Joseph Maino v The State

• Jurisdiction: Papua New Guinea
• Judge: Williams J:
• Judgment Date: 26 October 1977
• Citation: [1977] PNGLR 404
• Court: Supreme Court
• Year: 1977
• Judgement Number: SC124

Supreme Court: Frost CJ, Raine J, Williams J

Judgment Delivered: 26 October 1977

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JOSEPH MAINO

V

THE STATE

Waigani

Frost CJ Raine Williams JJ

26-27 September 1977

26 October 1977

CRIMINAL LAW — Murder — Death caused by act done in prosecution of unlawful purpose, which act likely to endanger life — Violent assault upon deceased — Principles applicable — Whether evidence sufficient to support finding that the assault was the cause of death — Death from reflex vagal inhibition — Substitution of verdict of manslaughter — Criminal Code s. 305 (b)

The appellant was convicted under s. 305 (b) of the Criminal Code of the murder of one Patrick, who died after the appellant had knocked him down and stamped heavily on his neck 6 or 7 times, which it was found by the trial judge disastrously affected his heart mechanism causing death by reflex vagal inhibition. The appellant, who was seriously affected by alcohol, had, it appeared, attacked the deceased after a fight between the deceased and a third man in which the deceased had knocked a large hole in the wall of the appellant's house. On appeal against conviction and sentence of 5 years and 5 months imprisonment with hard labour (after taking into account 7 months in custody awaiting trial);

Held

(1) Section 305 (b) of the Criminal Code relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful; the dangerous act and the unlawful purpose being distinct.

Hughes v. The King (1951) 84 C.L.R. 170 and Reg. v. Koito Kartogati [1974] P.N.G.L.R. 225 followed.

(2) In the circumstances, the finding by the trial judge that the accused caused the death of the deceased was the only reasonable inference to be drawn from the evidence.

(3) Section 305 (b) of the Criminal Code was inapplicable to the circumstances of the case.

(4) Accordingly, the conviction for murder should be set aside, and a conviction for manslaughter and sentence of 3 years and 5 months imprisonment with hard labour substituted.

The State v. Joseph Maino [1977] P.N.G.L.R. 216 overruled.

Appeal

This was an appeal against conviction and sentence on a charge of murder, the conviction being made pursuant to s. 305 (b) of the Criminal Code.

Cases Cited

G. C. Lalor, for the appellant referred to the following cases:

Hughes v. The King (1951) 84 C.L.R. 170;

R. v. Nichols, Johnson and Aitcheson [1958] Q.W.N. 29;

R. v. Gould and Barnes [1960] Qd.R. 283;

R. v. Hansen [1964] Qd.R. 404;

Downey v. The Queen [1971] N.Z.L.R. 97;

Regina v. Koito Kartogati [1974] P.N.G.L.R. 225;

R. v. Kamipeli [1975] 2 N.Z.L.R. 610;

Robert Stefan Majewski (1976) 62 Crim. App. R. 5;

Thomas v. The Queen (1972) N.Z.L.R. 34;

Plomp v. R. (1963) 110 C.L.R. 234 at p. 242;

Vera Humphries v. The King [1943] St.R.Qld. 156;

McGreevy v. D.P.P. [1973] 1 All E.R. 503 at pp. 508-9;

Regina v. Onufrejczyk [1955] 1 Q.B. 388 at pp. 394 et seq.;

Omowo and Yirihim v. The State [1976] P.N.G.L.R. 188;

R. v. Goddard (1846) 10 J.P. 553;

R. v. Doherty (1826) Jebb, Cr. & Pr. Cas. 66;

R. v. Grant [1966] N.Z.L.R. 968.

B. M. Ryan, for the respondent referred to the following additional cases:

R. v. Onufrejczyk [1955] 1 Q.B. 388;

Peacock v. The King (1911) 13 C.L.R. 619 at pp. 651-661.

Cur. adv. vult.

26 October 1977

FROST CJ: The appellant appeals against his conviction for the murder of one Patrick Yawi. It is a sad case because the deceased was the appellant's grandfather to whom he was devoted.

The trouble arose at a New Year's party at the appellant's home in Port Moresby. A large amount of liquor was consumed. In the early hours of the morning an argument developed between the deceased man and another called Koga, in the course of which deceased pushed Koga against the wall of the house. A large gap was opened in the wall. The appellant as the householder naturally became very angry and started to fight both men. Koga ran away. The appellant then struck the deceased who fell to the floor. The appellant proceeded to stamp him hard upon the neck six or seven times. Blood began to flow from Patrick's mouth, but there is no clear evidence as to whether he died in the house or on the journey to the hospital or at the hospital. Upon post-mortem the pathologist, Dr. Aiken, could find no obvious cause of death. It was an instance in his opinion of reflex vagal inhibition, or interference with the function of vital organs due to injuries inflicted.

The trial judge's finding that the appellant's assault upon the deceased was the cause of death was challenged as one main ground of the appeal. But in my opinion the finding was clearly open to the judge. Upon this ground I agree with the reasoning of Williams J. and Raine J., whose judgments I have read in draft, and I do not wish to add anything.

As no other defence was available to the appellant he was thus criminally responsible for the unlawful killing of Patrick. The issue then before the trial judge was whether the crime was murder or manslaughter.

The trial judge's finding that the appellant was appreciably under the influence of liquor had of course a direct bearing upon whether there was sufficient proof of an intent to do grievous bodily harm under the Criminal Code s. 305 (a). Intoxication may be regarded for the purpose of ascertaining whether such an intention existed, Criminal Code s. 28. The trial judge was satisfied that the appellant knew well what he was doing so that the assault could not be said to be an unwilled act, but the fact that his Honour proceeded to apply s. 305 (b) indicates clearly enough that he was not satisfied upon the evidence that such an intention was proved.

This brings me to the other main ground of appeal which challenges the trial judge's finding that, within the meaning of s. 305 (b), "the accused embarked on an unlawful purpose, namely seriously to assault Patrick Yawi; that he did so assault Patrick Yawi; and that the nature, severity and persistence of his assault was such as was likely to endanger Patrick Yawi's life and that his assault did cause Patrick Yawi's death," and the consequent conviction of murder. This ground of appeal was not opposed by Mr. Ryan. If it succeeds the case remains one of manslaughter.

An examination of the true effect of s. 305 (b) does, in my opinion, show that it is inapplicable to the facts of this case. In Australia it has been held by the High Court that the effect of the corresponding provision in the Queensland Criminal Code (s. 302 (2) ) relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful. Hughes v. The King (1951) 84 C.L.R. 170. In that case the accused was convicted of murder on evidence which showed that he assaulted the deceased woman by violent and repeated attacks on her and that she died as a result of his blows. It was held that there was an error on the part of the trial judge in directing the jury that the accused could be found guilty under s. 302 (2) if he unlawfully assaulted the deceased in such a way as to be likely to endanger her life and her death resulted. So the present case is on all fours with that case. This decision was followed in the pre-Independence Supreme Curt in the case of Reg. v. Koito Kartogati [1974] P.N.G.L.R. 225.

In my opinion the High Court's construction of the provision in question is sound and I would adopt it as applicable to s. 305 (b). It is thus essential that the dangerous act relied upon by the prosecution and the unlawful purpose should be shown to be distinct. Cases in which it has been held that the provision in question is applicable include Reg. v. Gould and Barnes [1960] Qd.R. 283, where the dangerous act was the introduction of a liquid solution into a woman's body, there being a supervening unlawful purpose to abort her, and Reg. v. Hansen [1964] Qd.R. 404, where an old woman was killed by a shot discharged by the accused from a rifle when she surprised him ransacking her house, and he had armed himself with it for use if he was discovered. Reg. v. Koito Kartogati [1974] P.N.G.L.R. 225 was a similar case.

There are cases where the application of the provision has caused difficulty. In R. v. Nichols & Ors. [1958] Q.W.N. 29 the trial judge was unable to conclude on the facts that there was any unlawful purpose other than the particular act adopted as the means of setting fire to a hotel which resulted in the death of an occupant. (In Downey v. The Queen [1971] N.Z.L.R. 97 at pp. 102-103, it was suggested that this was perhaps a narrow interpretation). However, it is unnecessary in this case to examine the limits of the operation of s. 305 (b). It is quite clear that where personal injury to the victim is the unlawful purpose relied upon, that provision is not applicable and the prosecution must rely on s. 305 (a) if it is contended that the act amounts to murder. This was the...