Mamote, Regina v [1963] PGSC 15; [1963] PNGLR 155 (1 August 1963)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 155 - Regina v Mamote-Kulang

[1963] PNGLR 155

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

MAMOTE-KULANG

Madang

Ollerenshaw ACJ

30-31 July 1963

1 August 1963

MANSLAUGHTER - Unintended death and accident - S. 23 of the Criminal Code - Spleen - Blow causing rupture - Question of foreseeability - Criminal Code SS. 23, 291, 293, 300, 302, 303, 310, 577.

The accused, who suspected his wife of continuing an affair with another man, struck her in the region of the upper abdomen on the right side with a good strong blow from the back of his hand, when he lost his temper during an altercation about the matter. Though he did not intend to kill his wife he certainly intended to cause her pain. He did not foresee her death nor did the possibility of death occur to him. The wife’s spleen was more prone to rupture than a normal spleen. Because of recurrent attacks of malaria it had grown to six times the size of a normal European spleen. The blow ruptured the spleen causing death within a few hours.

Held

That following His Honour’s previous reasoning set out in R. v. Manga (1963) 1 P. & N. G. L. R. 97, that as the death was not an “event” within the meaning of that term in S. 23 of the Criminal Code the defence of the accident set out in S. 23 was not available to the accused. Though the death is a “result” referred to in the second paragraph of S. 23, it should be noted that in that paragraph there is an express provision (when read in conjunction with the definition of manslaughter) making the intention to cause death immaterial.

Even if the death were “an event” covered by S. 23 an accused would still have to show that it occurred by accident. Here, the death was a direct result of a deliberate blow. It followed from the natural processes of the body and at no point can the element of accident be introduced. Any violence to the body can be dangerous, and an attacker cannot subsequently escape criminal responsibility for his victim’s death by pleading that such death was accidental because of some unknown physical weakness. In a charge of manslaughter an intent to kill is not in issue.

R. v. Manga (1963) P. & N. G. L. R. 97 and R. v. Martyr (1962) Q. S. R. 398 followed.

Counsel

Dabb, for the Crown.

Rissen, for the Accused.

C.A.V.

OLLERENSHAW ACJ:  The accused, Mamote, is charged under Section 303 of the Code that on or about the fourth day of May, 1963, he unlawfully killed his wife, Donate, the daughter of Silu, that is to say that he unlawfully killed her in such circumstances as not to constitute wilful murder or murder and so committed the crime of manslaughter, for which he is liable, under Section 310, to the punishment of imprisonment with hard labour for life.

Section 300 provides that any person who unlawfully kills another is guilty of a crime which is wilful murder, murder or manslaughter, according to the circumstances.

Where a person unlawfully kills, intending to cause death, he is guilty of wilful murder under Section 301, and where the circumstances of the unlawful killing fall within any of the items in Section 302 he is guilty of murder under that section. Both these sections look to the intent of the accused person.

Section 303 provides the definition of manslaughter: “A person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter”. Intent to cause death is not a necessary element.

Section 293 defines “Killing”: “ . . . . any person who causes the death of another directly or indirectly, by any means whatever, is deemed to have killed that other person”. Section 291 says what an unlawful killing is: “It is unlawful to kill any person unless such killing is authorized or justified or excused by law”.

The Crown alleges that on the occasion of a small feast at the village of Tamagot, given in the evening of a day in May last by a villager to celebrate the completion of his new house, Mamote, with his fist, intentionally struck his wife a strong blow in her stomach, thereby rupturing her enlarged spleen and that she died from the consequences of this injury, loss of blood and associated shock, within a few hours.

Tamagot is a native village situated on the beach about a day and a half’s walk south of the Subdistrict Station of Bogia, which lies on the coast in the Madang District and about half way between Madang and Wewak. There has been a Mission School there for some years with one native teacher. The people of the area would have had long contact with Europeans and the Administration. It is removed a long way in time, if not so far in place, from the areas of intertribal violence and areas where the axe is an appropriate weapon for chastisement in the case of recalcitrant wives.

Mamote appears to me to be a virile native of about thirty years or more. Donate was between twenty-five and thirty when she died. He has had no schooling but has had some experience in employment away from his village, where he has a subsistence garden.

Between seven and half past seven Donate left the villagers, assembled for the party at the new house, and Mamote followed her into their own house, which was nearby, where the assault then took place. There was no witness of what occurred between husband and wife in their home.

Shortly after this, Ulib, the luluai of the village, heard Donate cry out in the manner of such a female villager and then saw her shuffling away from her house, her head bent forward and holding her stomach with both her hands. Mamote was following her briskly but returned to his house at the order of the luluai, who reminded him of the law about beating wives, and cautioned him that he, Ulib, would have to see that he, Mamote, was brought before a Court if he continued to beat his wife.

Donate was Ulib’s niece and he found her dead body on his verandah when he went there about one to two hours later.

Ulib was a witness for the Crown and Mr. Dabb, also called Sub-Inspector Pembroke, to whom, in an interview at Bogia some days later, Mamote gave his version and explanation of what took place between his wife and himself in their home on the night of her death.

Sikol, the mother of Donate, identified her body.

The other witness for the Crown was Doctor John Wolstenholme, the Administration doctor at the hospital at Bogia, who examined Donate’s body there and performed an autopsy on the day after the night of her death.

He found six pints of free blood in her abdominal cavity - a massive haemorrhage - and two lacerations on the inner surface of her spleen, which measured eight inches by seven inches by two inches thick. This enlargement was neither unusual nor extreme in the case of native people, exposed to recurrent attacks of malaria.

Donate’s spleen was about twice the size of an average native spleen and about six times larger than a normal European spleen. This Doctor had examined a lot of natives with spleens much bigger than Donate’s. It was, however, a typical malarial spleen, large, soft and mushy and much more susceptible to rupture than a normal European spleen.

It was the doctor’s opinion that the death of Donate was caused by an intra-abdominal haemorrhage following a ruptured spleen, indicated by the lacerations on its surface. Both lacerations could have been caused by a single blow with a fist striking her stomach, whether on the left side or the right side.

These lacerations would be better described as “splits”, as caused by a crushing injury; the pressure of the crushing force caused a bursting and the bursting made the splits.

A fairly strong blow to Donate’s stomach would have been necessary to cause this damage.

It was most unlikely but possible that the damage could have been caused by a blow from a fist to the right side of her stomach. A blow delivered to the right side would have required more force than a blow to the left side and a blow to the left side was much more likey to have caused the damage which he found.

There was no external evidence of violence such as bruising, marks or lacerations.

A blow from a fist administered with a backhand action of the right arm swung from the left side of the body of an aggressor could have caused the damage to Donate’s spleen but it would be much less likely than a proper punch.

The haemorrhage would probably prevent or reduce the formation of an external bruise.

The doctor also said that a ruptured spleen is extremely painful from the time of the rupture and that if Donate did receive a blow to her abdomen and was heard to cry out and was then seen shuffling away with her head bent forward and holding her abdomen with her hands she would be showing all the symptons of a sudden severe abdominal pain following a blow that ruptured her spleen and, associating this with what he found at post-mortem, he was of the opinion, undoubtedly, that the blow caused the rupture.

Dr. Wolstenholme also gave evidence to the effect that a spleen of normal size, which I take to mean a healthy spleen, is likely to be damaged by a fairly strong blow with a fist in the stomach. A backhand blow with the right fist swung from the left side of the body of the aggressor could rupture a normal European spleen but this would be much less likely than in the case of a spleen such as Donate’s. Normal European spleens will rupture much less frequently than spleens like Donate’s, no matter where the blow is delivered.

Natives generally have much larger spleens than Europeans.

There is also the evidence of this doctor that a backhand blow with the fist to the head, particularly in the temple region, over the heart or on the testicles may cause death; it is rare that this happens but death can follow such violence. Such a blow to the head could cause an intra-cranial haemorrhage resulting in death. In the case of the blow over the heart and of the blow on the testicles death follows from neurogenic shock caused by extremely severe sudden pain.

The only direct evidence of the blow was that contained in the account of the incident between Mamote and his wife, given to Sub-Inspector Pembroke by Mamote himself.

It appears from what Mamote told this witness and from the evidence of the luluai Ulib that some few months before the night of the party Momate had disturbed his wife and Dang, the village school teacher, in circumstances from which he concluded that they had had sexual intercourse.

Mamote obtained from a village assembly a decision of banishment against Dang, who denied the adultery. Possibly satisfied with this victory, Mamote shook hands with the teacher saying words to the effect that it was true that he had not caught him in the act, that he did not insist upon Dang leaving the village and would wait and see what happened in the future. The teacher remained in the village.

When the feast was about to commence in the evening of the night, during which she died, Donate was serving food and Mamote told Sub-Inspector Pembroke that he first saw Donate hide a plate of food in their house and later he saw Dang eating this food. He said to his wife: “Why did you give food to the teacher?” It appears from the evidence, undoubtedly, that this took place in their house.

His wife denied that she had given food to the teacher and Mamote, as he related the incident to Sub-Inspector Pembroke, said to her: “You are lying. I saw you.” Donate maintained that he had not seen her and could not prove it. He lost his temper when she argued thus with him and he slapped her ears and then with the back of his right fist, swinging his arm away from the left side of his body, he dealt his wife a backhand blow which struck her on the right side of the front of her body, below the rib cage, and in the area of the stomach or upper region of the abdomen. Mamote did not demonstrate or describe to the Police Officer the force of his blow.

To this officer’s question: “Did you know that your wife would probably die if you punched her in the stomach?” Mamote replied: “No, I did not try to kill her. I punched her that is all.” “Punch” was the officer’s translation of the Pidgin word used by Mamote because he considered any blow with the fist to be a punch. It is clear that all Mamote admitted to was the backhand blow which I have described.

Mr. Rissen, for Mamote, made no objection to the admission of the evidence of Sub-Inspector Pembroke as to what his client said to this Police Officer.

It was the common case of a native anxious to give to an official his story of an episode of violence in which he has been involved, sometimes a story amounting to a confession simpliciter and not infrequently from the native’s point of view, what I may call, a confession and avoidance. The Police Officer, whose caution was in a somewhat brief form, was satisfied that Mamote understood that he need not speak unless he wished to do so. I think that Mamote would have persisted in his intention to tell his story even if the Police Officer had explained his rights at greater length. There is also the evidence of the doctor and the luluai.

The accused person elected not to give evidence or make a statement and no witness was called in defence.

Mr. Rissen conceded that it should be found on the evidence that Mamote killed his wife by rupturing her spleen when he struck her stomach a blow with his fist.

He relied solely upon the provision in Section 23 of the Code: “ . . . . a person is not criminally responsible . . . . for an event which occurs by accident.” He submitted that the killing was not unlawful in that it was excused by these words in that section.

He cited in support the cases in this Territory: R. v. Gamumu[ccxx]¹, R. v. Diru[ccxxi]², R. v. Talu[ccxxii]³ and R. v. Miawet[ccxxiii]⁴, in the judgments in which this exculpatory provision has been applied in manslaughter trials in the case of death caused by violence to spleens of natives.

Mr. Rissen also referred to Vallance v. Regina[ccxxiv]⁵ which was applied in the more recent of the local cases.

Donate, he argued, was much more susceptible to death from violence to her enlarged spleen than a person with a normal spleen. He asked for a finding that Mamote could not have foreseen that death would result from his blow and submitted, alternatively, that as a tribunal of fact I should have a reasonable doubt that he could have so foreseen. He asked for an alternative verdict of assault, under Section 577 (as amended) of the Code, by which I take it that he meant common assault since he would argue that “bodily harm” like “death” was due to accident.

Mr. Dabb for the Crown relied upon R. v. Martyr[ccxxv]⁶ and some of the obiter dicta of mine in R. v. Manga[ccxxvi]⁷ while exercising care to avoid to seem to rely upon undertones of the common law which he thought he heard in my judgment.

He submitted that where death is the direct result of a violent act the killing is not an event which occurs by accident. He also submitted that if death from deliberate violence is to be the subject of a test of foreseeability where there is a diseased condition of the body, then, the test adopted in R. v. Talu[ccxxvii]⁸ and R. v. Miawet[ccxxviii]⁹ is an erroneous one.

I find upon the facts:

N1>1.       I am satisfied beyond reasonable doubt that the accused Mamote struck his wife Donate a blow with his right fist in the region of her upper abdomen.

It seems to me for a number of reasons that it is likely that Mamote struck his wife with a straight punch to the upper region of her abdomen on the left side of the front of her body. However, I do not feel that I could find that I am satisfied of this beyond reasonable doubt and I, therefore, accept that he struck her a backhand blow in the region of her upper abdomen on the right side of the front of her body, below the costal margin.

N1>2.       I am satisfied beyond reasonable doubt that it was a good strong blow, dealt by way of punishment by a strong native man, who had lost his temper with his wife.

N1>3.       I am satisfied beyond reasonable doubt that the accused, when he struck his wife, intended to hurt her and cause her pain.

As I have said, it is part of the knowledge which I have as a jury that some native people know of the particular danger of violence bearing upon the spleen. I am not convinced that the accused was unaware of this but I could not be satisfied that he did know of it. He would have the general awareness of an adult native of the danger of violence to the human body, not significantly different, I would think, from that of an ordinary European person.

I am not prepared to find that he could not have foreseen death as a result of his blow.

I am bound to accept that he did not intend to kill his wife and, this being so, I am prepared to assume that he did not actually foresee her death as a possible consequence of his attack. He acted in anger without thinking about it. I would think that the ordinary person, European or native, such as the accused, who loses his temper in a quarrel and applies his fists to the body of his wife or neighbour, without intent to kill, does not think about the possibility of death. If he did think about it at all I think he would realise that there is a danger of death, however remote. As Mr. Dabb put it, if his wife falls dead at his feet it may come as something of a surprise to him at the time, but, he would realise, when he calmed down, that he should have thought about it. I think that the accused in this trial is in that position.

N1>4.       I am satisfied to the same extent that the violence of the blow ruptured his wife’s spleen immediately, causing her severe pain, and that she died shortly afterwards from the effects of this rupture.

N1>5.       I am satisfied beyond reasonable doubt that Donate’s spleen was enlarged to about twice the size of the average spleen of natives, exposed to recurrent attacks of malaria, and about six times the size of the usual spleen of a normal European, not so exposed.

N1>6.       I am satisfied beyond reasonable doubt that Donate’s spleen was much more susceptible to rupture from violence than it would have been had it been a normal spleen.

N1>7.       Accepting that the blow that caused the damage was a backhand blow, delivered to the right side of her stomach, I am not satisfied that it would have ruptured her spleen had it been a normal spleen. It could have done so, but, this would be unlikely. Had her spleen been of the size of the average spleen of a native, exposed to recurrent attacks of malaria, the blow could have ruptured it, but, rupture was less likely than rupture of the spleen in the condition in which it was.

I adhere to the view, which I expressed in R. v. Manga[ccxxix]¹⁰, and I consider that upon these findings the proper verdict is manslaughter.

In the application of Section 23 to unlawful killing I do not think that the final result of death is an “event” within the meaning of the phrase “an event which occurs by accident”.

I think that, in a sense, the phrase is an alternative exculpation to that provided in the first limb of the whole excusatory provision; “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.” In the absence of this second limb criminal responsibility would obtain wherever the original act did not occur independently of the exercise of the will, although the occurrence, or series of occurrences, which followed it, should properly be regarded as constituting an accident.

I gave some instances in Manga’s case[ccxxx]¹¹, which illustrate the need for protection against responsibility for the accidental consequences of a deliberate act.

In the application of Section 23 of the Queensland Criminal Code to the crime of unlawful killing I think that the word “event” is capable of including anything, any incident, happening, occurrence or intervention that comes between the initial act and the final result of death. It may include, in these, the original act. To my mind death, itself, is not in this class of event, although it is a “result” within the meaning of the second paragraph of Section 23. This paragraph expressly makes the intention to cause the result of death immaterial because of the definition of the crime of manslaughter.

Had Donate, when Mamote boxed her ears, turned and tripped over a dog that had strayed up the stairs from its proper place on the ground and, in falling, crushed her spleen, the question may have arisen.

Had the bullet from Vallance’s gun killed Pauline, the question of his criminal responsibility for her death would have arisen under the Tasmanian Criminal Code. In the circumstances of Vallance v. Regina[ccxxxi]¹² the High Court was concerned with the act of the youth in firing the gun and the event of the bullet striking her body. The only Justice who contemplated her death, Menzies J., considered that, had she died from fright, the accused would have been guilty of manslaughter under that Code, notwithstanding that her death was unintentional.

Whether I am right or wrong in my interpretation of the word “event” and assuming that her death was an “event”; that, in considering whether a killing is excused, death like the other things is to be regarded as an event, there remains the question: Did it occur by accident? It was the direct result of a deliberate blow of substantial violence to her body. It followed by natural processes in her body. These processes worked more readily because of the diseased condition of her spleen, but, I cannot see that this involves the introduction of the notion of accident into questions of criminal responsibility for unlawful killing. Violence to the body of any person is dangerous and a healthy spleen may rupture from a blow with the hand and death may follow such a blow to other parts of the human body.

An ordinary prudent person takes precaution against violence to the human body because it is dangerous to life as well as health. How, then, may a person, who offers violence to the body, say, “My victim’s death was an accident. I didn’t intend to kill him; he died because he happened to have a weak heart, or had recently suffered from an attack of malaria, or was not as healthy, or strong, as I took him to be.” One answer seems to be: “You are charged with manslaughter and intent to kill is not in issue.”

It seems to me, with respect, that those considerations form the basis of the decision of the Full Court of Queensland in Martyr’s case[ccxxxii]¹³ and I adhere to my acceptance of that decision.

Verdict: Guilty of the offence of manslaughter.

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

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

R>

[ccxx]1 1963 P. and N.G.L.R. p. 1.

[ccxxi]1 1963 P. and N.G.L.R. p. 115.

[ccxxii]Minj, 25th February, 1963. (Smithers J.)

[ccxxiii]Lae, 3rd April, 1963. (Minogue J.)

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

[ccxxv](1962) Q.S.R. 398.

[ccxxvi]1 1963 P. and N.G.L.R. p. 97.

[ccxxvii]Minj, 25th February, 1963. (Smithers J.)

[ccxxviii]Lae, 3rd April, 1963. (Minogue J.)

[ccxxix]1 1963 P. and N.G.L.R. p. 97.

[ccxxx]1 1963 P. and N.G.L.R. p. 97.

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

[ccxxxii] (1962) Q.R. 398.