68] PNGLR 320;

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Owen J:
• Judgment Date: 22 October 1968
• Citation: (1968) 119 CLR 47; 42 ALJR 295; Reversing Decision of Clarkson J [1967–68] PNGLR 310; [50/1968]
• Judgment Number: Timbu Kolian v R [1967
• Year: 1968

High Court: Barwick CJ, McTiernan J, Kitto J, Menzies J, Windeyer J, Owen J

Judgment Delivered: 22 October 1968

1 Criminal Law—Manslaughter—Death from blow with stick—Baby struck whilst in wife's arms—Struck by moderate blow in darkness aimed at wife—No reason to suspect baby's presence—Accident—Involuntariness—"act which occurs independently of the exercise of his will"—"Event &which occurs by accident"—The Criminal Code (Qld) adopted in Papua and New Guinea), s23, s291, s293, s303.

2

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PRIOR–HISTORY: APPLICATION for leave to appeal from the Supreme Court of the Territory of Papua and New Guinea.

Timbu Kolian, a native of New Guinea, was tried before Clarkson J sitting without a jury in the Supreme Court of the Territory of Papua and New Guinea on a charge that on or about 8th January 1968 he unlawfully killed one Kandamain Timbu. He was convicted as charged and sentenced to twelve months' imprisonment with hard labour. From his conviction he sought leave to appeal to the High Court of Australia.

The relevant facts and the arguments of counsel are fully set out in the judgments of the Court hereunder.

DISPOSITION: Leave to appeal granted. Appeal allowed. Conviction and sentence of and upon the applicant set aside.

SUMMARY: The accused, having retired a short distance away from his house where there had been an argument with his wife, sat down, in darkness. His wife followed and continued to argue. Having decided to chastise his wife, he picked up a stick and aimed a blow at his wife. The blow, no more than moderate chastisement of the wife, struck their baby being carried in the wife's arms and caused its death. The accused could not see in the darkness did not know of and had no reason to suspect the child's presence.

Held, that the accused was not guilty of manslaughter: by Barwick CJ and McTiernan J upon the ground that the striking of the child on the head was not an exercise of the will of the accused within the meaning of s23 of The Criminal Code; by Kitto, Menzies, and Owen JJ. upon the ground that the child's death from being struck on the head with the stick was an event which occurred by accident within the meaning of s23; by Windeyer J upon the ground that, there being no statutory provision in force in the Territory of Papua and New Guinea to the contrary effect, any rule or principle of the common law which can stand with and give an actual content to provisions of The Criminal Code is to be regarded in its construction and application in New Guinea. By s291 of The Criminal Code the killing of the child was excused by law, that is, the common law. Further, the accused's act of striking the child on the head with a stick thereby killing it was within the meaning of s23 of The Criminal Code, both an act which occurred independently of the exercise of the accused's will and an event which occurred by accident.

Mamote–Kulang v R (1964), 111 CLR 62; [1963] PNGLR 163, distinguished.

Decision of the Supreme Court of Papua and New Guinea (Clarkson J): [1967–68] PNGLR 310, reversed.

Barwick CJ:

The applicant seeks leave to appeal against his conviction for manslaughter by the Supreme Court of the Territory of Papua and New Guinea [1967–68] PNGLR 310. According to the facts found by the learned trial judge who sat without a jury to try the case, the applicant and his wife, on the evening of the happenings giving rise to the charge, became involved within their house in a domestic altercation. Apparently the applicant, tired of the verbal exchanges, retired outside the house, presumably to contemplate in the darkness and to avoid further argument. But his wife, seemingly determined that he should not thus escape hearing her views upon whatever had been in difference between them, after an interval, followed him out of doors and there continued, as apparently he viewed the matter, to berate him. It was so dark that the applicant could not see her form or any silhouette of her: but, as she talked, he could form a judgment by the sound of her voice as to where she was. It would seem that he came to feel that he could stand no more of what to him rightly or wrongly was his wife's nagging. He decided that he should beat her, whether to induce in her a more harmonious frame of mind or as an assertion of his marital authority, does not appear; nor in truth does it matter. Suffice it to observe at this point that as the result of an Act of the Territory of Papua and New Guinea, Native Administration Regulations 1924, as amended, reg83, it would appear to be unlawful for a husband physically to chastise a wife. The applicant, whether or not he had been apprised of this statutory limitation upon his marital authority, picked up a stick intending to belay his wife. It was not a heavy stick and the blow which the applicant aimed at her, had it reached her, whilst no doubt it would have hurt her, would not have done her any physical harm. But, as the applicant did not know nor have reason to suspect, his wife had carried outside in her arms their five months old male child. The applicant aimed his blow with the stick at the source of the wife's voice. It landed on the child's head. The blow which would have been no more than moderate chastisement of the mother, caused the death of the child. The applicant was charged with and has been convicted of the manslaughter of the child. (at p49)

2. The Criminal Code of the State of Queensland has been adopted as The Criminal Code of the Territory of Papua and New Guinea. The relevant provisions of the Code are as follows: s23: "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…" 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." s303: "Any person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter." (at p49)

3. The trial judge, upon the facts I have outlined, concluded that by reason of this Court's decision in Mamote–Kulang v R (1964) 111 CLR 62; [1963] PNGLR 163, he was bound to convict the applicant of manslaughter. In the light of that decision, he felt unable to accept the submission made to him that the death of the child was an event which had occurred by accident within the meaning of s23 of the Code. (at p49)

4. Before this Court, a number of propositions have been put forward by the applicant in support of the general submission that he was not criminally responsible either for the blow struck on the infant's head or for the eventual death of the child. Not all of these propositions had been placed before the trial judge, but none of them require the finding of any fact not found by the judge. Having been favoured with a careful argument of these propositions, I intend to set out my understanding of them. (at p49)

5. First, it was said that under The Criminal Code, unlike the position at common law, there is no general notion of transferred malice, as, for example, the unlawfulness of an act which unintentionally kills supplying the "malice" to found manslaughter. It was pointed out that where the Code desired to resort to such a concept, it did so expressly in relation to specific offences: see s301, s302, s317, s323(2) which were instanced in this connexion. Counsel referred the Court to R v Callaghan (1942) QSR 40; R v Martyr [1962] Qd R 398 and R v Dabelstein [1966] Qd R 411, as indicating the trend of opinion on this question in the Supreme Court of Queensland. Indeed, he claimed that the judgments in those cases amounted in all to a decision in that Court that killing in the course of doing anything in breach of a law was not merely because of that unlawfulness, manslaughter within the Code. The distinction is also recognised in some of the judgments in Mamote–Kulang v R (1964) 111 CLR 62; [1963] PNGLR 163. Consequently, it was submitted that the circumstance that it was unlawful for the applicant to beat, or to attempt to beat, his wife was irrelevant in relation to the present charge. (at p50)

6. Next it was said that the act to which s23 refers is an act which, of itself or in association with another element, either of specific intent or of consequence, would, if it were the act of the applicant, be visited with punishment under other provisions of the Code. The contrast sought to be drawn was between such...