Regina v Kartogati [1974] PGLawRp 345; [1974] PNGLR 225 (20 November 1970)

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CRIMINAL LAW - Particular offences - Wilful murder - Alternative verdict of murder - Act done in prosecution of unlawful purpose - Act likely to endanger life - Test objective - Criminal Code (Queensland adopted) s. 302[ccci]1.

The accused was charged with wilful murder and acquitted of that charge. It was undisputed that his victim was killed by a shot discharged from a pistol held in his hand when encountered by the accused who was attempting an unlawful breaking and entering of a dwelling house. In considering whether an alternative verdict of murder under s. 302 (2) of the Criminal Code (Queensland adopted) was available;

N1>(1) Under s. 302 (2) of the Criminal Code (Queensland adopted) the dangerous act and the unlawful purpose there contemplated are distinct.

N1>(2) Under s. 302 (2) of the Criminal Code (Queensland adopted) the test whether an act is of such a nature as to be likely to endanger human life is an objective one.

N1>(3) Applying the tests, in the circumstances the death of the deceased was caused by reason of an act (the discharging of the pistol which the accused was at the time carrying loaded and cocked) done in the prosecution of an unlawful purpose (being without lawful excuse on premises) and irrespective of the consideration whether the accused had an intention to kill or to do grievous bodily harm, that act was an act of such a nature as to be likely to endanger human life.

The accused was charged with having wilfully murdered one Wilhelm Beler on 28th April, 1970, the Crown alleging that the accused shot the deceased with a pistol intending to kill him. The full facts and circumstances are set out in the judgment hereunder.

KELLY J: The accused is charged with having wilfully murdered one Wilhelm Beler on 28th April, 1970. The Crown alleges that the accused shot the deceased with a .32 calibre Colt pistol and that he did so intending to kill him.

From the medical evidence I am satisfied beyond reasonable doubt that the death of the deceased man was caused by the passage through the upper part of his body of a projectile, so the fundamental matters for determination are the identity of the person responsible for the projectile entering the body of the deceased and the circumstances in which this occurred.

On the date in question the deceased occupied a room on the first floor of a residential building in Boundary Road, Lae known as Vollert’s Mess. The room occupied by the deceased was the third room from the southern end of the building. The adjoining room to the south was occupied by a man named Waesdorfer and the adjoining room to the north was occupied by a man named Weber. The occupant of the room on the other side of Weber’s room was one Hayes. The rooms opened on to a verandah approximately six feet wide from which a staircase led to the ground by way of a landing opposite the room occupied by Hayes.

The door of each room leading on to the verandah was steel-framed with flywire and opened outwards from the room, opening from right to left with the lock on the right as one looks from the verandah. The doors were not capable of being locked as the keys were missing and to open each door from the verandah it was necessary to insert a hand through a break in the flywire over the lock. There was a light above Beler’s door but it was not working that night.

Waesdorfer gave evidence that at about 1.00 a.m. on 28th April, 1970 he was awakened by the noise caused by a chair which he had placed against his door falling down. He then heard Beler calling “I got him, I got him”. Some three or four seconds later he heard a shot fired and when he rushed out from his room on to the verandah he saw Beler standing in front of his own door facing outwards with his back to the doorway and a native boy some two to three feet from Beler running towards the stairs; Beler’s door was wide open. Waesdorfer estimates that he was in his room for no longer than four to five seconds after hearing the shot. As the boy ran down the stairs Waesdorfer, who had reached the top of the landing, hit him on the shoulder with a rubber hose. Waesdorfer then heard Beler say “He shot me” or “I am shot”, and on looking at Beler saw that he was bleeding. Waesdorfer did not see the boy after hitting him and did not see his face.

Weber, the occupant of the room on the other side of Beler’s room, also heard Beler call out “I got him, I got him” and heard a shot although he did not recognize it as such at the time. He then heard Beler shout “He shot me, he shot me” and on rushing to his door and opening it saw Beler standing facing him with his hand on his chest and bleeding.

Hayes who like Waesdorfer and Weber had been asleep heard shouting and then what he thought were two shots. On looking through his flywire door he saw a native running off the verandah on to the stairway and he then saw Waesdorfer leaning over the railing hitting at him on the stairs with what he thought was a belt. Hayes heard Beler say “I’m shot”. When he first saw Beler the latter was standing up outside Weber’s room and facing towards Hayes’ room.

There was no positive identification of the accused at the scene of the crime. However, in a record of interview tendered by the Crown the accused admits to having been at a place which he subsequently identified to police officers as the scene of the crime. The accused describes his actions there in these words—“Then I went to some more steps on the other side of the house. I went on top and opened the door of one of the masters. The door made a noise and the master got up. I was standing close to the door outside the room. I waited for about two minutes. The master came out of the room, and he was holding something like a piece of iron in his hand. He pushed the door open jammed me between the wall and the door. He raised the thing he was holding in his hand and said, ‘Now I will kill you’. Another master came out of another room, and the first master threw something at me. Then I took out my pistol. I wanted to fire into the floor so that they backed off and gave me space to run away. The master behind me hit me in the back of the neck. I pushed the door, the first master fell down, and I fell on top of him and the gun went off. I rolled away from the master on the floor, and ran down the steps, but I slipped and fell down the steps, onto the cement down below. Then I ran away.”

Apart from this admission there was other evidence which, whatever its effect may have been without the admission, did tend to corroborate the statement by the accused that he had been at the scene and had been in possession of a pistol which was discharged. In the course of their investigations the police recovered a Colt .32 calibre pistol which was tendered in evidence. They also found a .32 calibre cartridge case which was caught between the slats of the decking of the first floor of the verandah of Vollert’s Mess, about ten feet from the southern end. On the following night a person identified as the accused was seen on the premises of a Mr. Hunter and he then had a weapon described as similar to the pistol tendered in evidence. Subsequently, the police found on these premises a .32 calibre cartridge case and also a .32 calibre projectile. There was scientific evidence that both cartridge cases had been discharged in the pistol tendered in evidence.

From the whole of this evidence I am satisfied beyond reasonable doubt that the accused fired the weapon from which came the projectile which caused the death of the deceased and thus that it was the accused who caused his death.

Before examining further the evidence dealing with the circumstances of the killing it is necessary to set out certain technical evidence concerning the wounds and other marks on the body of the deceased and also concerning the pistol. Dr. Parer was of the opinion that, assuming that the deceased was standing upright when the wound was sustained and the bullet went straight through, it would have come from slightly to his left and slightly above. He also said that for the bullet to go in the direction in which it did, the person firing the shot would have had to be at a slightly higher level than the deceased or the deceased would have to have been bending down. Dr. Cutter who conducted the post mortem examination said that the direction of the wound was from above, in front, and to the left, if the patient was standing upright and this would also be consistent with a man bending forward although he would need to be bending only about ten to fifteen degrees. It appears that the deceased was about six feet tall and that the accused was about five feet three inches to five feet five inches tall.

Detective Sergeant Leatherbarrow of the Scientific Bureau, Sydney gave evidence that safety tests on the pistol tendered in evidence showed that it was not likely to accidentally discharge when handled in a proper manner or when subjected to blows or when dropped. He demonstrated with the weapon that it could not be discharged by pressure on the trigger without pressure on the safety grip and that the pistol must be held in the correct manner to discharge the bullet. Detective Sergeant Leatherbarrow expressed the opinion from looking at a photograph of the deceased showing what appeared to him to be a barrel residue surrounding the entrance wound that the muzzle of the weapon was approximately three feet away from the deceased when it was discharged. He conceded in cross-examination that if the marks shown on the photograph were in fact dirt marks or rust the distance could perhaps be more than three feet while if they were powder burns the gun could perhaps have been inches closer than three feet. He also expressed the opinion that despite the poor condition of the pistol there would be no loss of efficiency over a distance of three feet.

Staff Sergeant Rawlings who had had a number of years’ experience with small arms was called by the defence. He expressed the opinion that a weapon of the type of the pistol tendered was not very accurate even in good condition and that when aimed at a mansize target at three feet a movement of the weapon by one inch could result in grazing the body or even a complete miss, such movement resulting in a difference between impact points of between eight and twelve inches. He considered that with this particular pistol in the hands of a non-expert in the dark of night and in the hurried movements of a scuffle it would be “pretty difficult” to hit a mansize target at three feet. He agreed however that it would be possible to hit a man with that weapon at three feet. In his opinion if the marks around the wound shown on the photograph were powder burns and assuming that the deceased was not wearing a shirt, this would be indicative of his having been shot at a range of from one to three feet, whereas if he had been wearing a shirt he would not have received such burns at a distance of more than a few inches. If, on the other hand, the marks were residue particles this would indicate a distance with a shirt on of no more than three feet, whilst if no shirt was worn the distance could be from four feet six inches to five feet.

There was then some rather confusing evidence which seemed to result from some misunderstanding between counsel and the witness as to where this tattooing as it was called might be expected to be found having regard to the fact that according to Staff Sergeant Rawlings the effect of the recoil is to cause the weapon to move upwards and to the right of the firer. He said that the movement to the right was due to what he termed the twist of the barrel and this would appear to be consistent with his answer in cross examination after a close examination of the barrel that the rifling ran in a clockwise direction, that is, from left to right. The position which seemed to me to ultimately emerge, despite some apparent contradictions, is that if the weapon had been held upright and if the deceased had been standing upright such marks would have been expected to be to the left of the wound rather than to the right as the photograph indicated, and that the marks as shown would indicate that if both the firer and the deceased were standing upright the gun would have been held on its side, whereas if the deceased had been lying on his left hand side the marks would indicate that the gun had been held in an upright position. Whilst this witness did say that if a man holding the weapon correctly were to fall to the floor and bang the butt against the floor this could discharge the weapon, he also said that it was the tightening of the grip at the trigger and the safety grip that would cause the weapon to be discharged.

A consideration of all the above evidence leaves as a matter of doubt the relative positions of the accused and the deceased at the time at which the shot was fired. It seems to me to be equally probable that the accused fired from a standing position, possibly while pinned behind the door with the pistol on its side and with the deceased also standing and bending slightly facing into the door with his left shoulder, which is the Crown’s hypothesis, as that the weapon was discharged while in the hands of the accused when he fell on top of the deceased, which is the accused’s version in the record of interview. I may say that I do not accept the statement made by the accused that he was hit on the back of the neck prior to the firing of the shot but in view of the other evidence to which I have referred this does not necessarily mean that the accused did not fall on top of the deceased. Although all the witnesses who saw the deceased observed that he was standing, Dr. Parer accepted as a possibility that he could have regained his feet after being shot. In the absence of positive evidence as to whether the deceased was or was not wearing a shirt and as to the exact nature of the marks in the vicinity of the entrance wound there was a range of from a few inches to up to five feet as the distance from the deceased at which the shot might have been fired and there is no proper basis for a finding of any particular distance within that range. The failure to find the projectile despite what was apparently a diligent search and the position at which the cartridge case was found do not assist in resolving the position.

It would not be a necessary inference that because the deceased was hit by the projectile at the point at which he was, the accused intended that the projectile hit him there or within a possibly lethal area. The evidence does not show whether the weapon was aimed or merely pointed and there is no evidence as to the degree of expertise the accused possessed in the handling of this particular weapon. Having regard to the doubt to which I have already referred as to the relative positions of the accused and the deceased at the time of which the shot was fired and also the uncertainty as to the range at which it was fired, as to whether the weapon was aimed or pointed, and the degree of accuracy which might be expected from this weapon, I am unable to be satisfied beyond reasonable doubt that when the accused fired the weapon he intended to cause the death of the deceased. I therefore find him not guilty of wilful murder.

It now becomes necessary to consider whether or not the accused is guilty of murder of which he may be convicted on this indictment if this crime is established by the evidence. There are only two of the circumstances constituting murder as defined in s. 302 of the Code which require consideration, namely, the case provided by par. (1) of that section where the offender intended to do to the person killed or to some other person some grievous bodily harm (it being immaterial that the offender did not intend to hurt the particular person who was killed) and the case provided for by par. (2) where death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such a nature as to be likely to endanger human life (it being immaterial that the offender did not intend to hurt any person).

The reasoning which I have already set out which led me to the conclusion that I could not be satisfied beyond reasonable doubt that when he fired the weapon the accused intended to cause the death of the deceased applies also to the question for consideration under s. 302, par. (1) that is, whether the accused intended to do grievous bodily harm to the deceased, and the deceased is the only person in relation to whom it is necessary to consider any such intention. Admittedly it may well be less difficult to be convinced of an intention to do grievous bodily harm than of an intention to kill in the case where a person fires a lethal weapon, but in this instance by reason of the factors to which I have referred, I could not, with the requisite degree of satisfaction, impute to the accused an intention to do grievous bodily harm to the deceased. Were I able to be satisfied that the accused had deliberately pointed the weapon at the deceased, even if he had not aimed at him, and pressed the trigger, then, whatever their relative positions, whatever the range and whatever the inaccuracies of the weapon, I could justifiably have concluded that the accused intended to do some grievous bodily harm to the deceased. However, as I cannot be satisfied that the accused did deliberately point the weapon and the possibility remains that it was discharged without being deliberately so pointed, I am unable to be satisfied beyond reasonable doubt that the accused did intend to do grievous bodily harm to the deceased when he fired the weapon.

The construction of par. (2) of s. 302 was considered by the High Court in Hughes v. The King[cccii]² where it was held that the dangerous act and the unlawful purpose there contemplated are distinct. From the accused’s own statement he was at the time he encountered the deceased engaged in the prosecution of an unlawful purpose. Putting it at its lowest, he was committing the offence provided for by s. 70 (1) (m) of the Police Offences (New Guinea) Ordinance 1925-1965 in that he was without lawful excuse at a place adjacent to a dwelling place or alternatively at a place adjacent to an enclosed area. On his statement he was also attempting an unlawful breaking and entering of a dwelling house, which is an indictable offence (see ss. 419a and 535 of the Code and also the definition of “dwelling house” in s. 1). It may be that the attempted breaking and entering had in fact been at the room occupied by Waesdorfer although the accused himself places it as having been at the room of the deceased. However that may have been, the accused was certainly still prosecuting his unlawful purpose of being without lawful excuse on the verandah when he encountered the deceased and when he fired the shot so that I am satisfied beyond reasonable doubt that the death of the deceased was caused by means of an act done in the prosecution of an unlawful purpose and this would be so irrespective of the considerations to which I have referred in considering whether the accused had an intention to kill the deceased or to do him grievous bodily harm.

The act which was thus done in the prosecution of the unlawful purpose was the discharging of the weapon which the accused was at that time carrying loaded and cocked. The evidence clearly indicates that the weapon could not have been fired had it not already been loaded and cocked and that simultaneous pressure on both the trigger and the safety grip was necessary in order to discharge the round. The test whether an act is of such a nature as to be likely to endanger human life within the meaning of par. (2) of s. 302 is an objective one (see Reg. v. Gould and Barnes[ccciii]³). I am in no doubt that applying such a test the discharging of a weapon which was being carried loaded and cocked in these circumstances was an act of such a nature as to be likely to endanger human life and I am satisfied of this beyond reasonable doubt.

The decision of the Queensland Court of Criminal Appeal in Reg. v. Hansen[ccciv]⁴ is in point here. In that case the victim, an old lady, was killed by a shot discharged from a rifle held in the hands of the accused when she surprised him ransacking her house. The accused swore that the discharge of the rifle occurred accidentally in some way unknown to him. The accused was held to have been rightly convicted of murder under s. 302, par. (2) and the Court also held that if the victim was killed by the accused it was by the direct result of his actions, there was no supervening event and there was no room for the application of the words “for an event which occurs by accident” in s. 23 of the Code. This report is not available to me here and I rely for the above statements of the effect of the decision on the Australian Digest, 1964, pp. 143 and 151. The considerations there referred to apply here. It was not argued that s. 23 would operate to exculpate the accused in the present case, in view of the provisions of s. 289 and the fact that the accused was at the least criminally negligent, so the question of accident does not require further consideration.

The defence did not suggest that the accused could rely on self-defence and in any event the facts, even in his own statement, would not enable him to do so. On his statement he did not take out his pistol until after the deceased had thrown the object at him, whatever that object may have been, although it seems quite probable that it was the hammer found towards the northern end of the verandah. By reason of s. 267 of the Code it was lawful for the deceased to use such force as he believed on reasonable grounds to be necessary in order to prevent a forcible breaking and entering of his room by the accused so there was no unlawful assault by the deceased on the accused, for example, by pinning him behind the door, so as to bring s. 271 into operation even if it were the fact, as the accused states, that when he was jammed behind the door the deceased raised the object he was holding in his hand and said “Now I will kill you”. Section 272 would clearly not apply.

The onus being on the Crown to negative accident and also self-defence where the evidence discloses a possibility of such defences, I hold that to the extent that there is any evidence which would lead to a possibility of either defence the Crown has discharged its onus.

The Crown having thus discharged its onus of satisfying me beyond reasonable doubt of all the elements of the crime of murder as defined in par. (2) of s. 302 I find the accused guilty of murder.

iv>
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[cccii](1951) 84 C.L.R. 170.

[ccciii][1960] Qd.R. 283.

[ccciv][1964] Qd.R. 404.

[cccv] [1957] 1 W.L.R. 1223.

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Papua New Guinea Law Reports

Regina v Kartogati [1974] PGLawRp 345; [1974] PNGLR 225 (20 November 1970)

Papua New Guinea Law Reports - 1974