Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Virogo [2016] PGNC 210; N6415 (6 May 2016)

N6415

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No.427 OF 2007

THE STATE

V

WILLIAM VIROGO
Alotau: Toliken, J
2016: 09^th, 10^th, 11^thFebruary
And 06^th May

CRIMINAL LAW – Particular offence – Wilful murder – Trial – Defence of Insanity – State conceded that accused was suffering from mental disease – Insanity not contested – Verdict – Not guilty by reason of insanity– Section 592 of the Code invoked – Accused to be kept in CIS custody awaiting decision and order of Head of State – Criminal Code Ch. 262; ss 27, 28, 299, 592.

Cases Cited:

Goi v The State [1991] PNGLR 161
The State v Enakuan Salaiau [1994] PNGLR 388
R v Koiyari - Iyeva[1965 – 66] PNGLR28

Counsel:
H.Roalakona, for the State
P. Palek, for the Accused

JUDGMENT ON VERDICT

06^th May, 2016

1. TOLIKEN J: The accused was indicted with the wilful murder of one Winslet Russel on the 28^th day of June 2006 at Ho’owakako Village, Milne Bay Province. This is an offence under Section 299 of the Criminal Code Ch. 262 (the Code).
   
2. The indictment was presented on 09^th February 2016 and trial commenced immediately and ended on 11^th February 2016. I did not have time to deliver my verdict then so I do so now.
   
3. The State alleged that on 28^th June 2006 the accused was at his parent’s house at Ho’owakako village. The parents were looking after their granddaughter – the deceased – who was 1 year and 7 months old. They stepped out of the house and during that time the accused sexually assaulted the deceased. He then took her to the creek that flowed beside their house and held her under water until she drowned. The accused parents returned to the house only to find the child missing. They looked for her and found the body floating in the creek. It is the State’s allegation that the accused intentionally killed the deceased.
   
4. The accused was arraigned and appeared to sufficiently understand the charge and the allegations of facts in support of the charge. He entered a plea of Not Guilty on the ground of insanity under Section 28 of the Code.
   
5. To convict on the charge of wilful murder the State must prove beyond reasonable doubt that the accused intended to cause the death of the deceased and indeed killed him and that he had no lawful excuse in doing so.
   
6. The defence does not dispute that the accused caused the death of the deceased but says that he was insane at the time he killed the deceased and therefore could not have known what he was doing, hence, the absence of the requisite intention to kill.
   
7. The issue for trial is whether the accused was of sound mind when he killed the deceased.
   
8. The State called one witness only – the accused father Clark Virogo - and tendered the Post Report of the deceased. The accused elected to remain silent and no other witness was called.
   
9. The only evidence before the court was from the accused’s father Clark Virogo. Even though he seemed initially confused at times, particularly when referring to his other son Russell John and the accused, his evidence is pretty clear. On the date in question the accused and his parents were in their house with the deceased infant. The accused had been sleeping in the house. When he woke up he asked his father for smoke. Clark gave him tobacco and paper and he rolled his cigar and smoked it.
   
10. After a while Clark stepped out of the house to go to the toilet, leaving the accused alone with the deceased. It is not clear where the accused mother was that point but it was at this time that the accused took the infant down to the creek that ran beside the house and killed her there. Clark came back and found the child missing so he went looking for her but could not find her. The child was later found dead and floating in the creek.
    
11. It is not clear how he actually killed the deceased. However, the Post Mortem Report shows that the deceased’s hymen was ruptured suggestive of sexual abuse and that her lungs were “hyper expanded” suggestive of drowning. The report concluded that drowning was the most likely cause of death.
    
12. It is not disputed that at the time of the killing the accused was suffering from some mental disease. His father in fact referred to him repeatedly in his testimony as “half sense” – a condition that the accused apparently had been suffering from for some time. In cross examination it became clear also that the accused had been hearing voices, that he was not mentally stable or normal and that he would go around the village kicking drums.
    
13. The accused was subjected to medical examination at Laloki Psychiatric Hospital on orders from the court. Although the doctors’ reports were not formally tendered into evidence, the last of these reports show that the accused had been “suffering from schizophrenia, a major mental disorder which could be related to his long standing use of marijuana or cannabis.” (Per Report by Dr.Losavati W. Daunugu dated 14^th April 2015).
    
14. So was the accused of sound mind at that time he killed the deceased? In other words did he have the requisite intention to kill and did he know what he was doing?
    
15. Section 27 of the Code sets up a rebuttable presumption of sanity or soundness of mind. It provides –
    

27. Presumption of sanity.

Until the contrary is proved every person is presumed to be of sound mind and to have been of sound mind at any time that comes in question.

16. The accused bears the onus of proving on the balance of probabilities that he was of unsound mind at the time he allegedly committed the offence. (Goi v The State [1991] PNGLR 161) Section 28 of the Code sets up the defence of insanity in the following terms:
    

28. Insanity.

(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.

17. The expression of “not of sound mind” is not a term of art nor is capable of a comprehensive and exclusive meaning. (R v Koiyari - Iyeva[1965 – 66] PNGLR 28)
    
18. The Supreme Court in Goi v The State (supra) (Kidu CJ, Salika and Jalina JJ (as they then were)) held that in a defence based on s 28 of the Criminal Code, the defence that the accused must show that the 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 and that deprivation of capacity to understand or control actions is not the same as mere impairment of such capacity.
    
19. In The State v Enakuan Salaiau [1994] PNGLR 388, Doherty J elaborated on the effect of a finding of insanity. At p.390 her Honour held:

A finding under Section 28 is a very drastic one. Once such a finding is made that it brings in to play a different provision of the code, Section 592. This provides that once a court finds a person is not of sound mind, that it must find him not guilty and obliges the court to order him to be kept in strict custody at a place and a manner as it thinks proper pending a decision of the head of State.

In effect 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 and is normally a life sentence. It is open to review from time to time on advice given to the Head of State.

20. Section 592 of the Code provides –

592. Acquittal on grounds of insanity.

(1) If on the trial of a person charged with an indictable offence it is alleged or appears that he was not of sound mind at the time when the act or omission alleged to constitute the offence occurred, the court shall—

(a) if it finds him not guilty, find specifically whether or not he was of unsound mind at the time when the act or omission took place; and

(b) whether he is acquitted on account of such unsoundness of mind.

(2) If in a case to which Subsection (1) applies the court—

(a) finds that the accused person was of unsound mind at the time when the act or omission took place; and

(b) says that he is acquitted on account of that unsoundness of mind,

it shall order him to be kept in strict custody in such place and in such manner as the court thinks proper pending a decision by the Head of State, acting on advice.

(3) In a case referred to in Subsection (1), the Head of State, acting on advice, may give such order for the safe custody of the person pending a decision by the Head of State, acting on advice, in such place or confinement and in such manner as the Head of State, acting on advice, thinks proper.

(4) Where a person is confined under this section, the Head of State, acting on advice, may at any time order that he be released from custody either unconditionally or on such conditions as are laid down by the National Executive Council.

21. The State conceded that the accused was suffering from some mental illness at the time he killed the deceased and I do indeed find that he was. Therefore, he would not have had the requisite intention (that is to kill the child) nor would he have known that what he was doing was wrong. The State conceded further that this is a matter that will necessarily bring in the application of Section 592 of the Code.
    
22. The inevitable conclusion then is that the accused was insane within the meaning of Section 28 of the Code when he committed the offence.
    
23. I therefore find the accused NOT GUILTY by reason of insanity or unsoundness of mind.
    
24. The accused remains very much a danger to himself and to his immediate family and the general public. Hence pursuant to Section 590 (3) of the Code I hereby order that he be kept in strict custody at the Giligili Corrective Institution, pending a decision and order of the Head of State for the safe custody of the accused in such place or confinement and in such a manner as the Head of State, acting on advise, thinks proper. I further order that, that whilst at Giligili he shall be supplied with appropriate antipsychotics to treat his condition.
    

Ordered accordingly.

____________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor : Lawyer for the Accused