Regina v Kampangio [1970] PGLawRp 2; [1969-70] PNGLR 218 (1 June 1970)

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CRIMINAL LAW - Murder - Manslaughter - Appeal - Circumstances in which verdict of trial judge should be set aside - Self-defence - Killing in the course of apprehending a thief - Application under The Criminal Code of “doctrine of excessive force” - The Criminal Code, ss. 245,[cclxxiii]¹ 254,[cclxxiv]² 257,[cclxxv]³ 271,[cclxxvi]⁴ 549,[cclxxvii]⁵ 552[cclxxviii]⁶ - Supreme Court (Full Court) Ordinance 1968, s. 28.[cclxxix]⁷

K. had been convicted of the murder of T. The killing occurred at night on a cocoa plantation where K. was employed. K. and other employees of the plantation had been told by the plantation manager that “if they saw anyone stealing, then catch them . . . grab him and bring him to the police station”. On the night of the killing, K. discovered T. in the act of stealing cocoa pods. As K. approached T., T., who had a bush knife in his hand, flashed a torch in K.’s eyes. Thereupon K., from a distance of twenty-five feet, threw his spear into T.’s chest and killed him.

N1>(1) The action of the deceased did not constitute an assault within the meaning of s. 245 of The Criminal Code, and did not justify an act of self-defence under s. 271.

N1>(2) (Minogue A.C.J. and Frost J., Prentice J. dissenting) That a verdict of manslaughter must be substituted. Although the inference drawn by the trial judge that, in throwing the spear, K. did intend to cause bodily injury of such a nature as to endanger life was open; it was unsafe to attribute to him such an intention as it was just as likely that he threw the spear instinctively with merely a general intention to hurt or disable. The Full Court should allow an appeal where it thinks the verdict should be set aside on the ground that it is unsafe or unsatisfactory, from which it follows that the verdict ought to be set aside where the Full Court has a lurking doubt about the matter which makes it wonder whether an injustice has been done.

Dictum of Widgery L.J. in Reg. v. Cooper (Sean), [1969] 1 Q.B. 267, at p. 271, applied.

Per Prentice J. The Criminal Code intends to cover the field in relation to the defences available to charges of murder. Therefore the common-law “doctrine of excessive force” may not be used in New Guinea to reduce a charge of murder to manslaughter.

Opinion expressed by Minogue A.C.J. and Frost J. that K.’s killing was not excused or justified by the powers of arrest under The Criminal Code, ss. 254, 257, 549 and 552.

Andreas Kampangio, having been convicted of murder by the Supreme Court of the Territory of Papua and New Guinea on 20th August, 1969 at Rabaul, and sentenced to three years’ imprisonment, appealed against his conviction. The following statement of the facts is taken from the joint judgment of Minogue A.C.J. and Frost J.: The appellant was a grass cutter employed on a plantation in the Gazelle Peninsula. There had been heavy thefts of cocoa beans from the plantation and one Wlodarzak, the plantation manager, had instructed the employees that “if they saw anyone stealing, then catch them . . . grab him and bring him to the police station”. It was not disputed that the appellant had, on the night of 2nd May, 1969, gone into the plantation and, seeing the deceased standing with a torch in his hand in the vicinity of a cocoa tree, had killed him by throwing an iron-tipped spear which struck him in the chest, entering the heart.

The only evidence of the incident consisted of statements made by the appellant to Wlodarzak on 3rd May, 1969 and later on the same day to Inspector Briancourt of the Royal Papua and New Guinea Constabulary. According to Wlodarzak’s evidence the accused said that he went through the plantation during the night and saw a light shining and went to investigate. He said he was near where the light was and he saw a man cutting cocoa from the trees. He went nearer then and the man blinded him with the torch and after this he threw the spear. He said: “Master, this man flashed a torch in my eye and I then threw the spear at him.” He went on to say that the man ran off and he ran after him but he did not catch him. To Inspector Briancourt the accused said: “This man I found him about midnight last night. I was walking around the plantation to find who was stealing cocoa. Cocoa had been stolen previously. I heard a noise coming up in the cocoa and I saw a torch at the bottom of a cocoa tree. I stood up when I saw the torch, I did not see anything as it was the middle of the night and I was frightened . . . I threw my spear at him. I saw the spear go inside his chest and he sang out ‘Ah’. The torch went out, he ran away. When I threw the spear at him, this man was close to me (indicating a distance of fifteen to eighteen feet). No cocoa tree between the two of us. I saw my spear fall down. I was frightened, I went to my house. . . . Later on I think he was breaking the law. I found him stealing at midnight and I didn’t talk to him. I speared him with my spear.” Inspector Briancourt then asked the accused: “When you first saw him in the cocoa, was he holding something in his hand?” The accused answered: “Yes, a torch and a bush knife.” Inspector Briancourt said: “Did he do something or start to come towards you?” The accused answered: “No, he was only standing up.” The accused also said that the deceased was wearing only trousers and he was asked “How could you see him?” He said: “It was quite dark in the cocoa, but he had a torch and the moon was large.” He had not known the deceased before. Later, when Inspector Briancourt took the appellant to the scene of the crime, the appellant indicated where he stood and where the deceased stood, and the distance as measured by Inspector Briancourt was twenty-five feet.

Two witnesses were called on behalf of the appellant who gave evidence as to the spear used by the appellant, the only materiality of which appears to be that the appellant and the people in the area from which he came were not spear users, from which it might be inferred that the appellant was not familiar with either the handling or the death-dealing characteristics of a spear. However, we regard this evidence as but of minimal weight. The appellant himself did not give evidence.

At the trial the appellant’s counsel, relying on Reg. v. McKay[cclxxx]⁸, submitted that the use of the spear was lawful because the appellant was in the act of apprehending a thief upon his master’s property which the appellant was thus entitled to protect. He also relied on the provisions of ss. 549 and 254 of The Criminal Code. If either submission had succeeded, the appellant would have been entitled to an acquittal. The only other defence relied upon at the trial was that the evidence was insufficient to establish beyond reasonable doubt that the appellant intended to cause grievous bodily harm, and the verdict should thus be one of manslaughter.

Although the appellant’s counsel did not raise the defence of self-defence, his Honour considered it but said he could see nothing in the evidence to uphold it. He then went on to hold that the common law principles laid down in Reg. v. McKay[cclxxxi]⁹ were not applicable under The Criminal Code, that ss. 549 and 254 of The Criminal Code did not avail the appellant, and being satisfied beyond reasonable doubt that the appellant intended to inflict grievous bodily harm, convicted him of murder.

The first ground of appeal relied upon before this Court was that the learned trial judge was wrong in holding that there was no evidence of self-defence or, as it was also put, failing to consider the defence of self-defence against an unprovoked assault. It was said in amplification, by counsel for the appellant, that his Honour should not have been satisfied that the killing was not justified or excused and therefore the accused was entitled to an acquittal. Section 291 of The Criminal Code provides that it is unlawful to kill any person unless such killing is authorized or justified or excused by law. This Court entertained this ground although the defence was not raised in the Court below. The law applicable is to be found in s. 271 of The Criminal Code as follows:

“Self-defence against Unprovoked Assault. When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

“If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”

It is plain that the only provision which could avail the appellant is that contained in the second paragraph of s. 271. Mr. Luke submitted that the action of the deceased in flashing the torch in the appellant’s eyes was an application of light in such a degree as to cause personal discomfort and thus an assault within the meaning of s. 245 of the Code, and we suppose it is some evidence of an assault also as being a bodily act whereby the deceased, armed with a bush knife to effect his purpose, threatened to apply force towards the appellant within the meaning of that section. However, on the facts of this case, the appellant was not otherwise threatened and the deceased made no move in his direction. There was no evidence of any case of violence being offered by marauders in the past. There was no particular significance in the deceased being armed with a bush knife which it is customary for men to carry on plantations and which was also apt for his purpose of stealing cocoa. The deceased did not raise the knife or make any move to use it as a weapon. Indeed, the appellant said he was only standing up. The appellant did not first identify himself or make any move to apprehend the deceased. Upon these facts, we consider that his Honour was right in brushing aside any suggestion of self-defence. If the deceased’s actions could be construed as an assault, which in our view they could not, they were plainly not such as to cause reasonable apprehension of death or grievous bodily harm, nor was there any room for reasonable doubt that the appellant believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm. The fact that the appellant said he was frightened does not affect our conclusion. In our judgment, in all the circumstances of the case, the appellant was not justified and could not reasonably have thought that to preserve himself from harm it was necessary to throw a spear with the risk of fatal injury to the deceased. Accordingly, forming our own conclusion upon the evidence we are satisfied beyond reasonable doubt that the appellant was not acting in self-defence. See Smith v. The Queen[cclxxxii]¹⁰ per Webb J.

The next ground of appeal to which we turn was that his Honour was wrong in drawing an inference that the appellant intended to do the deceased some grievous bodily harm and in thereby concluding that the killing constituted the crime of murder. This inference was of course open on the facts, being an inference that the appellant intended the natural and probable consequence of his action in throwing the spear at the deceased. Mr. Luke submitted that the verdict was, under all the circumstances of the case, unsafe or unsatisfactory and pursuant to s. 28 of the Supreme Court (Full Court) Ordinance it should accordingly be set aside. Although in the Territory there is no trial by jury in criminal cases, the Territory section is in the same terms as the English Criminal Appeal Act, 1968, s. 2(1), from which it is taken. In Reg. v. Cooper (Sean)[cclxxxiii]¹¹ Widgery L.J., giving the judgment of the Court of Appeal, referred to the previous legislation under which he said it was almost unheard of for the Court of Appeal to interfere with a jury verdict after a proper trial. He then said[cclxxxiv]¹²:

“However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it.”

In our judgment the absence of trial by jury in the Territory should not prevent this Court from applying the same test under the Territory Ordinance. (See also Reg. v. Himson Mulas[cclxxxv]¹³.)

His Honour referred in his reasons for judgment to the learned prosecutor’s submission that the appellant, knowing that once he threw his spear he would be left without a weapon, wanted to be sure that when he threw the spear it would inflict grievous bodily harm by disabling the man he thought was stealing cocoa, that is “to get him”. His Honour also said that he did not conclude upon the evidence that the appellant intended only to “mark the man—his instructions were to get the man and take him to the police . . .”. The submission thus under consideration was that it was open on the evidence to find that the appellant’s intention was to disable the deceased, but of course an intention merely to hurt or inflict injury of less seriousness than grievous bodily harm was consistent with this intention. Our first impression when we read the evidence was that it was doubtful that the accused did have an intention to inflict injury as serious as grievous bodily harm. He did not know the deceased, he had no previous motive to injure him and no grudge against him, his instructions involved taking the intruder to the police, he acted on the spur of the moment immediately after he had seen the appellant and the appellant had flashed a torch in his eyes. We must say that our first impressions have not left us and we still have “some lurking doubt” in our minds which makes us wonder whether it would be proper for the verdict of murder to stand. As we have said, it was open for his Honour to draw the inference that in throwing the iron spear at the deceased the appellant did intend to cause bodily injury of such a nature as to endanger life, but on the facts of this case we consider it unsafe to attribute to him such an intention for it was just as likely that he threw the spear instinctively with merely a general intention to hurt or disable. In our opinion therefore the verdict should be set aside and a verdict of manslaughter substituted.

Counsel for the appellant also argued in effect that the killing could be justified under the powers of arrest for felony at common law and that the learned trial judge was wrong in rejecting such a defence. The common law was stated as follows by the Full Court of Victoria in Reg. v. Turner[cclxxxvi]¹⁴:

“When a felony is committed in the presence of a member of the public, he may use reasonable force to apprehend the offender or for the prevention of the felony. What is reasonable depends upon two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (i.e. the commission of the felony or the escape of the felon). See Reg. v. McKay[cclxxxvii]¹⁵.”

This involves the far-reaching question upon which this Court had the assistance of full and able argument by both counsel, whether there are certain principles of the common law which are applicable to the Territory consistently with the provisions of The Criminal Code. However, upon the facts of this case we consider it unnecessary to decide such question for, even if those principles were applicable, as we understand the common law if the occasion warrants action for the prevention of felony or the apprehension of a felon but the person taking action acts beyond the necessity of the occasion and kills the offender the crime is manslaughter and not murder, and we are clearly of the view that the appellant acted beyond the necessity of the occasion and a reasonable man in his position would have considered that what he did was out of proportion to the mischief to be prevented. Consequently, the most he could expect was a verdict of manslaughter and not murder which we have already decided should be the proper verdict.

Although we did not understand Mr. Luke to rely strongly on the related ground whether the killing was excused or justified by the powers of arrest conferred by the Code we feel it desirable to express our views on his submission that it was. On the facts of this case the Crown has not excluded that the appellant was entitled to rely on s. 549 of the Code which provides that it is lawful for any person who finds another person by night committing any indictable offence to arrest him without warrant. It is then his duty pursuant to s. 552 of the Code to take the offender forthwith before a justice to be dealt with according to law. The other relevant sections are ss. 254 and 257. Section 254 provides that it is lawful for a person who is engaged, inter alia, in making any arrest to use such force as may be reasonably necessary to overcome any force used in resisting such arrest. Section 257 provides that when a person who is not a police officer is proceeding lawfully to arrest, inter alia, without warrant, another person for an offence which is such that the offender may be arrested without warrant, and the person so to be arrested takes to flight in order to avoid arrest, it is lawful for the person seeking to arrest him to use such force as may be reasonably necessary to prevent his escape, but the section specifically provides that it does not authorize the use of force which is intended or is likely to cause death or grievous bodily harm.

It is to be noted that s. 549 makes no reference to the use of any permissible degree of force. In Reg. v. Turner[cclxxxviii]¹⁶ a similar provision was considered in the Victorian Crimes Act 1958, s. 459, although the words used are perhaps not as strong as those of ss. 549 and 552 of The Criminal Code. The Full Court held that the words of the Victorian section connoted the use of force if necessary to effectuate the power of arrest conferred, but only such force as is reasonably necessary. Whether s. 549 is to be given the same meaning is again a matter which we consider we should not decide because, for the reasons we have given, excessive force was used.

In our opinion also, Mr. Waight was correct in submitting that neither s. 254 nor s. 257 was applicable. There is no evidence either that the deceased resisted arrest or took to flight in order to avoid arrest.

As to sentence we have had the advantage of reading the judgment about to be delivered by our brother Prentice and we agree with his observations on this matter. In addition, as we have concluded that the crime of which the appellant should be convicted is the less grave one of manslaughter and that he should not have the intent to do grievous bodily harm ascribed to him, we think that justice will be served by substituting a sentence of two years’ imprisonment for that of three years.

We would therefore substitute for the verdict of murder a verdict of guilty of manslaughter and pass a sentence of two years’ imprisonment with hard labour in substitution for that passed by the learned trial judge.

PRENTICE J: On or about the 2nd May, 1969 the appellant undoubtedly killed one Anton Tomakange by piercing his heart with an approximately eight foot long spear. Being aware of thefts from his employer’s cocoa plantation and after the employees had received injunctions to try to catch the thieves, the appellant on a moonlit night, attracted by a light in the trees, approached the deceased who was in the act of stealing cocoa pods from the trees in the plantation. The appellant could see that the deceased had a torch and a bush knife. The appellant went near and when the deceased swung his torch towards him, threw his spear and hit the deceased in the mid-chest from a distance which the appellant indicated at the police station to have been about eighteen to twenty feet, but which he later indicated on the actual ground to have been a distance which was measured at twenty-five feet. When asked “did he (the deceased) do something or start to come towards you?”, the appellant answered “no, he was only standing up”. The deceased ran away, the spear dropped out and he fell and died some distance away from the scene. The learned trial judge brought in a finding of murder and imposed a sentence of three years’ imprisonment with hard labour.

The appellant claims the sentence to have been excessive in the circumstances. In addition he relies on grounds of appeal which are grouped in such a way as to appear confusing; but which appear to fall into three categories. Firstly, the appellant says that the evidence discloses the facts which indicate that he was at the time of the undoubted killing, acting properly and proportionately in self-defence, and that he was entitled to an acquittal. Secondly, the appellant claims that the verdict should have been one of manslaughter rather than murder. This appears to be put in two ways. A. The appellant says that the facts indicate that he was (i) acting in self-defence, and (ii) in the attempted apprehension of a person committing a felony, and (iii) in the defence of (his master’s) property; and that even if in so doing he is to be held to have used excessive force in the circumstances, that the verdict should have been one of manslaughter rather than one of murder. B. He then says that in addition to the inference that he intended when throwing the spear to do grievous bodily harm, it is equally open to be inferred that he acted without such intention and therefore the same reduction of verdict to manslaughter should occur.

Mr. Ley, the appellant’s counsel, at the trial did not raise the question of self-defence as appears from his Honour’s remarks at p. 18 of the appeal book. It is perhaps unusual that a point not argued at the trial should be made the centre round which the main grounds of appeal revolve. But it may be that a court of criminal appeal, in a matter coming on appeal from a judge sitting without a jury, should not be astute to shut out submissions on a point which may have been allowed to go by default in the trial. This Court has made no demur to the point being argued.

As I understand the appellant’s counsel’s contention on this ground, it is said that the appellant was an uneducated grass cutter, that stealing in his master’s plantation had been rife, that the employees had been instructed to catch the thieves, that men in that area normally carry bush knives (some kind of machete), that the deceased was at night seen to be so equipped and to be engaged in stealing cocoa, that the deceased was “close to” the appellant and shone a torch on him “blinding” him, (the actual Pidgin words were translated as meaning “this man flashed a torch in my eye”), and that the appellant was frightened. It was submitted that the “blinding” by the torchlight amounted to an assault in that it was an application of light within the meaning of s. 245 of the New Guinea Code, which in defining “assault” gives an amplification of the words “applies force”. I form the conclusion that the momentary shining of the torch on the appellant by the deceased as the latter was interrupted in his act of larceny was not an application of light in such a degree “as to cause injury or personal discomfort” and therefore to amount to an application of force. The accused stated in two places in the transcript that he was frightened. In the second of these (p. 10 of the appeal book) the evidence suggests that his fright may have been occasioned by the fact that he himself had thrown a spear which he thought to have struck the deceased. No suggestion appears to have been made by counsel at the trial and none was made at the appeal, that the appellant might have anticipated that the bush knife might be thrown at him by the deceased. The appellant gave no evidence and made no statement at the trial as to his fear and the learned trial judge found himself unable to conclude whether the appellant had in fact been frightened. For myself I am unable to find any material in the facts relied on in this ground of appeal to raise a doubt in my mind that would entitle the accused to an acquittal on the score of self-defence. In any event, s. 271 which makes provision for the defence of “self-defence”, on the one hand expressly excepts the use of force unless “the force is not intended and is not such as is likely to cause death or grievous bodily harm”; and on the other permits the use of necessary force that may cause death or grievous bodily harm where there is a reasonable apprehension of death or grievous bodily harm to the person assailed and where he on reasonable grounds believes that he cannot otherwise preserve himself. Clearly the force used by the appellant was such as was likely to cause death or grievous bodily harm and the facts do not raise a reasonable apprehension in terms of the second paragraph of the section.

In his advocacy that the correct verdict in the circumstances should have been one of manslaughter rather than of murder, appellant’s counsel relies upon the availability in the Territory of New Guinea (though not of Papua, because of s. 4 of the Criminal Code Ordinance 1962 of that Territory) of certain qualified defences available at common law for the purpose of reducing a charge of murder to manslaughter—such defences being referred to in the extensive literature on the subject, most of which in the various learned reviews seems to have been cited to the Court, as “the doctrine of excessive force”.

The correct formulation of these defences is said to depend upon whether the Court is to apply the common law as laid down in the cases prior to May 1921 (the date appointed in the Laws Repeal and Adopting Ordinance 1921, s. 16), or as laid down in more modern cases such as Reg. v. McKay[cclxxxix]¹⁷. Counsel expended much research and ingenuity in the citation of very many cases towards a decision of this difficult point, but in the view I take of the effect of The Criminal Code in force in the Territory of New Guinea I find it unnecessary to make a decision in regard thereto.

The question of whether such defences, however they may be formulated, are available in the Territory of New Guinea, depends upon whether they can be said to have been imported by virtue of s. 16 of the last-mentioned Ordinance—there being no equivalent in New Guinea to s. 4 of the Papuan Criminal Code Ordinance of 1902, which is said to exclude such considerations as to the criminal law of Papua. Section 16 enacts that:

“The principles and rules of common law and equity that were in force in England on the ninth day of May, One thousand nine hundred and twenty-one, shall be in force in the Territory [of New Guinea] so far as the same are applicable to the circumstances of the Territory, and are not repugnant to or inconsistent with the provisions of any Act. . . .”

Appellant’s counsel submitted that where The Criminal Code, as adopted in New Guinea from Queensland, fails to provide for a common-law defence to a particular “Code crime”, then unless that defence is expressly negatived, an accused in New Guinea is entitled to rely upon it. In fact the Code, as imported, failed to adopt the defences argued for, and failed expressly to negative them. A decision of Mann C.J. (unreported) in Reg. v. Elder at Kainantu on 15th March, 1962 to the effect that the common law as to insurrection, though not dealt with in the Code, was applicable to the Territory; and a decision of the High Court, Williams and Webb JJ. (McTiernan J. dissenting), as to the law relating to confessions in Smith v. The Queen[ccxc]¹⁸ were pointed to as cases where some of the content of the common law was held to be applicable to New Guinea and as showing that The Criminal Code of New Guinea did not purport in all its aspects to “cover the field”. The reason for judgment given by Windeyer J. in Timbu Kolian v. The Queen[ccxci]¹⁹, additional to the reasons relied on by the other members of the Court, was the principal matter urged in the appellant’s support of this branch of the argument. Appellant’s counsel submitted that the common-law “doctrine of excessive force” as examined in McKay’s case and Reg. v. Howe[ccxcii]²⁰—though the latter has been held inapplicable in Queensland (Reg. v. Johnson[ccxciii]²¹ ) and in Tasmania (Masnec v. The Queen[ccxciv]²² )—is applicable in New Guinea. He necessarily contends that the doctrine is neither inconsistent with nor repugnant to the Code. But he concluded that the formulation of the defence should be that as set out in the earlier cases up until 1921 and not in the restricted form set out in the Australian cases decided since 1921 such as Reg. v. Howe[ccxcv]²³, Reg. v. McKay[ccxcvi]²⁴ and Reg. v. Enright[ccxcvii]²⁵. He then cited a series of cases which were said to embody the earlier attitude which more readily applied the “doctrine of excessive force” in circumstances involving resistance to wrongful arrest, defence of property and the like.

Counsel for the Crown urged a great number of reasons why the doctrine of excessive force should not be found to apply in New Guinea, reasons which were based upon its alleged repugnancy to the Code provisions in that the doctrine was founded upon concepts of “manslaughter by unlawful act” and “negation of malice aforethought”; and contended that, in any event, if the doctrine were applicable it could only be so where at least the infliction of grievous bodily harm upon the accused was reasonably thought to be imminent.

For this purpose he contended that Howe’s case is to be read in the light of the explanations thereof in Reg. v. Tikos [No. 2][ccxcviii]²⁶, Reg. v. Enright[ccxcix]²⁷ and Reg. v. McNamara[ccc]²⁸. Inasmuch as the doctrine of excessive force is to be applied in cases of self-defence only where the accused reasonably believed himself to be facing the possibility of grievous bodily harm, he submits that in the use of excessive force in the other three contemplated instances, defence of property, arrest and prevention of felony, there should be a similar restriction to situations where grievous bodily harm is anticipated (cf. the article by Dr. Howard, 84 Law Quarterly Review 344).

In Masnec’s case the Tasmanian Court of Criminal Appeal came to the conclusion “as a matter of construction, reinforced by historical considerations drawn from the antecedents of the Code, that to imply such a doctrine [that of ‘excessive force’] would be to contradict express provisions in the general field of criminal responsibility as well as specific provision in relation to mens rea in murder”[ccci]²⁹. It seems an extraordinary result if New Guinea is to be put on a higher level than Tasmania in the matter of implication into its code of common-law doctrine when Tasmania, the criminal code of which State specifically incorporates a saving as to common-law provisions where not inconsistent, excludes it. In this connexion it is interesting to note the opinion of Philp J. expressed in an article in Vol. 1, University of Queensland Law Journal that the doctrine of excessive force so far as it is an excusatory doctrine would seem to involve the doctrine of mens rea.

With the greatest respect for the reasons to the contrary set out by Windeyer J. in Timbu Kolian’s case, which his Honour acknowledges not to have been accepted by others, I find myself satisfied that the Code intends to cover the field in relation to the defences available to charges of murder—a view adopted by Clarkson J. of this Court in the case of Reg. v. Yambiwato & Apibo[cccii]³⁰. In coming to this conclusion I have had regard to the well-known pronouncement of Lord Herschell as to the approach to a statute intended to embody in a code a particular branch of law, set out in Bank of England v. Vagliano Brothers[ccciii]³¹. By the inclusion of the phrase “except as hereinafter set forth . . .” in ss. 293, 301 and 302 the intention of the code-makers would appear to be expressed, that with the exceptions of provisions such as ss. 23, 24 and 25 which relate to all offences under the Code, the exculpatory provisions special to wilful murder and murder are to be found in those sections following s. 292 and in those sections only (in effect s. 304). As to those matters other than self-defence which are said to attract the “doctrine of excessive force” namely (a) the protection of property, (b) the prevention of the commission of a felony and (c) the arrest of a felonious offender, the Code appears to make specific provisions in ss. 266 et seq., s. 274 and s. 278. It is note-worthy that these sections provide restraints upon the use of force to the extent that it may be used only as reasonably necessary, and, in some cases, does not cause bodily harm.

I am of the conclusion that the doctrine of excessive force is not available under the New Guinea Code to reduce the charge from murder to manslaughter.

This ground of appeal appears to be raised under ground 7 (c). As I understand the submissions they are that inasmuch as the facts could equally have led to the inference that the appellant threw the spear at the deceased without forming the intent necessary under s. 302 namely “to do to the person killed grievous bodily harm”—that the trial judge erred in drawing the inference as to intent. Of course if the judge sitting without a jury shall be in doubt as to the existence of the requisite intention then the verdict should be manslaughter. No doubt if there are two possible inferences, one consistent with and one inconsistent with such an intention, the verdict must be manslaughter. The “grievous bodily harm” required by the section is defined as “any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health”. The accused did not help his case in this aspect by either making a statement or by giving evidence. His counsel, as appears from his Honour’s judgment at p. 19 of the appeal book, submitted that the Court must have had a reasonable doubt as to the accused’s intent to do grievous bodily harm.

It appears that the action took place in a few seconds and without deliberation by the appellant beforehand. No doubt the use of a spear is usually made hurriedly but one has difficulty in envisaging that a man armed with only one spear would throw it without intent to hit the man or animal he was addressing. That in the circumstances obtaining, the appellant, a primitive man with a full knowledge of the capacity of a spear to kill or wound, could have thrown such a spear at such a distance without intending to cause an injury that would at least be likely to endanger life or to cause permanent injury to health seems to me to be an unreal and improbable inference, not open to his Honour to have made as a possibility in the accused’s favour. I am not satisfied that his Honour has fallen into error in drawing the inference as to intent which he did make in fact at p. 21 of the appeal book. And I am not satisfied that it has been shown that his Honour failed to consider any relevant fact. On this ground also I would dismiss the appeal.

It would be with the utmost diffidence that I should disagree with a judge of his Honour’s experience on the matter of sentence. Three years’ imprisonment would not ordinarily be a heavy sentence for murder. However, I find myself impressed by the apparent lack of personal motivation of the appellant; the fact that he was acting on the misunderstood instructions of his employer and in the interests of the preservation of that employer’s property so far as the evidence goes; by the fact that the flashing of the torch caused a reaction on his part, a reaction that is said to have been impulsive; and by the fact that the killing occurred while the deceased was engaged in the commission of a felony; and I am disposed to feel that in the circumstances the sentence imposed at the trial is excessive. I would for myself consider a sentence of two years’ imprisonment adequate to the occasion and I would allow an appeal on this ground and substitute a lesser punishment.

Appeal allowed. Verdict of manslaughter with sentence of two years’ imprisonment substituted.

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R>

[cclxxiii]Infra, at p. 227.

[cclxxiv]Infra, at p. 224.

[cclxxv]Infra, at p. 224.

[cclxxvi]Infra, at p. 220.

[cclxxvii]Infra, at p. 224.

[cclxxviii]Infra, at p. 224.

[cclxxix]Infra, at p. 222.

[cclxxx][1957] VicRp 79; [1957] V.R. 560.

[cclxxxi][1957] V.R. 560.

[cclxxxii][1957] HCA 3; (1957) 97 C.L.R. 100, at p. 131.