Regina v Bena–Forepe [1965–66] PNGLR 329

• Jurisdiction: Papua New Guinea
• Judge: Ollerenshaw J
• Judgment Date: 15 August 1966
• Citation: [1965–66] PNGLR 329
• Court: Supreme Court
• Year: 1966
• Judgement Number: No394

Full Title: Regina v Bena–Forepe [1965–66] PNGLR 329

Supreme Court: Ollerenshaw J

Judgment Delivered: 15 August 1966

1 Criminal law—murder, attempted; Defences—intoxication

2 Guilty; intended to kill co–worker with hammer; sober enough to form intention

CRIMINAL LAW—Attempted unlawfully to kill—Intoxication—Intention—The Criminal Code, s4, s28, s302, s305, s306.

The accused Bena, and one Juroa, worked as domestics at single bank officers' quarters. On the day in question the two commenced an argument on the back steps of the quarters, but a bank officer intervened and Bena, who was armed with a hammer, retired to the kitchen. Shortly afterwards the argument resumed and Bena re–armed himself with a hammer and leaped down the stairs and struck Juroa a heavy blow on the head, which fractured his skull and pulped the brain beneath the fracture. Bena then aimed two more blows at Juroa as he fell to the ground, one of which may have hit him on the small of the back but it did no damage. At the time the accused was to some extent under the influence of liquor.

Held:

(1) In a charge under s306 of the Criminal Code the Crown must prove an intent to kill and not merely an intent sufficient to render a person responsible for murder as defined in s302.

(2) In the terms of s28, intoxication may be regarded for the purpose of ascertaining whether the intent to kill in fact existed.

(3) Though the accused was moderately under the influence of liquor at the time of his attack on Juroa, he was not so drunk as to be incapable of forming the intention to kill, and did in fact form that intention.

(4) The accused's conduct amounted to an attempt within the meaning of s4 of the Criminal Code for the means he employed manifested and were adapted to the intention and purpose of killing.

Cases Referred To:

DPP v Beard [1920] AC 479; Broadhurst v R [1964] AC 441; Thomas v R (1960) 102 CLR 584; Smyth v R (1957) 98 CLR 163; R v Wendo [1963] PNGLR 217; R v Nicholson [1956] QSR 520; 51 QJPR 11.

Trial on Indictment.

The facts appear sufficiently from the judgment.

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Ollerenshaw J: The accused Bena, son of Forepe, is charged under s306 of the Criminal Code that he attempted unlawfully to kill Juroa, son of Fumare.

There is no doubt in my mind, nor do I think, notwithstanding the use of the words "Attempt to murder" in the heading to this section, that there could be any doubt that this charge places upon the Crown the obligation to prove an intent to kill and that an intent that would, in appropriate circumstances, render a person responsible only for murder, as defined in s302, would not be sufficient. The very words of s306 make this clear and the draftsman probably headed this section "Attempt to Murder" because in the preceding s305, headed "Punishment for Murder", wilful murder and murder are combined and he failed to make the distinction when coming to provide a heading for the next section, s306.

There is an alternative charge of doing grievous bodily harm with that intent under s317, item (1).

Both Bena and Juroa were employed as domestic servants at the mess of the officers of the Bank of New South Wales at Goroka and prior to the incident out of which the charge arose they were friends. In the evening of the 25th December last, Bena was heard and observed by one of these officers to be taking the main part in a rather one–sided argument with Juroa while he, Bena, held a hammer concealed from Juroa behind his back. Juroa was at the foot of the steps at the rear of the building and Bena was on the landing.

A little later, after the bank officer had "broken up" the argument and Bena had placed the hammer on top of a refrigerator in the kitchen, which formed a corridor to the landing, he was heard and observed to resume, from the landing, what he had to say to Juroa and then to recover the hammer from the refrigerator, run back to the landing and leap down the stairs aiming a blow at Juroa's head, which found its mark and fractured Juroa's skull, pulping the brain beneath the fracture. He aimed two more blows at...