King v McDonald [1947] PGSC 2 (10 July 1947)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

THE KING

against

LUTHER McDONALD

Criminal Trial (the Chief Judge) at Rabaul 8th, 9th and l0th July, 1947

Insanity – "blackouts" - Intoxication Self-defence

After a fist-fight on the Rabaul waterfront, McDonald (an American Negro) went with a White shipmate, Pruett, to a darkened area, their arms about each other's shoulders in a friendly manner. They were alone there when Pruett sustained slash-wounds. McDonald claimed he could not remember what took place in the darkened area and said that he could not have caused the injuries because "American Negroes do not pick fights with Whites", and that Pruett was his friend - but that if he had done it it was because of "temporary insanity" during the "blackout" which he said he had at the relevant time.

Held :(i) Accused is guilty as charged.

(ii) That Accused failed to establish "insanity".

(iii) The slashing was disproportionate to anything that happened to Accused.

W.W. Watkins, Crown Prosecutor.
(Accused was not represented).

Case referred to:
R v. Moore (1908) 10 WALR, p. 64

The hearing lasted from 8.10 p.m. to 9.55 p.m. on 8th July and from 9.00 a.m. until 12 noon on the 9th July.

At 9.00 a.m. on 10th July, the Chief Judge delivered judgment:-

PHILLIPS, C.J.

In this case, Accused is charged with having on the 19th June, 1947, at Rabaul, unlawfully done grievous bodily harm to Leon Dale Pruett. This is a charge under Section 319 of the Criminal Code. The punishment mentioned in that section is one up to 7 years with hard labour, with or without whipping. "Grievous bodily harm" is defined by Section 1 of the Code 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 Crown has the onus of proving that charge beyond all reasonable doubt, and Accused has no burden of proving his innocence. Thus, the Crown has to prove that Accused assaulted Pruett; that the assault was unlawful; and that it was such an assault as to cause grievous bodily harm (as already defined) to Pruett and did in fact cause such grievous bodily harm.

The facts as disclosed in evidence are follows: The alleged offence is said to have occurred shortly before midnight on the 19th June, 1947, at or close to the copra wharf, Rabaul, when the American ship "Joseph Chamberlain" (of which both Accused and Pruett were members of the crew) was lying. Accused has given evidence that from just before noon and during the afternoon he had had four or five neat whiskies (possibly more) with Pruett and the bosun on board had had another in the early evening.

Just before the alleged assault, Pruett left the ship and came down on to the wharf. Accused and the bosun followed him. Accused said that Pruett had been absent for several days from the ship at Law (and absent from duty meant being "logged" two days for one by the Captain) and he thought Pruett was going to go absent again. He followed Pruett to prevent this, he said. He said that he could not say Pruett was drunk, but that Pruett was "pretty well lit up" and was not walking steadily and the evidence of Sergeant WAKIMAUT rather corroborates this. Accused however says that he himself was not intoxicated or even partially intoxicated, but was quite sober and walking steadily.

The Accused and the bosun caught up with Pruett, accused says, near a truck. Accused asked Pruett: was he going off in the track. Pruett said, "No, I am going to give this boy" (i.e., he meant the Native driver) "some cigarettes". Accused caught Pruett's arm and said he would give the driver cigarettes; and the bosun made the same offer. But Pruett broke free from Accused and said, "You can't tell me what to do".

Then, it appears a fight began. Both Pruett and Accused gave evidence about this. Pruett's evidence was rather vague: he thought that he and Accused started to fight each other at the same time, but he remembered accused was either knocked or fell down. Accused said he did not strike Pruett but was knocked down by him, and he got up and asked Pruett why he had done that, whereupon Pruett said he was sorry. At any rate, they said they would be friends and the bosun put Accused's hat on his head. The bosun then headed along the road from the wharf to the main Rabaul-Kokopo Road. Sergeant WAKIMAUT saw this (he had not seen the fight) and said the bosun appeared to be "not himself"("LONGLONG" ) and was walking unsteadily. Accused called to the bosun and said, "Come back": but the bosun paid no heed and went on.

This left Accused and Pruett together - by themselves because the Natives round about had naturally given them clearance, and no whites were close at hand. The two shipmates had their arms around each other's shoulders and walked in this manner for some little distance to a point where (according to Sergeant WAKIMAUT and TULTUL GABRIEL who were watching them) it was rather dark. As to what happened then - and in the next few minutes – the accounts are these:-

Pruett says that he suddenly felt himself cut across the right eye and across the right chest: he did not think he had struck Accused just before receiving these cuts.

Sergeant WAKIMAUT says he could not see or hear whether there was any blow struck or not, but he saw Pruett suddenly turn around with one hand over his eyes and another across his naked chest (for Pruett was not wearing a shirt). He noticed blood over Pruett's face and over his chest and he saw Pruett stagger towards the ship and get escorted aboard.

The TULTUL GABRIEL said he did not see or hear any blow like that of a fist but he too saw Pruett "back" and turn around with blood on his face and chest and walk to the ship.

The Accused said that when he and Pruett were standing in a friendly embrace, Pruett suddenly pulled away and struck Accused a blow with his fist over Accused's left eye - a blow which made Accused half spin around and dazed him or made him dizzy and blinded for a few sounds. From that moment, accused says, he suffered a complete blackout until he later reached the ship; he says he has no recollection whatever of cutting Pruett, who was his shipmate and who was, and still is (Accused says) his friend: If, in fact, he did cut Pruett it was something of which he has no knowledge or recollection and the only explanation, he submits, is that it must have been an act committed while he was temporarily insane. He admitted that he was carrying a clasp knife at the time - the knife produced in Court as exhibit "A" with a 4 inch handle and 3½ inch blade, which is razor edged.

On the evidence of Pruett and the two Native witnesses there can be no doubt that Pruett was cut by somebody at that time, and as only two people were there (Accused and Pruett) this Court has to decide as a jury whether Pruett self-inflicted the wounds or whether Accused inflicted them.

The wounds were seen by Dr. Sinclair later that day, when Pruett was admitted to the Hospital. The Doctor gave evidence that one was an incised wound on the right side of the chest which severed the muscles down to the ribs, that it was 9 inches long and extended to just right of centre of the chest to the arm pit. The other wound was also an incised wound and extended from the near portion of the right eye-brow, incising the right upper eye-lid, the right eye-ball and the right cheek. The chest wound would, in the Doctor's opinion, leave no permanent ill effect but the other wound, the Doctor believes, will cause the loss of sight of Pruett's right eye. The Doctor considered both wounds to have been caused by an instrument like a knife and said that they could have been caused by a knife such as exhibit "A". Clearly, the injury to that eye, at any rate, was one which falls within the definition of "grievous bodily harm".

Accused, after this, went on to the wharf and over to the skip. Sergeant WAKIMAUT and the TULTUL saw this. There he was met by two white men who had come down from the ship. It was at this stage, according to Accused, that his "blackout" ended and his mind became clear again. He says the two whites told him of Pruett's injuries and asked him for his knife, which he gave them. He then accompanied them on board.

Then just before 1:00 a.m. on 20th June, he was seen by Warrant-Officer Towner of the Rabaul Police, who, because of the feelings of the crew, merely put him under arrest and had him conveyed off the ship to the wharf. There, after duly cautioning Accused, he briefly questioned him. He asked Accused had he cut this man. Accused replied, "I did not cut Lee. I did not do it". Towner asked, "Who did it then? There were only two of you fighting". Accused said, "It must have been some Native". Towner then took Accused to the police station where Accused slept. During the morning Accused made written statement, much on the lines of his evidence at this Court.

On the evidence (particularly as Pruett is so vague about it and Sergeant WAKIMAUT and TULTUL GABRIEL said that they could not say one way or the other) I accept Accused's story that Pruett punched him just before Pruett was cut. On the other hand, I feel no doubt at all that the cuts sustained by Pruett were inflicted by Accused although, curiously, no-one seems to have seen the knife in a bloody condition.

Now, Accused has pleaded that, if he inflicted the cut's he was temporarily insane at the time he did so. Other possible defences which might be pleaded but were not pleaded by Accused (but which nevertheless I direct myself to consider especially as the Accused was not defended by counsel) are "intoxicate action" and "self-defence".

As to the plea of insanity. Section 27 of the Criminal Code provides that

"a person is not criminally responsible for an act... if at the time of doing the act ... he is in such a state of mental disease or natural mental infirmity as to deprive him capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act".

Now the accused has pleaded insanity - and has to prove it because (as section 26 of the Code says):

"Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes into question, until the contrary is proved".

This indeed is the only film the onus of proof is on an Accused.

In arriving at finding as to insanity, I as a jury have to consider all the relevant evidence available - especially that of "the previous or contemporaneous acts of the party" - as Archbold puts it. Now Accused says he and Pruett were and still are friends -- the suggestion obviously being: why should he harm his friend? Pruett says Accused in hot-tempered and argumentative - but there is a difference between an act done in temper and an act done because of some "mental disease or natural mental infirmity" which deprives a person of capacity to understand what he is doing, or of capacity to control his actions, or capacity to know he ought; not to do an act (as the full Court of Western Australia has held in R. v Moore (1908) 10 WALR p. 64, when discussing the West Australian counterpart of s.27). Accused, in effect, suggests there was no motive for his act and says American Negroes do not "pick fights" with Whites. But it is not impossible that Accused may have felt resentful at the blows received from Pruett and avenged himself by slashing Pruett. As a jury I have to consider this possibility, among others.

Accused claims he had a black-out during the short period in which this slashing occurred. Yet he was quite clear in his mind up to a point just before the slashing, and he says the blow Pruett gave him at that moment was not s severe as the one which earlier had knocked him down. He also says his mind was quite clear a few minutes later when he handed his knife to a shipmate. Except for those few minutes, his recollection of events is much clearer than Pruet's appears to be. When Towner say him, not quite an hour later, Towner thought Accused seemed normal enough.

What then is my finding on the plea of insanity, remembering, as I must, that it is not for Accused to establish such a plea beyond all reasonable doubt, but that it is sufficient for him to establish a balance of probabilities. After careful consideration I find that Accused has not established his plea of insanity.

As to the possible defence of intoxication: - there is evidence that Accused had been drinking, during the day, neat whiskies, and had had another in the evening. Yet he maintains he was not intoxicated, or half intoxicated, but says he was quite sober. His recollection of events (except for the few minutes already referred to) appears so clear that it does not suggest intoxication. But I must consider whether this alleged "black out" may have been so caused, or whether it is fictitious. Voluntary intoxication is, in general, no defence, but where it produces disorder of mind akin to insanity, it is: Further, as Section 28 of the Code provides,

"When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed".

After careful study of the evidence I feel unable to find that Accused was intoxicated, or partially intoxicated, at the time he slashed Pruett - or intoxicated to a degree that deprived him of capacity to form intent. As he has shown in the box, he is a very intelligent and alert parson with a quick brain, and I consider that his story of a "black out" for those few minutes is an invention.

As to the possible defence of Justifiable self-defence:- Self-defence is legally permissible within strict limits which have been laid down. It may take extreme form, if the need for such exists, or reasonably appears to exist - for example, where a person is assaulted with such violence as to cause reasonable apprehension of death or grievous bodily harm, and as to induce that person to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous bodily harm to use force in self-defence, he may legally use such force even though it causes death or grievous bodily harm to his assailant (See sections 271 and 272).

Bat the force used in self-defence must be proportionate to the need and the occasion, and if it is excessive to what is justified by law, it is unlawful (section 283). In this case, Accused's assailant Pruett was obviously under the influence of liquor and unsteady on his feet - as Accused himself says, Pruett was "pretty well lit up" and walking unsteadily. Pruett used fists only. Accused says he himself was quite sober. Yet Accused used a lethal weapon - this sharp knife produced in Court - on Pruett – this "lit up" and unsteady Pruett - and inflicted two grave wounds with it, one of which is likely to blind one of Pruett's eyes for life. On that evidence, I cannot find that the means of self-defence employed by Accused was proportionate to the need. In my opinion, even allowing for the comparative readiness with which seamen appear to be apt to use knives in their quarrels, the knife slash by Accused was excessive and awful, and justifiable '"self-defence" is not a possible plea.

For all these reasons, I find Accused Guilty of the charge of having Unlawfully done Grievous Bodily Harm to Pruett.