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Chapter 21: Criminal Responsibility

 Table Of Contents 

[21.0] Introduction 

In R v Wong Chin Kwee & others [1983] SILR 78 Daly CJ held at pages 80 – 81: 

'[T]he starting point in Solomon Islands in considering questions of general criminal liability must be our own Penal Code ("the Code"). The time has come when we must grapple with the terms of the Code and not rely upon common law doctrines which may have been replaced by it. 

Part IV of the Code deals with General Rules as to Criminal Responsibility. In the codes of Queensland and Western Australia where similar provisions occur, express provision has been made (section 36 in each code) to apply these General Rules "to all persons charged with an offence against the Statute Law". We, in common with Tasmania, have no such provision. However in view of the wide terms of the provisions in Part IV and the fact that the word "offence" (earlier defined as "an act, attempt or omission punishable by law": see section 4) is used in a number of sections, the only reasonable interpretation is that Part IV applies to all offences against law. Again there is no provision making the Penal Code exclusive such as in contained in section 2 of the Criminal Code Act 1899 of Queensland. However as this Court held in the preliminary Ruling in R v Ngena [… [1983] SILR 1], the Penal Code is a comprehensive statute of Solomon Islands and Schedule 3 of the Constitution provides that received law shall, in the case of received statute be "subject" to a Solomon Islands statute (Para. 1) and, in the case of principles and rules of common law and equity, shall apply – 

"Save in so far as 

(a) they are inconsistent with … any Act of Parliament; or 

(b) they are inapplicable to or inappropriate in the circumstances of Solomon Islands from time to time ….." (Para. 2(1)). 

In my judgment where there is a comprehensive Code of Solomon Islands dealing with matters such as general rules as to criminal responsibility, even if there is no direct inconsistency, it is incumbent on the Court to apply that Code instead of relying on the common law rules on the basis that the common law rules are "inapplicable or inappropriate" […] in the circumstances of Solomon Islands. Adapting what this Court said in Ngena […], it is the intention of the Constitution that the common law rules should "wither away" when the Solomon Islands legislature has legislated for Solomon Islands in relation to every subject. Parliament so legislated comprehensively in relation to the criminal law when it enacted the Penal Code. Thus I also find that the Penal Code is exclusive in relation to matters dealt with therein, including general rules as to criminal responsibility.' (emphasis added) 

Section 3 of the Penal Code (Ch. 26) states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

All defences need only be fairly raised by the defence, except for the defence of 'Insanity' which must be raised on the 'balance of probabilities'. Once raised all defences must be negatived 'beyond reasonable doubt' by the prosecution. 

The law relating to 'Proof Of Issues' is examined commencing on page 68.

[21.1] Ignorance Of The Law 

Section 7 of the Penal Code (Ch. 26) states: 

'Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence.' (emphasis added) 

See: Attorney – General's Reference No. 1 of 1995 [1996] 4 AllER 21 & Evans v Bartlam [1937] AC 473; [1937] 2 AllER 654.

[21.2] Honest Claim Of Right

[21.2.1] Statutory Provision 

Section 8 of the Penal Code (Ch. 26) states: 

'A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.' (emphasis added)

[21.2.2] Elements 

The elements of the defence of 'Honest Claim Of Right' are as follows: 

·  offence relating to property; 

·  honest claim of right; and 

·  without intention to defraud.

[21.2.3] Offences Relating To Property 

The offences of 'Forgery' and 'Uttering' are 'offences relating to property', see R v Hobart Magalu [1974] PNGLR 188. These offences are examined commencing on pages 548 and 558 respectively. 

[21.2.4] Honest Claim Of Right & Without Intention To Defraud 

In Toritelia v R [1987] SILR 4 Kapi JA stated at pages 31 - 33: 

'What is an honest claim of right? Section 8 of the Penal Code is similar to the wording of s. 22 of the Queensland Criminal Code. Section 23 of Papua New Guinea Code is in exact terms as the Queensland provision. I would adopt the decisions from these jurisdictions on the question of the meaning and application of this defence. In particular, I adopt the words of Gibbs, J as he then was in the case of The Queen v Pollard [1962] QWN 13, 

"It is well settled that a claim of right sufficient to relieve a person of criminal responsibility need only be honest and need not be reasonable (Clerkson v Aspinall; Ex parte Aspinall [1950] StRQd 79, at 89); 'the fact that it is wrongheaded does not matter': R v Gilson and Cohen [1944] 29 CrAppR 174 at 180). In Rex v Bernard [1938] 2 KB 264 at 270 the Court of Criminal Appeal said that a person has such a claim of right 'if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact. 

[…] 

[…] I have already dealt with the element of honest claim of right. These two elements must go together and one cannot go without the other. A person cannot successfully raise the defence by saying that he had an intention to return the property if he used the property without the consent of the owner or without an honest claim of right. Similarly, a person who has an honest claim of right cannot be successful in raising the defence under s.8 unless he has acted without intention to defraud. Compare R v Hobart Magalu [1974] PNGLR 188 at 200. The legislature has clearly set out these matters. 

The words "intent to defraud" within the context of s.8 of the Penal Code, means that not only must a person deal with property based on an honest claim of right, but he must show that he had no intention to deprive the owner of the property. This is a question of fact. The manner in which the property is dealt with is relevant. A person who intends to restore or return property and has ability to do so may successfully raise the element. But this may not always be the case. It may be shown that such a person may have failed to fulfil the intention between the date of commission of the offence and trial. This conduct may be contrary to any intention to return or pay back property. On the other hand, a person who has no ability to pay may collect enough money from relatives in the village and repay the money as he intended. As I have indicated, it is a question of fact and each case will be decided on its own facts.' (emphasis added) 

A person has a claim of right if he/she is honestly asserting what he/she believes to be a lawful claim, even though it may be unfounded in law or in fact, see R v Bernhard (1938) 26 CrAppR 137 [[1938] 2 AllER 140; [1938] 2 KB 264] at page 145. 

If a person takes money he/she knew that he/she had no right to take, the fact that he/she may have had a hope or expectation in the future of repaying that money is not a defence and only capable of going to mitigation of sentence, see Toritelia v R (supra) & R v Williams (1953) 27 CrAppR 71; [1953] 1 AllER 1068; [1953] 1 QB 660. 

In R v Pollard [1962] QWN 13 the Court held that where the evidence was that the defendant knew that the owner of the motor vehicle had consented to him/her using it previously, but believed that the owner would: 

·                     not have any objection to him/her using it; and 

·                     have given consent if asked, 

the question whether the defendant took the motor vehicle in the exercise of an honest claim of right should be left to the jury, ie., a question of fact. 

The offence of 'Taking Vehicles Without Authority' is examined commencing on page 734. 

In R v Hobart Magalu [1974] PNGLR 188 Frost ACJ, sitting alone, held at page 199: 

'It is clear that a claim of right sufficient to relieve a person of criminal responsibility need only be honest and reasonable and need not be reasonable. R v Pollard ([1962] QWN 13) per Gibbs J and Tiden – Tokavanamur – Topaparik ([1967 – 68] P&NGLR 231. 

In the former case it was held that, "an accused person acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is doing. A belief that he may acquire a right in the future is not in itself enough", at page 29. 

But the section does not excuse an offender whose act was done in the mistaken belief that it was not unlawful which is mistake of law and no defence to any criminal prosecution.' (emphasis added) 

See also: R v Cockburn (1968) 52 CrAppR 134; [1968] 1 WLR 281; [1968] 1 AllER 466; R v Clayton (1920) 15 CrAppR 45; R v Gilson & Cohen (1944) 29 CrAppR 174 & Sebulon Wat v Peter Kari (No. 2) [1975] PNGLR 339.

[21.3] Intention Or Accident 

[21.3.1] Statutory Provision 

Section 9 of the Penal Code (Ch. 26) states: 

'Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. 

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial. 

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act or to form an intention is immaterial so far as regards criminal responsibility.' (emphasis added)

[21.3.2] Negligent Acts Or Omissions 

Sections 237 to 243 are the relevant sections of the Penal Code (Ch. 26) relating to 'negligent acts and omissions'. 

In Java Johnson Beraro v The State [1988 – 89] PNGLR 562 the Supreme Court held: 

The defence of accident has no application if a defendant is found to be criminally negligent. 

The onus is on the prosecution to prove 'beyond reasonable doubt' in such circumstances that the defendant was criminally negligent, see Beraro v R & Griffiths v R (1994) 69 ALJR 77 at page 80.

[21.3.3] Involuntary Acts 

Section 9 of the Penal Code (Ch. 26) states (in part): 

'[A] person is not criminally responsible for an act or omission which occurs independently of the exercise of his will.' (emphasis added) 

An act or omission that occurs involuntary and unintentionally, and therefore, independently of the exercise of the will of a defendant, is an act or omission done in a state of 'automatism'. It appears to be roughly equivalent to what a layman might call a 'blackout'. Such a state of mind can arise from: 

·                     concussion, see Low (1992) 57 ACrimR 8; Wogandt (1988) 33 ACrimR 31 & Cooper v McKenna, Ex parte Cooper [1960] QdR 406; 

·                     sleep disorders, see R v Burgess [1991] 2 QB 92; [1991] 2 AllER 769; (1991) 93 CrAppR 41; Jiminez v R (1992) 173 CLR 572; (1992) 106 ALR 162; (1992) 53 ACrimR 56 & Kroon (1990) 52 ACrimR 15; 

·                     acute stress, see R v Falconer (1990) 171 CLR 30; (1990) 96 ALR 545; (1990) 50 ACrimR 244; R v Radford (1985) 42 SASR 266; (1985) 20 ACrimR 15 & Tsigos [1964] NSWR 1607; 

·                     some forms of epilepsy, see Bratty v Attorney – General for Northern Ireland [1963] AC 386; [1961] 3 WLR 965; [1961] 3 AllER 523; [1962] 46 CrAppR 1;R v Sullivan [1984] AC 156; [1983] 2 AllER 673; R v Sullivan (1983) 77 CrAppR 176; Youseff (1990) 50 ACrimR 1 & Cottle [1958] NZLR 999; and 

·                     some forms of neurological and physical ailments, see R v Charlson [1955] 1 AllER 859; (1955) 39 CrAppR 37 (cerebral tumour); Police v Bannin [1991] 2 NZLR 237; [1991] CRNZ 55 (Klein – Levin syndrome) & Hall (1988) 36 ACrimR 368 (swelling of the brain).

Therefore, such persons are not necessarily insane. 

In Broome v Perkins (1987) 85 CrAppR 321 Glidewell LJ, delivering the judgment of the Court, stated at pages 328 – 320: 

'The House of Lords held [in Bratty v Attorney – General for Northern Ireland [1963] AC 386; (1961) 46 CrAppR 1] that there were in law two types of automatism, namely insane and non – insane automatism. The judge was only under a duty to leave the issue of automatism of either type to the jury where the defence had laid a proper foundation for so doing by adducing positive evidence in respect of it, which was a question of law for the judge to decide; and that where, as in that case, the only cause alleged for the "unconscious" act was a defect of reason from disease of mind, and that cause was rejected by the jury, there could be no room for the alternative defence of automatism, either insane or non – insane. 

In his speech, Lord Denning said, at pp. 16 and 409 respectively: 

"The requirement that it should be a voluntary act is essential, not only in a murder case, but also in every criminal case. No act is punishable if it is done involuntarily: and an involuntary act in this context – some people nowadays speak of it as 'automatism' – means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or convulsion; or an act done by a person who is not conscious of what he is doing, such as an act whilst suffering from concussion or whilst sleep – walking. The point was well put by Stephen J in 1889: 'Can anyone doubt that a man who, though he might be perfectly sane, committed what would otherwise be a crime in a state of somnambulism, would be entitled to be acquitted? And why is this? Simply because he would not know what he was doing,' see Tolson (1889) 23 QBD 168, 187. The term 'involuntary act' is, however, capable of wider connotations: and to prevent confusion it is to be observed that in the criminal law an act is not to be regarded as an involuntary act simply because the doer does not remember it. When a man is charged with dangerous driving, it is no defence to him to say 'I don't know what happened. I cannot remember a thing,' see Hill v Baxter (1958) 42 CrAppR 51; [1958] 1 QB 277. Loss of memory afterwards is never a defence in itself, so long as he was conscious at the time, see Russell v H.M. Advocate [1946] SC(J) 37; Podola (1959) 43 CrAppR 220; [1960] 1 QB 325. Nor is an act to be regarded as an involuntary act simply because the doer could not control his impulse to do it. When a man is charged with murder, and it appears that he knew what he was doing, but he could not resist it, then his assertion "I couldn't help myself' is no defence in itself, see Attorney – General of South Australia v Brown (1960) 44 CrAppR 100; [1960] AC 432: though it may go towards a defence of diminished responsibility, in places where that defence is available, see Bryne (1960) 44 CrAppR 246; [1960] 2 QB 396: but it does not render his act involuntary so as to entitle him to an unqualified acquittal." 

Then on pp. 18 and 411, Lord Denning quoted with approval the direction to the jury of Barry J in the case of Charlson (1955) 39 CrAppR 37; [1955] 1 WLR 317, a case in which the evidence pointed to the possibility that Charlson, who had injured his son by hitting him on the head with a hammer and throwing him into a river without any apparent cause, was suffering from a cerebral tumour which would make him liable to motiveless outburst of impulsive violence over which he would have no control. The defence was automatic and Barry J directed the jury in these words (ibid): 

"If he did not know what he was doing, if his actions were purely automatic and his mind had no control over the movement of his limbs, if he was in the same position as a person in an epileptic fit then no responsibility rests upon him at all, and the proper verdict is 'Not Guilty'. On that direction the jury found him not guilty." 

Finally, Lord Denning referred to the evidence necessary to lay the foundation for a defence of automatism. He said (1961) 46 CrAppR 1, 21, [1963] AC 386, 413: 

"The necessity of laying the proper foundation is on the defence: and if it is not so laid, the defence of automatism need not be left to the jury any more than the defence of drunkenness (Kennedy v H.M. Advocate [1944] SC(J) 171), provocation (Gouthier (1943) 29 CrAppR 113), or self – defence (Lohell (1957) 41 CrAppR 1000, [1957] 1 QB 541) need be. What then is a proper foundation? The presumption of mental capacity of which I have spoken is a provisional presumption only. It does not put the legal burden on the defence in the same way as the presumption of sanity does. It leaves the legal burden on the prosecution, but nevertheless, until it is displaced, it enables the prosecution to discharge the ultimate burden of proving that the act was voluntary. Not because the presumption is evidence itself, but because it takes the place of evidence. In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be 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 black – out': for 'black – out' as Stable J said in Cooper v McKenna, ex parte Cooper (1960) Qd LR 406, 419 'is one of the first refuges of a guilty conscience and a popular excuse'. The words of Devlin J in Hill v Baxter (1958) 42 CrAppR 51, 59, [1958] 1 QB 277, 285 should be remembered: 'I do not doubt that there are genuine cases of automatism and the like, but I do not see how the layman can safely attempt without the help of some medical or scientific evidence to distinguish the genuine from the fraudulent.'" (emphasis added) [words in brackets added] 

A psychologist with no medical qualifications should not be called to prove that a defendant was suffering from any specific disease or defect or abnormality of the mind, see R v Mackenney & Pinfold (1983) 76 CrAppR 271. 

See also: R v Wong Chin Kwee & others [1983] SILR 78; R v Hennessy [1989] 2 AllER 9; [1989] 1 WLR 287; [1989] RTR 153; (1989) 89 CrAppR 10; [1988] CrimLR 356; R v Smith (Stanley) [1979] 3 AllER 605; (1979) 69 CrAppR 378; R v Hatenave – Tete & Loso – Sarafu [1965 – 66] P&NGLR 336; The State v Hevako [1991] PNGLR 394; The State v Enakuan Salaiau [1994] PNGLR 388 & Jiminez v R (1992) 173 CLR 572; (1992) 66 ALJR 292; (1992) ALR 162; (1992) 53 ACrimR 56.

[21.3.4] Accidents 

Section 9 of the Penal Code (Ch. 26) states (in part): 

'[A] person is not criminally responsible […] for an event which occurs by accident.' (emphasis added) 

The elements of this defence are: 

·                     the event, ie., the consequence of the act committed or omission made by the defendant, must not be intended by the defendant; 

·                     the event must not have been easily able to have been foreseen by the defendant; and 

·                     an 'ordinary person' should not have easily foreseen the event. 

In R v Paul Rakaimua (Unrep. Criminal Case No. 24 of 1995) Muria CJ stated at pages 7 – 9: 

'Thus under this section [, referring to section 9 of the Penal Code (Ch. 26),] the accused is claiming that the landing of the spear on the deceased's neck which eventually resulted in her death was an event which occurs by accident. As to the act of throwing the spear toward the hedges, that was a deliberate act and with the intention to leave the spear at the hedges. It is counsel's contention that the striking of the deceased's neck which subsequently led to her death was an event which occurred by accident and as such no criminal responsibility should attach to it. 

[…] 

The defence set out in the first paragraph of section 9 consists of two limbs. The first limb operates to relieve a person from criminal responsibility "for an act or omission which occurs independently of the exercise of his will" and secondly it operates to relieve a person from criminal responsibility "for an event which occurs by accident". In this connection the distinction is between the physical action apart from its consequences and the accidental outcome (event) of the willed act. Such a distinction was discussed in Timbu – Kolian –v- The Queen (1968) 119 CLR 47; Kapronovski –v- The Queen (1973) 133 CLR 209 and The Queen –v- Van Den Bemb (1993 – 1994) 179 CLR 137 which are all decisions of the High Court of Australia on provisions which are similar to the first paragraph of section 9 of our Penal Code. 

That the act of accused of throwing the spear to the direction of hedges where the girls including the deceased were, is beyond challenge in this case. Also that the accused's act of throwing the spear was deliberate must, on the evidence, be equally beyond challenge. The question in the light of the defence raised must therefore be whether the striking of the deceased whereby she was killed was an event which occurred by accident and not whether the death of the deceased following a deliberate act of throwing the spear was an event which occurred by accident. In this regard I would respectively prefer the remarks of Windeyer J in Timbu –v- Kolian (supra) which is a Papua New Guinea case where the accused threw a stick at his wife and it hit and killed their baby whom his wife was carrying in her arms. The accused was not aware that his wife was carrying in her arms their child as it was dark. He was convicted of manslaughter by the Supreme Court of the Territory of Papua New Guinea but on appeal to the High Court of Australia he was acquitted. In considering the defence of accident under s. 23 of the PNG Criminal Code, Windeyer J said at p. 69: 

"In this case the question is not whether death after a blow intentionally delivered was an event which occurred by accident. It is whether the striking of the child where by he was killed was an event which occurred by accident. In my opinion it was, because it was not intended and it occurred as the result of the accused being both ignorant of a circumstance (the presence of the child) in which he wielded the stick, and without any foresight of the consequence of his doing so. These facts remove it from the area of mens rea and bring it within the description of an accidental event."' (emphasis added) [words in brackets added] 

In The State v Samson Jangau of Tabele ESP (Unrep. N463, Papua New Guinea) the facts involved a defendant who intended to strike a woman with a stick by missed and struck a child who was sitting next to her. There was nothing in between the defendant and the child that could have obscured the visibility of the defendant. 

Kaputin J, sitting alone, held: 

'Even though the act of striking was unintended, it could easily have been foreseen, under the circumstances, by the accused, and such an event could easily have been foreseen by an ordinary person. In order for the defence [of accident] to succeed the three elements must exist. […] In the instant case only the one element is present [ie., that the act of striking was unintended].' [words in brackets added] 

In R v Talu [1963] P&NGLR 136 Smithers J, sitting alone, held: 

'An event which occurs by accident' is one which the person doing the act did not foresee as a possibility substantial enough to be worthy of attention in deciding whether or not to do the act and which was so unlikely to result from the act that no ordinary person similarly circumstantial could fairly have been expected to take it into account. 

See also: R v Taiters, Ex parte Attorney – General [1997] 1 QdR 333 & R v Kalit [1971] PNGLR 124. 

In R v Joel Nanango (Unrep. Criminal Case No. 43 of 1996) Palmer J stated at page 18: 

'Having raised the defence of accident, is there evidence which supports this defence. Apart from the statement of the accused in his caution statement, he has not adduced any other evidence in support. It is one thing to raise a defence, it is another thing to adduce some evidence in support of that. […] 

[…] 

Apart from saying that it was accidental, there is no evidence even in that statement as to how that stabbing may have been accidental as claimed or suggested in his defence. Having raised this defence, the accused is required to point to some evidence in support of that defence. I must point out that it is not transferring the burden of proof to the accused. What is vital is that he should point to some evidence in support, and having done so, it is for Prosecution to disprove that beyond reasonable doubt.'

[21.4] Mistake Of Fact 

Section 10 of the Penal Code (Ch. 26) states: 

'A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. 

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.' (emphasis added) 

For this defence to apply, a person must commit the offence under an honest and reasonable, but mistaken, belief in the existence of any state of things that relates to the commission of the offence. An 'honest' belief involves the application of a 'subjective' test, see R v Yoka Kiok (Unrep. SC 607/70; Papua New Guinea). Therefore, the test to be applied is whether the defendant held such an 'honest' belief. 

However, the 'belief' must also be 'reasonable'. A 'reasonable' belief involves the application of an 'objective' test, see R v Yoka Kiok (supra). Therefore, the test to be applied is whether an ordinary or reasonable person in the circumstances of the defendant would have held such a 'reasonable' belief. 

The 'belief' must also be 'mistaken' and the offence must be committed whilst holding such a 'belief'. 

In Anide v Denehy [1973] PNGLR 215 Kelly J, sitting alone, stated at page 222: 

'Where the defence of mistake is raised by the evidence it is the duty of the Court to consider whether section 24 [now section 25] applies […] and where there is some evidence of operative mistake the onus is on the prosecution to satisfy the court of its non – existence [beyond reasonable doubt].' [words in brackets added] 

In Karu Noho v Proy Vali (Unrep. N188; Papua New Guinea) the facts of the case were: 

Sibona told the defendant that he would get the complainant's permission to use a motor vehicle. The defendant assumed that that had occurred when he arrived back. However, no such permission was sought. 

Greville Smith J, sitting alone, stated: 

'[… I] am of the opinion that the defence was clearly raised that the accused honestly and reasonably believed that Sibona had got the permission of Sibona's uncle, the owner of the vehicle, for Sibona and himself to use the vehicle and that there was no evidence of any cogency to the contrary.' 

Therefore, the defendant was not criminally responsible for the doing of an act, ie., the use of the motor vehicle, to any greater extent than if the real state of things had been such as he believed to exist, ie., that if permission had been obtained. 

The offence of 'Taking Vehicles Without Authority' is examined commencing on page 734. 

When comparing this section with the defence of 'Honest Claim Of Right' as examined commencing on page 431 it should be noted that: 

·                     this defence relates to any offence, not just those relating to property; and 

·                     the claim of right must be both honest and reasonable, and not just honest. 

See also: R v Selwyn Sisiolo (Unrep. Criminal Case No. 5 of 1998; Lungole – Awich J; at pages 8 – 10); The State v Angela Colis Towavik [1981] PNGLR 140; R v KJ & Another [1973] PNGLR 93 at page 101; Director of Public Prosecutions v Morgan [1976] AC 182; [1975] 2 AllER 347; [1975] 2 WLR 913; (1975) 61 CrAppR 136; [1975] CrimLR 717 & B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428; [2000] 2 WLR 452; [2000] 1 AllER 833; [2000] 2 CrAppR 65; [2000] CrimLR 403.

[21.5] Insanity

[21.5.1] Presumption Of Sanity 

Section 11 of the Penal Code (Ch. 26) states: 

'Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.' (emphasis added)

[21.5.2] Proof Of Insanity 

Section 12 of the Penal Code (Ch. 26) states: 

'Subject to the express provisions of this Code and of any other law in force a person shall not be criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission: 

Provided that a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.' (emphasis added) 

In R v Ephrem Suraihou (Unrep. Criminal Case No. 33 of 1992) Muria ACJ stated at pages 4 – 6: 

'The onus of proof where the defence of insanity has been raised, is on the defence. The burden of proof is on the balance of probabilities: See R –v- Oliver Smith (1911) 6 CrAppR 20 and R –v- Carr – Briant (1943) 29 CrAppR 76. 

The law in England and other countries of common law jurisdictions and the test to be applied have been well settled. In England the test is basically that which was stated in R –v- Windle (supra). In Australia the High Court did not follow Windle's case when considering what the test of insanity was in Stapleton –v- R [1952] ALR 929; 86 CLR 358. In that case the Court held that the test was whether the accused person knew his act was wrong according to the ordinary principles of reasonable men, and not whether he knew it was wrong as being contrary to law as laid down in R –v- Windle. 

In Solomon Islands the test of insanity must be found in the words as expressed in section 12 of the Penal Code […]. 

When one reads the language used in section 12 of the Code, one sees clearly the difference between language of that provision and that of the common law. Section 12 refers to "any disease affecting the mind". The other difference that can be drawn is that whereas the Code, it speaks of "capacity to understand" and "capacity to know", the common law simply refers to actual knowledge. 

Having observed section 27 of the Western Australia Criminal Code (which is identical to section 12 of the Queensland Criminal Code) on insanity, the phrases "capacity to understand" and "capacity to know" have been used. Although the text of section 27 in the Western Australia and Queensland Criminal Codes are slightly different to our Code, the parts of our Code that I have referred to above as being distinct from that of the common law position are in a similar position as well regarding section 27 of the Western Australia and Queensland Criminal Codes and the common law. 

It would be observed that section 12 of the Code treats as insane people who are to the extent that they do not have the capacity to – 

(a)                understand; or 

(b)                know that they ought not to do the act done or omitted to be done. 

That is very much expressing the test of moral capacity as found by the High Court of Australia in R –v- Porter (1933) 55 CLR 182; Sodeman –v- R (1936) 55 CLR 192 and Stapleton –v- R (1952) 86 CLR 358. 

In my judgment the appropriate test to be applied in Solomon Islands when applying section 12 of the Penal Code on the question of insanity is the test as applied by the High Court of Australia in R –v- Porter (supra) and Sodeman –v- R (supra) where Dixon said in Porter's case:-- 

"Could this man be said to know ………. Whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make the act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by "wrong" is wrong having regard to the every day standards of reasonable people" 

and later he reiterated that opinion in Sodeman's case saying:-- 

"In general it may be correctly said that if the disease or mental derangement so governs the faculties that it is impossible for the party accused to reason with some moderate degree of calmness in relation to the moral quality of what he is doing, he is prevented form knowing that what he is doing is wrong." 

The Accused having raised the issue of the state of his mind now carries the onus of satisfying the court that owing to a disease affecting his mind he did not have at the time of committing the offence any of the capacities mentioned in section 12 of the Penal Code. It will also be observed that even if a disease is shown to have affected his mind but he has not shown that the disease had deprived him of any of the capacities mentioned, then he has failed in satisfying the onus resting upon him.' (emphasis added) 

In R v Quick & Paddison (1973) 57 CrAppR 722 [[1973] 3 WLR 26; [1973] 3 AllER 347; [1973] QB 910; [1973] CrimLR 434] Lawton LJ, delivering the judgment of the Court, stated at pages 734 – 735: 

'Our task has been to decide what the law means now by the words "disease of the mind". In our judgment, the fundamental concept is of a malfunctioning of the mind caused by disease. A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease. Such malfunctioning, unlike, that caused by a defect of reason from disease of the mind, will not always relieve an accused from criminal responsibility. A self – induced incapacity will not excuse […] nor will one which could have been reasonably foreseen as a result of either doing, or omitting to do something, as, for example, taking alcohol against medical advice after using certain prescribed drugs, or failing to have regular meals whilst taking insulin. From time to time difficult border line cases are likely to arise. When they do, the test suggested by the New Zealand Court of Appeal in COTTLE (supra) is likely to give the correct result, viz. can this mental condition be fairly regarded as amounting to or producing a defect of reason from disease of the mind?' 

In Bratty v Attorney – General for Northern Ireland [1963] AC 386; (1961) 46 CrAppR 1 [[1961] 3 WLR 965; [1961] 3 AllER 523] Lord Denning stated at pages 413 and 21 respectively: 

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

The evidence from a psychologist with no medical qualifications is not sufficient to raise the defence of 'Insanity', see R v Mackenney & Pinfold (1983) 76 CrAppR 271. 

See also: Goi v The State [1991] PNGLR 161 at pages 167 – 168; Kutapa Keapu v The State [1994] PNGLR 135 at pages 136 – 137 & Pangallo (1989) 44 ACrimR 462. 

Refer also to sections 144 – 148 of the Criminal Procedure Code (Ch. 7).

[21.6] Intoxication 

Section 13 of the Penal Code (Ch. 26) states: 

'(1) Save as provided in this section intoxication shall not constitute a defence to any criminal charge. 

(2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such an act or omission was wrong or did not know what he was doing and –  

(a) the state of intoxication was caused without his consent by the malicious or negligent act of another person; or 

(b) the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission. 

(2) Where the defence under the preceding subsection is established, then in a case falling under paragraph (a) thereof the accused shall be discharged and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code relating to insanity shall apply. 

(3) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. 

(4) For the purpose of this section "intoxication" shall be deemed to include a state produced by narcotics or drugs.' 

In respect of all charges, a defendant is not criminally responsible if by virtue of being in a state of intoxication caused by either the consumption of alcohol or drugs he/she did not know that: 

·                     the commission of the offence was wrong; or 

·                     what he/she was doing when committing the offence 

and 

·         the state of intoxication was caused without his/her consent by the malicious or negligent act of another person, such as the spiking of drinks with either alcohol or drugs. This is referred to as 'Involuntary Intoxication'. If a defendant had the necessary intent at the time of committing the offence, it is irrelevant as how the defendant had become intoxicated, see R v Kingston [1995] 2 AC 355; (1994) 99 CrAppR 286; 

or 

·                     by virtue of that state of intoxication he/she was insane, temporarily or otherwise, at the time of the commission of the offence. In that regard, the defendant would need to raise a defence of 'Insanity' which is examined commencing on page 441. 

Intoxication caused by either the consumption of alcohol or drugs must be taken into account for the purpose of determining whether the defendant had formed any intention, specific or otherwise, in the absence of which he/she would not be guilty of the offence. 

In R v Kennth Iro (Unrep. Criminal Case No. 66 of 1993) Muria CJ stated at pages 2 - 3: 

'On the question of intoxication as a defence, I agree that intoxication is available as a defence, in cases of murder whether such intoxication is self – induced or not, that is to say, all forms of intoxication should be taken into account. See R v Kauwai (1980 – 1981) SILR 108, R –v- O'Connor 29 ALR 449. 

[…] 

The question is whether the accused's mind was so affected by alcohol that he could not have formed the intention to do what he did or that his mind was so affected by alcohol that he did not know what he was doing at the time.' (emphasis added) 

In R v Warren Godfrey Motui (Unrep. Criminal Case No. 20 of 1997) Palmer J stated at pages 1 - 9: 

'The defence of the Accused essentially is that of intoxication. That he was too drunk and therefore did not know what he was doing or that it was wrong (section 13(2)(b) of the Penal Code). 

The onus of proof lies throughout with prosecution and in the case of intoxication, to prove beyond reasonable doubt that the Accused did know what he was doing or that it was wrong. 

[…] 

Having raised the defence [of 'Intoxication'] it is for Prosecution to prove beyond reasonable doubt that the Accused did know what he was doing or that it was wrong.' (emphasis added) [words in brackets added] 

In Attorney – General for Northern Ireland v Gallagher (1961) 45 CrAppR 316 [[1961] 3 WLR 619; [1961] 3AllER 299] the House of Lords held per Lord Tucker at pages 341 – 343: 

'[T]he case falls to be decided by the general principle of English law that, subject to very limited exceptions, drunkenness is no defence to a criminal charge nor is a defect of reason produced by drunkenness. This principle was stated by Sir Matthew Hale in his Pleas of the Crown, Vol. I, p. 32, in words which I would repeat here: "This vice" (drunkenness) "doth deprive men of the use of reason, and puts many men into a perfect, but temporary phrenzy …. By the laws of England such a person shall have no privilege by this voluntary contracted madness, but shall have the same judgment as if he were in his right senses." 

This general principle can be illustrated by looking at the various ways in which drunkenness may produce a defect of reason: 

(a) It may impair a man's powers of perception so that he may not be able to foresee or measure the consequences of his actions as he would if he were sober. Nevertheless he is not allowed to set up his self – induced want of perception as a defence. Even if he did not himself appreciate that what he was doing was dangerous, nevertheless if a reasonable man in his place, who was not befuddled with drink, would have appreciated it, he is guilty […]. 

(b) It may impair a man's power to judge between right or wrong, so that he may do a thing when drunk which he would not dream of doing while sober. He does not realise he is doing wrong. Nevertheless he is not allowed to set up his self – induced want of moral sense as a defence. In BEARD's CASE (1920) 14 CrAppR at p. 198; [1920] AC at p. 506, Lord Birkenhead LC distinctly ruled that it was not a defence for a drunken man to say he did not know he was doing wrong. 

(c) It may impair a man's power of self – control so that he may more readily give way to provocation than if he were sober. Nevertheless he is not allowed to set up his self – induced want of control as a defence. The acts of provocation are to be assessed, not according to their effect on him personally, but according to their effect they would have on a reasonable man in his place. […] 

The general principle which I have enunciated is subject to two exceptions: (1) If a man is charged with an offence in which a specific intention is essential (as in murder, though not in manslaughter) then evidence of drunkenness, which renders him incapable of forming that intent, is an answer […]. This degree of drunkenness is reached when the man is rendered so stupid by drink that he does not know what he is doing […]. 

(2) If a man by drinking brings on a distinct disease of the mind such as delirium tremens, so that he is temporarily insane within the M'Naughten Rules, that is to say, he does not at the time know what he is doing or that it is wrong, then he has a defence on the ground of insanity.' 

In Ruse v Read (1949) 33 CrAppR 67 Humphreys J, delivering the judgment of the Court, stated at page 70: 

'The decision of the House of Lords in DIRECTOR OF PUBLIC PROSECUTIONS v BEARD, 14 CrAppR 159; [1920] AC 479, shows that upon the question of intention evidence of a state of drunkenness rendering the accused incapable of forming the intent necessary to constitute the particular crime should be taken into consideration with the other facts of the case, not because drunkenness may be incompatible with the actual crime charged, and may therefore negative the commission of that crime. Can it be said that a man who is able to mount and ride a bicycle for two hours is yet so incapably drunk that he is unable to apply his mind to the simple question whether he intends to take the machine away for good or to borrow or return it?' 

[21.7] Immature Age 

Section 14 of the Penal Code (Ch. 26) states: 

'A person under the age of eight years is not criminally responsible for any act or omission. [ie., an irrebuttable presumption of law] 

A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission. [ie., a rebuttable presumption of law] 

A male person under the age of twelve years is presumed to be incapable of having sexual intercourse.' (emphasis added) [words in brackets added]

In R v Paul Rakaimua (Unrep. Criminal Case No. 24 of 1995) Muria CJ stated at pages 4 – 5: 

'Under that provision only a person under eight years of age will be excused of any criminal responsibility for his act or omission. A person who is eight years but still under 12 years will also be excused from criminal responsibility unless it is proved that the person had the capacity to know that he ought not to have done what he did or made the omission at the time the act was done or omission was made. The defence says that the accused in this case is a person who was less than 12 years of age at the time of the commission of the offence and who then did not have the capacity to know that what he did would cause death. […] 

[…] 

It is for the prosecution to show by evidence that the defence of immature age raised by the accused must be excluded. But I think I can also say without shifting the burden of proof to the defence that the accused must point to some evidence supporting the suggestion that he was of immature age at the time and which may help to raise doubt in the Court's mind.' 

The criminal responsibility of children between the ages of 8 and 12 years was considered in R v Sheldon [1996] 2 CrAppR 50. Simon Brown LJ delivering the judgment of the Court of Appeal, accepted the application of the following principles at page 53: 

'1. It is presumed that a child between the ages of 10 and 14 is doli incapax and in all cases it is for the Crown to rebut the presumption: to prove that when doing the act charged the child knew that this act was seriously wrong as distinct from an act of mere naughtiness or childish mischief. 

2. The criminal standard of proof applies: clear positive evidence is required, not consisting merely in the evidence of the act amounting to the offence itself, however horrifying or obviously wrong that act may be. 

3. The older the defendant is and […] the more obviously wrong the act, the easier it will generally be to prove guilty knowledge. 

4. The surrounding circumstances are clearly relevant and what the defendant said and did both before and after the act may go to prove guilty knowledge. Certain conduct, however, such as running away or lying, may, depending on the circumstances, be equivocal, as consistent with naughtiness as with wickedness. 

5. Proof that the defendant was a normal child for his age (which must not be presumed but, assuming guilty knowledge can otherwise be established, need not be proved) will not necessarily prove also that he knew his action was seriously wrong. The less obviously wrong the act, the less likely is it to do so.' 

To prove that a child under the age of 12 but over the age of 8 years was criminally responsible, the prosecution must prove beyond reasonable doubt that at the time of the commission of the offence he/she had the 'capacity or understanding' to know that he/she ought not commit the offence. 

That 'capacity or understanding' may be proven by: 

[1] calling any person who: 

[a] knows the child; and 

[b] is able to prove that the child did know the he/she ought not commit the offence. 

Such persons would include parents, relatives and teachers; and / or 

[2] the investigating police officer during the course of questioning the child by simply asking the following questions: 

[a] Did you know that what you did was seriously wrong?; 

[b] Why did you know that it was seriously wrong?; 

[c] Would you have done what you did if a police officer could see you?; 

[d] Would you have done what you did if your parents could see you?; 

[e] Would you have done what you did if your teacher/s could see you?; 

[f] Would you have done what you did if your village elders could see you?; and 

[g] Would you have done what you did if your pastor could see you?; 

See also: JM (A Minor) v Runeckles (1984) 79 CrAppR 255; R v Coulburn (1988) 87 CrAppR 309 & R v B; R v A [1979] 3 AllER 460; (1979) 69 CrAppR 362; [1979] 1 WLR 1185; [1979] CrimLR 589.

[21.8] Compulsion 

Section 16 of the Penal Code (Ch. 26) states: 

'A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence.' (emphasis added) 

In R v Martin [2000] 2 CrAppR 42 Mantell LJ, delivering the judgment of the Court of Appeal, stated at pages 47 – 48:

 'The classic definition of duress is to be found in the speech of Lord Simon of Glaisdale in Director of Public Prosecutions for Northern Ireland v Lynch (1975) 61 CrAppR 6, [1975] AC 653 at pp. 23 and 686: 

"I take it for present purposes to denote such [well – grounded] fear, produced by threats, of death or grievous bodily harm [or unjustified imprisonment] if a certain act is not done, as overbears the actor's wish not to perform the act, and is effective, at the time of the act, in constraining him to perform it. I am quite uncertain whether the words which I have put in square brackets should be included in any such definition. It is arguable that the test should be purely subjective, and that it is contrary to principle to require the fear to be a reasonable one." 

The definition was approved in R v Howe (1987) 85 CrAppR 32, [1987] AC 417, HL. In the same case Lord MacKay of Clashfern cited with approval the judgment of Lord Lane CJ in Graham (1982) 74 CrAppR 235, [1982] 1 WLR 294 at pp. 241 and 300: 

"As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in terms of reasonableness. Consistency of approach in defences to criminal liability is obviously desirable. Provocation and duress are analogous. In provocation the words or actions of one person break the self – control of another. In duress the words or actions of one person break the will of another. The law requires a defendant to have the self – control reasonably to be expected of the ordinary citizen in his situation. It should likewise require him to have the steadfastness reasonably to be expected of the ordinary citizen in his situation. So too with self – defence, in which the law permits the use of no more force than is reasonable in the circumstances. And, in general, if a mistake is to excuse what would otherwise be criminal, the mistake must be a reasonable one.

 It follows that we accept Mr Sherrard's submission that the direction in this case was too favourable to the appellant. The Crown having conceded that the issue of duress was open to the appellant and was raised on the evidence, the correct approach on the facts of this case would have been as follows: (1) Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed King had said or done, he had good cause to fear that if he did not so act King would kill him or (if this is to be added) cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing? The fact that a defendant's will to resist has been eroded by the voluntary consumption of drink or drugs or both is not relevant to the test"'. 

In R v Martin (Colin) (1989) 88 CrAppR 343 [[1989] 1 AllER 652] Simon Brown J stated at pages 345 – 346: 

'The principles may be summarised thus. First, English law does, in extreme as duress, that is pressure upon the accused's will from the wrongful threats or violence of another. Equally, however, it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called 'duress of circumstances'. 

Secondly, the defence is available only if, from an objective standpoint, the accused can be said to acting reasonably and proportionately in order to avoid a threat of death or serious injury. 

Thirdly, assuming the defence to open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result? Second, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both those questions was yes, then the jury would acquit: the defence of necessity would have been established."' 

See also: Kelly & others v R (Unrep. Criminal Case No. 44 of 1990; Ward CJ); R v Selwyn Buaeda (Unrep. Criminal Case No. 22 of 1975; Davis ACJ); R v Cairns [1999] 2 CrAppR 137; R v Bowen [1996] 2 CrAppR 157; R v Hurst [1995] 1 CrAppR 82; R v Pommell [1995] 2 CrAppR 606; R v Taylor (1972) 56 CrAppR 1; R v Sharp [1987] 3 WLR 1; [1987] QB 853; [1987] 3 AllER 103; [1987] CrimLR 566;(1987) 85 CrAppR 207; R v Shepherd (1988) 86 CrAppR 47; [1987] CrimLR 686 & R v Conway (1989) 88 CrAppR 159; [1989] QB 290; [1988] RTR 35; [1988] 3 AllER 1025; [1988] 3 WLR 1238.

[21.9] Defence Of Person Or Property 

Section 4 of the Constitution states (in part): 

'(1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law in force in Solomon Islands of which he has been convicted. 

(2) A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable -- 

(a) for the defence of any person from violence or for the defence of property.' (emphasis added)

Section 17 of the Penal Code (Ch. 26) states: 

'Subject to any express provisions in this Code or any other law in operation in Solomon Islands, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law.' 

Section 204 of the Penal Code (Ch. 26) states (in part): 

'Where a person by an intentional and unlawful act causes the death of another person the offence committed shall not be murder but only manslaughter if any of the following matters of extenuation are proved on his behalf, namely –  

(a) that he was deprived of the power of self – control by such extreme provocation given by the person killed as mentioned in the next succeeding section; or 

(b) that he was justified in causing some harm to the other person, and that, in causing him harm in excess of the harm which he was justified in causing, he acted from such terror or immediate death or grievous harm as in fact deprived him for the time being of the power of self – control;' (emphasis added)

A summary of the principles is as follows: 

·                     It is lawful to use such force as is 'reasonably necessary' in order to defend one's person, any other person or one's property; 

·                     The question is whether the force used was 'reasonable' in all the circumstances; 

·                     What is 'reasonable' in the circumstances is always a question of fact, and not law, see Reference under section 48A of the Criminal Appeal (Northern Ireland) Act 1968 (No. 1 of 1975) [1976] 2 AllER 937; [1977] AC 105; 

·                     Whilst the test to be applied as to whether 'reasonable force' was used is an 'objective test', the state of mind of the defendant must also be taken into account, ie., a 'subjective test'; 

·                     In some circumstances a person may need to consider simply avoiding the assailant by way of 'withdrawal'; and 

·                     The onus is on the prosecution to negative this defence 'beyond reasonable doubt' if it is 'fairly raised'. 

In Rachel Tobo v Commissioner of Police (Unrep. Criminal Appeal No. 1 of 1993) the Court of Appeal stated at pages 2 – 3: 

'So far as is relevant that provides that criminal responsibility for the use of force in defence of person shall be determined according to the principles of English common law. Under the common law it is lawful to use such force as is reasonably necessary in order to defend one's person against attack.' (emphasis added) 

A person who is assaulted may not only defend himself/herself, but may also retaliate, see R v Deana (1909) 2 CrAppR 75 at page 76. 

The question to be asked is whether the defendant used more violence than was reasonably necessary to repel the attack, see R v Morse (1910) 4 CrAppR 50 at page 51. 

In R v Zamagita & 6 others [1985 – 86] SILR 223 Ward CJ stated at pages 231 – 233: 

'Section 17 of the Penal Code provides that criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law. The present law in England is covered by section 3 of the Criminal Law Act 1967 which has replaced the rules of the common law. What was the exact extent of the common law prior to the 1967 act is complex and uncertain. 

In general terms, the common law has always given a man the right to defend himself or his close family and property by such force as is necessary. What force is necessary is a matter of fact to be decided on a consideration of all the surrounding facts. It was stated in 1924 in Hussey's case, 18 CAR 160 that a man may use force, may even kill, to defend himself or his property. Much more recently Parker LCJ in Chisam v R (1963) 47 CAR 130 cited with approval the statement of the law in Halsbury's Laws of England "where a forcible and violent felony is attempted on the person of another, the party assaulted, or his servant, or any other person present, is entitled to repel force by force and, if necessary, to kill the aggressor. There must be a reasonable necessity for the killing, or at least an honest belief based on reasonable grounds that there is such a necessity." 

Thus, if the evidence establishes to the satisfaction of the court that the accused believed he was in imminent danger and held that belief on reasonable grounds induced by the words and conduct of the deceased, the defence of self defence is made out. The same considerations apply to defence of family and property. But it is only in the most extreme circumstances of clear and very serious danger that a court would hold, these days, that a man was entitled to kill simply to defend his property, as there are many other effective remedies available. Where however, attack places him or his family in serious and immediate danger, he may properly meet that force with the force reasonably necessary to avert the danger. The evidence shows that, when Andrew and Mathew approached Pastor Ragoso's house that night, Jese's wife and Herrick's sister and parents were inside. 

Lulu had no relative inside but knew, as he had been there earlier, that there were women and children in the house. The other four accused arrived to see a violent attack on the premises already in progress by armed men. From inside the house they could hear screams of terror. Their involvement was to stop such an attack. In R v Duffy (1966) 2 WLR 229, Edmund Davies J (as he then was) stated:- 

"Quite apart from any special relationship between the person attacked and his rescuer, there is a general liberty even as between strangers to prevent a felony. That is not to say, of course, that a new – comer may lawfully join in a fight just for the sake of fighting. Such conduct is wholly different in law from that of a person who in circumstances of necessity intervenes with the sole object of restoring the peace by rescuing a person being attacked." 

I am satisfied each of these accused had every reason to fear that the occupants of that house were in imminent danger. They had a right and, indeed, a duty to try and prevent the attack and in order to do so were entitled to use reasonable force.' (emphasis added) 

In R v Duffy (1966) 50 CrAppR 68 [[1966] 2 WLR 229; [1967] 1 QB 63; [1966] 1 AllER 62] Edmund Davies J, delivering the judgment of the Court, stated at pages 70 – 71: 

'It is established that [the defence of 'self defence'] is not restricted to the person attacked. It has been said to extend to "the principal civil and natural relations" Hale […] gives as instances master and servant, parent and child, and husband and wife who, if they even kill an assailant in the necessary defence of each other, are excused, the act of the relative assisting being considered the same as the act of the party himself.' [words in brackets added] 

In R v Julien (1969) 53 CrAppR 407; [1969] 1 WLR 839 [[1969] 2 AllER 856] Widgery LJ, delivering the judgment of the Court of Appeal, held at pages 410 – 411 & 843 respectively: 

'The submission here is that the obligation to retreat before using force in self – defence is an obligation which only arises in homicide cases. As the Court understands it, it is submitted that, if the injury results in death, then the accused cannot set up self – defence except on the basis that he had retreated before he resorted to violence. On the other hand, it is said that where the injury does not result in death […] the obligation to retreat does not arise. 

[…] 

It is not, as we understand it, the law that a person threatened must take his heels and run in the dramatic way suggested by Mr. McHale; but what is necessary is that he should demonstrate by his actions that he does not want to fight. He must demonstrate that he is prepared to temporise and disengage and perhaps to make some physical withdrawal; and to the extent that that is necessary as a feature of the justification of self – defence is true, in our opinion, whether the charge is a homicide charge or something less serious.' 

In R v Barrett & Barrett (1981) 72 CrAppR 212 [[1980] CrimLR 641] Cumming – Bruce LJ, delivering the judgment of the Court, held at page 217: 

'In the view of this Court the test where excessive force is relied upon to found reliance upon self – defence is objective and not subjective. This Court does not understand the observations of their Lordships in DPP v MORGAN [(1975) 61 CrAppR 136; [1976] AC 182] to have been intended to invalidate the law of self – defence where excessive force is alleged to have been used against the defendants. This Court does not accept that the test is a subjective test depending on the honest belief of the defendant, but affirms – as has in the past been regarded as the law – that where repelling excessive force is relied upon by the defendants, the test is an objective test.' (emphasis added) 

In R v Whyte (1987) 85 CrAppR 283 [[1987] 3 AllER 416] Lord Lane CJ stated at page 285: 

'What the learned judge said to the jury on the question of self – defence, having given them an impeccable direction on the general effect of that defence, was this: 

"… if a man does use violence and claims he was only violent in self – defence, he may only use such force to defend himself as was reasonable in all the circumstances. It is for you, the jury, to decide as a matter of common sense whether a blow with a knife was in self – defence, and if it was, if the use of a knife against a man is not alleged to have been armed is reasonable … So before you can convict Mr. Whyte of either count 1 or count 2, you must be satisfied so that you are sure that Mr. Whyte struck Mr. Khan a blow with a knife as an assailant, and that the blow was not a blow in self – defence, or if it was, it was an unreasonable amount of force, having regard to the danger Mr. Whyte himself was in at the hands of Mr. Khan." 

In most cases, where the issue is one of self – defence, it is necessary and desirable that the jury should reminded that the defendant's state of mind, that is his view of the danger threatening him at the time of the incident, is material. The test is reasonableness or not, to put it at its lowest, a purely objective test. 

We have been referred to two authorities. The first is an opinion of the Privy Council in the case of Palmer v R (1971) 55 CrAppR 223; [1971] AC 814, and the second is the case of Shannon (1980) 71 CrAppR 192, a decision of this Court which of course is binding upon us. The effect of those two decisions seems to be this. A man who is attacked may defend himself, but may only do what is reasonably necessary to effect such a defence. Simple avoiding action may be enough if circumstances permit. What is reasonable will depend upon the nature of the attack. If there is a relatively minor attack, it is not reasonable to use a degree of force which is wholly out of proportion to the demands of the situation. But if the moment is one of crisis for someone who is in imminent danger, it may be necessary to take instant action to avert that danger. 

Although the test is what is sometimes called an objective one, yet nevertheless, to quote the words of Lord Morris in Palmer v R (1971) 55 CrAppR 223, 242, [1971] AC 814, 832, "If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken."' (emphasis added) 

In Jimmy Kwai v R (Unrep. Criminal Appeal No. 3 of 1991) the Court of Appeal stated at page 5: 

'Honest belief in a case of self – defence may be relevant at two points at least. In many cases it may be apparent, on a calm appraisal of the facts after the event that the accused was not being attacked at all. The circumstances may be such that the jury entertains a reasonable doubt as to whether he genuinely believed that to be the case, or to put it another way concludes that he may well have entertained such a genuine belief. But, as Ward CJ correctly points out, the force used must not be disproportionate to the situation as the accused saw it. In Williams at AllER p. 415h [[1987] 3 AllER 411; (1987) 78 CrAppR 276] the court regarded the following passage from the Criminal Law Revision Committee's 14th report (Cmnd 7844 (1980) as a correct statement of law: 

"The common law defence of self – defence should be replaced by a statutory defence providing that a person may use such force as is reasonable in the circumstances as he believes them to be in the defence of himself or any other person." 

The Privy Council in Beckford at AllER p. 432a [[1988] AC 130; [1987] 3 AllER 425; (1987) 85 CrAppR 378] would seem to have taken the same view. 

[…] 

In Palmer v R [[1971] AC 814; [1971] 2 WLR 831; (1971) 55 CrAppR 223] Lord Morris of Borth – y – Gest delivering the opinion of the Privy Council, said [at pages 832, 844 and 242 respectively]: 

"If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of this necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self – defence, where the evidence makes it raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self – defence." 

In our judgment it is not sufficient to say that the force was not reasonable. It is impossible to conclude, beyond a reasonable doubt, that it was not reasonable in the circumstances as the applicant believed them to be.' (emphasis added) 

In R v Owino [1996] 2 CrAppR 128 Collins J, delivering the judgment of the Court of Appeal, held at pages 132 – 133: 

'The essential elements of self – defence are clear enough. The jury have to decide whether a defendant honestly believed that the circumstances were such as required him to use force to defend himself from an attack or a threatened attack. In this respect a defendant must be judged in accordance with his honest belief, even though that belief may have been mistaken. But the jury must then decide whether the force used was reasonable in the circumstances as he believed them to be.' (emphasis added) 

See also: R v Ome [1980 – 81] SILR 27. 

In Palmer v R (1971) 55 CrAppR 223 [[1971] AC 814; [1971] 1 AllER 107; [1971] 2 WLR 831] Lord Morris of Borth – y – Gest, delivering the judgment of the Privy Council, stated at pages 241 – 243: 

'In their Lordship's view, the defence of self – defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains, then the employment of force may be my way of revenge and punishment or by way of paying off an old score or may be pure aggression. There may no longer by any link with a necessity of defence. Of all these matters the good sense of a jury will be the arbiter. There are no prescribed words which must be employed in or adopted in a summing – up. All that is needed is a clear exposition, in relation to the particular facts of the case, of the conception of necessary self – defence. If there has been no attack, then clearly there will have no need for defence. If there has been attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self – defence, where the evidence makes its raising possible, will fail only if the prosecution show beyond doubt that what the accused did was not by way of self – defence. But their Lordship's consider, in agreement with the approach in the DE FREITAS case [(1960) 2 WLR 523], that if the prosecution have shown that what was done was not done in self – defence, then that issue is eliminated from the case. If the jury consider that an accused acted in self – defence or if the jury are in doubt as to this, then they will acquit. The defence of self – defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected. In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then that matter would be left to the jury.' 

In R v O'Grady (1987) 85 CrAppR 315 [[1987] QB 995; [1987] 3 WLR 321; [1987] 3 AllER 420; [1987] CrimLR 706] Lord Lane CJ, delivering the judgment of the Court, held at page 321: 

'[A] defendant is not entitled to rely, so far as self – defence is concerned, upon a mistake of fact which has been induced by voluntary intoxication.' 

The law relating to the defence of 'Intoxication' is examined commencing on page 444. 

In R v Lobell (1957) 41 CrAppR 100 [[1957] 1 QB 547; [1957] 2 WLR 524; [1957] 1 AllER 734] Lord Goddard CJ, delivering the judgment of the Court, held at page 104: 

'It must, however, be understood that maintaining the rule that the onus always remains on the prosecution does not mean that the Crown must give evidence – in – chief to rebut a suggestion of self – defence before that issue is raised, or indeed need give any evidence on the subject at all. If an issue relating to self – defence is to be left to the jury, there must be some evidence from which a jury would be entitled to find that issue in favour of the accused, and ordinarily, no doubt, such evidence would be given by the defence. But there is a difference between leading evidence which would enable a jury to find an issue in favour of a defendant and in putting the onus upon him. The truth is that the jury must come to a verdict on the whole of the evidence which would enable a jury to find an issue in favour of a defendant and in putting the onus upon him.' 

That decision was subsequently approved by the Judicial Committee of the Privy Council in Billard v R (1957) 42 CrAppR 1. 

'[T]he onus of proving that an accused person did not act in self defence, where the question is raised on or by the evidence, is upon the Crown', see R v Ome [1980 – 81] SILR 27 at page 34. 

In R v Moon [1969] 1 WLR 1705 [[1969] 3 AllER 803] Salmon LJ, delivering the judgment of the Court, stated at page 1706: 

'It is elementary that once that defence is raised [ie., 'self - defence'], the onus is fairly and squarely on the Crown to disprove it. It is for the Crown to satisfy the jury beyond reasonable doubt that self – defence is negatived by the evidence. It is never for the defence – there is no sort of onus on the defence – to prove self – defence.' [words in brackets added] 

The law relating to 'Proof Of Issues' is examined commencing on page 68. 

See also: R v John Teo'ohu [1990] SILR 265 at page 267; R v Garunu [1985 – 86] SILR 192; Director of Public Prosecutions v Bailey [1995] 1 CrAppR 257; R v Whyte (1987) 85 CrAppR 283; [1987] 3 AllER 416; Edwards v R (1973) 57 CrAppR 157; R v Bird [1985] 2 AllER 513; [1985] 1 WLR 816; [1985] CrimLR 388; (1985) 81 CrAppR 110; Beckford v R [1987] 3 WLR 611; [1987] 3 AllER 425; [1988] AC 130; (1987) 85 CrAppR 378; R v Abraham [1973] 1 WLR 1270; [1973] 3 AllER 694; [1974] CrimLR 246; (1973) 57 CrAppR 799; Taylor v Mucklow [1973] CrimLR 750; R v McInnes [1971] 3 AllER 295; [1971] 1 WLR 1600; (1971) 55 CrAppR 551; R v Cousins [1982] 2 AllER 115 & R v Hussey (1924) 18 CrAppR 160.

[21.10] Compulsion By Spouse 

Section 19 of the Penal Code (Ch. 26) states: 

'A married person is not free from criminal responsibility for doing or omitting to do an act merely because the act or omission takes place in the presence of that person's spouse; but on a charge against a married person for any offence other than treason or murder, it shall be a good defence to prove that the offence was committed in the presence of and under the coercion of that person's spouse.' (emphasis added) 

The spouse must be able to prove that his/her will was overborne by the wishes of his/her spouse which may result as a consequence of: 

·                     physical force;

·                     a threat of physical force; or

·                     moral force. 

Such coercion must go beyond persuasion out of loyalty, see R v Shortland [1996] 1 CrAppR 116. 

See also: R v Ditta, Hussain & Kara [1988] CrimLR 42.