Regina v Manga [1963] PGLawRp 288; [1963] PNGLR 97 (30 January 1963)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 97 - Regina v Manga-Gabi

[1963] PNGLR 97

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

MANGA GABI

Tapini

Ollerenshaw J

22-24 January 1963

30 January 1963

MANSLAUGHTER - Unintended death and “accident” in Section 23 of the Q.C.C. - Assault and latent physical weakness - Spleens - Negligent conduct - Issue of voluntaries of confessional evidence - Verdict when Accused charged with manslaughter and evidence establishes wilful murder.

The Accused Manga, son of Gabi, was charged under Section 303 of the Criminal Code, with unlawfully killing his wife Silog. Manga was an unsophisticated Native who lived in the Goilala Subdistrict at Visi Village some twelve hours walk from the Woitape Patrol Post. On or about the 7th November, 1962, Manga struck his wife a severe blow in the left side with a piece of firewood causing a delayed rupture of the spleen which resulted in her death some four or five days later. The spleen was not of the rather abnormal large size found in many inhabitants of the Territory who have been exposed to prolonged malarial infection.

Several confessions were made by the Accused to different officers but Counsel for the Defence gave no indication at the commencement of the trial that the confessions would be challenged.

The Defence claimed that there was (a) no proof beyond reasonable doubt of a causal connection between the blow struck by Manga and the death of Silog and (b) that the death of Silog, even if caused by the blow, was an accident within the terms of Section 23 of the Criminal Code.

Section 23 of the Criminal Code reads as follows:

N2>“23.    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.

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.”

The Accused gave evidence on oath that he had struck his wife once only with a stick, and admitted that at the time he knew he had struck his wife in a “bad place”.

Held:

N1>(1)      That although great care is necessary because of the unexpected developments which can occur during the examination and cross-examination of Native witnesses, the normal procedure of an early intimation to the Court, by Counsel, to challenge a confession, should be adhered to.

N1>(2)      That proof beyond reasonable doubt of a causal connection between the blow and the death had been established.

N1>(3)      The word “event” in the phrase “or an event which occurs by accident”, means an incident or happening. Section 23 clearly distinguishes four subjects: (1) an act (or ommission); (2) an event; (3) a result; and (4) a motive. The term “event” should not be confused with a result. The unintended death of a person suffering from a peculiar latent weakness is not an event which occurs by accident where such death is caused by violence which could not have killed but for such weakness.

The second paragraph of Section 23 illustrates the application of this section to cases where the result intended is immaterial. Such is the position where there is unlawful killing. Regina v. Martyr[cxx]¹ followed. Decisions of Mann, C. J,. in Regina v. Diru[cxxi]² and Regina v. Gamumu[cxxii]³ considered but not followed.

N1>(4)      That although the Court was satisfied that the Accused was guilty of wilful murder, a verdict of unlawful killing could still be returned by virtue of the provisions of Sections 576 and 584 of the Criminal Code.

Counsel:

Germain, for the Defence, on accident.

Accidents in its general context implies a happening with no causal connection between any actor and that happening.

Section 23 of the Criminal Code only makes sense in referring if it to lack of criminal responsibilities for events occurring by accident impliedly contemplates the excuse applied to situations where there is some sort of causal connection, however remote, between an actor and a happening. Such an interpretation of Section 23 requires there to be some test which defines the degree of causal connection necessary before criminal responsibility arises. He referred to Humphries v. The King[cxxiii]⁴; Regina v. Callaghan[cxxiv]⁵; Vallance v. The Queen[cxxv]⁶; Regina v. Martyr[cxxvi]⁷; and two decisions of the Chief Justice in the Territory Regina v. Diru[cxxvii]⁸ and Regina v. Gamumu[cxxviii]⁹.

The decision of the High Court in Australia in Vallance v. The Queen[cxxix]¹⁰ should be preferred to the Queensland Supreme Court decision in the case of Regina v. Martyr[cxxx]¹¹ since the reasoning of the latter was not fully logical nor was reference made to the reasoning in Vallance’s Case[cxxxi]¹².

The happening of death was not reasonably foreseeable to the Accused and should therefore be held to be an accident. The Accused’s guilt should be considered only in relation to the residuary act of the blow struck.

On alternate findings:

The jury’s task is only to find whether or not in the light of the evidence some or all of the elements of the crime charged existed in fact. Wilful murder and murder require a finding as to the existence of certain intents, but this is not so in unlawful killing. Therefore, where the charge is one of manslaughter, it is not open to the jury to find that there was an intent to kill since it was not asked to do so within the terms of the indictment.

Dabb for Crown, on accident:

The defence of “accident” is not raised by facts in this case. The test of foreseeability suggested in Vallance v. The Queen[cxxxii]¹³ is not to be applied where the death was the direct result of an intentional assault by the Accused on the deceased. In Regina v. Martyr[cxxxiii]¹⁴, the Queensland Full Court decided that it was not a case of “accident” where, due to an inherent constitutional defect, death followed a deliberate striking. This is a far stronger case in that there is no evidence of a defect, and there is evidence that the blow was very severe.

JUDGMENT

OLLERENSHAW J:  The accused is charged under Section 303 of the Code that on or about the 7th day of November, 1962, he unlawfully killed his wife Silog, the daughter of Manum, that is to say that he killed her in such circumstances as not to constitute wilful murder or murder, but still unlawfully, and so committed the crime of manslaughter, for which he is liable under Section 310 to imprisonment with hard labour for life.

Mr. Dabb appears for the Crown and Mr. Germain for the Accused Manga.

The allegation of the Crown briefly is that Manga struck his wife a severe blow on her left side with a piece of firewood, thereby causing her a delayed rupture of her spleen from which she died some four or five days later.

The Accused and Silog lived at the Goilala Village of Visi some twelve hours walking distance from the Patrol Post of Woitape. He had a garden place called Hoi’i, some twenty minutes walk away from Visi and there he had two houses.

Some short time before the immediate incidents out of which the offence is alleged to have risen, Silog had deserted the Accused for another man, apparently not of Visi Village, with whom she lived as man and wife for some five days or so. This interlude in Silog’s life was interrupted when, at the request of the Accused, the Village Constable of Visi brought the man and Silog back to Visi, where, after a so-called Village Court was held, the man paid compensation to the Accused in bird feathers and Silog returned to him. This settlement occurred not more than a month and not less than five days before the parties left their home at Visi and took up residence at one of the houses of the Accused at his garden place of Hoi’i. His other wife, Kaga was living there in his other house. It was some two or three days after their arrival at Hoi’i that the Accused struck Silog with the piece of fire-wood, sometimes called a stick, which he took from a fire place, in, or associated with the house in which they were living.

The Crown depended for evidence of the striking of the blow by the Accused entirely upon a succession of admissions made by him shortly after the event to Sergeant Lowi, Cadet Patrol Officer David Jones Parker and Sub-Inspector of Police John Ernest Nystrom in that chronological order. These admissions also contain some evidence of the activities of Manga and his wife which led up to his striking her, and, of her condition thereafter, and also evidence of her death.

Sergeant Lowi, who saw Silog’s body before its burial, also gave evidence of a bruise he noticed on her left side, a “black” horizontal mark some 6 inches to 7 inches long and 2 1/2 inches to 3 inches wide on that part of her body which covers the area within which is the spleen and looking to him like a mark made by a piece of wood.

The body was exhumed during the investigation into the alleged offence and identified to Dr. Robert Arther Cooke, a Pathologist employed by the Administration. Dr. Cooke performed an autopsy and gave evidence in this trial of his examination of the body and his discovery of a tear in the capsule of Silog’s spleen. It was his opinion that death was due to a traumatic rupture of the spleen and that the tear, which led to the rupture, was made by a very severe blow, which could have been struck with a stick of the size described by the Accused in his admission to Mr. Parker.

Unlike the enlarged and friable spleens, liable to rupture from comparatively mild trauma, commonly found in native people of this Territory who have been exposed to repeated attacks of malaria, Silog’s spleen was quite small besides being protected to some extent by her ribs. It was for these reasons that the doctor considered that the blow in this case must have been severe. Dr. Cooke also considered that death some four or five days after the blow was quite consistent with his opinion and with what his examination revealed the actual rupture of the spleen being delayed until the blood from the initial damage, escaping within the capsule, at the iste of the trauma, indicated by the tear. This is the effect of Dr. Cooke’s evidence of the damage to and rupture of the spleen.

There is also the evidence of two fellow-villagers of the Accused, Village Councillor Kora, son of Manuma, who is a brother of Silog, and Aka, as to her condition before and after the blow was struck, her death and burial.

Two other villagers, Village Constable Penda and Kora, son of Unda, who gave evidence before the committing magistrate, were available at the trial and were not cross-examined by Mr. Germain.

The Accused, Manga, gave evidence in his own defence and Mr. Germain relied upon the following defences to the charge:

N2>(1)      That the Crown had not established the causal connection between the blow and the death, that is to say, had not established that the blow which the Accused struck Silog caused or accelerated (Section 296) her death; and

N2>(2)      That the Accused, when he struck the blow, did not intend to kill Silog but merely to chase her away from the home which they were occupying at the time; as her death was not only (a) unintended, but also (b) so remote, it was an “accident” within the meaning of that word in Section 23 of the Code, providing that: “. . . .a person is not criminally responsible for . . . an event which occurs by accident”.

Before coming to these defences I should refer to one other matter that has caused some confusion and delay in this trial. Mr. Germain, before any evidence was led for the Crown and at my invitation, indicated that the defences to the charge would be along the lines set out in (1) and (2) above. Although Mr. Dabb had opened that the only evidence of the blow available to the Crown was that contained in the Accused’s confessions, as must have been well known to Mr. Germain, Mr. Germain gave no indication that the voluntariness of these confessions would be contested, but indicated to the contrary by stating that he would have been content, had the law permitted, to have the issue of guilt determined upon the depositions. Nevertheless he cross-examined the Crown witnesses as to the circumstances of the confessions, getting odd bits of evidence with the apparent object of casting doubt upon their voluntariness. Mr. Dabb who, in the circumstances, had not led evidence in chief as to the voluntary nature of the confessions re-examined upon the question and the evidence then forthcoming put the odd statements obtained by Mr. Germain in their proper setting. After Mr. Germain had declined to have an issue of voluntaries decided upon a voire dire, I ruled that the evidence of the confessions was admissible. Mr. Germain had not expressly raised the issue of voluntariness, nor do I think that it was raised by the evidence elicited in cross-examination, particularly when this was explained by the evidence given in re-examination. However, this is, to my mind an entirely unsatisfactory procedure, if such it can be called, and upon my so stating Mr. Germain explained that, guided by his interpretation of one or two decisions given in this Court, he believed that, although he had not raised the issue, the onus was nevertheless upon the Crown to establish the voluntaries of a confession sought to be put in evidence even to the extent of excluding possibilities of threats, intimidation and so on.

In my understanding that is not the law. Of course, care must be exercised at all times in these trials of natives and there is always the possibility that something unexpected may emerge during a trial, something of such a quality as to cast real doubt upon the voluntariness of the confession, so that the issue will then be seen to arise. Where, however, it is Counsel’s intention to raise this issue, he should so state at an early stage and, unless it appears to be a mere fishing expedition, a voire dire should be entered upon, modifying or adapting that procedure by one or other of the two or three methods available to avoid the reception of evidence twice over in a trial by a judge without a jury. In this way, the issue will properly be determined more fairly to the Accused as well as to the Crown.

To return to the defences:

(1)        CAUSAL CONNECTION

Mr. Germain, while conceding that the connection between the blow and the death of Silog had been established upon a balance of probabilities maintained that it had not been proved beyond all reasonable doubt.

This contention rested mainly upon the Accused’s evidence that Silog was already sick at the time when he struck her and Dr. Cooke’s evidence to the effect that he had found pleural adhesions in Silog’s right lung, the residual adhesions of pneumonia from which Silog must have suffered at some time. The state of the decomposition of her body had made it impossible to determine by microscopic examination of tissue when it was that Silog had had pneumonia, whether recently before her death or at some earlier time in her past. The contention was that it had not been established beyond reasonable doubt that it was the rupture of her spleen and not pneumonia from which Silog had died. I am satisfied beyond reasonable doubt that, even if Silog did have pneumonia when the Accused struck her, the blow either killed her, “tipped the balance” to adopt the doctor’s phrase, or hastened her death, probably the former. However, to my mind, there is such a considerable preponderance of evidence and the probabilities arising from such evidence are so strong that I am satisfied beyond any real doubt that Silog was not suffering from pneumonia or any other sickness at the time she was struck by the Accused.

He did not mention such a sickness in either of the confessions to which I have referred, the burden of which is that he had, as he said to Sergeant Lowi, done wrong: “I killed my wife. I killed her with the end of a stick. I struck her once only and she died. It was an end piece of stick from the fire”. To each of Sergeant Lowi, Mr. Parker and Sub-Inspector Nystrom he mentioned her crying after the blow, saying to the sergeant: “She fell away crying, and later she died”.

There is the direct evidence of Village Councillor Kora, which in all the circumstances I have no hesitation in accepting although he is a brother of Silog, that he saw her on the day on which she went with the Accused from their home in Visi Village to the house at his garden place of Hoi’i: “On that day she was quite well. She was not sick at all.” This day, according to the Accused, was two or three days before the night on which he struck the blow and it is clear that it was but a short time before this assault, four or five days after which Silog died. Aka the other villager called by the Crown knew nothing of a sickness of Silog before the sickness, which followed the blow.

The Accused claimed in his evidence that the reason why Silog had returned to him from the other man was that she became sick while she was with this man. This, in my judgment, is not true. It is abundantly clear from the evidence that she came back because the Village Constable, at the request of the Accused, brought the other man and Silog back to the village of Visi, where the so-called court was held, held because the Accused did not wish to prosecute the adulterer, but did desire to obtain compensation from him. The Village Constable as well as the Councillor and, indeed, many other villagers must have seen Silog at this time. The Councillor and one villager, Aka, have given evidence and the Constable was available, but there was no evidence obtained from them of any sickness of Silog at this time or at any time before the blow was struck, nor was any other villager called to give such evidence, which must have been available from these witnesses and villagers if, in fact, Silog was sick at the time. As I have said there is the evidence of the Councillor that Silog was perfectly well when he saw her going to Hoi’i with Manga and this was within a few days before the blow and Aka said that he did not see her sick before it.

It is significant, to my mind, that it was some few days after the blow that Manga reported Silog’s ailing condition to the village officials, who thereupon attended ceremoniously at his home. He had not so reported an earlier sickness.

Furthermore, it came out in evidence from the Accused that Silog was eating regularly until a few days after the blow and that after it, but not before, she was bathed with hot water by Kaga, the Accused’s other wife whom he called Silog’s elder sister, obviously because she was in pain from the blow and the internal damage which it had done to her. The Accused said, too, that when Silog returned to him at Visi she worked for him and when asked why she did not do her usual weeding in his garden there he replied: “During that time she was sick or what?” When asked was it that she was sick or that she did not like having to come back to him he replied: “I don’t know”.

I am, therefore, fully satisfied that Silog was not sick at any material time before the blow and I think that it was the doctor’s discovery of the adhesions in her lung that led to, as an after-thought, this claim of a sickness preceding the blow.

It was also suggested by Mr. Germain that the Crown had not excluded the possibility that Silog who was described by her brother as “rather a strong woman”, as she appears to have been, died from some cause other than the rupture of her spleen, but I have no doubt in all the circumstances and upon the evidence and probabilities arising from the evidence that it was the blow that directly killed her in the manner which appears from evidence of Dr. Cooke, which I have recited earlier in this judgment.

(2)       ACCIDENT

The Accused said in evidence, in effect, that at night in their home at Hoi’i, some few days after they had taken up residence there on this occasion, he turned towards his wife and catching sight of her he became extremely angry because she had left him for another man and had become sick with him, which was the reason why she returned. Without speaking he struck her with the stick which he obtained from the fire and then sent her away to his other house at Hoi’i where lived his other wife, Kaga. His intention was not to kill her, but merely to chase her away. He hit her softly and sent her away. She did have a bruise, a small one, where he hit her and he said that: “She was complaining all the time that the place where the bruise was, was very sore”.

Mr. Germain asks me to accept this explanation of the admitted assault and to say that at the death being not only unintended but also such a remote consequence of the blow that it was an “accident” within the meaning of the provision in Section 23, which I have already cited. My answer to this is that upon my findings as to the cause of death no question of remoteness arises and that even if the Accused did not intend to kill his wife his crime would nevertheless be manslaughter. His was an unlawful assault on the body of Silog as a result of which she died: Vide Brennan v. The King[cxxxiv]¹⁵ per Starke J. at page 260, and, see also per Dixon and Evatt JJ (as they then were) at page 263 and compare a killing while intoxicated where intent to kill is not proved: Thomas v. The Queen[cxxxv]¹⁶.

In raising this question of “accident” Mr. Germain was by no means lacking in boldness, although his boldness was tempered by his attempt to add weight to the argument, to put it briefly, that an unintended death is an accident, by the introduction of an argument based on remoteness of consequence. He was bold because he has failed in previous trials to convince me that the offence is not manslaughter, provided that the intention of the Accused was not to kill, where death results from an unlawful assault, and, also because the members of the Queensland judiciary, who comprised the Full Court which decided the case of Regina v. Martyr[cxxxvi]¹⁷ seem to have withdrawn some of the support for his argument which he had previously obtained from decisions of Judges in that State.

Mr. Germain frankly referred me to this decision and made the report of it available to me. It appears that the deceased in that case, who was the victim of the Accused’s violence to his person, suffered from some latent physical defect or weakness of which the Accused was unaware and that his violence, which was not intended to kill, would not have killed his victim but for this particular weakness in his body. The Full Court of Queensland (Mansfield C. J., Philp S. P. J., and Townley J.) decided that the offence was manslaughter, a decision with which I would, with respect, agree. Such was the law under the Code as applied in my experience by judges of the Supreme Court of the Territory of New Guinea, the most common case being death from a ruptured spleen, often caused by comparatively minor violence delivered without any intention to kill, caused because the victim was peculiarly vulnerable in that his spleen had been grossly enlarged to a state of friability by repeated attacks of malaria.

The death of Silog was not such a death, hers was a normal, even a small spleen and she died because it ruptured from a blow, which I have found upon the evidence was a very severe blow. The Accused intended to strike his wife and this, to my mind, is manslaughter whether or not he intended to kill her. Accepting, as I do, the decision of Regina v. Martyr (supra) this is an a fortiori case.

If I may make a contribution to this vexed question of “accident” in relation to the crime of manslaughter, I would suggest that it is wrong to regard “event” in the phrase “. . . . an event which occurs by accident” as meaning a result such as a death which results from an assault. I think that “event” in this context means an incident or happening, an incident that may have, nevertheless, a number of ingredients. It is used, I consider, in the sense which one uses it in the phrase an “event in his life”. I trust I do not oversimplify the problem-although I feel that I do no more than heed the warnings against approaching the construction of the Code with any presumption as to its intention in relation to the law as it was before its enactment - when I say that to my mind Section 23 clearly distinguishes between four subjects:

N2>(1)      An act (or omission);

N2>(2)      An event, that is an incident or happening;

N2>(3)      A result; and

N2>(4)      A motive.

As I have said, I think that it is wrong to confuse “an event” with “a result” and so argue that the unintended death of a person suffering from a peculiar latent weakness, a death caused by violence which would not have killed but for such weakness, is an event which occurs by accident. When the Code means “a result” it says so by simply using that word “result” as it does in the second paragraph of Section 23 and elsewhere, as e.g., in Sections 28 and 579. So too, the Code is not lacking in the use of the word “consequence”.

I consider that my interpretation of the phrase: “.... an event which occurs by accident” in Section 23 is contributed to and fortified in its application to the crime of manslaughter by the provision which follows it in the second paragraph of Section 23 in these words:

“Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.”

Where there is an intention to cause death the offence of unlawful killing is wilful murder under Section 301 and where there is an intention to do grievous bodily harm (inter alia) it is murder under Section 302. Where the circumstances of the unlawful killing do not constitute wilful murder or murder the offence is manslaughter. Intention to cause death is not expressly declared to be an element of this kind of unlawful killing, manslaughter, and, applying the provision in the second paragraph of Section 23, which I have cited, the result intended is immaterial. It is immaterial whether the Accused did or did not intend to cause death. I cannot think that a phrase in the first paragraph of Section 23 should be given a meaning so directly opposed to the clearly expressed provision in its second paragraph as to render it nugatory in the case of manslaughter. I do not think that any question of subjective forseeability should be allowed to intrude to disturb this, to my mind, clear construction of Section 23. I think that the Code, itself, reflects the notion involved in what was said by Starke J. in his judgment in Brennan v. The Queen[cxxxvii]¹⁸ (supra) at page 261:

“Now if a person commits manslaughter who brings about the death of another by some unlawful act, then it must be taken, I think, that death is treated in law as not improbable consequence of such an act, either because of the definition of the crime or because experience has established that such a result ought to be foreseen and expected.”

The construction, which I favour, does help, at least, to avoid such a straining of the meaning of language as is involved in the strange notion that a death, the result of deliberate violence delivered to a person’s body, strong and healthly or latently weak, may be a death which occurs by accident, an accidental death.

What then, it may be asked, is “. . . . an event which occurs by accident”?

I would say, e.g., that if a man, having missed his wife at an appointed meeting place in a city street, saw her, while rewarding his patience in, say, a milk-bar, saw her about to board a bus and thereupon, rushing out of the milk-bar across the footpath to intercept her or attract her attention, ran into, knocked down and so killed a frail old lady, this incident or happening-the knocking down, while hurrying across the footpath, the old lady and killing her-would be an event which occurs by accident, subject to what I have to say about negligence. So, too, if a motorist ran down and killed a boy, who dropped from the back of a lorry travelling in the opposite direction and ran across the motorist’s path as the vehicles were about to pass.

I think that it would be necessary to consider whether the person who, in the first case, rushed across the city footpath, and in the other, drove the motor car was guilty of negligence in the criminal sense and here I think that the question of foreseeability does arise.

There is no provision in the Code expressly dealing with negligent conduct except in the case of persons doing dangerous acts, Section 288, which does not apply to my first example and in the case of persons in charge of dangerous things, Section 289, which does not seem to apply to my second example. It is, however, contrary to the sense which the word “accident” bears in legal parlance to regard an event as an accident, where negligence, particularly criminal negligence obtains materially.

I should mention that Mr. Germain also referred me to the judgments of my Brother the Chief Justice in: The Queen v. Diru[cxxxviii]¹⁹ (26th May, 1960) and The Queen v. Gamumu[cxxxix]²⁰ (6th June, (1960) as supporting his argument as to the meaning and application in manslaughter of the phrase: “.... an event which occurs by accident.” Insofar as His Honour did mean to hold in those cases that the crime is not manslaughter where an unintended death results from violence deliberately offered to the body of the victim, I must, with respect, express my disagreement. If this were a question about which I felt doubt I would gladly accept those decisions as a matter of comity. My convictions, be they right or wrong, prevent my doing so.

I should also say in concluding my present reference to Section 23 that, like the judges of the Full Court of Queensland, who were parties to the decision in Regina v. Martyr (supra) I do not find anything in the judgments delivered in the High Court of Australia in the case of Vallance v. The Queen[cxl]²¹ which requires of me or guides me to a construction of Section 23 that would excuse the killing (Section 293) of Silog which I therefore hold to be unlawful (Section 291), and, even if I were prepared to accept in full the evidence of the Accused, I would find him guilty of manslaughter (Section 303).

However, the conclusion to which I have come is that when he struck his wife he did intend to kill her.

I was not at all impressed by his demeanor in the witness box, where he hedged in his evidence to a not inconsiderable extent. I do consider that this may have been due, in some measure, to his invention of the story of Silog’s sickness at the time he hit her, but I consider that it was deeper than this in the sense that he had a moral awareness of the extent of his guilt.

I am not concerned with the reason why he hit his wife; it is not improbable that he did so not merely because she had deserted him for another man but because upon her return to him she showed herself to be recalcitrant, unsatisfied with her resumption of life with him and looking back to the short time she had spent with the other man as his wife.

It is abundantly clear to my mind that the blow he dealt Silog was aimed at the spot, exterior to the spleen, so vital in the case of many natives with enlarged spleens. The question arose in my mind: Did he know the significance of a blow at that part of the body?

It is part of the knowledge that I bring to bear as a jury in this case that such a blow may well be fatal, even if not delivered with severity, in the case of an enlarged spleen. It is also part of such knowledge that some native people know of this. It is obvious that some must have learnt it from their own observation or had it passed on to them in a land where deaths have occurred over many generations from comparatively minor violence bearing upon the spleen. I do not think that all adult native people must be taken to be aware of the danger of violence to the spleen. I think that some are but I do not know what proportion of the population they represent. In this view I am fortified by the evidence given in a trial before me by Mr. Clezy F.R.C.S., Surgeon at Nonga Base Hospital, Rabaul, who expressed opinions conforming with what I have said. In this trial, however, it is clear to me that Manga knew of the danger and that he deliberately struck his wife a severe blow aimed at that very part of her body where violence would bear directly upon her spleen. His attempts to suggest that the actual hitting of Silog in the place which he did hit her was not the result of an aimed blow are entirely unconvincing and serve to emphasise his knowledge of the danger of violence to such a part of a person’s body.

In answer to my question: “Do you know that if you strike a person a blow in the place where you struck your wife that person is likely to die?” he replied: “I thought it to be a bad place to hit my wife, in which case I hit her softly” and, after an interval of other questions this question was put to him: “Why did you think that this was a bad place to hit your wife in?” to which he replied: “Yes, I knew it to be a bad place, yes”.

This is the main, but by no means the only reason, which compels me to the conclusion that Manga struck his wife to kill her. In the circumstance that he is charged with manslaughter and not wilful murder it is unnecessary for me to say any more about my conclusion that it is a case of wilful murder. It may well be that, as he says, he was very angry, and, he may have had some cause for anger, but this is no excuse in law.

Nothwithstanding my conclusion of wilful murder I find a verdict of guilty of manslaughter as charged in the indictment, Sections 576 and 584 of the Code anticipating and completely providing for such a situation.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the Defence: W. A. Lalor, Public Solicitor.

R>

[cxx]1962 Qd. R. 398.

[cxxi]1963 P. & N.G.L.R. p. 116.

[cxxii]1963 P. & N.G.L.R. .p 1.

[cxxiii]1943 Q.J.P.R. 92.

[cxxiv]1942 St. R.Qd. 40.

[cxxv]35 A.L.J.R. 182.

[cxxvi]1962 Qd.R. 398.

[cxxvii]1963 P. & N.G.L.R. p. 114.

[cxxviii]1963 P. & N.G.L.R. .p 1.

[cxxix]35 A.L.J.R. 182.

[cxxx]1962 Qd.R. 398.

[cxxxi]35 A.L.J.R. 182.

[cxxxii]35 A.L.J.R. 182.

[cxxxiii]1962 Qd.R. 398.

[cxxxiv][1936] HCA 24; 55 C.L.R. 253 at pp. 260, 263.

[cxxxv]102 C.L.R. 584.

[cxxxvi]1962 Qd.R. 398.

[cxxxvii][1936] HCA 24; 55 C.L.R. 253 at page 261.

[cxxxviii]1963 P. & N.G.L.R. p. 116.

[cxxxix]1963 P. & N.G.L.R. p. 1.

[cxl][1961] HCA 42; 35 A.L.J.R. 182.