The State v Enakuan Salaiau

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 21 January 1994
• Citation: [1994] PNGLR 388
• Court: National Court
• Year: 1994
• Judgement Number: N1242

National Court: Doherty J

Judgment Delivered: 21 January 1994

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...