Kulang v R (1964) 111 CLR 62; 37 ALJR 516; [1964] ALR 1046; [1963] PNGLR 163; Reversing? decision of Mamote–Kulang in

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Windeyer J:
• Judgment Date: 25 March 1964
• Citation: [1963] PNGLR 155 [65/1963]
• Judgment Number: Mamote
• Year: 1963

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

Judgment Delivered: 25 March 1964

1 Criminal Law—Manslaughter—Death from blow—Constitutional defect in victim—"Event which occurs by accident"—The Criminal Code (Qld) (as adopted in Papua and New Guinea), s23, s291, s293, s300—s303.

2

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PRIOR–HISTORY: APPEAL from the Supreme Court of the Territory of Papua and New Guinea.

Mamote–Kulang of Tamagot, a native of New Guinea, was tried before Ollerenshaw J sitting without a jury in the Supreme Court of the Territory of Papua and New Guinea on a charge of unlawfully killing his wife Donate on 4th May 1963.

He was convicted of manslaughter and sentenced to two years' imprisonment with hard labour. From his conviction and sentence he appealed by leave to the High Court.

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

C.A. Porter, for the appellant.

D.G. McGregor, for the respondent. Cur. adv. vult.

DISPOSITION: Appeal dismissed.

SUMMARY: Where death is the immediate and direct result of an intentional blow, the fact that the victim has some constitutional defect unknown to his assailant which makes the victim more susceptible to death than would be a person in normal health does not enable the assailant to claim that the death is "an event which occurs by accident" within the meaning of s23 of The Criminal Code (Q.) So held by McTiernan, Taylor, Windeyer and Owen JJ., Menzies J dissenting.

The meaning of s23 of the Code considered.

R v Martyr (1962] Qd R 398, approved; Vallance v R (1961), 108 CLR 56, considered.

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

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 Ollerenshaw J. There was no jury. (at p63)

2. 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 judge was wrong in holding that a defence of accident in terms of s23 was not available to the accused. (at p63)

3. 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". (at p63)

4. 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; nor 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. (at p64)

5. 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. (at p64)

6. In my opinion the appeal should be dismissed. (at p64)

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 consequence of the blow. He was indicted upon a charge of manslaughter and was convicted and from that conviction this appeal is brought. (at p64)

2. 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...