[1999] PNGLR 452

PAPUA NEW GUINEA

[supreme court of justice]

NICHOLAS WESLEY

V

THE STATE

lae: salika, sevua and kirriwom, jj
29 September 1998; 28 May 1999

Criminal Law – Criminal liability and responsibility – Defences – Insanity – Elements of – Deprivation of capacity – Impairment of capacity not sufficient.

Defence of Insanity – Onus of proof – Who has onus of proof.

Criminal Code – Section 28.

Facts

The appellant was convicted and sentenced by the National Court for murder and sentenced to 8 years imprisonment. At trial, insanity was not pleaded as a defence. Neither was any evidence called at trial, which may have gone to suggest that insanity was available as a defence.

Held

1.	The standard of proof in establishing the defence of insanity is proof on the balance of probabilities and the accused or defence has that onus. See: The State v Bakau Kaija, (No. 213, 1980, unreported). The Supreme Court in Goi v The State [1991] PNGLR 161 confirmed that principle.

2.	We reiterate the law that the appellant had the onus of establishing insanity on the preponderance of probabilities. One of the important requisite of that standard of proof is medical evidence. Despite his evidence that he had sought medical attention at Angau Memorial Hospital, he failed to adduce medical evidence to support his own testimony. 

3.	We agree with the trial Judge that there was no evidence establishing that a state of mental disease or natural mental infirmity deprive the appellant of his capacity to understand what he was doing; or to control his actions; or to know that he ought not to commit the act of killing the deceased. We also agree with the trial Judge that at the material time, the appellant was angry, but his anger did not constitute the defence of insanity. His anger amounted to diminished responsibility, which is not a defence under the Criminal Code.

4.	Accordingly, we find that the trial Judge’s decision to convict the appellant did not amount to an error or fact or of law. We therefore dismiss the appellant’s first ground of appeal.

Both appeal against conviction and sentence dismissed.

Papua New Guinea cases cited

Goi v The State [1991] PNGLR 161.
R v Agana Guguma (1965) N364 Unreported.
R v Heimbopi Nakipi (1971) N648 Unreported.
R v Warago Woiyape (1976) N796 Unreported.
R v Brigitta Asamikan [1964] PNGLR 196 at 198.
The State v Bakau Kaija (1980) N213 Unreported.
The State v Joseph Makapi (1980) N214 Unreported.
The State v Justus Taimbari Kauri (1987) Unnumbered and Unreported).

Other cases cited

Bratty v Attorney General of Northern Ireland [1963] AC 386 at 413; [1961] 3 All ER 523 at 535.
Cooper v McKenna; Ex parte Cooper [1960] Qd R 406.

Counsel

Appellant in person.
P Mogish, for respondent.

28 May 1999

By the court. The appellant was convicted of wilful murder by the National Court in Lae on 25 August 1997; and sentenced to 8 years imprisonment on 28 August 1997. He has now appealed against both conviction and sentence.

There are four grounds of appeal:

"1.	His Honour… found me guilty of murder in his ruling particularly was based on the anger as stated but did not consider my state of mind at that point of time when acted in such manner in the commission of the offence.

2.	Did not consider the fact that medical report of the psychiatrist doctor was conducted 10 months after I was already recovered from my abnormal behaviour.

3.	Did not allow me to call my witness during the pre-trial and I verily believe would have given very crucial defence to my case.

4.	The sentence given to me is too excessive compared to other similar cases who have lesser sentence."

The first three grounds of appeal, which relate to conviction, can be summarized as follows. In convicting the appellant, the trial Judge did not consider the appellant’s state of mind, but only his anger prior to the homicide. The medical assessment of the appellant was conducted 10 months after the killing, by which time; the appellant had already recovered from his abnormal behavior. The trial Judge did not permit the appellant to call his witnesses. And finally, on the final ground of appeal, which is against sentence, the appellant says, the term of 8 years is too excessive.

The trial proceeded as a "short trial", in that the prosecution tendered the committal court depositions without objection by the defence. Then the statements of Wilford Naikomend, Richard Peter, Paulafaith Bongeno, Rex Robert, Senior Constable Paul Sakowa, Senior Constable David Miamil, Dr Patil, Senior Constable Corney Winjan and Dr. C. Pokanau were admitted by consent. The record of interview was also tendered by consent. That was the State’s case.

The defence then called the appellant who gave sworn testimony and was cross-examined. The defence of insanity under s 28 Criminal Code Act was raised.

We intend to consider the third ground of appeal first, and then consider the first and second grounds next. The fourth ground, against sentence, will be disposed off last.

On page 16 of the appeal book, the appellant’s counsel, Mr Siminji informed the Court after the prosecuting counsel had tendered the State witnesses’ statements, "defence will be calling the accused who will give an unsworn statement from the dock". But the Court records show that, the appellant in fact gave sworn evidence after he was sworn. On the face of the Court record, the trial Judge was not informed of any other witness that defence had intended to call. At page 22 of the appeal book, following the testimony of the appellant, the trial Judge asked defence counsel, "any other witness you would like to call?". Mr Siminji responded, "No witnesses, your Honour. That is the end of the defence case". The trial was then adjourned to Tuesday 12 August 1997 at 9.30 am.

Court records show that when the trial resumed on 12 August 1997 the defence counsel, Mr Siminji proceeded to make submissions. There was no indication at all, either by defence counsel, or the appellant himself, that there were other defence witnesses to be called. It is not as if, the trial Judge refused to allow defence to call other witnesses. If the defence had other witnesses, the Court was not advised; therefore the appellant cannot blame the Court for his and his counsel’s failure.

We consider that there is no basis for the appellant’s complaint raised in his third ground of appeal. He has not shown any procedural error, or error of law, on the part of the trial Judge. His third ground of appeal therefore has no merit, and is dismissed.

The first ground of appeal seems to raise the issue of insanity. The basis of this ground of appeal is that the appellant says, the trial Judge did not consider the appellant’s state of mind at the material time, ie., at the time the crime was committed.

It is therefore necessary to set out in brief what the law is, before we canvass the first ground of appeal.

Section 28 provides:

"Insanity

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."

The law has been settled in our jurisdiction by a number of unreported cases, however, it is succinctly stated by the Supreme Court in Goi v The State [1991] PNGLR 161; and we quote some of the passages in that case. At 167-168, the Supreme Court said:

"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 proven. 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."

And the Court referred to R v Agana Guguma (1965) N364 Unreported. The State v Joseph Makapi (1980) N214 Unreported; and The State v Justus Taimbari Kauri (1987) Unnumbered and Unreported).

The standard of proof in establishing the defence of insanity is proof on the balance of probabilities and the accused or defence has that onus. See: The State v Bakau Kaija (1980) N213 Unreported). The Supreme Court in Goi v The State (supra) confirmed that principle.

In considering the evidence necessary for an accused person to displace the presumption of insanity, the Supreme Court, in Goi’s case quoted Lord Denning in Bratty v Attorney General of Northern Ireland [1963] AC 386 at 413; [1961] 3 All ER 523 at 535 to illustrate the law. The relevant statement or principle of law is this:

"In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may be reasonably 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:

(a)	of the first refuges of a guilty conscience and a popular

(b)	case excuse".

Their Honours, Williams, J in R v Heimbopi Nakipi (1971) unreported N648 and Raine, J in R v Warago Woiyape (1976) unreported N796 also quoted that passage.

The Supreme Court in Goi’s case had the opportunity to differentiate insanity from diminished responsibility. At 168-169, the Court considered that anger and fear, which impaired his ability to control his actions, amounted to diminished responsibility. The Court went on to say that under s 28, there must be deprivation of the capacities enumerated in s 28(1), and quoted Kidu, CJ in The State v Kauri (supra) at 6:

"For the defence to succeed under s 28 of the Criminal Code, it must be shown on a balance of probabilities, 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".

We are in agreement with the conclusions reached by the Supreme Court in Goi’s case and we refer to their Honour’s conclusions at 169 here.

"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".

"Deprivation of capacity to understand or control actions is not the same as mere impairment of such capacity".

Having discussed the law on insanity, we now refer to the evidence of the appellant at pages 17-18 of the appeal book. The appellant denied knowledge of the killing at Bumbu on 7 February 1995. He said he knew about it when he read it in his file and he went on to explain his action. He said, prior to the killing, he had been "feeling sick". After three months he recovered whilst in Buimo CIS and that was when he discovered from the file delivered to him that he had killed a man. In attempting to explain his "sickness", the appellant said, he first had malaria then it worsened and "I did all sorts of things" but did not say what "all sorts of things" were. He attended at Angau Memorial Hospital and was given medication and told to return for a blood test. When asked to describe the "sickness" he had, the appellant said, "I thought there were some kind of spirit in my body". Those are the relevant part of the appellant’s evidence in chief, which consisted of 19 questions and answers.

In comparing the appellant’s sworn testimony to an admission he made in a record of interview conducted on the night of 7th February, 1995, the date of the killing; we are of the view that either the appellant was lying under oath or he pretended to know nothing about the killing on 7th February, 1995. His answers to questions 23, 24, 25, 26, 27, 31 and 32 clearly reveal that the appellant knew what he was doing at the material time. He described how he axed the defenceless man to death, and in answer to question 32, he said he ran and hid in the bush because he knew he had done wrong. If he did not know or understand what he did, why did he run into the bush to hide? In our view, if he did not know what he did, he would just be around at the scene of the crime, as if nothing had happened.

The trial Judge, in his judgment, concluded that the appellant did not suffer any mental infirmity apart from "anger". We are of the view that the trial Judge did not err in fact in reaching that conclusion. Apart from the appellant’s sworn evidence and admissions in his record of interview we have alluded to, the trial Judge also considered the evidence of the arresting officer, Detective Corney Winjan who said:

"During the time of the accused’s apprehension I did carefully observed his condition and his speech and it weren’t that of a mentally affected person. He acted sensibly and accompanied us to the station. And prior to the commencement of an interview I asked him whether he was mentally alright and he said he is a normal person."

The trial Judge therefore found that at the material time, the appellant was oriented to time, place and person. He was conscious of his action. The trial Judge also found that the only evidence is that the appellant was "angered" by not finding his elder brother. The trial Judge then asked, is "anger" a condition of mind, and referred to R. v Brigitta Asamikan [1964] PNGLR 196 at 198 where Kidu, CJ said:

"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."

The trial Judge also referred to the State v Kauri (supra) and Goi v The State (supra) in his judgment.

We find that the trial Judge did not err in fact or in law in his findings resulting in the conclusion he reached. We reiterate the law that the appellant had the onus of establishing insanity on the preponderance of probabilities. One of the important requisite of that standard of proof is medical evidence. Despite his evidence that he had sought medical attention at Angau Memorial Hospital, he failed to adduce medical evidence to support his own testimony. If it were true that he had lost his medical records, this would have been supplied or produced in the trial by a doctor or other medical staff, if he or she had been called as a witness.

We agree with the trial Judge in relying on the State v Kauri (supra), in particular, that there was no evidence establishing that a state of mental disease or natural mental infirmity deprive the appellant of his capacity to understand what he was doing; or to control his actions; or to know that he ought not to commit the act of killing the deceased. We also agree with the trial Judge that at the material time, the appellant was angry, but his anger did not constitute the defence of insanity. His anger amounted to diminished responsibility, which is not a defence under the Criminal Code.

Accordingly, we find that the trial Judge’s decision to convict the appellant did not amount to an error or fact or of law. We therefore dismiss the appellant’s first ground of appeal.

In relation to the second ground of appeal, we consider that the trial Judge did not place any reliance on the evidence of Dr. Posanau. Dr. Posanau interviewed the appellant on 30th November and 1st December 1995; almost 10 months after the killing. There were no clinical or medical reports of whatever it was that the appellant was suffering from. Therefore the doctor could not base his interview of the appellant on any previous hospital records pertaining to the appellant. Despite the lack of past medical records, Dr. Posanau found that the appellant’s physical and health conditions were normal. The appellant was well oriented with time, place and person. His mood, memory and beliefs were normal and he had no delusions or hallucinations. There was no impairment to his cognitive function.

From the evidence in the transcript, we note that the only assertion of "abnormal" behaviour came from the appellant himself and his relatives, especially his sister, Rose Setae, whose statement had been tendered into evidence by the prosecution as part of its case. However, Dr. Posanau said that in the absence of any hospital report or medical notes, it was difficult for him to confirm the "abnormal" behaviour. The doctor did not have the benefit of any documentation as to the appellant’s past history of epilepsy, head injury or psychiatric illness, if any. He therefore concluded that he could not confirm the alleged "abnormal" behaviour and he was not able to provide a psychiatric diagnosis in respect of the appellant’s "abnormal" behaviour.

In his written submissions, the appellant argued that Dr. Posanau’s report did not reflect an accurate assessment of his (appellant’s) mental state of mind at the time of killing. However, we consider that the submission is misconceived because, the doctor’s assessment related only to the dates he interviewed the appellant in November and December of 1995. In fact in Dr. Posanau’s report on pages 86-87 of the appeal book, under the sub-heading, State of Mind at the Time of Offence, the doctor said, "it is alleged by the patient and other relatives interviewed that at the time of the offence, the accused was experiencing "abnormal" behaviour. However this is hearsay only and there is no hospital outpatient’s notes or other medical notes … attesting to … this behaviour. Without the hospital notes, it is difficult to confirm the "abnormal" behaviour."

The trial Judge discussed Dr. Posanau’s report on pages 36-37 of the appeal book. Nowhere in his reasons in those pages did the trial Judge say he based his reasons for decision on the evidence of Dr. Posanau. In fact, the passage we have quoted above simply says that the doctor was not able to diagnose the appellant’s state of mind at the time of killing, because there were no clinical records of the alleged "abnormal" behaviour of the appellant. In our view, the doctor’s report did not conclude that the appellant was sane at the time of killing the deceased. The report was not, in anyway, detrimental to the defence case in the trial, as it did not incriminate the appellant in any way. We are of the view also that Dr. Posanau’s report was inconclusive and it neither lends support nor weight to either the prosecution’s case or the defence case. What must be emphasised here is that the trial Judge did not convict the appellant on the basis of Dr. Posanau’s report. We therefore consider that the appellant’s submission must fail, and accordingly, we dismiss the second ground of appeal.

The appeal against sentence can be disposed of without much discussion. This was a trial for a serious charge of murder, the maximum penalty of which is life imprisonment. The trial Judge imposed a sentence of 8 years, which we consider, very lenient. The usual tariff for a plea of guilty to a charge of murder now ranges between 8 and 15 years depending on the circumstances of the homicide. It is our view that the sentence imposed in this case is at the lowest end of the tariff in a plea of guilty to a murder charge. The term imposed was very lenient and we see no basis for the appellant’s complaint on sentence. In fact, we are of the opinion that the sentence could have been 15 or 20 years, however the Court imposed 8 years, which is a very lenient term.

We see no error in the exercise of the trial Judge’s discretion on sentence, and as we adverted to, the sentence of 8 years is very lenient. We therefore dismiss the appeal against sentence.

It is the opinion and judgment of this court that the trial Judge did not fall into error in his reasons for decision in respect of conviction and sentence. We therefore dismiss the appeal and confirm the conviction and sentence.

Lawyer for appellant: Appellant in person.
Lawyer for respondent: Public Prosecutor.