Hamo, Regina v [1963] PGSC 10; [1963] PNGLR 9 (23 July 1960)

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QUEENSLAND CRIMINAL CODE - Wilful Murder - Provocation - Disproportion between provocation and the nature and extent of the assault causing death - Onus of proof - Ordinary Person - Reasonable person - Sections 268, 269 and 304 the Criminal Code (Queensland adopted) - Assault likely to cause death - Assault intended to cause death - Provocation at Common Law.

A wrongful killing with express malice by a native of the Territory of New Guinea will be reduced to manslaughter if:

N2>(a)�� The Accused acted under such provocation as would be sufficient to lead a reasonable person to do what the Accused did.

For the purpose of the inquiry a reasonable native of the area in which the Accused lived but having no unusual disabilities or personal idiosyncrasies and objectively regarded is a reasonable person.

A wrongful act or insult of such a nature as to be likely to induce a reasonable man to assault a person but not to commit an assault of the gravity of the actual assault the subject of the inquiry does not constitute provocation which will be a defence in respect of that assault.

Accused charged with the Wilful Murder of one Baluwo by shooting him with an arrow. A plea of Not Guilty was entered by direction.

MANN CJ:� The evidence is very short and the Crown is at some disadvantage since the defences of self-defence and provocation cannot be excluded, once they arise, unless the Court can feel satisfied that it fully understands the circumstances under which the events took place. I must therefore take a view of the facts which in some respects may lean in favour of the Accused.

The evidence is enough to exclude self-defence in the present case because sufficient has emerged to show that the deceased was not offering further violence to the Accused, but was in the act of running away when he was shot. Although it appears that the deceased only decided to run away when he became aware of the intention of the Accused to shoot an arrow at him, he was at the time of shooting removing himself from the scene as fast as he could. The link between the initial attack on the Accused and the subsequent shooting of the deceased must be found, if at all, in provocation rather than in self-defence.

The two main actors in the case were members of opposing clans, between whom intermarriage was customary. A young girl of the clan to which the deceased belonged (Baroma) was given for marriage into the clan of the Accused (Mirima). This clan had been looking after the girl for some time and apparently the Accused was her principal guardian. When she reached marriageable age the girl went to another clan, and the clan to which Accused belonged was disappointed. During the consequential negotiations between the two clans, of which the Accused and the deceased were members, fighting broke out and a considerable but not ascertained number of clansmen took part and several casualties were the result.

During the fighting the deceased attacked the Accused striking him a substantial blow on the head, breaking the skin over a distance of some three inches and causing blood to flow down his face and into his eyes. Accused was also momentarily stunned and knocked down. The stick used by deceased to deliver this blow was about three feet long and about two inches thick. The witness Tine demonstrated a two-handed blow, and I think that the effect of such a blow on the Accused must have been considerable.

When the Accused picked himself up and cleared the blood from his eyes, he saw the deceased still standing thereabouts, and the possibility of further attack must have presented itself to Accused. He had a large fence picket close by, which he had dropped in falling, but it was a clumsier weapon, and this and his injury would have left Accused at a disadvantage in a hand to hand fight. In these circumstances Accused ran to a nearby man who was holding his bow and arrows, and prepared to shoot at the deceased. Up to this point I would not blame Accused for anything he did, for if deceased had pressed a further attack with the weapon he carried (as might have been expected) it might well have led to the Accused being killed, and would certainly have produced great risk of serious injury. When deceased saw the purpose of Accused he ran away, and it was at this stage that Accused shot him in the back with the arrow that killed him.

I have already indicated that Accused carried his retaliation beyond the permissible limits of self-defence, but I must consider his actions in relation to provocation.

Again this case raises the application of Sections 268, 269 and 304 of the Criminal Code. The Queensland authorities to which I have referred in previous cases do not afford a clear or unanimous view of the meaning of these sections. The tendency is to apply English authorities such as Mancini�s Case[xv]¹, with the result that great difficulty arises because Section 304 contains no proviso as to disproportion between provocation and attack. Hence some arguments attempt to apply both Sections 269 and 304 to homicide cases. But with respect it seems to me that this produces the result that no homicide could be considered as provoked if a lethal weapon were used in retaliation, and this is plainly contrary to Section 304. In other words, I think that Section 304 and Section 269 are mutually exclusive and cannot be applied together.

The same difficulties have led some judges to the view that Section 304 must necessarily contemplate that Common Law rules should apply to homicide cases, whilst some have expressed the opinion that Section 268 merely sets out a short definition of provocation at Common Law. These and other difficulties are extensively canvassed by Stanley J. in Regina v. Sabri Isa[xvi]². Of special interest in the Territory in view of its wide range of cultures, is the comment of Real J. in Regina v. Foxcroft (see Regina v. Herlihy[xvii]³�) that Section 269 is absurd because it calls upon a man �to guide his anger with judgment.�

These difficulties arise from an attempt to reconcile Section 304 with the notion derived from English Common Law, that the defence of provocation must be limited to cases where the retaliation is appropriate to the provocation which induces it and must not be intended to cause death or grievous bodily harm, and that with the single exception of a wife caught in the act of adultery by her husband, provocation cannot affect a case of killing with actual malice. I think that these are not intended as separate principles, but are all part of the �reasonable person� test, bearing in mind that in those cases the Accused is a modern Englishman.

I think the reconciliation is to be found in the view which does not appear to have been stated with sufficient emphasis, that for the purpose of provocation the loss of self-control is not an absolute loss of all control. It does not mean that the man must be provoked until he has no power of control over his actions at all. The kind of loss of control which is contemplated is relative. For the defence to succeed the loss of control must be related both to the degree of provocation and to the degree and form of retaliation which follows. (See Perera�s Case[xviii]⁴).

N2>(1)�� Do you consider that, on the facts as you find them from the evidence, the provocation was in fact enough to lead a reasonable person to do what the Accused did?

N2>(2)�� - If so - Did the Accused act under the stress of such provocation? (Holmes v. D.P.P.[xix]⁵).

The �reasonable person� selected for the purposes of the objective test set by the first question is neither drunk nor inflamed by liquor, nor possessed of a particularly bad temper or other personal idiosyncrasies, for if the conduct of the Accused were caused by personal attributes of this kind, the answer to the second question must be in the negative, for then the actions of the Accused were not due in fact, to the provocation. (Mancini v. Regina[xx]⁶, Regina v. Herlihy[xxi]⁷�and see also McCarthy[xxii]⁸). In Holmes� Case Lord Simon says at page 598:

�The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill (such as Holmes admitted in the present case), or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has been recognized, viz., the actual finding of a spouse in the act of adultery.�

This statement may be contrasted with that of the Judicial Committee of the Privy Council in Kwaku Mensah v. The King[xxiii]⁹, in which it was stated that under the Gold Coast Criminal Code intentional homicide should be manslaughter only, in certain circumstances, and that this �puts into Statutory form what has for long been the law in this country,� and a somewhat similar statement by Lord Goddard in Attorney-General for Ceylon v. Perera[xxiv]¹⁰�dealing with supposed differences between the law of England and that of Ceylon. The two latter statements are fully quoted and discussed by Mack J. in Regina v. Herlihy[xxv]¹¹.

In considering these statements of theory it must be borne in mind that the question, when it arises in England today, arises in a rather narrow form. This is partly because of the advanced state of society, in which resort to lethal weapons on provocation, and especially on provocation by mere words is to be regarded as exceptional if any �reasonable person� test is to be applied, (see per Lord Simon, Holmes� Case[xxvi]¹²), and partly because provocation only arises in England as a limited defence in murder cases, reducing the homicide to manslaughter; it being regarded merely as a circumstance going to penalty in other cases (page 601).

If the principles involved in provocation were restated to suit a wider range of social conditions and concepts, such as are to be found in the Territory today, and if the defence were extended to apply to the whole range of offences of violence as recognized by the Criminal Code from wilful murder to common assault, it would follow:

N2>(1)�� That �malice� could not be regarded as entirely absent in every case in which the defence of provocation might succeed, for various kinds of intent, and not only intent to kill or inflict grievous bodily harm, come into question, and various degrees of injury would be intended or justifiably inflicted, under various degrees of provocation.

N2>(2)�� That there could not be any fixed rule as to the kind of weapon or injury which is available to the Accused or as to the kind of situation (e.g., a wife�s adultery) which would reduce an offence to a lower degree of criminal responsibility.

The principles stated by Viscount Simon are stated for a settled social climate in which human frailty under provocation is recognized as a survival from the more primitive conditions which actually exist in reality in the Territory today. In looking for the fundamental principles which will enable a Territorial Judge to perform the pruning operations described by Lord Denning in Nyali Ltd. v. Attorney-General[xxvii]¹³, the problem is to remove from English pronouncements as to the current principles of common law, considerations which are, to use an anthropological term, �culture-conditioned�, so as to arrive at the basic principles which are applicable to a different kind of community, and, in the present case, to a much wider purpose. In my opinion the basic principle can best be stated in the form of the two questions designed for submission to the jury, which I have previously quoted from the judgment of Viscount Simon.

As an example of the practical application of these considerations, I should refer to the case of Regina v. Koruapu[xxviii]¹⁴, heard at Tapini in July 1957. On a charge of Wilful Murder, provocation consisting of mere words, said against a significant background of native custom and relationships, was relied upon by the Defence. I applied Sections 304 and 268 of the Code as setting out a full statement of the defences available and came to the conclusion that the same result would have applied, whether Section 268 or Common Law principles were applied. Once a �reasonable village native of the area� was adopted for the purposes of the objective test (Kwaku Mensah�s Case) and due allowance was made for the state of society to which the accused belonged (Holmes� Case), it appeared to me that the words used were adequate provocation for the actions actually taken by the Accused, and that it made no difference whether reliance had to be placed on the words �or insult� appearing in Section 268 of the Code to achieve this result, or whether on a common law footing resort was had to the �reasonable man� standard subsisting in a more primitive state of society in which, either in England or elsewhere, mere words were undoubtedly sufficient to provoke a reasonable person into committing acts of homicide. Under these circumstances I applied Section 268 as setting out an adequate definition of provocation to satisfy the requirements of Section 304.

Applying these basic principles to the situations commonly met in the Territory, it will be found that some minor provocation might justify slight loss of control resulting in some minor act of physical retaliation which would amount to little more than an act of impatience or exasperation, whereas resort to lethal weapons or fatal injuries would require such a loss of control as to call for an extreme, but not unusual, degree of provocation to satisfy the objective test.

One further point remains before turning to the actual provisions of the Code. In Herlihy�s Case[xxix]¹⁵, Mack J. found it impossible to accept the definition of manslaughter set out in Section 268 because the language of the section is couched throughout in terms of �assault� and it appeared to him that provocation appropriate to justify an assault as specified in Section 268 was not appropriate when considering for the purposes of Section 304 as provocation of a kind which would lead a person to kill (see page 60). Therefore as Mack J. states on page 56:

�The test would not be whether an ordinary person could be so provoked as to do what this man did, but whether an ordinary man would be likely to be deprived of his power of self-control and assault.�

It seems to me that this apparent mis-matching of language can be overcome when allowance is made for the fact that Section 268 is designed to apply to a whole range of offences of which an assault is an element. It does not concern itself with any consequential event such as death, which may follow. Similarly Section 304 deals only with the �act� which causes death and does not concern itself with the fact of death.

The second paragraph of Section 268, I think, provides a key to the situation. The portion of this paragraph which is material to the present point reads:

�When such an act or insult is done or offered by one person to another . . . . the former is said to give the latter provocation for an assault.�

It seems to me that this paragraph shows that a particular assault is in question, the assault actually committed by the Accused. The act or insult mentioned in the first paragraph of Section 268 is to be understood as something which is given to the Accused as provocation for the particular assault which he has committed. The first paragraph of Section 268 therefore, is only concerned to prescribe the character which that provocation is to possess. It must be of such a nature as to be likely, when done to an ordinary person, . . . . to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered.

Taking the somewhat imperfectly expressed concepts set out in these two paragraphs and reading them together, I do not think that it does any violence to the wording of the section, to take it as meaning that provocation consists of a wrongful act or insult, given to the Accused, which if given to an ordinary person would be likely to deprive him of the power of self-control to such an extent as to induce him to commit against the giver of the provocation the assault which the Accused in fact committed. In other words the second paragraph seems to me to show that it was intended that the particular provocation should be related to the particular assault, by means of the test set out in the first paragraph, which applies the standards which would be expected of an ordinary person. If such a construction were not permissable in view of the words used in Section 268, the result would be, that not only would the section be wholly unsuitable for application to cases of homicide, but it would be equally unsuitable for application to any but the most trivial forms of assault. As was pointed out by Mack J., justification for an assault may not constitute justification for a homicide, but equally, justification for any assault at all would not justify an aggravated assault or even a simple assault of a serious character.

For these reasons I feel convinced that Section 268 which was obviously intended to apply to a considerable range of offences, could not have been intended to set up a single standard whereby an ordinary person might commit an assault. I think it must be taken that the assault contemplated is the actual assault committed by the Accused and since this notion immediately admits all the circumstances and ingredients of the case actually before the Court, the test is equally suitable to cases of homicide in which the element of assault is present, or to any other case; and moreover fully satisfies the requirements of the corresponding common law test.

In the present state of authority therefore, I adhere to the view that in cases of the kind in question, where an assault is for the purposes of Section 293 of the Criminal Code, the cause of death, it makes no difference whether for the purposes of Section 304 the meaning of the word �provocation� is to be governed by Section 268 or by reference to the Common Law applicable to the Territory, and that therefore Section 268 should be taken as expressing the appropriate definition.

Looking at Section 268, it seems to me to be fully applicable to supply the meaning for the word �provocation� as used in Section 304 in relation to the present case where the shooting of the arrow constitutes an assault which is an ingredient of the alleged crime, by virtue of Section 293.

A doubt which I had was that some cases of murder or wilful murder might not involve assault as an element (e.g., a killing by request, such as in a suicide pact, or in the practice of euthanasia, or in some cases falling within Section 295), but it is difficult to imagine a case of provoked killing which does not involve an assault, and the whole concept of provocation seems to be that it is the stimulus which sets in train aggressive and unilateral action, rather than an agreed course of conduct. If such a case did arise there would seem to be no reason why the Common Law meaning of the word �provocation� should not be adopted.

I think that the words of Section 268 refer to the offence allegedly committed rather than to the offence defined in the Code. Therefore in the present case I need not consider whether wilful murder or murder necessarily involves assault, for the present offence clearly comes within the terms of Section 268.

Turning now to Section 269, we find a set of conditions under which the defence of provocation affords not only a limited excuse for an assault, but relieves the Accused altogether from criminal responsibility for the assault, and therefore for any offence of which assault is an essential element.

An assault is by definition unlawful conduct of various kinds, and therefore action for which there is no criminal responsibility, ceases to be an assault such as to constitute an element of the offence under consideration.

The differences between Section 304 and Section 269 that are at once apparent are:

N2>(1)�� Under Section 304 the provocation is sudden, and the resulting reaction may occur within the time required for the passion of the Accused to cool. Under Section 169 the provocation need not be sudden but the resulting action must be.

N2>(2)�� Section 269 sets out two conditions not found in Section 304. They are that the force is not disproportionate, and that the force is not intended and is not such as is likely to cause death or grievous bodily harm.

I do not accept the view that there is only one defence of provocation under the Code and that Section 269 should first be applied to all cases involving assault, and that the purpose of Section 304 is to cut down the operation of Section 269 in cases of homicide, so that in those cases it affords a limited defence only, reducing the crime to manslaughter, instead of resulting in an acquittal, which would be the result in cases other than homicide. Such a construction is contrary to the express terms of Section 304, which applies to a person otherwise guilty of wilful murder or manslaughter, and does not apply to a person who would otherwise be acquitted by virtue of Section 269.

I think therefore that Section 269 and Section 304 are parallel but distinct defences, each sharing the name provocation, and each relying for the objective part of the test involved, upon the definition set out in Section 268. Both defences are applicable in appropriate cases of assault, and offences involving assault.

In the unusual case of Regina v. Gamumu[xxx]¹⁶, at Rigo (6th June 1960), I considered the defence arising under Section 269. It was a case of manslaughter, and I found that the acts of the Accused were not intended to cause and were not such as to be likely to cause death or grievous bodily harm. Nevertheless they did in fact cause death, not because of their own nature, but because of illness, the precise nature of which was not ascertained, from which the deceased woman was suffering. I found that the actions of the deceased constituted provocation of the appropriate character, but the defence failed because the force applied was disproportionate to the provocation, and therefore fell outside the terms of Section 269. There could therefore be no justification based on provocation, for the assault which led to the death. I found however, that by reason of the lack of medical knowledge and understanding of the society of which the Accused was a member, the death which followed as a result of his actions, constituted an accidental event within the scope of Section 23 of the Code, and that therefore, although the assault involved was not justifiable, the consequential death was one which was excused by law. The result was that the Accused was found not guilty of manslaughter but guilty of common assault (which is an alternative verdict expressly permitted in the Territory in cases of manslaughter.)

In the present case both the defences based on provocation under the Criminal Code, fall for consideration.

It is clear that the Accused could not satisfy the provisos of Section 269, for the arrow was obviously likely to kill. Therefore he cannot be acquitted on the ground that he is not criminally responsible under Section 269. He can however, resort to the wider terms of the more limited defence specified in Section 304 which has no such provisos. There is no room for doubt on the evidence that the Accused was in fact suddenly provoked or that he reacted immediately whilst in the heat of passion and before time for his passion to cool. These questions are subjective and are questions of fact.

Turning to Section 268, the tests are objective in character. �An ordinary person� means an ordinary person in the environment and culture of the Accused, (cf. Kwaku Mensah v. Regina[xxxi]¹⁷), subject to the caution (Mancini�s Case) that the test must not thereby become subjective.

The contention put on behalf of the Crown that there was a disproportion between the stick used by the provoker and the arrow shot by the Accused, the latter being clearly a lethal weapon, is, I think, properly treated as a point to be borne in mind when considering whether the �ordinary man� might have reacted in the same way. In a jury case where the point required special consideration, a particular direction to the jury might be required, but I think that the point should still be considered as part of the test indicated.

I think that the actions and reactions of the Accused pass all these tests. I am assisted by expert evidence in reaching the conclusion that any able-bodied Chimbu in the remote area where this fighting occurred, would be likely, indeed very likely, in similar circumstances, to lose his power of self-control to the extent of shooting an arrow at his fleeing attacker.

Since I have already found that the Accused did in fact behave in the manner specified in Section 304, and that the provocation in question satisfied the tests set out in Section 268, I find that the crime committed by the Accused is manslaughter and not wilful murder.

I entertain no doubt that the Accused did commit a crime, for his actions come fully within the terms of Sections 291, 293, 300 and 301 as well as Section 304.

Accordingly I return a verdict of �Not guilty of Wilful Murder but guilty of Manslaughter.�

The Accused was aged about forty years and had no prior convictions. He had four wives and six children ranging from twenty-two years to eighteen months. The eldest son was killed in the same fighting as a �pay-back� for the death of Baluwo who was killed by the Accused. The people concerned come from an unrestricted area which was first patrolled in 1951. There have been several patrols during the past three years from Gumine Patrol Post. The Accused comes from a place six hours� walk from a Lutheran Mission in charge of a European and four hours� walk from a Lutheran Mission in charge of a native, but has not been under any kind of Mission influence. He has had no education and has had no employment outside his own area except on one occasion in Kavieng in about 1950 or 1951.

[xv]1942 A. C. 1.

[xvi] 1952 St. R. Qd. 269, at pages 281-301.

[xvii] 1956 St.R.Qd. 18, at p. 59.

[xviii]1953 A.C. 200.

[xix] 1946 A.C. 588, at p. 597 (Viscount Simon).

[xx]1942 A.C. 1.

[xxi] 1956 St.R.Qd. 18, at p. 59.

[xxii]38 Cr.App.R. 74.

[xxiii] 1946 A.C. 83, at pp. 92-93.

[xxiv]1953 A.C. 200.

[xxv] 1956 St.R.Qd. 18, at pp. 62-64.

[xxvi] 1946 A.C. 588, at pp. 600-601.