PNG Law Reports 1994
[1994] PNGLR 388
N1242
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
ENAKUAN SALAIAU
Lorengau
Doherty J
20-21 January 1994
CRIMINAL LAW - Murder - Defences of insanity and/or automatism considered - Implications of finding of insanity under s 28 Criminal Code - Difference between insanity and automatism - Need for expert opinion.
Facts
The accused struck his mother twice on the head with a log, killing her. A defence of insanity was raised. The court also considered the defence of automatism.
Held
1.       A finding of insanity under s 28 of the Criminal Code would invoke the mandatory provisions of s 592.
2.       A distinction must be drawn between insanity under s 28 and temporary mental impairment giving rise to a defence of automatism under s 24 Criminal Code.
3.       There must be a proper foundation of fact before a court can make a finding under either section.
4.       The accused was found guilty of murder.
Cases Cited
Papua New Guinea cases cited
R v Mako of Labu (1960) No 183.
R v Nakipi (1971) No 646.
R v Waiyape (1974) No 796.
State v Hekavo [1991] PNGLR 394.
Other cases cited
R v Carter [1959] VR 105.
Ryan v R (1967) 121 CLR 205; [1967] ALJR 577; 40 ALJR 488.
Counsel
S Madana, for the State.
M Kua, for the defendant.
21 January 1994
DOHERTY J:  The accused is indicted on one count of the murder of Nahayam Manoa, who was his mother. It is not in dispute that the accused struck his mother with a log. He himself says the log was used when they were at the fire frying sago. The blow from the log was to the head and caused the death.
The accused's sister, Nahaun, was a witness to the events leading up to the assault, and counsel for the defence has asked the Court to particularly note matters in her evidence. She said that she, her mother, and her two small children were together in a house when the accused came in. They were frying sago together. The accused sat and then complained about his teeth, which were causing him pain, and he called out. She shared the food with her mother and the accused. Then the accused again called and yelled and complained about the pain in his teeth. This caused her to be frightened because of his past behaviour, and she picked one child up and ran. At the same time, the deceased was trying to pick up the other child to go, but the accused hit her before she made good her escape.
This was not the first occasion that the accused had struck his mother. The sister recounted previous occasions when he hit their mother after he complained about being hungry and after he complained about not having "a smoke". 
The accused's own explanation to the police was that they had been eating sago:
"I also felt great pain in my teeth on my left side of my jaw which is swollen. The pain started in the jaw and I became frustrated and got angry. I used the wood for sitting on to fry sago and make fire and then I called in language that I'm going to kill one of you. They jumped down from the door and ran away. I got this wood and threw it on top of my mother's head, she fell down and I picked up the wood and threw it again on top of her head and I kicked her bottom."
He was asked why he hit his mother twice on her head. He replied: 
"Regarding my anger and frustration, it wasn't that time only I did that, I did assault them and even quarrel with them also sometimes earlier at my brother Tapo's house. The main cause is because I have got sickness in my teeth."
Hence, his explanation is that he had pain in his teeth, and this caused him to be angry and frustrated. A similar description is given by the sister, who was the main State witness.
Defence counsel asks the Court to find the accused insane and refers to s 28(1) of the Criminal Code, which provides that:
"A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he was in such a state of mental disease or natural mental infirmity as to deprive him of capacity to:
(a)      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."
A finding under s 28 is a very drastic one. Once such a finding is made, it brings into play a different provision of the Code, s 592. This provides that once a court finds a person is not of sound mind, it must find him not guilty and order him to be kept in strict custody at a place and in a manner as it thinks proper pending a decision of the Head of State.
In effect, this means that the person, to use a common phrase, is incarcerated "at the government's pleasure". It is a mandatory provision and is an open sentence without a specific end. It is normally a life sentence. It is open to review from time to time on advice given to the Head of State. In practical terms, there has been no such review for quite some years at the Laloki psychiatric hospital. I have referred to these provisions several times in the course of submission.
I consider a court must carefully weigh up the evidence before making a finding of fact and should not make a finding purely on submission of counsel.
Defence counsel refers to "periodic insanity". This is not a term I have come across in our legislation. The Criminal Code provides for two situations: insanity under s 28 and the provisions of s 24 that the act or omission occurs independently of the exercise of a person's will.
As it has been said in other courts, "it is difficult indeed to draw a satisfactory line between pleas which raise insanity ...and pleas which raise mental irresponsibility falling outside them" (R v Nakipi (1971) No 646 at p 4, quoting, R v Carter [1959] VR 105 at 110). The defence of so-called "automatism" has been relied on in appropriate cases, and is separate and distinct from the defence of insanity. This involves the "absence of the will to act or, perhaps, more precisely of its exercise rather than lack of knowledge or consciousness which, in my respectful opinion, decides criminal liability... a distinction must be maintained between an unwilled act and a willed act the product of a diseased mind which knows not the nature or quality of the willed act" (R v Waiyape (1974) No 796 at p 9, quoting Ryan v R (1967) 121 CLR 205.)
I reviewed the case law on precedents in these two mental conditions and ss 24 and 28 of the Criminal Code in the case of State v Hekavo [1991] PNGLR 394 and concluded, on the basis of these precedents, that we do have these two forms of defences within our jurisdiction.
Insanity provision under s 28 means that a person did not will or could not make a decision about what he was doing because of the diseased mind. Such a finding obliges a court to hold him indefinitely. An unwilled act because of automatism or some other state under s 24 can lead to an acquittal.
It is clear from the case law in Papua New Guinea and in other countries that to raise automatism there must be a proper basis. It involves two things: first, that the person suffers from the mental incapacity from time to time and, second, that he suffered it at that time the offence was committed.
Further, the Court must distinguish the genuine cases of automatism and the fraudulent. The layman cannot safely, without the help of medical or scientific evidence, distinguish the genuine from the fraudulent.
Clearly, the Court and counsel are not medically qualified to assess an individual, and they rely on help from medical experts. Two medical reports are before the Court. Both medical practitioners categorically state that they are not qualified psychiatrists. Clearly, they are much more experienced than the Court or counsel. In particular, Dr Stavory has been specialising in psychiatry and, therefore, is much more qualified than any of us to make an assessment. Her report is very guarded and is very careful in not making a finding that the accused is insane.
I particularly note her emphasis on the accused's state at the time of the offence and her statement that this was unknown to her. The report shows that there is no evidence of "formal thought disorder", but "the accused person displayed paranoid ideation". He blamed his fellow inmates at the CIS for the devil that he believed now controlled him. He believed that the devil lived next to the jail and was controlling him.
Clearly, from what the doctor says, these matters have arisen since he was in jail. She also make it quite clear that he complained about mental problems after having an accident in 1984. From time to time since then, he suffered dizzy spells and thought that the spirit of his deceased father was controlling him.
He was psychiatrically examined earlier but, unfortunately, there is no report which any of the doctors have that can assist us as to his exact state at the time. Dr Stavory recommends that he be fully and properly assessed and suggests that he may be suffering from a condition called schizophrenia.
Dr Numan interviewed the accused soon after the incident. That report shows that the accused was orientated and clear as to time and place and quite alert. He recalled the dates relating to the incident and expressed his feelings about it. He did not hesitate when relating his thoughts, and his reasons for beating his mother was because he was quite hungry. A contrast to, for example, the James Hekavo case, where the accused had no recollection of what happened.
Dr Stavory recommended interviews with other people, including his relatives, and so evidence was adduced from the Superintendent at the CIS, where he has been living for some months. He described the accused as a very quiet man who seems to stick to himself. He felt that there was some mental affectation because he does not respond to what they require, although he has been co-operative. The accused "does the usual routine things but does not react immediately," he said. 
As I have already remarked, the court is not medically qualified. In the ruling in R v Mako of Labu (1960) No 183, the then Chief Justice, when recording a ruling on admissibility of evidence that a person may be insane, held that if "no expert (is) called to assist the Court ... the Court must if it can form its own opinion on a question calling for expert knowledge." There is no precedent or further law in the body of that judgment to expand this ruling. Here, we have medical opinions. Both doctors state they are not experts, but they are vastly better qualified than the Court or counsel, and I rely on those views in reaching a finding of fact as to the accused's mental state.
On the facts and reports before me, I note the accused's state was assessed by Dr Numan in his report made soon after the incident. Dr Stavory's report was some months later, when she notes the accused described what happened and said the incident occurred "because he felt tired of eating sago all the time, he did not intend to kill the deceased and now he feels sorry for that action." She notes that "he felt someone was controlling him" and he did not know if that force controlling him was what caused him or directed him to kill his mother.
I am obliged to make a decision as whether the accused is insane within the meaning of s 28 on these limited and, by concession, inexpert views before me.
My understanding of the case law in this type of situation is that mental disease is a state, an illness, and that automatism is something that is not an illness of a continuing nature. The Court must make a finding whether the accused suffered from a condition amounting to insanity or whether he suffered from a condition at the time he committed the offence that meant he did not will the act.
From the facts before me, the accused says he did this because he had tooth ache and was angry about his food. He said that to the police, he said that to Dr Numan, and he said that to Dr Stavory. These three reports show that he was able to clearly recount what happened. He clearly expressed his views, his intention not to kill, and his remorse at what happened.
I, therefore, do not consider that the accused was insane within the meaning of s 28 of the Criminal Code. I find that the accused at the time of this offence was not suffering from some form of mental incapacity but was angry and suffering from tooth ache. I find that the accused may have probably suffered from schizophrenia and requires mental and other medical assistance and help.
I find the accused guilty of the murder of Nahayam Manoa. I would add, though I did not state it earlier, that I have taken into account what Mr Kua says, i.e. people do not kill their mother. His words were "it is incredible for a person to kill their own mother, and a person in a proper state of mind will not do such a thing."
Whilst that is a reasonable reaction in a case like this one and one the vast majority of the community would share, such a reaction in itself is not enough to find insanity within the meaning of s 28 of the Criminal Code. 
Lawyer for the State: Public Prosecutor
Lawyer for the defendant: Public Solicitor