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Keapu v The State [1994] PGSC 10; [1994] PNGLR 135 (2 September 1994)

PNG Law Reports 1994

[1994] PNGLR 135 - Kutapa Keapu v The State�

[1994] PNGLR 135

SC469

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KUTAPA KEAPU

V

THE STATE

Waigani

Kapi DCJ Hinchliffe J

26 June 1994

2 September 1994

CRIMINAL LAW - Wilful murder - Appeal against conviction and sentence - Defence of insanity - Defence of �diminished responsibility� not available in Papua New Guinea.

Facts

The appellant pleaded not guilty to two counts of wilful murder and one count of attempted murder. The facts were not in dispute. The appellant raised the defence of insanity under s 28 of the Criminal Code. The trial judge rejected that defence on the medical evidence. The appellant argued that the evidence established he suffered from �abnormality of mind� or �diminished responsibility�.

Held

N1>1.������ The medical evidence did support the appellant�s submission that he suffered from �abnormality of mind� or �diminished responsibility�.

N1>2.������ Diminished responsibility is not a defence under Papua New Guinea law.

N1>3.������ The appeal against conviction is dismissed.

Counsel

2 September 1994

KAPI DCJ HINCHLIFFE J: The appellant was charged with two counts of wilful murder and one count of attempted murder. He pleaded not guilty to all the charges.

The facts were not disputed and may be shortly stated as follows. On 3 April 1989 at Kira village at about 6 pm, the appellant was said to have gone �berserk� and was wielding an axe and chasing people in the village. One of the victims, an elderly woman could not escape or run away. She was trapped in her house. The appellant hit her once with the axe, and she fell down unconscious. She was admitted to the hospital and died two months later.

On 4 April 1989, the appellant confronted a group of men and struck a man, Wanbina Marepa, on his shoulder. He did not die.

On the same day, the appellant went to Upipi village. He approached a woman in her house, and as she came out he struck her with the axe, and she died instantly.

The appellant called no evidence but tendered a medical report by Dr Brother Andrew MBBS, by consent.

The trial judge convicted the appellant of the two wilful murder charges only and sentenced him to 25 years IHL on each count, to be served concurrently.

The appellant has appealed against the convictions and against the severity of sentence.

The defence of insanity under s 28 of the Criminal Code was the reason for the trial. In dealing with the defence, the trial judge said:

�The report of Dr Brother Andrew does not assist the accused in establishing a defence of insanity. The doctor, in his report, says that in order to establish the state of the accused�s mind at the time the offence was committed he had to establish whether there were such demonstration of unsoundness of mind prior to and subsequent to the time of the offences. There was no evidence of psychiatric disorder after the offence. There was also no evidence of psychiatric disorder prior to the offences being committed. Dr Brother Andrew was, therefore, of the view that the accused does not suffer from any disease of the mind which would be a basis for a s 28 defence under the Criminal Code. It is clear from the doctor�s report that the defence of insanity has not been established. I, therefore, reject the defence of insanity.�

Counsel for the appellant does not question this part of the judgement on appeal. What he questions is that even though the medical report falls short of establishing a defence under s 28 of the Code, the evidence establishes that the appellant suffered from �abnormality of mind� or �diminished responsibility�. With respect, there is no factual basis for this submission in the medical report. The relevant part of the medical report is as follows:

�Your client is in good health.

He has no defects of intelligence, memory or orientation. His thought processes are clear and rational and he has no hallucinations or delusional ideation at the present time.

He understands the nature of the offence with which he is charged and the functions of a court of law. In my opinion he is able to cooperate with counsel in his defence and is fit to plead.

State of mind at the time of the offence.

To establish unsoundness of mind at the time of the offence, some demonstration of such unsoundness prior to and subsequent to the offence would be required.

No psychiatric disorder was demonstrated during his admission to Goroka Hospital.

My examination at Bihute has not demonstrated any present psychiatric disorder.

He has not, therefore, suffered from any psychiatric disorder at any period since the offence.

Your client has not previously been admitted to hospital or treated for a psychiatric disorder. There is no evidence among the depositions that he had had previous episodes of mental disorder shown by speech or behaviour.

In the absence of any history of psychiatric disorder prior or subsequent to the offences with which he is charged, it can be said that Kutapa Keapu does not suffer from any disease of the mind which would be the basis of a defence under s 28 of the Criminal Code.�

It is clear from this that there is no suggestion of any �abnormality of the mind� or �diminished responsibility�. In any case, if there was any such evidence, the trial judge was right in concluding that �this is a case of diminished responsibility, which is not a defence under our laws�. Diminished responsibility is a defence under the Queensland Criminal Code, but this has not been introduced in our Code. This ground of appeal must fail.

In respect of appeal against sentence, counsel for the appellant did not press the ground of appeal in relation to sentences on the two counts of wilful murder.

In the end result, this appeal is dismissed.

Lawyer for the appellant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.