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State v Taiwo [2022] PGNC 93; N9548 (4 February 2022)

N9548


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 1125 OF 2016


BETWEEN:
THE STATE


AND:
SAILAS TAIWO


Angoram: Rei, AJ
2021: 11th, 18th & 20th October
2022: 4th February


CRIMINAL LAW – Defence of Insanity – charge – 3 counts of wilful murder – section 299(1) of the Criminal Code Act Chapter No. 262 – tendered exhibits by consent – no witness called by the State – proposed defence of insanity – evidence of insanity – State concedes to insanity status of the accused at the time when the offence was committed – accused acquitted - exercise of court’s power under section 592 of the Criminal Code – whether section 592 applicable in this instance – Confinement Mental Health Care Centre indefinitely.


Cases Cited:


Goi -v- The State [1991] PNGLR 161
The State -v- Ligur Gesling [2019] N7924

The State -v- William Virogo (2016) N6415


Legislation:


Section 299(1) of the Criminal Code Act
Section 28 of the Criminal Code Act
Section 592(2), (3) & (4) of the Criminal Code Act


Counsel

Mr. Solomon Kuku, for the State
Mr. Stanley Parihau, for the Defendant


DECISION ON VERDICT


4th February, 2022


  1. REI AJ: INTRODUCTION: This is a 2016 matter which has not been dealt with and disposed for reasons that the accused: Sailas Taiwo pleads insanity under Section 28 of the Criminal Code.
  2. The accused is alleged to have committed three counts of wilful murder on the 16th and 17th of September 2011 at Angoram, East Sepik Province.
  3. The State presented an indictment on the 11th of October 2021 alleging as follows:

Count 1 Silas Taiwo of Tamo Village, Angoram, East Sepik Province stands charged that he, on the 17th day of September 2011 at Tamo Village, Angoram, East Sepik Province wilfully murdered one PENDO NOMUNDI a national adult female.


Count 2 Silas Taiwo of Tamo Village, Angoram, East Sepik Province stands charged that he, on the 17th day of September 2011 at Tamo Village, Angoram, East Sepik Province wilfully murdered one MASRINDA SOMOKO a young national female child.


Count 3 Silas Taiwo of Tamo Village, Angoram, East Sepik Province stands charged that he, on the 17th day of September 2011 at Tamo Village, Angoram, East Sepik Province wilfully murdered one ISIBIA SOMOKO a young national female child.


  1. These charges were laid under Section 299(1) of the Criminal Code providing for wilful murder.
  2. The brief facts of the matter are:

On Friday the 16th of September 2011 and Saturday the 17th of September 2011 the accused and Jack Binde were at the alluvial gold mining bush camp in Tamo village, Keram Local Level Government, Angoram District, East Sepik Province.


At about 5:00 pm the two accused left the Bumagagan camp and walked to two other bush camps called Kiopan and Nawapet for about 5 hours. Silas was holding a long one meter bush knife and a long hunting spear with a sharp pointed knife affixed to it. Jack on the other hand was holding a homemade pop gun and a small axe and both were walking when they met another man named John Yambi who was also heading to Nawapet camp.


On the way it was getting dark so they slept in a small camp called Four Kona. The next day, Saturday the 17th September 2011, the two accused started smoking marijuana. In the afternoon they decided to walk to Kiopan camp. John Yambi also walked with them but was ahead of them.


Upon arriving at Kiopan camp at around 5:00 pm the two accused, attacked the three deceased persons namely, Pendo Nomundi, a 70 year old lady, Masrinda Somoko, a 6 year old girl and Isibia Somoko, a 4 year old baby girl.


The accused, Silas approached the three deceased persons and struck Pendo with a hunting spear penetrating her chest while the other accused, Jack took position in action with his pop gun keeping watch about 10 meters away. Silas then moved forward and slashed the two small girls with his bush knife leaving them wounded on the ground.


After killing the three deceased the two accused fled and arrived at Nawapet camp and the accused, Silas took his trousers off and was walking full naked and shouting in Pidgin language “Kok blo me tait, kok blo mi tait”.”


  1. No plea was taken at the trial of the matter as both parties conceded the defence of insanity under Section 28 of the Criminal Code applies.

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 if 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.”


  1. Mr. S. Parihau, relied on S.592 of the CC and submitted that the Court should apply Section 592 (2),(3) and (4) to order confinement in a mental institution to be released either unconditionally or with condition set by the Head of State pending a decision of the Head of State. These provisions provide:

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 pace; and

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

(c) to know that he ought not to do the act or make the omission.

(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.”


  1. At the commencement of the trial, both the State and the defence submitted that trial will only involve documentary evidence as it was conceded that the accused is incapacitated from entering a plea by reason of insanity.

EXHIBITS


  1. The State tendered the following documents by consent as exhibits:

“C4” & “C5”

of Simoko Sitita Ex “E”

  1. The defence through Mr. S. Parihau tendered the following documents as exhibits by consent:

20th November 2017 per Geita J. Ex “DA1”

2nd October 2018 by Gora AJ Ex “DA3”

6th May 2019 by Gora AJ Ex “DA4”

November 2019 Ex “DA5”

  1. The State did not tender any medical report on the state of mind of the accused either at the time the offences were committed nor after the time the offences were committed in order to challenge the defence of insanity as the burden of proof shifts from prosecution to defence when defence of insanity is raised.
  2. The defence tendered in evidence two medical reports. The first one is dated 22nd August 2018 prepared by Lucas Misan a Psychiatric Nursing Officer, East Sepik Provincial Health Authority (Psychiatric Unit) in which a recommendation was made that “the case of the accused is a complicated one and shall be referred or transferred to Laloki Psychiatric Hospital for more qualified Medical Psychiatric Doctor’s opinion”. It is marked Exhibit “DA2”.
  3. This was done when Dr. Ludwig Nanawar of the Laloki Psychiatric Hospital prepared a report dated 22nd October 2020. It is marked Exhibit “DA6”.
  4. The medical report prepared by Dr. Ludwig Nanawar states: “that Mr. Taiwo suffered from mental illness at the time of committing the alleged offence but this needs to be verified by eyewitnesses who witnessed his behaviour at that time. It appears he acted upon the command of the voices... Based on his longitudinal history and mental state assessment Mr Taiwo suffers from Schizoaffective Disorder. Schizoaffective Disorder is a major mental illness characterized by delusions (irrational and fixed belief) and hallucinations (perception through the sensory modalities without an external stimuli), impairment reality testing and lack of awareness of one’s illness as well as extreme mood changes.”
  5. Dr. Ludwig Nanawar states further that if it is confirmed by corroborative history and eyewitness statements of Mr. Taiwo’s abnormal odd behaviours at that time of committing the offence (which reflects his mental state at that time of the offence) then it is likely he didn’t have the mens rea due to insanity (command auditory hallucination).
  6. In The State -v- William Virogo (2016) N6415, Toliken J. said:

“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.”


  1. His Honour Toliken J. then relied on Goli -v- The State [1991] PNGLR 161.
  2. In Goi -v- The State (supra) he quoted the decision in part and said...

“that in a defence based on S.28 of the Criminal Code, the defence that the accused must show that the persons capacity to understand what he was doing or to control his actions must show that the person’s capacity to understand what he was doing or to control his actions or to know he ought not to commit the act was taken away from him by the State of his mental disease or natural infirmity and that deprivation capacity to understand or control actions is not the same as were impairment of capacity.”


  1. In the instant case, the findings of Dr. Ludwig Nanawar a Consultant Psychiatrist and Director of Medical Services support the conclusion that the accused was not of sound mind when the offences were committed.
  2. He further concluded that the accused requires close monitoring of relapse by a qualified mental health worker. And although Dr. Ludwig Nanawar reports that the accused is “fit to plead”, he also recommended that he is still subject to further medical checks under close supervision.
  3. The State submitted that I should find the accused guilty of wilful murder although Mr. S. Kuku conceded that the defence of insanity was available.
  4. Mr. S. Parihau submitted that because of the mental condition of the accused, he should be acquitted but the Court exercises its discretion under Section 592 (2), (3) & (4) of the Criminal Code Act by confining him to a Mental Health Care Centre and be released by the Head of State on recommendation by a Menal Health Tribunal subsequently upon the advice of the National Executive Council.
  5. It is clear that the submissions presented by Mr. S. Parihau are supported by the conclusion’s arrived at by Dr. Ludwig Nanawar.
  6. The question is whether I should find the accused guilty as charged and imprison him in goal or to acquit him but confine him to a Mental Health Institution in accordance with Section 592 of the Code.
  7. The accused in this case has been indicted with 3 counts of wilful murder which occurred one after the other at the same date, place and time. No reasons were provided why these offences were committed whether they were pre-meditated, pre-planned or the motive behind them.
  8. The offence of wilful murder under Section 299 of the CC provides for death penalty. But Courts have often meted out sentences ranging from a term of years to life imprisonment. A few death sentences have been imposed.
  9. Prime facie the killing of 3 innocent lives taking place one after the other in the same place and time is indeed a very serious matter such that serious considerations should be given for the imposition of death penalty in the circumstances of this case.
  10. But in the case of the accused, it has been proven on the balance of probabilities that he was of unsound mind or (it is likely) he did not have the mens rea due to insanity at the time he committed the offences and continues to suffer from Schizoaffective Disorder which Dr. Ludwig Nanawar describes in his medical report as “a major mental illness characterised by delusions/irrational and fixed belief) and hallucinations/ (perception through sensory modalities without an external stimuli) impairment reality testing and lack of one’s illness as well as extreme moods.”
  11. His Hon Anis J. was faced with the same difficulty in the case of The State -v- Ligur Gesling [2019] N9724.
  12. In that case, he made the following initial remarks:

“The parties are of common ground that the accused is currently mentally stable. This had led to him being arraigned in Court earlier ... The parties are also at common ground that the accused was mentally insane ... when he committed the offence ... that his mental infirmity has caused him unable to understand what he was doing or that it has controlled his action, at the time when he committed the offence - see Section 28 of the Criminal Code”


  1. This case is very much similar to the above case in that the accused did not have the necessary mens rea at the time he committed the offences and continues to suffer from mental disorder and if imprisoned he will be of a very serious risk to the prison community because of his mental state and is highly likely to repeat.
  2. It is therefore not safe to find him guilty of the charges as laid to be imprisoned in a goal.
  3. I have read the judgement in The State -v- Ligur Gesling (supra) and find that the only reasonable and safe decision is to find that the accused be acquitted and confine him in a mental institution in accordance with Section 592(6) of the Criminal Code to be detained indefinitely until clear by the Minister through a recommendation of a Medical Health Tribunal.
  4. The Orders of the Court are:

______________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendants

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