Papua New Guinea Law Reports - 1979
[1979] PNGLR 319
N199
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
MARAWA KANAIO
Madang
Greville Smith J
14-15 August 1979
CRIMINAL LAW - Unlawful killing - Provocation as defence - Whether available - Words “provocative” - Whether force used disproportionate to provocation - Semble provocation available as defence - Criminal Code, ss. 271, 272.
An accused was charged with unlawful killing (manslaughter) of his wife. There was evidence of insulting words by the wife; the words used were “Yu kai kai kan bilong ol meri.” There was also evidence that in response to this the accused assaulted his wife by kicking her and striking her with a piece of wood, either alone or in conjunction with other blows, that the assault resulted in a ruptured spleen from which through loss of blood the wife died.
Held
(1)      The words used were capable of amounting to provocation within the meaning of the definition in s. 271 of the Criminal Code.
(2)      The force used was disproportionate to the provocation within the meaning of s. 272 of the Criminal Code.
(3)      On the assumption that the defence of provocation under ss. 271 and 272 of the Criminal Code is as a matter of law available on a charge of manslaughter, the defence was not in the circumstances available.
(4)      Semble, the defence of provocation under ss. 271 and 272 of the Criminal Code is not as a matter of law available on a charge of unlawful killing.
Kaporonovski v. The Queen (1973), 133 C.L.R. 209, approved.
R. v. K.J.,v [1973] P.N.G.L.R. 93, disapproved.
Trial
This was a trial of an accused on a charge of unlawful killing, to which the defence of provocation by use of insulting words was raised. The facts appear in the reasons for judgment.
Counsel
B. Cassells, for the State.
G. Tatireta, for the accused.
Cur. adv. vult.
15 August 1979
GREVILLE SMITH J: In this case it is clear from the evidence, and is not disputed by the defence, that the accused Marawa Kanaio assaulted his wife, that his assault resulted in a rupture of her spleen and that this in turn led to her death from loss of blood as a result of bleeding from the ruptured spleen.
I accept the evidence of Bau Katawa and Gabriel Dawar, and upon it I find that the assault by the accused upon his wife shortly before her death involved, as the accused informed these two witnesses immediately after the event, his kicking her, and striking her with a piece of wood, either alone or in conjunction with blows by other means inflicted on her which the accused stated on later occasion that he employed. His wife was about forty-five years of age, well nourished, about normal size for her age, with the appearance of a healthy woman. Her spleen was not a diseased or enlarged one and to rupture it would have required the application of a great deal of force on the left side of her chest or lower down. There were four ruptures radiating from the spleen attachment. I am satisfied beyond reasonable doubt that the accused applied such force in the course of his attack upon her, though whether by kicking her or otherwise is not clear. The significance of the fact that the assault upon her included kicking and striking with a piece of wood tends to indicate the severity of the attack and to confirm the evidence of the fatal injury itself as to the force used to cause it.
The accused has raised the question of provocation by his statement that what caused him to assault her was her use to him of the words “Yu kai kai kan bilong ol meri” as he told the police officer who made the record of interview, or “Kai kai kan bilong mama bilong yu” as he stated under oath to the committal court. Notwithstanding the difference between these two versions, notwithstanding the accused’s failure to give evidence himself or to call his mother or his sister, both of whom he said were present at the time of the insult, or to vouchsafe any explanation for not calling them, and his failure to mention the speaking of these words by his wife immediately after the event to Bau Katawa and Gabriel Dawar, I am not, there being no other evidence on the point, satisfied beyond reasonable doubt that these words were not used by the accused’s wife to him. I am also not satisfied that the speaking of these words, if it occurred, would not fall within the category of insult referred to and described in s. 271 of the Criminal Code or that the speaking of such words did not deprive the accused of the power of self control, cause him to act upon it on the sudden and before there was time for his passion to cool and so to assault his wife, and I am not satisfied that the force used was intended or was likely to cause death or grievous bodily harm.
I am however, satisfied beyond reasonable doubt that the force used was disproportionate to the provocation.
In this regard the court has had the benefit of the evidence of Bau Katawa who is a leader of his village, and an elderly man of apparent responsibility and moderation — and this I assess from his appearance and demeanour in the witness box, and his conduct in respect of the death, as well as his being leader — that an insult consisting of such words as those in question is usually provocative of retaliation by a few slaps from the man. He was not cross-examined on this and there is no other evidence, and no submissions from defence counsel on the matter. The evidence of Bau does not form the basis of but simply accords generally with and fortifies my own view that the retaliation in this case was for these times and for this place disproportionate, and in fact markedly so.
In dealing with this question of proportionality or disproportionality, Mr. Tatireta relied upon accused’s statement that, in addition to the words in question, his wife stabbed him with a knife and hit him with a hammer. I reject these allegations. Whilst I am not prepared to reject, on the basis that it was not made immediately after the event to Bau Katawa or Gabriel Dawar, accused’s later allegation that the insulting words were used to him, as there is evidence that it would have been an embarrassment to the accused to repeat them, then as I think this contention is in the light of the fact that his wife was dead or dying, and his later recounting of the words on several occasions, I am satisfied beyond reasonable doubt that if there had indeed been the additional provocation of his wife attacking him with knife and hammer he would have spoken of this to the two men mentioned, and would have mentioned it to the policeman Gabriel Buasiu later in the day when giving his explanation to Buasiu as to what had happened. To Buasiu of course he had changed to his own advantage his account of events as he gave it to Bau Katawa and Gabriel Dawar. He did not tell Buasiu, as he had told the other two, that he had hit his wife with a piece of wood and kicked her. His story to Buasiu was only that he had hit her with a cooked taro. My conclusion is that he had not yet invented the knife and hammer version. His still later story to Sergeant Tumpi was that he had punched his wife — no mention of kicking or striking with wood and no mention of her assaulting him with hammer or knife, only of the insulting words. It is in the committal proceedings for the first time that he mentions anything about a knife or a hammer. Here again, though he does say he kicked her (but specifies that it was on the thigh), he does not mention hitting her with the wood, and his punching her, as told to Sergeant Tumpi, had by then turned to slapping. It is clear, I think, that after the event his progressive course was to downplay his own violence and to exaggerate his wife’s provocation, and I am satisfied that his reference to a knife and hammer attack is part of that exaggeration, and did not in fact occur.
It is true that the onus is on the prosecution “inter alia” to negative provocation, and that that onus never shifts. However the evidence adduced must be weighed in the light of the evidence it was in the power of one party to call, and in the power of the other to contradict (Blatch v. Archer[ccclxxv]1). According to the accused (though stated for the first time in the committal court and, I suspect, part of his exaggeration of the provocation) his mother and his sister were present. These would have been witnesses well disposed and committed by family bonds to him and no explanation has been offered by the defence as to why they were not called to support his statement of the knife and hammer attacks or on the moderation, which Mr. Tatireta urges, of his response to the provocation offered him.
The accused has not given evidence. This cannot be used as a bolster to a deficient prosecution case, but there is authority for saying that once there is evidence upon which the court might be satisfied beyond reasonable doubt that the accused is guilty, the fact that he has not given evidence, or called evidence in his power to call, may lend assurance to any satisfaction the court may feel. I would be so assured, if I needed such assurance, which I do not.
I have proceeded hereinbefore as though the defence of provocation under ss. 271 and 272 of the Criminal Code is as a matter of law available on a charge of manslaughter, and I have done so in case (as I am informed by counsel will indeed be the case) what I am now about to say is appealed against.
Mr. Cassells for the State has submitted that ss. 271 and 272 do not apply to a charge of manslaughter and he bases his argument upon the persuasive authority of the majority decision of the High Court of Australia in Kaporonovski v. The Queen [ccclxxvi]2. Mr. Tatireta in his submission opts for the view of the minority, or alternatively says that I am bound by the majority Full Court decision of the Pre-Independence Supreme Court case of R. v. K.J. [ccclxxvii]3. With some doubt, I am of the view that I am required to decide this point of law notwithstanding my conclusions of fact as aforementioned. I seem to recollect some authority that I should do so.
Neither counsel was able to offer other than short argument, and I am at the disadvantage of shortage of time and materials and the invaluable opportunity to consult with my brother judges. Also, only abridgements of the judgments in Kaporonovski are available to me at Madang. However, I had given these matters some consideration in the past, and had formed certain tentative views, and doing the best I can I am of opinion that the High Court decision is persuasive authority only (this seems implicit in Sch. 2.12 of the Constitution of the Independent State of Papua New Guinea), that I am not bound by the authority of R. v. K.J. [ccclxxviii]4, and that the reasoning of the majority in the Queensland Court of Criminal Appeal [R. v. Kaporonowski][ccclxxix]5 and in the High Court of Australia in Kaporonovski’s case[ccclxxx]6 is the better view (the plain and ordinary meaning of the words “an offence of which an assault is an element” has always seemed clear to me) and indeed, as applied to killing, the more appropriate to the conditions of Papua New Guinea where violence is so very prevalent and where killing is widely customarily regarded by the people as an absolute offence both as to material compensation and otherwise. I note that there is no defence of provocation to manslaughter in the common law of England or otherwise in England or in the non-Code Australian States. In addition I think there is merit, especially where as here the conflicting views are finely balanced, in preserving uniformity with the law in the Australian Code States which are now of course on the point in question bound by the majority decision in Kaporonovski’s case, which incidentally brings them into line, as to manslaughter, with the law of England and the non-Code states.
I therefore hold as a matter of law that a defence under ss. 271 and 272 is not open to a defendant on a charge of unlawfully killing.
The defendant is convicted as charged. Sentence: in hard labour — one year.
Solicitor for the State: K. B. Egan, Public Prosecutor.
Solicitor for the accused: Mari Kapi, Public Solicitor.

[ccclxxv](1774) 1 Cowp. 63, at p. 65; 98 E.R. 969, at p. 969.
[ccclxxvi](1973) 133 C.L.R. 209; (1973) 1 A.L.R. 296.
[ccclxxvii][1973] P.N.G.L.R. 93.
[ccclxxviii][1973] P.N.G.L.R. 93.
[ccclxxix][1972] Qd. R. 465.
[ccclxxx](1973) 133 C.L.R. 209; (1973) 1 A.L.R. 296.