Papua New Guinea Law Reports - 1991
[1991] PNGLR 161
SC405
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
GOI
V
THE STATE
Waigani
Kidu CJ Salika Jalina JJ
4 September 1990
30 October 1990
26 June 1991
CRIMINAL LAW - Criminal liability and responsibility - Defences - Insanity - Elements of - Deprivation of capacity - Impairment of capacity not sufficient - Criminal Code (Ch No 262), s 28.
The Criminal Code (Ch No 262), s 28, provides for the defence of insanity as follows:
“(1)    A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity:
(a)      to understand what he is doing; or
(b)      to control his actions; or
(c)      to know that he ought not to do the act or make the omission.
(2)      A person:
(a)      whose mind, at the time of his doing or omitting to do an act is affected by delusions on some specific matter or matters; and
(b)      who is not otherwise entitled to the benefit of the provisions of Subsection (1),
is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.”
Held
(1)      The defence of insanity requires that there be a mental disease or natural mental inffirmity which is shown to deprive a person of his capacity:
(a)      to understand what he is doing; or
(b)      to control his actions; or
(c)      to know that he ought not to do the act or make the omission.
(2)      Impairment of capacity to understand or control one’s actions is not deprivation of the capacities in s 28 of the Criminal Code.
(3)      Where, at the time of murdering his son, an accused “was experiencing strong emotions of anxiety and fear causing dissociation and impairing his ability to make a rational intention, and to control his actions”, the defence had not been made out.
Cases Cited
Bratty v Attorney General of Northern Ireland [1963] AC 386.
R v Agana Guguma (No 364, 1965, unreported).
R v Brigitta Asamakan [1964] PNGLR 193.
R v Heimbopi Nakapi (No 648 of 16 September 1971, unreported).
R v Warago Waiyape (No 796 of 24 June 1976, unreported).
State v Joseph Makapi (Prentice Dep CJ, No N214, 1980, unreported).
State v Justus Taimbari Kauri (Kidu CJ, No N684, 1987, unreported).
Counsel
D Poka, for the appellant.
R Auka, for the State.
Cur adv vult
26 June 1991
KIDU CJ SALIKA JALINA JJ: The appellant pleaded guilty to wilful murder of his infant son in the National Court at Mt Hagen. He was convicted and sentenced to 10 years with hard labour. His appeal to this Court is against conviction only.
His grounds of appeal are as follows:
1.       That there was substantial miscarriage of justice in that the trial judge, in accepting the plea of guilty and proceeding to convict the accused on the crime of wilful murder, failed to inquire of counsel the issue of intent, which intent is a necessary element of the said crime and which issue became apparent on the face of a medical report subsequently tendered in mitigation, on the state of the accused’s mind at the time he was alleged to have committed the crime of wilful murder.
2.       That there was substantial miscarriage of justice in that the subsequent tender of the medical report showed on the face of it, that the accused did not have the intent, which intent is a necessary element of the crime of wilful murder, at the time he allegedly caused the death of his child and in failing to vacate the plea upon his own motion, the trial judge erred in exercising his judicial powers.
3.       That counsel in seeking re-arraignment of the accused acted on an honest but mistaken belief that the medical report did not raise the issue of insanity.
When he was arraigned the appellant said, “It is true I did not mean to kill him. I was at that time mad and did not know what I was doing. I was going around cutting people and burning houses”.
His lawyer (Mr Poka) sought an adjournment. After the adjournment the appellant was re-arraigned and this time he said, “It is true”. The trial judge then read the depositions tendered by the State and having satisfied himself he convicted the appellant of wilful murder. In mitigation of sentence the appellant’s lawyer called one of his relatives (Tony Wisil) and tendered a report from Dr Brother Andrew, a government psychiatrist. But there is no way of telling what part this evidence on mitigation played in the determination of the 10-year sentence imposed by the trial judge as there is no report or judgment relevant to sentencing. The sentence of 10 years for wilful murder is low compared with sentences imposed for the offence in the last few years. So we assume that the psychiatric report did have some bearing on the trial judge’s decision.
The facts on which the appellant was convicted were straightforward. He killed his 18-month-old son on 7 April 1989. That day, about 2 pm, he got the child by his legs and threw him on the stones. He then hit the child on the head several times with a stone. He also stamped on the child’s stomach. The medical report stated, inter alia, as follows:
“Physical examination:
Contusion with ecchymoses of face, blood in the mouth, blood behind both ear drums, abdomen tense and distended, extremities were normal.
Probable cause of death:
1.       basilar skull fracture.
2.       internal haemorrhage.”
The third ground of appeal attacks the decision of the appellant’s counsel at the trial to allow the appellant to plead guilty. This lawyer filed an affidavit explaining his decision:
“3.      Upon perusal of the copies of the committal papers, I was able to ascertain the allegations that:
(a)      the appellant attacked his child by hitting the child’s head with a stone or against a rocky surface and stamping on the child on the chest area after throwing it on the ground. The child died from the injuries received.
(b)      the witness statements say, the behaviour of the appellant shortly before the attack on the child, was abnormal and that he was experiencing a mental disorder. That he caused disturbances by chasing people and burning houses. He was arrested and detained by the Police as a result.
4.       The Committal papers deposed to in paragraph 3 above appear in the Appeal Book on pages 17 to 29.
5.       Upon perusal of the Record of Interview the appellant had with the police following his arrest, I am able to ascertain that, shortly before he attacked the child, the appellant admits, he was anxious and fearful of other people attacking him and in an attempt to fight back, he hit his child against the stones, resulting in the child’s death. That he stated he was mentally affected and did not fully understand his actions until told of what he had done by others, at some later time. The record of interview referred appears on pages 26 to 27 of the Appeal Book.
6.       On the basis of the witness statements and the Record of Interview answers, I formed a tentative view that the appellant, was experiencing some form of mental disorder. That he may have lacked the mental capacity to fully know and understand what he was doing and the nature of his actions at the time he was alleged to have killed his child with intent.
7.       Having formed the view attested to in paragraph 6 above, I requested a medical examination of the appellant by Dr Bro Andrew of the Mental Health Services, Department of Health, Port Moresby.
8.       I am informed and verily believed Dr Bro Andrew carried out a medical assessment of the appellant’s mental capacity and filed a report on his findings and conclusions.
9.       That on or about 18 December 1989 I was given the original of the Doctor’s report. This report was tendered at the trial for the purpose of mitigating sentence following the appellant’s conviction. A true copy of the report appears on page 30 to 33 of the Appeal Book.
10.     I concluded and reasonably believed from the face of the report that the defence of insanity under Section 28 of the Criminal Code Act was not available to the accused on the charge of wilful murder. On my understanding the appellant was fit to plead to his state of mind at the time of the alleged crime.
11.     On 22 December 1989 I obtained further and final instructions from the appellant and on the same date, he was brought to court and arraigned on the wilful murder charge.
12.     On initial instructions and subsequent conferences the appellant maintained he did not intend to kill the child and that at the time of the incident he did not know or understand the nature of his act. That such instruction was consistent with witness statements on his preceding behaviour. That the appellant’s response when first arraigned was also consistent with instructions I obtained.
13.     Having formed the view from Dr Bro Andrew’s report that the defence of insanity was not available to the appellant, I advised him accordingly and further advised him that the report could however be used in his favour for the purpose of sentencing if he pleaded guilty.
14.     Following his not guilty plea on arraignment, I again sought further instructions after explaining to him my view from Dr Andrew’s report that the defence of insanity he was raising was not available to him, in law.
15.     He appeared to me to clearly understand the charge of wilful murder and the nature and extent of my advice deposed to in paragraph 13 above.
16.     Upon such advice, the appellant pleaded guilty on re-arraignment.
17.     I have again read Dr Bro Andrew’s report and I am still of the same view that the report does not conclude that a defence of insanity in law was available to the appellant.”
The evidence of insanity relied on by the appellant is contained in his record of interview and in the statements of three witnesses:
RECORD OF INTERVIEW
“Q11.  On the 7th day of April 1989 what have you done to your child?
A.       I was mentally affected and therefore I murdered my son.
Q12    Where did you murder your son?
A.       At Koskala village, known as Korop.
Q13    What did you use to murder your son?
A.       I lifted my son’s legs and dumped him on a stone. There was a big wind blowing on my ear and I thought what was going to fight me came and whilst afraid when attempting to fight back, got my own child and hit him on the stones and killed him. I cannot recall how many times I’d done that, I was mentally affected.
Q14    Did you know what you were doing to your child that time?
A.       When I murdered my child, I don’t know, but realised later I’d murdered my son when witnesses told me the whole story later.”
Koino Tombil
“I recall the accused Joseph Tombil Goi on the Monday of the same week slept outside and came to our house in the early morning with mud all over his body. That time the accused’s speech was slurred, acted disorderly and never co-operated with us. Accused never ever acted like that to us previously, and I’d already got a feeling that my accused husband was somewhat mentally affected.
I recall my husband was disruptive. He’d started assaulting, chasing and burning down houses at Koskala/Warakar, our home place.”
Philip Seka
“I remember accused Joseph Tombil Goi is a relative to me and he’d never been mentally affected before. He’d been a normal man but only for this time and the week that I’d heard he’d been disruptive in the mind.
I saw him disruptive, disorderly, and chasing people, burning houses and assaulting people ... Accused Joseph Tombil Goi was not drunk or addicted to drugs, whatsoever.”
Wusil Goiye
“I recall the accused Joseph Tombil Goi was never a so-called longlong man previously. He was only mentally disturbed somewhat those days. Joseph Tombil Goi was not drunk.”
On the day of the killing the appellant was taken to the Nazarene Hospital at Kudjip where he was attended to by Dr Charles Bruerd. The doctor’s report dated 8 April 1989 states, inter alia, as follows:
“During his time here he was oriented to time, place and person. He was poorly cooperative with the examination and was disruptive to the clinic function. An injection was given, despite his strong protest, to calm him down and be more cooperative. He was discharged to the police with his clinical record stating there was no obvious medical problem which would respond to medications and that he was aware of his behaviour and completely oriented.”
So on the day he committed the offence he was completely oriented to time, place and person. On this medical evidence alone the lawyer’s decision was justified. Dr Brother Andrew’s psychiatric report is dated 16 December 1989. It starts by stating that the appellant was physically fit, had no history of serious disease, was fully alert and oriented to time, person and place. He was able to enter into rational conversation, had no evidence of memory deficits and was of normal intelligence. The report also states that the appellant exhibited no thought disorder, hallucinations or delusions, understood the nature of the offence and was fit to plead.
As to the state of mind of the appellant at the time of the offence Dr Andrew says:
“In order to arrive at an opinion of an accused’s state of mind at the time of an offence, it is necessary to have evidence, by examination subsequently, or by reports previously, of mental disorder. On the principle of continuity it may then be possible to infer with reasonable certainty that the accused was similarly affected at the time of the alleged offence.
There is no record of any previous episode of mental illness and a relative, Philip Ap Seka, confirms this in his affidavit and further asserts your client has never been drunk or under the influence of drugs. Your client agrees with these assessments.
A major psychiatric disorder (disease-psychosis) cannot be diagnosed on the basis of a single episode of short duration with complete remission which in the present case has lasted for nine months. Furthermore the description of the episode is not consistent with a major psychiatric disorder.
The accused was taken to Kudjip hospital prior to the alleged offence while in police custody because of the behaviour noted by his wife and other family. It appears little information was given to the doctor who was entirely hindered from arriving at a diagnosis and prescribing treatment (which might have prevented the tragedy) or from providing a useful subsequent report for legal purposes (he alleges the police left without even stating the grounds for bringing him).
Question at issue:
In order to assist the court medical testimony must consider the likelihood of a person with no previous history of mental illness to have a single episode with such tragic results.
The most common association with this type of behaviour (sometimes called Episodic Dyscontrol Syndrome) is an organic disease, usually an infection, sometimes neurological, for example, epileptic equivalents, or endocrine, eg diabetes. None of these has been fully ruled out because of the absence of full investigations. Malaria is prevalent in the area but the subsequent admission to Kudjip hospital makes this unlikely. The infection reported at Kudjip appears to have developed subsequently. The defendant does not complain of any specific physical symptoms prior to the offence.
My advice to the court, based on the evidence I have, is that at the relevant time the accused was not suffering from any organic disorder which could disturb his judgment to the extent of killing his son.
Defendant’s life situation:
By your client’s account the marriage was not as happy as it may appear from absence of overt and public disagreements. Joseph had taken a wife from a ples-longwe and this was a cause for disapproval. Although he eventually won his family’s support for his choice he was always worrying about this matter.
Your client always worried about the children (as is not uncommon when borne by a wife from another area) and this worry easily developed into periods of fear. This feeling of excessive fear had arisen two days previously when he noticed his daughter had a severe mouth infection. He took her to Hagen hospital but found so many patients waiting that he thought they would not be seen before it was too late to return home. He therefore returned immediately to Kudjip hospital to obtain help. Here he was told five visits would be necessary.
His increasing anxiety was expressed by covering himself in mud as though his daughter were already dead. His wife did not understand and he could not explain and could get from her no understanding or support. He turned to two other groups for help but could obtain none because he felt his problem was not understood.
It is clear that at this time his mind was becoming dissociated as is common in fear; rational thought was overcome by strong, archaic emotions which inhibited the normal protective responses of parenthood. It is under the stress of such emotions that those nearest and dearest frequently become the objects of violence. Your client described the experience of these overwhelming emotions as ‘Bikpela win i kam long kopi na blowim long yau bilong mi na mi ting samting i laik paitim mi yet long en i kam kirap nogut’. This experience which is reported in his record of interview was still very vivid in his memory at my interview with him.
Opinion:
In my opinion at the time the accused did the things which constitute the offence, he was experiencing strong emotions of anxiety and fear causing dissociation and impairing his ability to make a rational intention, and to control his actions.
The Social Work report indicates that your client will be accorded special care and support by his people who have already taken steps to reduce social tensions by appropriate payments. They have become aware of the stress Joseph has been experiencing and in the circumstances of this support there is unlikely to be a similar episode in the future.
In my opinion Joseph’s physical and mental health would not be adversely affected by a custodial sentence if this were decided by the Court as expressing society’s disapproval of killing, and affirming that even under stress and strong emotion some responsibility for behaviour remains.”
The defence of insanity is defined in s 28 of the Criminal Code (Ch No 262) which is in the following terms:
“(1)    A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity:
(a)      to understand what he is doing; or
(b)      to control his actions; or
(c)      to know that he ought not to do the act or make the omission.
(2)      A person:
(a)      whose mind, at the time of his doing or omitting to do an act is affected by delusions on some specific matter or matters; and
(b)      who is not otherwise entitled to the benefit of the provisions of Subsection (1),
is criminally responsible for the act or omission to the same extent as if the real state of things had been such as he was induced by the delusions to believe to exist.”
There must be mental disease or natural mental infirmity, and this must be shown to deprive a person of his capacity:
(a)      to understand what he is doing; or
(b)      to control his actions; or
(c)      to know that he ought not to do the act or make the omission.
By virtue of s 27 of the Criminal Code every person is presumed to be of sound mind and to have been of sound mind at any time that comes into question until the contrary is proved. It is well established in this jurisdiction that the standard of proof required of an accused person to establish the defence of insanity is proof on the balance of probabilities: see R v Agana Guguma (No 364, 1965, unreported); The State v Joseph Makapi (No N214, 1980, unreported) and, more recently The State v Justus Taimbari Kauri (Kidu CJ, No N684, 1987, unreported).
The evidence necessary for an accused person to displace the presumption of sanity is illustrated by Lord Denning in Bratty v Attorney General of Northern Ireland [1963] AC 386 at 413 which is quoted by Williams J in R v Heimbopi Nakipi (No 648 of 16 September 1971, unreported).
“In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary. The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity. It is not sufficient for a man to say, ‘I had a blackout’, for blackout as Stable J said in Cooper v McKenna; Ex parte Cooper [1960] Qd R 406 is one ‘of the first refuges of a guilty conscience and a popular case excuse’.”
The above passage was also quoted later by Raine J in R v Warago Waiyape (No 796 of 24 June 1976, unreported).
Dr Andrew’s report does not say that at the time of the killing that the appellant was suffering from mental disease or natural mental inffirmity.
In fact the report says: “Furthermore the description of the episode is not consistent with a major psychiatric disorder.”
It goes on and says, “My advice to the court, based on the evidence I have, is that at the relevant time the accused was not suffering from any organic disorder which could disturb his judgment to the extent of killing his son”.
Dr Andrew then considered the appellant’s life situation and concluded: “In my opinion at the time the accused did the things which constituted the offence, he was experiencing strong emotions of anxiety and fear causing dissociation and impairing his ability to make a rational intention, and to control his actions.”
This is, of course, not saying that the appellant was insane at the time of the killing. Emotions of anxiety are not supportive of the defence provided for by s 28:
“A whole range of emotional disturbances, such as jealousy, anger, revenge or lack of self-control, are excluded from s 27 (now s 28), and these are typical of matters affecting mental stability or balance, as distinct from insanity.” (per Mann CJ in R v Brigitta Asamakan [1964] PNGLR 193 at 198).
It is to be noted that the opinion of Dr Andrew is that the emotions of anger and fear caused “dissociation and impairing his ability to make a rational intention and to control his actions”. So the psychiatric evidence is that anger and fear impaired the appellant’s ability to make a rational decision and they also impaired his ability to control his actions. This is diminished responsibility. Under s 28 there must be deprivation of the capacities enumerated therein. We repeat what the Chief Justice said in The State v Justus Taimbari Kauri (Kidu CJ, No N684, 1987, unreported) at 6:
“For the defence to succeed under s 28 of the Criminal Code, it must be shown on a balance of probability, that a state of mental disease or natural mental infirmity deprived the accused of his capacity:
(a)      to understand what he is doing; or
(b)      to control his actions; or
(c)      to know that he ought not to do the act or make the omission.”
There must be, by a state of mental disease or natural mental infirmity, deprivation of an accused person’s capacity to understand his deed or to control his actions or to know that he should not do the act.
In this case the mental state known as organic brain syndrome did not deprive the accused of the capacities mentioned above. I consider that there is no other meaning to be attributed to the word ‘deprived’ except its ordinary meaning. The Oxford Advanced Learner’s Dictionary of Current English defines “deprive” as follows:
“ ‘deprive of’ means ‘take away from’
‘prevent from using or enjoying’.”
Clearly, therefore, in a defence based on s 28 of the Criminal Code, it must be shown by the defence that the accused person’s capacity to understand what he was doing or to control his actions or to know that he ought not to commit the act was taken away from him by the state of his mental disease or natural mental infirmity.
Dr Andrew’s opinion quite clearly shows that the organic brain syndrome under which the accused was suffering at the time of the killing did not deprive him of his capacity to understand what he was doing or his capacity to control his actions or his capacity to know what he was doing. His opinion was that the organic brain syndrome only reduced these ‘capacities’. In my opinion, these ‘reduced capacities’ fall short of the requirement of s 28 of the Criminal Code.
Deprivation of capacity to understand or control actions is not the same as mere impairment of such capacity.
We disallow the appeal and confirm the conviction.
Appeal dismissed.
Conviction confirmed.
Lawyer for the appellant: Public Solicitor.
Lawyer for the State: Public Prosecutor.