Unreported National Court Decisions
N213
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
BAKAU KAIJA
Waigani
Prentice CJ
5-6 March 1980
JUDGMENT
CRIMINAL LAW - insanity - s.27 Code - deprivation capacity control actions - onus of proof - standard.
CRIMINAL LAW - insanity - evidence - medical - approach to.
Cases Cited
Regina v. Agana Guguna of Dirinomu (Unreported) judgment No. 364, Mann, C.J.
The Queen v. Nicholas Lagit of Abar (Unreported) judgment No. 207, Gore, J.
PRENTICE CJ:  The accused when arraigned pleaded guilty to the charge of wilful murder of one Umbe who is described as his father. There was some hesitation over his assenting to the truth of the facts as briefly explained to him by way of arraignment; but counsel specifically disclaimed any intention to challenge his client’s fitness to plead. He indicated on his client’s behalf that the facts set out in the depositions were admitted. He then went on to request that a plea of not guilty be entered on behalf of his client (under s.575 the Code), as he wished to establish insanity as a defence under s.27. I agreed to do so. At counsel’s request the depositions were then tendered and I was asked to read them and accept them as the facts. This was done.
No further evidence was called by the prosecution. Defence counsel called Dr. Burton-Bradley to give his opinion as to the accused’s sanity at the time of the killing.
The onus of establishing a defence of insanity under s.27 lies upon the defence. But the onus of proof required to set aside the statutory presumption of sanity (s.26), is not to be that beyond reasonable doubt; but that required in a civil trial, viz, on a balance of probabilities (Regina v. Agana Guguna of Dirinomu[clxxiv]1, and see the cases collected at Carter (5 ed.) p.86).
S.27 provides for the defence of insanity as follows:
“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 to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.”
For reasons that no doubt appear from the facts as I quote below, only the second limb of the qualification is relied on - that is that the accused was in such a state of mental disease as to deprive him ... of capacity to control his actions...
Dr. Burton-Bradley’s opinion is that the accused suffers from senile dementia for which the prognosis is poor. “He can remember he killed his father and that he should be killed in return. He cannot however carry on a sustained conversation or co-operate in a lengthy examination. His memory on other matters is poor ... He says that he had quarrels with Umbe but is unable to give an account of them. He says that he killed his father but is unable to explain why.” He considers that the accused was suffering from senile dementia in November 1978 (the time of the killing), as he is now. A witness Jei Cathy remembers that when at school in 1974, the accused then appeared “mentally retarded”. Another witness Boiak Willy said the mental sickness was in 1974.
The accused had been arrested by Constable Francis Namues on 15th November 1978 on Vokeo Island (some four hours’ boat travel from Wewak). That day he could not make himself understood to the accused, but next day was told by accused that “I knew I had done wrong and kill my own father who is the deceased ... you can kill me as well”. An attempt at interviewing proved abortive.
A Dr. W.S. Bellenger, Medical Superintendent of Boram Hospital, examined the accused physically on 20th November 1978 and on 21st tried to make a psychiatric assessment. However he found it impossible to communicate - the accused consistently repeating two statements: “I have killed the man ... I want to die”. His impression was that on 21st November 1978 the accused remembered killing the man.
Dr. Burton-Bradley explains that atrophy of the brain, a feature of senile dementia, may leave a person with lucid intervals and others of a confused nature. He forms his opinion that the killing occurred in other than a lucid interval from his understanding of the nature and pattern of such an illness.
In coming to a conclusion as to the accused’s mental state at the relevant time one may consider the accused’s conduct before, at the time of, and after the event, in addition to the medical evidence. The medical evidence cannot be conclusive but must be regarded with respect (The Queen v. Nicholas Lagit of Abar[clxxv]2).
Though the accused was regarded as “mentally retarded” from about 1974, there appears no evidence that he ever before evinced violence to anyone. He did not fight with people in the village. Arguments with Umbe - yes. He was regarded as “safe in public”. There is no evidence that he had ever shown himself incapable of controlling his actions.
On the other hand, a couple of days after the killing he admitted responsibility for it, knew it wrong and that he deserved punishment for his act. Again to Dr. Bellenger a week later he expresses guilt. Neither to Constable Namues nor to Dr. Bellenger did he speak of being unable to control his actions. Nor did he speak of a compulsion or inability to control his actions to Dr. Burton-Bradley - he was “unable to say why” he killed his father.
With the greatest deference to Dr. Burton-Bradley’s lengthy experience in such matters, I feel myself drawn to the conclusion that his opinion that Mr. Kaija was “unable to control his actions at the time” (as he was then suffering from senile dementia), must be regarded as speculation only. With respect I do not accept it - having regard to the evidence of his behaviour before the incident and to his statements afterwards. I regard the evidence as showing to the contrary.
Accordingly I make the finding that on the balance of probabilities it has not been shown that at the time of killing his father the accused was in such a state of mental disorder as to deprive him of the capacity to control his actions, nor that he was under s.27 otherwise than criminally responsible for his acts.
I convict him of wilful murder as charged.
Solicitor for the State: C. Maino-Aoae, A/Public Prosecutor
Counsel: J.E. Byrne and G.G.P. Salika
Solicitor for the Accused: D.J. McDermott, A/Public Solicitor
Counsel: K.A. Wilson.

[clxxiv](Unreported) judgment No. 364, July 1965, Mann, C.J.
[clxxv](Unreported) judgment No. 207, July 1961, Gore, J.