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Yihwai and Aku, Regina v [1963] PGSC 31; [1963] PNGLR 40 (7 September 1961)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 40 - Regina v Yihwai and Aku

[1963] PNGLR 40

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

YIGWAI AND AKU

Lurni

Mann CJ

6-7 September 1961

HOMICIDE - Infanticade - Compulsion - Sections 23 and 32 of the Criminal Code and Section 3 of Infanticide Ordinance 1953-1956.

Yigwai, the pregnant daughter of the second Accused was prevented by her widowed father from marrying because he intended her to be his domestic. He �instructed� her to kill the child when it was born and this she did.

Held:

N1>(i)������ Section 23 of the Code is of general application and not confined to cases arising from the effect of some special relationship.

N1>(ii)����� Section 23 does not apply because Yigwai was not deprived of conscious volition.

N1>(iii)���� Section 32 of the Code is not of general application. It does not apply to this case because it only deals with a situation based on the circumstances and obligations of marriage.

N1>(iv)���� Section 3(1) of the Infanticide Ordinance 1953-1956 sets out the whole definition of the crime of infanticide (semble, it includes all homicide and not just wilful murder or murder) and Section 3(3) is merely procedural.

N1>(v)����� Since Yigwai�s acts were not caused by anything relating to the processes of birth or lactation she was not guilty of infanticide.

Counsel:

Cornelius McLoughlin: Crown Prosecutor.

Robin O�Regan: for both Accused.

MANN CJ:� The Accused Yigwai killed her infant son shortly after its birth. She did so on the instructions of her father, who said that she must not bring her child home for she was not married and had no husband to help look after the child, and the sight of the child would put the girl�s father, Aku, to shame.

These facts are not in dispute, and both Accused have admitted them.

It is also clear that, subject to the specific considerations which I will consider separately, each Accused is guilty of wilful murder, for Yigwai intentionally put the child to death, and well knew what she was doing, and Aku, as the sole person in authority over Yigwai, and possessing a degree of authority approaching absolute control, expressly ordered her to do so.

As to the special considerations that arise, Yigwai�s position may be taken first. Is she entitled to an acquittal under Section 23 on the ground that what she did was not done voluntarily but by compulsion? Section 23 excuses, subject to certain conditions, unwilled acts. It is of general application and not confined to cases arising from the effect of some special relationship. With it may be contrasted Section 32, dealing with cases of compulsion by a husband. Aku, in this case I am sure, had more power over his daughter than was contemplated in European society when Section 32 was drafted, and the relationship is factually similar, for Aku would not allow his daughter to marry because his own wife had died, and if he gave Yigwai away, he would not have a woman to look after him. Her position was that of the domestic woman servant in his power, and in native society it matters little whether the term �wife� is used or whether some form of marriage is involved. The position of many unmarried daughters in European society was not dissimilar a few years ago.

The terms of Section 32, however, and the common law rules antecedent to it give special recognition to a situation based on the circumstances and obligations of marriage. It is not of general application and in any case could not help the Accused here. It does however serve to illustrate a point of distinction in relation to Section 23, which, in my opinion, applies to unwilled acts in the sense that the physical actions involved were not due to the conscious mental activity of the person performing them. Yigwai would need to be hypnotised or in some other way deprived of conscious volition to come within Section 23 on the facts of this case. She knew and understood what she was doing and why, and exercised her own choice as to the actual time and means of carrying out her father�s orders.

The next point is whether Yigwai�s crime is reduced to infanticide by the Infanticide Ordinance 1953-1956. This Ordinance pro tanto amends the Criminal Code in relation to cases of homicide to which it applies.

It is submitted for the Defence that at most Yigwai could be guilty of infanticide, for her actions are to be attributed to the effects of the birth of this child in the situation in which she found herself. According to this argument Yigwai wanted to keep the child but was forced against her will to kill it, and her actions may be considered as due to her grief and shame following childbirth. The onus is on the Crown to negative this Defence.

The Ordinance is curiously worded. If Section 3 (1) is read disjunctively from Section 3 (3), and Section 3 (1) is taken as a definition of the new crime, and Section 3 (3) merely a consequential procedural provision, expressed in enabling terms to allow the Court to give effect to a determination already reached under Section 3 (1), I should think that the result would be that the onus is fully on the Crown to establish each ingredient of the offence and that in the case of doubt the Accused would be convicted of the lesser of the two crimes once it was established that one of them must have been committed.

The Section however requires that a wilful act be established (not necessarily an act accompanied by a specific intent) so that in some cases at least wilful murder would first need to be established. In such cases Section 3 (1) appears to be an ameliorating section favourable to the Accused and would suggest that the onus of proof should be on the Accused, as in cases of insanity. I do not think that this is the correct construction, for the opening words of Section 3 (1) are equally applicable to all forms of homicide, and the subsequent proviso - �notwithstanding that but for this Ordinance the offence would have amounted to wilful murder or murder, she is guilty of the crime of infanticide and may for that crime be dealt with and punished as if she had been guilty of the manslaughter of the child� - appears subjunctively, and does not govern the context of the operative part.

It appears to me therefore that if an infant is killed in circumstances which would amount only to manslaughter, there is the same possibility of the crime of infanticide being established as in cases which would otherwise amount to wilful murder or murder. The provision regarding the disturbance of the balance of mind, therefore, does not go merely to intent, but is applicable to any relevant process of mind calling for exercise of judgment, the taking of care, or recognition of responsibility to the child. In these circumstances the crime of infanticide which is expressed to rate equally with manslaughter does not necessarily represent a concession towards the Accused at all, and there is no reason of general application for placing any particular onus on the Defendant.

This view is supported by the notion not infrequently expressed in the profession that this legislation was introduced originally not to ameliorate the law, but to meet and regularize the growing tendency of juries to refuse to convict mothers of homicide, and the reluctance of Courts to impose substantial sentences, where sentences were left to the Court, in cases where the killing appeared to be, for some reason, contrary to normal human nature. Thus the section does not deal generally with cases arising from pregnancy or maternity, but only with those cases, experienced often in practice, where medical evidence tended to be highly controversial, and not infrequently attributed the actions of Accused to the effect of giving birth or the effects of lactation, as particular aspects of the normal and natural processes of maternity to which abnormal or unnatural consequences might conveniently be assigned.

An alternative approach to the Ordinance is to read the whole of Section 3 together. One difficulty is that the provisions of Section 3 (3) only apply to cases in which wilful murder or murder is charged, whereas Section 3 (1) also converts what would be manslaughter to infanticide. Thus in cases where manslaughter by wilful act or omission would, apart from the provisions of the Ordinance, be the appropriate verdict, there is no provision enabling the Court to return a verdict of infanticide, and if manslaughter only is charged, the only possible verdict, on the wording of Section 3 (1), might well be an acquittal. Section 3 (1) may, by implication, negative other alternative verdicts upon a charge of manslaughter.

If, however, Section 3 (3) is taken as governing, to any extent, the substantive provisions of Section 3 (1), the provision that the Court is to act on its opinion may be thought to confer some sort of open discretion on the Court, not regulated by questions of onus of proof of facts, but left at large in a manner appropriate to cases where juries have in fact tended to exercise an open discretion.

This argument is realistic in the light of the social history of this legislation, but would give rise to much uncertainty, and would create different standards depending on whether the Accused were charged originally with infanticide or with murder or with manslaughter.

To make the section workable, I must take the view that there is one and only one crime of infanticide covering all forms of homicide coming within Section 3 (1), and that the same facts and degree of proof are called for, whether the original charge is homicide or infanticide. I think, therefore, that Section 3 (1) sets out the whole definition of the new crime, and that Section 3 (3) is merely a convenient procedural means of making infanticide an alternative verdict in cases where a person is indicted for wilful murder or murder. The omission of cases charging manslaughter in the indictment is, in my view, accidental, or due to lack of authoritative interpretation of Section 3 (1).

On the view I have taken, I think it follows that the onus of proof is on the Crown in relation to all issues fairly raised on the trial. If the offence would clearly be homicide, but for a doubt whether the balance of mind if the Accused was in the specified state, the Court should conclude that it was, and find that the offence was infanticide and not homicide. It is not possible to convict of any class of homicide other than infanticide once the issue is raised and not disposed of by the Crown. In the context of the Code, I think that Section 3 (1) must be taken as having an effect parallel to that of Sections 3 and 4.

Taking the facts of the present case, the question of causation arises, for it is clear from Yigwai�s own evidence that her actions were not caused by anything relating to the processes of birth or lactation. She made up her mind to obey her father before the child was born, and her actions were clearly premeditated. Nevertheless, Section 3 (1) is not expressed in terms of causation, and in my opinion, Yigwai would be entitled to rely on the section if in fact her mental balance was disturbed as specified, even if it did not appear that her decision was due to that mental disturbance. It seems to me that the section contemplates that any decision or action made or taken in that mental state is not to be examined further as to cause and effect, and that once the condition is fulfilled, the criminal responsibility is limited.

The final question, therefore, comes down to this: does the evidence fairly raise as a defence the proposition that the Accused was in fact in the state of mental disturbance specified? If so, and if the Crown has not disproved the existence of that mental state, the Section operates.

The substantial evidence on the point is that of Yigwai herself, who said that she was not sick, that she knew what she was doing, that she intended to kill the child, and was obeying her father�s instructions. All of this evidence, in my opinion, tends to prove that the Accused was in full possession of her normal mental faculties and was in the same mental condition as before the birth of the child. I think, therefore, that the facts raise no basis for this defence, but tend to negative the state of mind specified.

I think, therefore, that the proper verdict is guilty of Wilful Murder in Yigwai�s case.

In Aku�s case, I have no doubt that the same verdict applies. Section 7 (d) of the Code directly covers Aku, and even if it did not, the last paragraph of Section 7 would apply, whether Yigwai was guilty of either offence or innocent, for the act which led to the child�s death, although not specified by Aku in his instructions to his daughter, was clearly an act of the kind contemplated by his instructions, and was therefore an act procured by him, which, if committed by him, would, in the events which happened, render him guilty of wilful murder. I think, therefore, that regardless of Yigwai�s verdict, Aku is guilty of Wilful Murder by virtue of Section 7.

VERDICTS

Yigwai - Guilty.

Aku - Guilty.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the Defence: W. A. Lalor, Public Solicitor.