Papua New Guinea Law Reports - 1967-68
[1967-68] PNGLR 71
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V.
DOMARA-SAOPE AND ANOTHER
Port Moresby
Minogue J
17-19 May 1967
2 June 1967
CRIMINAL LAW - Provocation - Wrongful act done in presence of accused to person to whom he stands in “filial, or fraternal relation” - Force “not such as is likely, to cause death or grievous bodily harm” - The Criminal Code (Queensland, adopted), ss. 268*[cx]1, 269*[cxi]2* .
“Likely” in s. 269 of The Criminal Code means reasonably foreseeable by an ordinary person as probably having the result described in that section, so that, provided, inter alia, the force used in retaliation is not such as is reasonably foreseeable by an ordinary person as probably causing death or grievous bodily harm, the defence of provocation under that section is available.
R. v. Taimbari (S.Ct., P. & N.G., 9th Aug. 1966, unreported), not followed.
Doapuru was Domara’s father’s brother, and Deboa’s sister’s husband. The accused Domara referred to Doapuru as his father, and there was no real doubt, in their native society, that Doapuru stood in the relationship of Domara’s father.
Held:
In respect of Doapuru, the Court could not be satisfied that the accused Domara did not stand in a “filial” relation within the meaning of s. 268 of The Criminal Code, or that the accused Deboa did not stand in a fraternal relation within the meaning of that section.
Criminal Trial.
On 17th May, 1967, an indictment was presented charging Domara-Saope and Deboa-Iso that with intent to do some grievous bodily harm to one John Donald Walker they did grievous bodily harm to him, and alternatively, that they unlawfully assaulted the said John Donald Walker and thereby did him bodily harm. The relevant facts appear hereafter in the reasons for verdict.
Counsel:
Grastins, for the Crown.
Flood, for the accused.
Cur. adv. vult.
6 June 1967
MINOGUE J:  The two accused were presented on an indictment charging them that with intent to do some grievous bodily harm to one John Donald Walker they did grievous bodily harm to him. Alternatively, they were charged that they unlawfully assaulted John Donald Walker and thereby did him bodily harm.
The circumstances which led to the severe injury which Mr. Walker suffered I find to be as follows:
On 6th February, 1967, at some time between 4 and 5 o’clock in the afternoon, the accused, Domara, together with a man named Doapuru, were travelling on a trailer drawn by a tractor within Merani plantation in the Cape Rodney area. The plantation was owned by Mr. Walker, he having taken possession thereof within the previous six weeks. The driver of the tractor was driving too fast and, because of this, was unable to make a turn successfully and the tractor ran off the track and hit a rubber tree. The passengers in the trailer were thrown out and Domara was slightly injured. Doapuru and one or two others attacked the tractor driver who took to his heels and ran towards Walker’s house, pursued by a number of natives working in the labour line at the plantation. This attack was halted and the attackers and bystanders seem to have retired to their quarters in the labour compound. Shortly afterwards Walker saw that such minor medical attention as was necessary was given to the natives injured in the collision and then went with the driver of the tractor apparently to seek out and deal with the man who had attacked him. He called or caused to be called all the members of the labour line into a line close to the compound and asked the driver to identify the man who had hit him. The driver identified Doapuru whereupon, and unfortunately and unlawfully, Mr. Walker stepped up to him called him a bastard and gave him a hard stinging open-handed blow across the face causing his nose to bleed and the blood to run down on to his chest. Doapuru is a man whom I estimate to be in his late thirties or early forties and is the brother of Domara’s father. He is also the husband of the accused Deboa’s sister. Domara regards himself as a filial relation of Doapuru. Domara and Deboa are much younger men. The former I estimate to be in his early twenties whereas I would think Deboa to be somewhere between eighteen and twenty-one. There was, I feel, a state of tension and suppressed excitement in the compound after the tractor incident and up to the time that Walker called for the line to be formed. Immediately Walker hit Doapuru, Domara and Deboa who were standing side by side and close to Doapuru, ran some twenty to thirty feet away, where each armed himself with a stick and ran back to where Walker was standing, Domara in the lead. Domara was armed with a piece of wood about four feet six inches long and about two inches in diameter. It was hard wood but not of very great weight. It was used for carrying buckets on the plantation. He held the piece of wood at its base with a two-handed grip and with what I am satisfied was a heavy over-arm blow he brought the stick down on to the top of Walker’s head, possibly a little to his left side. The latter collapsed and fell to the ground immediately. No other blow was made by Domara. I am not clear whether some of the men about him grasped hold of him but I am clear that one or more of the men of the line spoke to him and he desisted from any further attack. Whilst Walker was lying on the ground, Deboa, who had also armed himself with a stick of approximately the same length but of very much lighter and I would think either ant-eaten or water-rotted wood, ran around the men who by this time had apparently surrounded Walker and himself delivered an over-arm blow, or maybe two, with the stick. It was stated that he had hit him on the face and then on the ribs but I am not satisfied that the facial blow was made. The blow or blows delivered by him occasioned no bodily harm and I am inclined to think that there was only one blow because the stick was so rotten that it broke. Like Domara, Deboa was very quickly talked out of any further attack and both the assailants were led away and walked back to their quarters. I do not think that any words were spoken by either Domara or Deboa the one to the other from the time Doapuru was hit until the delivery of the blow or blows by Deboa. Unfortunately the blow administered by Domara had quite grave consequences. Walker suffered a compound comminuted fracture of the skull running transversely across the top of his head and extending down to the base of the brain on the left side. In some strange manner he eventually got to his feet, was led to his truck and began to drive himself away until eventually the truck ran off the road and stopped. However this sudden stoppage of the truck had no aggravating effect on his injury. In the early hours of the following morning he was flown back to Port Moresby and admitted to the General Hospital. He was comatose on arrival and did not recover consciousness for some days but he was able to be discharged from the hospital on 1st March. However he has been left with a serious and probably permanent speech defect and suffers from severe headaches and will probably continue to suffer from headaches in some degree permanently.
Doapuru, Domara and Deboa all come from the village of Namudi in the upper Musa area of the Northern District. The village is located in a mountainous region which has a small population of approximately 2,000, the population of the village itself being about 200. The area has no economic potential and development has been neglected. The region is not easily accessible and has not been frequently patrolled. Very little contact has been made by the people with European ways of life and Namudi has no school. Because of the lack of development the male population travels throughout Papua taking up employment on plantations.
At the close of the case for the prosecution, Mr. Flood who appeared for the defence, submitted that there was no case to answer in respect of Deboa in that there was no evidence of either grievous bodily harm or bodily harm as defined in The Criminal Code (Queensland, adopted) occasioned by him. I should add that Mr. Read the surgeon at the General Hospital, who examined Walker after his admission, could find no external signs of injury at all except for a one inch long cut on the top of his head and certainly could find no evidence of injury to his face or in the rib area. He stated that such blows as Deboa was alleged to have inflicted could not in any way aggravate the effect of Domara’s blow. There was, in fact, no evidence of either grievous bodily harm or bodily harm caused by Deboa and there was nothing to show that the two men had acted in concert or that Deboa had done anything to assist Domara in his assault so as to bring into operation ss. 7 or 8 of the Code. I acceded to the defence submission but held on the submission of Miss Grastins who appeared for the prosecution, that there was an alternative verdict of common assault open in Deboa’s case and consequently that there was a case to answer on such a charge by virtue of s. 575 and s. 1 of the Code.
No evidence was brought before me of the clan or tribal structure of the Namudi people but from my general knowledge of village areas in Papua I could not say that there was not a filial relationship between Domara and Doapuru nor that there was not some close fraternal relationship between Doapuru and Deboa. Both accused gave evidence in their own defence and each disclaimed an intent to kill or do grievous bodily harm to Walker. Each said he was sad at the sight of what had happened to his relation and immediately ran to get something to hit the author of the both hurtful and insulting blow suffered by Doapuru. Their evidence was given in the Police Motu language and the interpreter informed me that the word used which he translated as “sad” could mean angry, upset, or distressed. In cross-examination each used a word describing his reaction to the assault on Doapuru which the interpreter translated as “very angry”. I am convinced that both Domara and Deboa lost their self control on Walker’s hitting Doapuru and immediately rushed to take some retaliatory action. All the incidents took place within the matter of a few seconds. Their reaction was immediate and I could not be satisfied that it was any different from that of ordinary people of their environment in like circumstances.
Mr. Flood submitted that both accused should be freed from criminal responsibility because each could avail himself of the exculpatory provisions of s. 269 of the Code.
As the case stood at the close of all the evidence, Domara was in jeopardy on the major charge that with intent to do grievous bodily harm he did grievous bodily harm or on the progressively less serious charges of unlawfully doing grievous bodily harm (ss. 579 and 320) of unlawful assault occasioning bodily harm or of common assault.
Deboa, as the result of my earlier ruling, was in jeopardy on the score of common assault only. As different considerations apply in the case of each accused I will deal with them separately.
DOMARA:
Before s. 269 of the Code can be considered in relation to him, it is necessary first to see whether he comes within the provisions of s. 268, i.e. whether he is such a person to whom provocation can be given so as to excuse him for committing an assault. As the wrongful act or insult was not done to him personally but was done in his presence, was it done to another person (Doapuru) to whom he stood in a filial relationship? In my opinion it was, or rather I could not be satisfied that it was not. Both in the committal proceedings and in this Court Domara referred to Doapuru as his father. In cross-examination he was asked, “Why did you hit Mr. Walker on the head?” to which he replied, “Because he hit my father”. I would not have any real doubt that in his society Doapuru stood in the relationship of father to him. Throughout both Territories I have had experience in many cases where the filial relationship extends in the case of sons of brothers and in some communities in the case of sons of first cousins.
The question remains whether he can avail himself of the provisions of s. 269. I am satisfied that his act was uncontrolled, unreasoning and impulsive and that he was induced to perform that act by Walker’s unlawful assault and insult. I am satisfied too that he was in fact deprived by this provocation of his power of self control, and that he acted upon the provocation on the sudden and before there was time for his passion to cool.
However, in my opinion the defence of provocation must fail for the reason that I am satisfied beyond reasonable doubt that the blow struck by Domara was such as was likely to cause grievous bodily harm if not death. In R. v. Taimbari[cxii]3, I took “likely” to mean as reasonably foreseeable as probably having the result set out in the section, and I went on to say foreseeable both by the accused and by the ordinary man placed in the circumstances in which the accused found himself. On reflection I feel that I was wrong in importing a subjective element into the likelihood of the force used causing death or grievous bodily harm. “Likely” in the context of s. 269 means I am now of the view reasonably foreseeable by the ordinary man as probably having such a result. In the circumstances of this case the nature of the blow delivered with the weapon used was likely to have the result which it in fact did have. I am relieved of the necessity to decide the extremely difficult question of whether or not the force used was disproportionate to the provocation.
I pass to consider the question of intention because that is an essential element of the first charge.
All that Domara could say was that he intended to hit Walker and in the unreasonable state in which he was I could not find that he had any other than an intention to hit him hard. I cannot be satisfied that he formed a specific intention to do such an injury to Walker as would endanger or be likely to cause permanent injury to health. So “grievous bodily harm” is defined in s. 1 of the Code. Consequently, Domara must be acquitted on the first charge on which he was arraigned. But that he did grievous bodily harm and that he had no excuse in law for so doing is clear. Accordingly, by virtue of s. 579 of the Code I hold that he may be convicted of unlawfully doing grievous bodily harm and I so convict him.
DEBOA:
The defence relies on the fact that Doapuru is the husband of Deboa’s sister. In a European society Deboa would be regarded as the brother-in-law of Doapuru and in Deboa’s statement in the committal proceedings which were before me in evidence the interpreter so interpreted Deboa’s description of the relationship. Even in Queensland I can imagine a brother-in-law being held to stand in a fraternal relation to the person assaulted. I am of the opinion that Deboa stood in that relation to Doapuru and that Walker’s assault on the latter was of such a nature as to be likely to deprive Deboa of his power of self control and to induce him to assault Walker. And so I hold that Walker gave him provocation for an assault. In Deboa’s case too I am satisfied that he was actually deprived by the provocation of his power of self control and that he acted upon the sudden and before there was time for his passion to cool. I could not be satisfied that the force used by him was intended to cause the death or grievous bodily harm and I am satisfied that it was not likely to cause either. However, in Deboa’s case I must consider whether the force used was disproportionate to the provocation. I take into account the fact that he was a much smaller man and that he was not much more than a mere youth, that he gave little or no thought to the weapon he picked up and that the blow or blows with which he struck caused no discernible injury at all. In these circumstances I could not say that the force used was disproportionate to the unprovoked assault which he had so immediately witnessed. Accordingly I find that he can avail himself of the defence afforded by s. 269 and I find him not guilty of common assault. It follows from what I have earlier said that I find him Not Guilty of the first and second counts in the indictment.
VERDICTS:
Domara-Saope—Not Guilty of doing grievous bodily harm with intent to do grievous bodily harm but Guilty of unlawfully doing grievous bodily harm.
Deboa-Iso—Not Guilty.
Solicitor for the Crown: S. H. Johnson, Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[cx]* Section 268 of The Criminal Code (Queensland, adopted) provides: —“The term ‘provocation’ . . . means and includes . . . any wrongful act . . . of such a nature as to be likely, when done . . . in the presence of an ordinary person to another person . . . to whom he stands in a . . . 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 is done ....”
[cxi]** Section 269 of The Criminal Code makes provocation a defence provided, inter alia, that the force used in retaliation “is not such as is likely, to cause death or grievous bodily harm”.
[cxii]S.Ct., P. & N.G. (Minogue J.), 9th Aug. 1966, unreported.