(1964) 111 CLR 62; 37 ALJR 516; [1964] ALR 1046

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Windeyer J:
• Judgment Date: 25 March 1964
• Citation: [1963] PNGLR 163
• Judgment Number: No329
• Year: 1963
• Docket Number: Mamote–Kulang of Tamagot v Regina [1963] PNGLR 163

Full Title: Mamote–Kulang of Tamagot v Regina [1963] PNGLR 163; (1964) 111 CLR 62; 37 ALJR 516; [1964] ALR 1046

High Court: McTiernan J, Taylor J, Menzies J, Windeyer J, Owen J

Judgment Delivered: 25 March 1964

1 Criminal law—manslaughter; Defences—accident; High Court

2 High Court upheld No292; husband guilty in spleen death of wife; blow intentional, not an accidental event per Criminal Code s23; lack of intent to kill and wife's unknown physical vulnerability irrelevant

Mamote–Kulang appealed to The High Court against conviction and sentence.

Held:

By McTiernan J, Taylor J, Windeyer J and Owen J (Menzies J dissenting) that the phrase "an event which occurs by accident" in s23 of the Code contemplates the intervention of some happening of an accidental nature. Where on a charge of manslaughter it appears that an intended blow caused the death because the deceased was suffering from an abdominal constitutional defect not reasonably foreseeable then the death is the immediate and direct result of the blow and not within the meaning of the phrase.

R v Martyr (1962) QSR 398 approved

Vallance v R (1961) 108 CLR 56 considered.

Held:

By McTiernan J, Owen J and Taylor J that the sentence did not appear to exceed the discretion to be allowed to a trial judge.

Decision of the Supreme Court of the Territory of Papua and New Guinea (Ollerenshaw J) affirmed.

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McTiernan J:

This is an appeal by leave from a judgment of the Supreme Court of the Territory of Papua and New Guinea in a case in which the appellant Mamote–Kulang was convicted of the manslaughter of his wife, Donate–Silu. The trial judge was Mr Justice Ollerenshaw. There was no jury.

The case falls to be decided upon the provisions of The Criminal Code of the Territory of Papua and New Guinea. S23 of the Code provides " . . . 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". The term "criminally responsible" is defined by s1. It means in s23 "liable to punishment as for an offence". The question in the appeal is whether the trial pudge was wrong in holding that a defence of accident in terms of s23 was not available to the accused.

The facts on which the appellant was convicted can be stated shortly. He dealt his wife a blow with the back of his hand on the right side of the body, in the upper part of the abdomen; the accused's fist was clenched when he hit her, the blow had a substantial degree of force, he made it by swinging his right arm from his left side. The blow caused her great pain and she died soon after she received it. The trial judge found that the accused struck his wife to punish her and that he intended to hurt and cause her pain. Evidence was given of a post mortem examination of the body of the deceased. This evidence proves that the blow ruptured her spleen and this was the cause of death. The doctor who made the examination of her body said in evidence that the spleen was "a typical malarial spleen, large, soft and mushy and more susceptible to rupture than a normal spleen".

In my opinion it would be reasonable to infer from the evidence that the blow would not have been fatal if the woman's spleen had been reasonably sound; also that the accused did not foresee that death might result from the blow. It is, of course, not to be presumed that when the accused struck the blow he knew her spleen was in the condition proved by the medical evidence. But these matters are not enough, in my opinion, to make the case one of accidental killing. What is missing is proof of an accidental cause of death. Certainly the blow was not an accidental occurrence; not was the disease to her spleen such an occurrence. The defence of accident must fail because the accused struck the blow intentionally and it directly and immediately caused the injury to Donate–Silu from which she died. The blow was the sole cause of her death. It was not intended to cause death, but this does not give the blow or the death the quality of an accidental occurrence. I think that no case arises on the evidence for the application of s23.

The appellant complains that the sentence he received, imprisonment with hard labour for two years, is too severe. I do not think that there is any ground for altering it. It is not disproportionate to the circumstances of the case and does not exceed the bounds of the discretion of the trial judge in respect of punishment.

In my opinion the appeal should be dismissed.

Taylor J and Owen J:

In a fit of temper the appellant, a native of New Guinea, intentionally struck his wife a strong back–hand blow with his fist, hitting her in the stomach. The blow ruptured her spleen which was abnormally large and, in consequence, she died. The appellant intended the blow to cause pain to his wife but he did not intend to kill her or to do her grievous bodily harm, and, had her spleen been of a normal size, it was unlikely that it would have been ruptured by the blow. It was not proved that the appellant foresaw, or that a person unaware of the deceased's abnormality would reasonably have foreseen, that death might follow as a consquence of the blow. He was indicted upon a charge of manslaughter and was convicted and from that conviction this appeal is brought.

It is clear that on these facts the appellant would have been guilty of manslaughter under the common law but we are considering here, not the common law but The Criminal Code of Queensland as adopted in the Territory of Papua and New Guinea. Its immediately relevant provisions are as follows: s291: "It is unlawful to kill any person unless such killing is authorised or justified or excused by law". S293: "Except as hereinafter set forth, any person who causes the death of another directly or indirectly, by any means whatever, is deemed to have killed that other person". S300: "Any person who unlawfully kills another is guilty of a crime, which is called wilful murder, murder, or manslaughter, according to the circumstances of the case". S301: "Except as hereinafter set forth, a person who unlawfully kills another, intending to cause his death or that of some other person, is guilty of wilful murder". S302 states the elements of the crime of "murder" as opposed to "wilful murder". It provides (inter alia) that an unlawful killing is "murder" if the offender intends to do some grievous bodily harm to the person killed. S303: "Any person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter". If the Code had contained no other provision bearing upon the matter, it would have been plain that the offence of manslaughter had been committed. S23 of the Code provides, however, that "Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible" (which by definition means "liable to punishment as for an offence") "for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident" and it is upon the words which we have put in italics that the appellant relies. The blow struck by the appellant produced unexpected results which were not shown to have been foreseen by him or to have been foreseeable. The death, so the argument runs, was therefore an event which occurred by accident. We are unable to agree that this is so. The section is a general provision and is, of necessity, couched in general language but its purpose, it seems to us, is beyond doubt. It is intended to make it clear that, subject to the express provisions of the Code relating to negligent acts and omissions, where a person is charged with the commission of a crime, criminal liability shall not attach where the alleged acts or omissions which are said to amount to the commission of the crime charged have occurred independently of the will of the accused or where, in association with some act or omission of the accused, there has occurred some accidental event which has substantially brought about the final result. When one comes to apply the section in a trial for manslaughter there can, we think, be little doubt that the "acts or omissions" and the "events" which are relevant matters for consideration are those which, according to the evidence, have brought about the death. In cases such as the present, where no question arises under the first limb of the section, the question must be whether in the chain of circumstances leading to the death of the victim there has occurred some event which by reason of the fact that it has occurred by accident was something for which the accused ought not be held to be responsible. In other words the section contemplates the intervention in the...