Joseph Maino v The State

• Jurisdiction: Papua New Guinea
• Citation: [1977] PNGLR 404
• Date: 26 October 1977
• Court: Supreme Court
• Year: 1977

Supreme Court: Frost CJ, Raine J, Williams J

Judgment Delivered: 26 October 1977

1 Criminal law—murder—death caused by act done in prosecution of unlawful purpose, which act likely to endanger life—violent assault upon deceased—whether evidence sufficient to support finding that the assault was the cause of death—substitution of verdict of manslaughter

2 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 s305(b).

The appellant was convicted under s305(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) S305(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 R (1951) 84 CLR 170 and R v Koito Kartogati [1974] PNGLR 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) S305(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] PNGLR 216 overruled.

Appeal.

This was an appeal against conviction and sentence on a charge of murder, the conviction being made pursuant to s305(b) of the Criminal Code.

Hughes v R (1951) 84 CLR 170;

R v Nichols, Johnson and Aitcheson [1958] QWN 29;

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

R v Hansen [1964] Qd R 404;

Downey v R [1971] NZLR 97;

R v Koito Kartogati [1974] PNGLR 225;

R v Kamipeli [1975] 2 NZLR 610;

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

Thomas v R (1972) NZLR 34;

Plomp v R (1963) 110 CLR 234 at 242;

Vera Humphries v R [1943] St R Qd 156;

McGreevy v DPP [1973] 1 All ER 503 at 508–9;

R v Onufrejczyk [1955] 1 QB 388 at 394 et seq;

Awap Omowo v The State [1976] PNGLR 188

R v Goddard (1846) 10 JP 553;

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

R v Grant [1966] NZLR 968.

R v Onufrejczyk [1955] 1 QB 388;

Peacock v R (1911) 13 CLR 619 at 651–661.

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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 s305(a). Intoxication may be regarded for the purpose of ascertaining whether such an intention existed, Criminal Code s28. 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 s305(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...