1967-68

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 1 - Regina v Manga-Kitai

[1967-68] PNGLR 1

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

MANGA-KITAI

Port Moresby

Clarkson J

8-10 February 1966

20 February 1966

CRIMINAL LAW - Wilful murder - Provocation - The Criminal Code (Q., adopted), ss. 268, 304.

In applying s. 304 of The Criminal Code where there has been a series of incidents culminating in a struggle causing a death, the Court is entitled to consider all of the incidents as setting the stage for what is alleged to have been the sudden provocation.

Mehemet Ali v. The Queen [1957] WALawRp 3; (1957), 59 W.A.L.R. 28; R. v. Duffy, [1949] 1 All E.R. 932, referred to.

Semble:

Under s. 304 (whether or not read with s. 268 of The Criminal Code) the defence of provocation may exist even where an intent to kill exists^*[i]1 .

Mehemet Ali v. The Queen (supra); R. v. Zariai-Gavene, [1963] P. & N.G.L.R. 203; Parker v. The King[1964] UKPCHCA 1; , [1964] A.C. 1369; (1964), 111 C.L.R. 665, referred to.

Where the accused charged with wilful murder is a village native residing in the Territory of Papua and New Guinea, the test of provocation is the reaction of the ordinary villager or even the ordinary villager of the area of the accused�s village.

R. v. Hamo-Tine, [1963] P. & N.G.L.R. 9; R. v. Zariai-Gavene (supra); R. v. Kwaku Mensah, [1946] A.C. 83, followed and applied.

A. and his wife M. had a small daughter. A. spent much of the year 1966 in gaol and M. went to live with her uncle, the deceased, while the small daughter stayed with the accused who was the cousin of her father A. While A. was away in gaol M. lived as a prostitute with the accord of the deceased. When A. returned from gaol a dispute arose between A. and the deceased over bride price payment for M. and on the night in question the hearing in the Local Court for customary debt was pending. On A.�s return from gaol a further dispute arose between the accused and the deceased as to the right of custody of the child, the accused claiming rights arising from his having looked after her while her father was away in gaol. Feeling was high among the group and by the day in question A. and M. were living in the accused�s house with their daughter. The accused and others had returned to the house after a visit to a tavern to find M. preparing a meal, which they ate. After eating the group was sitting talking when the deceased arrived. The deceased picked up the child and said to A. and the accused: �If you were true men you would come to my house and take the child.� The accused became angry at this and then followed a scuffle over the child between the deceased and A. in which A. recovered the child. The deceased then picked up a piece of iron piping from the nearby fireplace and brandished it. The accused intervened and after a struggle the accused disarmed the deceased who made off. The accused gave chase and at a point on the roadway 40 or 50 feet down from the house he, having got close to the deceased, struck the back of his head. The deceased fell forward on the ground and the accused then turned him over and delivered a further severe blow to the head causing extensive fractures to the front of the skull. The deceased died shortly thereafter. Before the chase commenced the accused had formed the intention to kill the deceased.

Held:

That the provisions of s. 304 of The Criminal Code did not apply for, on the facts, (i) the deceased�s conduct, although imprudent, was not such as to excite passion in the ordinary Goilala villager, and (ii) within the series of incidents the accused did not react in the heat of passion or in the temporary loss of self-control.

Criminal Trial.

Manga-Kitai was charged that on 30th October, 1966, he wilfully murdered one Heri-Aida. The relevant facts appear in the reasons for judgment hereunder.

Counsel:

Croft, for the Crown.

Broadley, for the accused.

Cur. adv. vult.

20 February 1966

CLARKSON J:� The accused, Manga-Kitai, of Mondo village, is charged with the wilful murder on 30th October, 1966, of one, Heri-Aida. The deceased died on the evening of Sunday, 30th October, shortly before 8.30 p.m. in Pascall Avenue, Badili. Inspector Brittain arrived at the scene soon after 8.30 p.m. and found the body of the deceased lying on the south side of the road near the entrance gates of a timber yard. The deceased had clearly suffered severe head injuries from which there was no hope of recovery. An immediate search of the scene revealed nothing resembling the murder weapon but in a later search the Inspector found a length of water piping about 4 feet long on the opposite side of the road to where the body lay and about 80 feet from it.

The evidence called by the Crown and confirmed by the accused himself showed that the accused had struck the deceased at least two, probably three, blows on the skull with the piping. Counsel for the defence quite properly drew my attention to the fact that all the evidence showed that after administering the blows to the deceased, the accused had placed or dropped the pipe near the body. He also pointed out that Inspector Brittain described, and the photograph in evidence shows, two pools of blood, one near the head of the deceased and another near his feet. The only wounds were to the head. It was faintly suggested that these facts constituted evidence, from which I might infer that some person other than the accused had also struck the deceased. I am not prepared to draw such an inference. It is not unlikely that after the accused left the scene some unknown person intervened to examine the body and, in the course of doing so, moved it and it would also appear that someone removed the piping from where the accused put it to where it was found by the Inspector but, whatever occurred after the accused left, his own evidence, supported by that of the eye witnesses and the evidence of Dr. Cook, establishes beyond reasonable doubt that the deceased was killed by the crushing blows struck by the accused.

In order to examine the other defences raised it is necessary to understand some of the background to the killing.

The accused, Manga, and one Aia, are first cousins from the village of Mondo. Moa is the wife of Aia. The deceased was the uncle of Moa but came from a different village. All were of the Goilala people. I accept the evidence of Mr. Mitchell who, with thirteen years administrative and magisterial experience in the Territory, including a period with the Goilala people, expressed the opinion that the Goilalas are generally of mercurial temperament, inclined to violence when angered and that there exists in their district a genuine and widespread belief in sorcery.

For part of 1966 Aia was detained in a corrective institution. Moa seems to have spent a substantial part of this time living in the house of Heri but the young child of the marriage was cared for by Manga. The evidence shows that for at least a portion of this period Moa lived as a prostitute. At the trial she claimed to have done this reluctantly and under threat from Heri of death by sorcery. Having heard and seen her I am doubtful whether she was as reluctant as she claimed. She did not attempt to give any particulars of financial gain to Heri, which she claimed was the motive for his pressure. She apparently made no complaint to her kinsmen and on Aia�s release did not display any great enthusiasm for returning to him. Be that as it may, the significance of Moa�s misdeeds lies in their effect on Manga and I am satisfied that he was upset because she, as Aia�s wife and the mother of Aia�s child, was living the life she was, that her conduct would have been strongly disapproved in the society of their own village, and that rightly or wrongly he blamed Heri for at least encouraging, if not ordering her conduct.

Aia was released only a short period before the day of the killing. Aia went to live at Manga�s house, Moa remained with Heri and the child remained with her father and Manga.

Much occurred in a few days.

Aia and Manga arranged a party for the child. Manga asked Moa to attend and �shake hands with her daughter� which she did but Heri also appeared and when Moa and Heri left they took the child with them. Later in the day Manga went to Heri�s house and took the child back to live with him and Aia. At the trial he said: �I had the right to take the child because I have looked after it for six months.� Aia commenced making arrangements for Moa and the child to accompany him to Mondo but this was forestalled by a dispute with Heri which came to the notice of the local court and to which I now refer.

During this period also, Moa and Aia who had originally been married by native custom were, by custom, divorced and again remarried. Heri claimed a bride price from Aia, presumably in respect of the second marriage and this dispute was brought to Mr. Mitchell, the magistrate of the Local Court by �a great many heated Goilala people�. The magistrate settled the issues and told the parties that if Moa did not return to her husband there would, in any event, be no debt arising. He added that because feeling was high, and knowing the temper of the people concerned, he also said that �common prudence� alone dictated that she should return to her husband. Moa agreed to return to Aia and the magistrate accepted a complaint for customary debt. This occurred on about 28th October and Moa returned to Aia on that day. The complaint was never heard because two days later the complainant, Heri, was dead.

Against this background I come to the events of the evening of 30th October as described to me. I should record that the only eye witness accounts given at the trial were by Peter Vino and Kauri-Inau, two kinsmen of Moa and the accused himself. At least two other eye witnesses, including Aia, were present but did not give evidence at the trial.

In the early evening a group including some of those I have named visited a nearby tavern but I am unable to say who comprised the group. Vino says he went to the tavern with four others, including Aia and Manga but that he did not see Heri. Indeed, he says that at that stage he did not know Heri. On the other hand Moa says Aia did not leave her during the relevant time and Manga says that he himself went to the tavern alone, saw Heri, Aia and another drinking, changed his mind about having a drink himself and stayed for a short time on the out-skirts, watching the group drink.

When Manga returned to the house, Moa was preparing a meal. The remainder of the group, whoever they were, returned from the tavern and after eating were sitting talking when Heri arrived.

It was put to me that this alone was a provocative act by Heri and it does appear to have been at the least, indiscreet. Manga was already angry with Heri because of the relationship with Moa, which I have described; Moa had only just returned to Aia under the truce imposed by the magistrate; the dispute over bride price was still pending and the difference between Heri and Manga over Aia�s child had culminated only a day or two before in the taking and retaking of the child in the way I have described.

What followed served only to heighten the tension.

Heri picked up the child and held her in his arms. Addressing Aia and Manga he said: �If you were true men you would come to my house and take the child.� He probably added something about a payment of �250 to him but whether this was in relation to the claim for Moa�s bride price or some other payment for the child is not clear. The accused said that Heri�s conduct and words made him �hot inside�, which he explained meant angered.

Then followed a brief scuffle between Aia and Heri in which Aia gained possession of the child. The accounts of what then followed vary.

The Crown case was that Manga went to a nearby fireplace, picked up the piece of piping and advanced towards Heri who may or may not have been still struggling with Aia. In a statement made the following day to Inspector Brittain Manga described how he obtained the piping in this way but said that whilst he was obtaining it, Heri was attacking Aia with a piece of wood. At the trial all witnesses, including the accused, agreed that there was only one weapon used, the piece of piping, but all claimed that Heri had obtained it and then attacked Aia with it.

It is clear that Manga came from the vicinity of the fireplace between the two houses when he advanced on Heri and I strongly suspect that he came armed with the piping as described in his original statement. However, since his account at the trial is supported by all the eye witnesses I proceed on the assumption that Heri first obtained and brandished the piping. I should add in fairness to the accused that whoever first obtained the piping, and regardless of whether or not he approached Heri armed, the accused has throughout maintained that as he approached Heri, Heri was either fighting with Aia or had just felled him.

All witnesses described a struggle between Manga and Heri for the piece of piping, which ended with Manga in possession of it.

Then comes the final and critical scene. Heri, disarmed, turned and ran. Manga, armed with the piping pursued him. I am satisfied that the fight started near the house and ended some 40 or 50 feet along the road when Manga, swinging the piping, crushed in the back of Heri�s skull. I am also satisfied that at least one further blow, causing extensive fractures to the front of the skull, was struck by Manga. In Manga�s statement to Inspector Brittain the following passage occurs: �I hit the man who die, Aida, three times with the piping. The first time I hit him on the back of the neck and he fell down on the ground on his stomach. I then turned him over on his back with my hands and hit him on the forehead. I then hit him again on the top of the head.� At the trial Manga, in general terms, denied that he had said this in his statement to the Inspector but I believe that he did. It would be natural for Heri, struck from behind when running away, to fall on to the front of his body and it would then have been necessary for the body to be turned over in order that the blow to the forehead could be struck. However, whether Manga struck two or three times, or whether he deliberately turned the body over to deliver the coup de grace is not of great importance because I am satisfied that before the chase commenced Manga had formed the clear intention to kill Heri, which he did, with the blows he struck.

It was argued that Manga in doing what he did was acting in self defence or in aid of the defence of Aia but I am satisfied neither of these views is tenable. If one assumes in favour of Manga, as I do, that when he approached Heri, Heri was struggling with Aia and had the piping in his hand, Manga may well have been justified in disarming Heri and, if necessary, using force for that purpose. It could also be argued that if, having been disarmed, Heri had continued to threaten violence to Aia or Manga, some further action by Manga, to prevent or avoid attack, would be justified. But once disarmed and knowing that Manga had possession of the piping Heri ran. Clearly he ran to escape Manga and from the moment Heri turned to retreat, Manga, pursuing him, became the aggressor. It was suggested by the defence that the fight started with Heri as the aggressor and that the fight was merely continuing. It did, of course, continue but where a physical conflict extends over a period first one and then the other combatant may be the aggressor.

Two further aspects were also raised. Firstly, it was said that when Manga was pursuing Heri and until after the first blow had been struck Manga believed Heri had killed Aia. Secondly, Manga, in his evidence said that he feared that if he did not kill Heri, Heri, by exercising the powers of a sorcerer would kill Manga or Aia, or both of them.

I do not accept that Manga at any relevant time thought Aia dead. Even if he had he could not have been acting to defend from death or grievous bodily harm someone he thought already dead. If Manga had believed Aia dead this could bear on the defence of provocation but in my view cannot help the accused establish a plea either of self defence or of aiding in self defence under The Criminal Code.

In his statement to the police Manga described how Aia and Heri were fighting as he approached. Later at the committal proceedings Manga said: �Aida walked towards the workshop and picked up the piping and tried to hit my brother, Aia. When he threw the piping he warded the blow and it landed on his shoulder. Aia held one end of the piping and Aida held the other and they both were pulling. When I came I thought Aida had killed my brother and I picked up the piping. I pulled it from his hand. When I held the piping in my hand, Aia said to me, �Do not hit him�.� Other evidence showed that Aia bore no marks of assault and that he was not incapacitated. At the trial Manga made several conflicting statements but admitted quite clearly on two separate occasions that before he struck the first blow Aia called out, �Do not hit him�, and I am satisfied that this is what occurred.

I am prepared to accept that Manga, like many of his people, had a genuine belief in sorcery. I do not accept, however, that Manga believed Heri to be a sorcerer, or even if he did, that such a belief influenced him during the critical period. The first suggestion that Heri was a sorcerer was made at the trial. Manga had made a full statement to Inspector Brittain on the day after the killing, and he made a further statement on 23rd November, 1966, at the committal proceedings. In each of these statements he gave a reason for taking the action which he did but in neither of them did he refer to Heri�s powers of sorcery, nor to any fear that he or anyone else would be harmed by the exercise of these powers. This aspect of his evidence at the trial, even allowing for the fact that it was necessary to use an interpreter, was to me unconvincing. In his evidence in chief, Manga said that he was very angry when he saw Aia fall and he added: �There were no other feelings in me beside anger.� Subsequently, he said that when he struck the first blow he intended to kill Heri because if he did let Heri go, Heri would make magic on him and he would die. He stated that he knew Heri was a sorcerer because Heri had, in the past, �killed many people� back in the village. Admittedly, Moa referred to Heri as threatening to exercise the powers of a sorcerer but in my view this was said by her to justify her living in prostitution whilst Aia was in detention. No other evidence was given of Heri�s reputation as a sorcerer. The case was put in the end rather as though Manga, having committed himself to strike the first blow, was then compelled to continue the battering because he was afraid that Heri would exercise his supernatural powers to harm Manga. But the evidence is that either of the first two blows which Manga struck could have killed Heri and although I appreciate that there may be some difficulty in applying the provisions of The Criminal Code in circumstances where the accused assaults another whom he believes to be a sorcerer, I do not understand how any successful defence can be raised where, as in the present case, the person assaulted had neither threatened to exercise his supposed powers or done any act which could be construed as an attempt to exercise them.

Next I turn to the defence of provocation and for the purpose of examining it, it is necessary to look further at the evidence, particularly that of the accused.

It is clear that Manga, while struggling for the piping, or earlier, formed the intention to kill Heri. He variously described himself as being angry, very angry, and afraid that Heri might exercise his powers as a sorcerer. On another occasion he said: �When I hit Heri on the back of the head I thought of just wounding him and leaving it at that. My mind was blank at that time and then I thought he would make magic on us and we would all die.� I was not impressed by these statements. Manga had previously said quite clearly that he had already formed the intention to kill Heri and the first blow, that is the blow to the back of the head, was delivered with a force quite inconsistent with an intention of �just wounding� the victim. I think he killed because he was, as he said, angry or very angry.

There was a series of incidents to which I have referred culminating in the struggle between Aia and Manga and although the provocation must be sudden, I think I am entitled to, as I do, look at all these incidents as setting the stage for what is said to be the sudden provocation (Mehemet Ali v. The Queen[ii]²; R. v. Duffy[iii]³).

Except to the extent necessary to decide this case I do not wish to comment on the difference of opinion which is summarized in R. v. Zariai-Gavene[iv]⁴�in relation to the proper construction of ss. 268 and 304 of The Criminal Code. See also R. v. Johnson[v]⁵�and R. v. Callope[vi]⁶. Whichever of the two views advanced in R. v. Herlihy[vii]⁷�is accepted the test is the reaction of the ordinary or reasonable person and I accept that this person in the ordinary villager or even the ordinary villager of the Goilala area: R. v. Hamo-Tine[viii]⁸, R. v. Zariai-Gavene[ix]⁹, Kwaku Mensah v. The King[x]¹⁰. I also adopt the view that whether s. 268 of The Criminal Code is read with s. 304 or not, the defence of provocation may apply even where an intent to kill exists: Mehemet Ali v. The Queen[xi]¹¹, R. v. Zariai-Gavene[xii]¹²�and Parker v. The Queen[xiii]¹³.

I am also of the opinion notwithstanding the difficulties involved in identifying where the dividing line lies that a state of something more than anger is required to call in aid s. 304 of The Criminal Code. As was said in Parker v. The Queen[xiv]¹⁴: �Something which is done �suddenly� and in the �heat of passion� caused by provocation is, as it were, something done automatically or impulsively and at a time when there is a temporary suspension of the reason; an act so done is not controlled or planned or preconceived or deliberate.� See also R. v. Nantisantjaba[xv]¹⁵�and the cases therein cited.

If this is the law, and I believe it is, the contention that s. 304 of The Criminal Code applies in the present case must fail for two reasons.

Firstly, Heri�s conduct, although imprudent, was not, in my view, such as to excite passion or to provide (to use a phrase from Parker�s case) �a passionate impetus� in the ordinary Goilala villager. It is perhaps significant to note that other Goilala men, some of them Manga�s own kinsmen, witnessed all that occurred after Heri arrived at the house. There was no suggestion that any of them displayed even indignation at Heri�s conduct. In addition it should be noted that Aia who was more directly concerned with Heri�s conduct than Manga was had, as Manga knew, been drinking with Heri a short time before and when the trouble at the house commenced, Aia contented himself with reclaiming his child. When Manga obtained possession of the piping, Aia�s efforts were, as I have already said, directed to preventing Manga from attacking Heri. While the attack was proceeding, or at the latest immediately afterwards, all the witnesses, including Aia and Moa, fled.

Secondly, I am satisfied that Manga did not react in the heat of passion. Reason was never unseated. He did not act automatically nor impulsively. Except by the unconvincing after-thought to which I have referred, Manga did not suggest he lost control of himself and none of the other witnesses said anything to suggest he had. The intention to kill was formed and pursued in hatred and anger but not because, nor while, self control had been temporarily lost.

Finally, one other aspect should be mentioned. Counsel for the defence referred me to s. 24 of The Criminal Code and suggested that Manga, mistakenly believing that Heri had the power of a sorcerer and could and would kill, was acting under an honest and reasonable but mistaken belief and that his case was therefore in some way advanced by s. 24 of The Criminal Code. There appears to be a number of difficulties in this argument. Whether a mistake is reasonable so as to attract the operation of that section may well have to be tested objectively, and if this is so I would be reluctant to hold that because a superstition is generally held it is necessarily a reasonable belief. Also, Heri was a human being and it was unlawful except in certain defined circumstances to cause his death, whether he was believed to possess supernatural powers or not. It may well be, before s. 24 could operate in similar cases, that there would need to be a belief that the person was a supernatural being, not a human being with supernatural powers. These and other problems which might arise are referred to by Professor Seidman in the International and Comparative Law Quarterly, vol. 15, p.1135. However, I express no opinion on these matters because the facts, as I have found them, cannot in any event support an argument based on s. 24 of The Criminal Code.

I find the accused Guilty of wilful murder as charged.

Verdict: Guilty of wilful murder.

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

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

[i]* Sections 268 and 304 of The Criminal Code provide, so far as is relevant, as follows:

N1>�268.���� Provocation. The term �provocation� used with reference to an offence of which an assault is an element, means and includes . . . any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation . . . 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 ....�

N1>�304.���� When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.�

[ii][1957] 59 W.A.L.R. 28.

[iii][1949] 1 All E.R. 932.

[iv][1963] P. & N.G.L.R. 203.

[v][1964] Qd. R. 1.

[vi][1965] Qd. R. 456.

[vii][1956] Q.S.R. 18.

[viii][1963] P. & N.G.L.R. 9.

[ix][1963] P. & N.G.L.R. 203.

[x][1946] A.C. 83.

[xi][1957] 59 W.A.L.R. 28.

[xii][1963] P. & N.G.L.R. 203.

[xiii][1964] A.C. 1369; (1964) 111 C.L.R. 665.

[xiv][1964] A.C. 1369; (1964) 111 C.L.R. 665.

[xv][1963] P. & N.G.L.R. 148.

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