Herman Pasi, Daniel Tangole and Hubert Bola v The State [1991] PNGLR 254

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Los J, Salika J
• Judgment Date: 05 August 1991
• Citation: [1991] PNGLR 254
• Court: Supreme Court
• Year: 1991
• Judgement Number: SC413

Full Title: Herman Pasi, Daniel Tangole and Hubert Bola v The State [1991] PNGLR 254

Supreme Court: Kapi DCJ, Los J, Salika J

Judgment Delivered: 5 August 1991

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PASI AND OTHERS

V

THE STATE

Waigani

Kapi DCJ Los Salika JJ

27 March 1991

5 August 1991

CRIMINAL LAW — Murder — "Act" done in prosecution of unlawful purpose — Act and purpose must be distinct — Criminal Code (Ch No 262), s 300 (1) (a).

CRIMINAL LAW — Murder — Alternative verdict — Manslaughter only available — Alternative charge of murder not open unless charged — Criminal Code (Ch No 262), s 300 (1) (a), (1) (b), 539 (2).

CRIMINAL LAW — Practice and procedure — Indictments — Murder — Alternative charges may be made — Alternative verdict for murder not available unless charged — Criminal Code (Ch No 262), ss 300 (1) (a), (1) (b), 539 (2).

The Criminal Code (Ch No 262), s 300 (1), provides:

"Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b) if death was caused by means of an act:

(i) done in the prosecution of a common purpose; and

(ii) of such a nature as to be likely to endanger human life."

Section 539 (2) provides:

"On indictment charging a person with the crime of murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged."

On appeal against conviction of the offence of murder under s 300 (1) (a) on a charge of murder under s 300 (1) (b),

Held

(1) For the purposes of s 300 (1) (b) of the Criminal Code, the "act" which is done in prosecution of the unlawful purpose is separate and distinct from the "unlawful purpose".

The State v Joseph Maino [1977] PNGLR 216, followed.

(2) In the circumstances, an assault on the victim could not constitute the "act" and the "unlawful purpose" and a conviction based thereon was in error.

(3) (Los J dissenting) Where a charge of murder is made under s 300 (1) (b) of the Criminal Code only, an alternative verdict is not available under s 300 (1) (a); the only alternative verdict is that of manslaughter.

(4) (Los J dissenting) In the circumstances, a verdict of guilty of manslaughter should be entered.

Cases Cited

Joseph Maino v The State [1977] PNGLR 404.

R v Hone Dorope [1970] (Pre-Independence Supreme Court, No SC 608, unreported).

Rex Lialu v The State [1990] PNGLR 487.

Rimbink Pato v Umbu Pupu [1986] PNGLR 310.

State, The v Joseph Maino [1977] PNGLR 216.

Appeal

This was the hearing of an appeal against conviction on a charge of murder.

Counsel

D Koeget, for the appellants.

K Bona, for the respondent.

Cur adv vult

5 August 1991

KAPI DCJ: This is an appeal against both conviction and sentence.

The appellants were charged that on 28 April 1989 they murdered one, Henry Ripolin. The trial judge found the following facts:

"Firstly, that all three accused were fighting with the deceased. There has been no evidence in this case of anyone else fighting with the deceased and there has been no evidence in this case of the deceased fighting with anyone other than these three persons on the night in question. There is also evidence that this deceased died of a ruptured spleen. There is no evidence of any kind which would suggest that that ruptured spleen was caused other than by this fight. I am therefore left with a conclusion as the only reasonable hypothesis on the evidence before me that it was this fight that caused the death of the deceased.

Secondly, there is ample evidence to support the finding that a fight occurred in an initial location and that the deceased was pulled to another location where this fight continued.

Thirdly, there is ample evidence to support the proposition which I find as a fact that this deceased was kicked in the body, particularly in the region of the ribs, several times in the course of this fight. The first three State witnesses all saw Hubert Rere Bola kick the deceased in the ribs and I find that as a fact."

This case was prosecuted pursuant to s 300 (1) (b) of the Criminal Code (Ch No 262). Section 300 (1) is as follows:

"Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b) if death was caused by means of an act:

(i) done in the prosecution of a common purpose; and

(ii) of such a nature as to be likely to endanger human life; or ..."

The appellants raised two grounds of appeal on the proper application of s 300 (1) (b) of the Code.

"1. That the trial judge erred in convicting the appellants of murder in that there was no evidence or insufficient evidence of an unlawful purpose, which unlawful purpose is an essential element of s 300 (1) (b) of the Criminal Code.

2. The trial judge wrongly held that the appellants are guilty of murder under s 300 (1) (b) of the Criminal Code where they had assaulted the deceased in such a way as to be likely to endanger his life, resulting in actual death."

The trial judge in dealing with this issue said in his judgment:

"Mr Miviri, who appears for the State, has indicated that the State relies upon the provisions of s 300 (1) (b) which would render these accused guilty of murder if the death was caused by means of an act done in the prosecution of an unlawful purpose which act was of such a nature as to be likely to endanger human life. My attention has also been properly drawn to the provisions of s 300 (3) which directs me to regard as immaterial that the offender did not intend to hurt any person. That latter provision, coupled with the decision of R v Koito Kartogati (1970) No 603, tells me that test whether the act is of such a nature as to be likely to endanger human life is an objective one, that is, that the test is not whether the accused intended to endanger human life but, rather, whether a reasonable person observing the conduct in question would regard the conduct of the accused and their actions to be such as to be likely to endanger human life. The next decision to which I should refer is that R v Hone Dorope [190] No 608 which is authority for the...