q23. What thing did it come into your mind?

Ans. The thought came into my mind to kill that child

Q24. Is there any reason for killing that child?

Ans. No

Q25. When that thought came into your mind, did you actually act upon that thought?

Ans. Yes

Q26. Would you be able to tell me, how you killed that child? (Jeremiah Emmanuel)

Ans. I cut his two hands and two legs

Q27. Would it be correct to say that you used the bush knife to cut the child’s hands and legs? (bush knife shown)

Ans. Yes

Q28. Before you cut the child’s hands and legs, did anyone to get the child from you?

Ans. No

Q29. I was told by Bernard Apenai that he went toget the child Apenai away from you but you refused to get the child to him. Would that be correct?

Ans. No, he did not go to get the child.

Q30. Would you be able to tell me where was that child, (Jeremiah Emmanuel) when you cut his two hands and his two legs?

Ans. He was on the ground.

Q31. So that means you threw on to the ground. Would that be correct?

Ans. Yes

Q32. After you cut the two hands and two legs, what happen[ed] to him?

Ans. He was still alive.

Q33. What did you do next?

Ans. I left the child’s body there and walked away.

Q34. I was told by the councillor and other people that you took the child’s body and ran away. Would that be correct?

Ans. No.

Q35. I was also told by the councillor and the mother of Jeremiah Emmanuel that they were unable to find the child’s body. Would [you] be able to tell me what happened to the body?

Ans. I don’t know.

Q36. I intend to show you some photographs of a left hand of a child which was cut off and it somehow left in the bushes and brought to the village by a dog and it was taken by people who were doing the search for the missing body. Would it correct to say that this was one of the hands that you cut off from the child?

Ans. Yes

Q37. I also have the real cut off left hand which was preserved by the hospital authorities at Misima District Hospital. I would like you to have a look at the container which the hand was preserved and tell me if this is the left hand that you cut off from Jeremiah Emmanuel?

Ans. Yes

Q38. I now have proof that you were that person who killed Jeremiah Emmanuel by cutting his two hands and two legs with your bush knife and he died because of loss of blood. Therefore you will still go to court on the charge of wilful murder which was laid against you at Misima Police Station. Do you understand?

Ans. Yes

...

Medical Report of Dr. Ludwig Nanawar

25. Dr. Ludwig Nanawar, a physchiatrist, examined the accused at Giligili Corrective Institution on 20^th July 2009 and prepared a report dated 09^th August 2009. Dr. Nanawar found that the accused was unfit to plead and stand for trial. Part of the report reads –
    

Mental State Examination

He was appropriately dressed with a short haircut and remained cooperated and maintained a good eye contact throughout the course of the examination. He spoke spontaneously and in a coherent manner. He admits feeling depressed on occasions but appears to be euthymic (normal emotional expression) at present. He however has paranoid delusion (false beliefs which have no factual basis, associated which serious mental illnesses) and residual auditory hallucinations (hearing voices which others can’t, which is associated with serious illnesses). His cognitive function was normal and he has good insight into his illness.

Fitness to plead

Mr. Michael is unable to under the nature of the charges against him, and cannot understand the meaning of guilty or not guilty. He is unable to instruct his legal advisors and follow the proceedings in court. He is unfit to plead and to stand trial.

Opinion

1. In my opinion he suffers from schizophrenia, serious mental condition characterized by hallucinatory experiences, paranoid delusion and disruption thought process.
2. In my opinion the offence with which he is charged occurred as a result of his mental illness which influenced his behavior although he knew that his actions were wrong.(Emphasis added)
   

Recommendation

He was prescribed Chlorpromazine 100mg twice a day benzhexol 5mg nocturnally and recommended regular follow up at the mental health clinic at AGH for continuous assessment. ...

Report by Dr. Bosavati Wilbur Daunugu

26. A subsequent report by Dr. Bosavati Wilbur Daunugu dated 04/03/14 among other things states –
    

Clinical findings and Mental State Examinations

Remandee Michael was admitted at the Laloki Hospital on the 24^th October 2012 under the treating psychiatric team then with diagnosis of schizophrenia. He was then commenced on appropriate antipsychotics in which he recovered very well. The assessment conducted by the treating team prior to his discharge from Laloki showed that all his psychiatric symptoms resolved and he had gained insight to himself and his environment. He was then discharged (19^th November 2013) and transferred to Bomana gaol to await repatriation due to limited space and high turnover of admissions to the Laloki Hospital all the time.

During my routine fortnightly ward rounds at the Bomana Clinic on the 04^th March 2014, I reassessed the mentioned before his repatriation to Alotau. The assessment was stable in his mental status on his maintenance dose of antipsychotics. There was no active signs of psychosis and he had full insight and his environment. Therefore he was recommended for repatriation.

Fitness to plea Assessment

The 04^th of March 2014 assessment showed that the remandee is fit to plea in court due to the following reasons:

• He understands the difference between the words guilty and not guilty
• He understands the nature of his charge
• He is able to instruct his lawyer
• He understands the proceedings in the court room.
  

27. Dr. Bosavati Wilbur Daunugu’s assessment is relevant to the accused’s mental capacity to understand the proceedings against him, instruct a lawyer and enter a plea and hence would apply in the case of an enquiry under Section 569 of the Code. (Want of understanding of accused person) This is the enquiry that the Court initially set out to do. And at the commencement of this trial at Misima the accused indeed understood the proceedings against him, was able to enter a plea and furthermore testified in his own behalf.
    
28. He, however, now raises the defense of insanity, which, if found to be proven, will bring into play Section 592 of the Code. (Acquittal on grounds of insanity)
    

THE LAW

29. Section 27 of the Code sets up a rebuttable presumption of sanity or soundness of mind. It provides –
    

27. Presumption of sanity.

Until the contrary is proved every person is presumed to be of sound mind and to have been of sound mind at any time that comes in question.

30. The accused bears the onus of proving, on the balance of probabilities, that he was of unsound mind at the time he allegedly committed the offence.(Goi v The State [1991] PNGLR 161) Section 28 of the Code sets up the defence of insanity in the following terms:
    

28. Insanity.

(1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity—

(a) to understand what he is doing; or

(b) to control his actions; or

(c) to know that he ought not to do the act or make the omission.
(2) A person—

(a) whose mind, at the time of his doing or omitting to do an act is affected by delusions on some specific matter or matters; and

(b) who is not otherwise entitled to the benefit of the provisions of Subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.

31. The expression of “not of sound mind” is not a term of art and is incapable of a comprehensive and exclusive meaning. (R v Koiyari - Iyeva [1965 – 66] PNGLR 28)
    
32. The Supreme Court in Goi v The State (supra) (Kidu CJ, Salika and Salika JJ) stated that –

... [I]n a defence based on s 28 of the Criminal Code, it must be shown by the defence that the accused person’s capacity to understand what he was doing or to control his actions or to know that he ought not to commit the act was taken away from him by the state of his mental disease or natural mental infirmity. ... Deprivation of capacity to understand or control actions is not the same as mere impairment of such capacity.

33. Doherty J, in The State v Enakuan Salaiau [1994] PNGLR 388 elaborated on the effect of a finding of insanity. At p.390 Her Honour held:

A finding under Section 28 is a very drastic one. Once such a finding is made that it brings in to play a different provision of the code, Section 592. This provides that once a court finds a person is not of sound mind, that it must find him not guilty and obliges the court to order him to be kept in strict custody at a place and a manner as it thinks proper pending a decision of the head of State.
In effect means that the person, to use a common phrase, is incarcerated "at the government's pleasure". It is a mandatory provision and is an open sentence without a specific end and is normally a life sentence. It is open to review from time to time on advice given to the Head of State. In practical terms there has been no such review for quite some years at Laloki Institution. I have referred to these provisions several times in the course of submission.

34. Section 592 of the Code provides –
    

592. Acquittal on grounds of insanity.

(1) If on the trial of a person charged with an indictable offence it is alleged or appears that he was not of sound mind at the time when the act or omission alleged to constitute the offence occurred, the court shall—

(a) if it finds him not guilty, find specifically whether or not he was of unsound mind at the time when the act or omission took place; and

(b) whether he is acquitted on account of such unsoundness of mind.
(2) If in a case to which Subsection (1) applies the court—

(a) finds that the accused person was of unsound mind at the time when the act or omission took place; and

(b) says that he is acquitted on account of that unsoundness of mind,

it shall order him to be kept in strict custody in such place and in such manner as the court thinks proper pending a decision by the Head of State, acting on advice.

(3) In a case referred to in Subsection (1), the Head of State, acting on advice, may give such order for the safe custody of the person pending a decision by the Head of State, acting on advice, in such place or confinement and in such manner as the Head of State, acting on advice, thinks proper.

(4) Where a person is confined under this section, the Head of State, acting on advice, may at any time order that he be released from custody either unconditionally or on such conditions as are laid down by the National Executive Council.

DELIBERATIONS

35. So has the accused shown, on the balance of probabilities, that he was in a state of mental disease or natural mental infirmity which deprived him of his capacity to understand what he was doing or to control his actions or to know that he ought not to do the act or make the omission?
    
36. As I have noted above there is no dispute that the accused was mentally disturbed when he returned to Port Moresby from Lae. It is clear that his mental condition was such that he had to be detained at the Misima police cells for some time because he had become a danger to his immediate family members and his community. His condition did not improve though after his release back to the Island from Misima. In fact it subsisted until the day in question. In his evidence he remembers going to his banana garden that afternoon, but then says that he cannot remember anything until much, much later.
    
37. I have had occasion to observe the accused during his appearance in court when I first begin sitting in Alotau from September 2012. I have observed that he always had a blank look about him and sometimes he seemed to be totally oblivious to what was happening around him. I do accept that with appropriate antipsychotics his condition would improve as noted by the medical officers. Be that as it may, I am satisfied on the balance of probabilities that he was at the relevant time not of sound mind.
    
38. In my respectful opinion the State has not negatived the defence of insanity beyond reasonable doubt. In do note that Dr. Nanawar did state in his report that in his opinion “the offence with which he is charged occurred as a result of his mental illness which influenced his behavior although he knew that his actions were wrong.” With due respect to the good Doctor, he does not elaborate or give the reasons for his opinion. Without that I would like to think therefore that his professional opinion stands on very shaky foundation and does nothing to bolster the State’s assertion that the accused was of at the relevant time of sound mind.
    
39. But what about the accused’s incriminating answers in his record of interview? The accused has been diagnosed with Schizophrenia which can be treated with antipsychotics and once treated the subject fully recovers his senses. What is unclear from the reports is whether a sufferer can recall events of the past independently of drugs. However, I would like think (as unqualified as I am) that he can. And that is what happened during the accused’s record of interview. It does not, however, follow that he was possessed of the capacity to know what he was doing and that it was wrong at the time he killed the deceased. If he did, the State has not proved that beyond reasonable doubt.
    

VERDICT

40. The inevitable conclusion then is that the accused was insane within the meaning of Section 28 of the Code when he committed the offence. I therefore find the accused NOT GUILTY by reason of insanity or unsoundness of mind.
    
41. The accused remains very much a danger to himself and to his immediate family and the general public.
    

ORDER

42. Hence pursuant to Section 592 (3) of the Code I hereby order that he be kept in strict custody at the Giligili Corrective Institution, and that whilst there he shall be supplied with appropriate antipsychotics, pending a decision and order of the Head of State for the safe custody of the accused in such place or confinement, and in such a manner as the Head of State, acting on advice, thinks proper.
    

Ordered accordingly.

________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor : Lawyer for the Accused