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Talu, Regina v [1963] PGSC 24; [1963] PNGLR 136 (25 February 1963)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 136 - Regina v Talu

[1963] PNGLR 136

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

TALU

Minj

Smithers J

25 February 1963

CRIMINAL LAW - Unlawful killing - Accident - Death from massive haemorrhage arising from rupture of spleen - Rupture caused by deliberate kick of relatively light force on the left side of body - Spleen enlarged and peculiarly liable to rupture from external pressure - Death unforeseen and not reasonably foreseeable - Criminal Code S.S. 23^*[clxxii]1 and 296^*[clxxiii]2*.

The accused was charged with unlawfully killing his mother. The evidence showed that the mother’s death resulted from massive haemorrhage following the rupture of her spleen, this rupture being itself the result of pressure directly applied by the accused when he kicked the deceased on the left side of her body. The evidence also showed that the kick was a relatively light one. Medical opinion was that but for the condition of her spleen (which was about two and one-half times normal size and therefore peculiarly liable to rupture from external pressure) the deceased would not have died from the kick she received. The accused did not foresee at the time he kicked his mother that she might die as a consequence of his kicking and an ordinary native of his neighbourhood, similarly circumstanced, would not have foreseen such a consequence.

Held:

That “an event which occurs by accident” in Section 23 of the Criminal Code is one which the person doing the act did not foresee as a possibility substantial enough to be worthy of attention in deciding whether or not to do the act and which was so unlikely to result from the act that no ordinary person similarly circumstanced could fairly have been expected to take it into account.

Held:

Also, that the possibility that the mother’s death was an event which occurred by accident could not be excluded on the evidence and accordingly the accused must be found not guilty of manslaughter.

Regina v. Martyr, (1962) Q.R. 398, not followed.

Counsel:

Bowen, for the Crown.

Germain, for the defence.

C.A.V.

SMITHERS J: In this case the prisoner was presented on a charge of unlawful killing of his mother. The death resulted from massive haemorrhage arising from a rupture of the spleen. This rupture was itself the result of pressure directly applied by the accused when he kicked the deceased in the left side by way of retaliation for conduct on the part of his mother which did not constitute provocation for such retaliation. The medical evidence disclosed that but for the condition of her spleen the deceased would not have died from the blow she received. She was a well nourished woman of about forty years of age. The spleen was about two and one-half times normal size. As a result portion of it extended below and lost the protection of the rib cage and was peculiarly liable to rupture from external pressure. The evidence was that a fairly light kick would have been enough to cause the rupture. The doctor who gave evidence of post mortem examination found no external mark of any kind and said that with a blow of any severity some such mark would have been expected. He further stated that, in his opinion, the blow must have been a relatively light one.

The only eye witness of the kick was a girl of about ten years old, the sister of the accused. She was asked to demonstrate how the accused had kicked her mother. She demonstrated a kick of extreme gentleness. Although she probably understated the severity of the kick the only evidence before me indicates that the kick was much more remarkable for its gentleness than for violence. From the medical evidence, I find that but for the existence of the enlarged spleen the kick would not have caused any major injury to the deceased. I also find that any reasonable person in the circumstances would have considered the possibility of death from such a kick to be entirely remote and negligible. It appeared from the evidence of Luluai Korip that the perils associated with enlarged spleens are not understood by the people in the area in which the accused lives, that he himself was aware of those perils only because a European doctor had informed him thereof. He stated that he made it his business to inform other indigenes about the matter, but the natives generally do not understand the dangers involved in striking a blow in the area of the abdomen should there be an enlarged spleen. In these circumstances, I cannot find that Talu or any ordinary native of his neighbourhood, whom one may put into his place at the time of the fatal kick, would have foreseen that as a likely consequence of his kicking as he did, his mother might die. (See Vallance’s case[clxxiv]³ Menzies J.) or that death was a possibility substantial enough to be thought worthy of attention in deciding whether to kick or not. In other words, I cannot find that death was so likely to result from the kick that an ordinary person similarly circumstanced could fairly have been expected to take it into account.

Notwithstanding these findings, Mr. Bowen submitted that the accused should be found guilty of manslaughter. He rightly said that it was clear that the death of the deceased was directly caused by an assault voluntarily committed by the accused and that the killing was not authorised, justified or excused by law. He said that the presence or absence of an intention to kill was irrelevant. For these contentions he rested upon authority. He further contended that, on the facts, there was no room for a defence of accident under Section 23. For this he relied upon the decision of the Full Court of Queensland in R. v. Martyr[clxxv]⁴. He also referred me to some comments in the nature of obiter dicta made by Mr. Justice Ollerenshaw in R. v. Manga[clxxvi]⁵ decided at Tapini on 30th January, 1963, in which His Honour expressed concurrence with the decision in Martyr’s case[clxxvii]⁶ although he did not agree with the learned Judges who decided that case so far as the meaning of “event” is concerned. Mr. Bowen said it was established by Martyr’s case[clxxviii]⁷ that if death is caused by an act in itself voluntary then the accused may be guilty of manslaughter notwithstanding that the act was of such a nature that the accused did not foresee and that no ordinary person in his shoes would have foreseen any real possibility that such an act would cause death or serious bodily harm.

When it is remembered that the lawfulness or unlawfulness of the act causing death is irrelevant this statement of the law, if sound, certainly takes to the ultimate notion that the Code leaves no room for the doctrine of mens rea. Mr. Bowen submitted that this statement rested upon propositions to be found in the judgments in Martyr’s case, the fundamentals of which may be summarised in the following propositions:

N2>(a) That, although an event which occurs by accident is a result which is caused by an unforseeable occurrence, “accident” does not include an existing, physical condition or an inherent weakness, for example, in the brain (cf. per Mansfield C. J. at p. 407);

N2>(b)

(i) provided a blow was a causa causans of the death, the death could not be said to be accidental (cf. per Mansfield C. J. at p. 407);

(ii) death does not occur by accident if it is the immediate or direct result of the willed act as distinct from a case in which the actually fatal force was applied to the body by some unforeseeable happening supervening upon a non fatal blow (cf. Philp J. at p. 415);

(iii) that if the event of death occurs by reason of something, for example, a blow, which is intended it does not occur by accident within the meaning of that word in Section 23 (cf. Townley, J. at p. 41);

N2>(c) that Section 296 of the Code indicates that disease or disorder of the victim is not to be a defence to a charge of homicide (cf. Philp J. at p. 415).

Proposition (a) above appears to concede that the test of accident is foreseeability, but denies that a concealed and unsuspected extraordinary physical weakness in the human body can in law constitute a circumstance to be taken into account on the issue of accident or of foreseeability of ultimate death. It is not self-evident why such a weakness if it forms part of a chain of causation between a blow and an ultimate fatal reaction in the brain should be excluded from the material upon which the question whether death was accidental or otherwise should be decided. No authority for this view is quoted in Martyr’s case[clxxix]⁸ and no principle to support it has been submitted to me.

I am unable to understand why extraordinary and unexpected circumstances in a chain of causation outside the human body should be relevant to the issue of accident or no accident and to the accepted test of foreseeability, but that circumstances inside the human body should be excluded. Of course, if, as in Dimi’s case[clxxx]⁹ (infra) a strong man strikes another a mighty swinging blow with a nicely weighted young tree trunk so that death is obviously a distinct possibility whatever the condition of the victim, the assailant cannot be heard to say that because of a rare and unexpected internal physical weakness, the victim’s death in fact occurred by a physical route and at a speed which he did not foresee. But the position is manifestly different in the case of a moderate box on the ears of an apparently normal schoolboy who dies because he suffered from some rare and unforeseeable condition which rendered him fatally sensitive to moderate shock on the head. Tests of foreseeability reasonably facilitate the solution of the problem of accident and seem to make it unneccessary to seek in the expressions of the Code some special rules to determine this issue of fact when it concerns things which exist or happen in the human body.

Proposition (b) (i) above asserts in effect that Section 23 so far as it relates to the defence of accident cannot have effect with respect to any event of which a blow was a causa causans and not merely a causa sine qua non. But that part of Section 23 which deals with the defence of accident is intended to apply to a man whose actions are such that but for its provisions he would be guilty. It contemplates in relation to homicide that a man has directly or indirectly caused a death. Section 23 has no work to do in homicide until there is a death of which the accused’s act was a causa causans direct or indirect. If a man’s action is merely a causa sine qua non of an event which if caused by him would attract the criminal law, then he escapes criminal responsibility for his act not by Section 23, but because, so far as the event in question is concerned, his act was narrative rather than causative. The assertion contained in the proposition appears to be in conflict with the provisions of the section.

Propositions (b) (ii) and (iii) each draw attention to the feature that the act in question was intentional or willed and seem to treat that as important. But here again the exclusion of willed acts from the operation of Section 23 so far as it relates to accident appears to be contrary to the words of the section. It says that there is to be no criminal responsibility for an act performed independently of the will of the accused “or” for an event which occurs by accident. Clearly the defence of accident applies where the alternative defence that the act was independent of the will is not open. It is worthy of note that in Callaghan’s case[clxxxi]¹⁰ Philp, J. himself says: “But I do not agree with His Honour that if the blow was not intended to do grievous bodily harm or to kill, but was intended as a blow, and in the result the man at whom the blow was directed is in fact killed, the killing could not be accident within the meaning of the Code. It is plain from the context that His Honour was postulating a deliberate blow with death supervening by accident thereon. In my view under Section 23 the killing . . . . would not be manslaughter . . . .”

But proposition (b) (ii) may be said to treat as critical the directness of death as the result of the act; thus, a result which is an immediate or direct consequence of an act cannot be an event which occurs by accident.

Section 23 does not distinguish between immediate or direct results on the one hand and non-immediate and indirect results on the other. To do so appears to me to confuse the speed and manner in which the resulting event follows the cause with the quality of the event. The question really is whether the event has the quality of an accident. The presence or absence of this quality must derive from the quality of surprise or unexpectedness of the occurrence of the event considered in relation to the performance by the accused of his act in the light of his knowledge and reasoning power, or that of a reasonable person in his shoes. It is conceivable that the more direct the result the greater surprise it may be to all concerned.

Directness of result may create the illusion that such directness excludes accident because on the facts which are apparent accident may be unthinkable. Thus, if a man deliberately cuts off the head of another with a cutlass a suggestion of accident is obviously excluded. Although it may seem that this is due to the speed and directness of the result achieved, the better view appears to me to be that the absence of accident is due to the fact that the result was foreseen and could not be said to be a surprise to anybody.

If one adopts the test of immediacy and directness of death the question arises as to what time-table and what degree of directness is to be critical. Is it to be said that death from a blow followed only by physical sequelae ultimately affecting a fatal organ is always immediate and direct in the relevant sense? If, so, then proposition (b) (ii) is proposition (a) in different words. If complicated and delayed physical sequelae ultimately resulting in death may impart indirectness sufficient to conform with the possibility of accident then there is introduced a preliminary enquiry which may depend on difficult medical questions far removed from the area of the knowledge or contemplation of anybody connected with the acts and events the subject of the alleged crime. It appears to me that such considerations divert one from the natural enquiry arising out of the meaning of the word “accident” and that there is no necessity or warrant for making such a diversion.

If a physical reaction travels from a place of contact of a blow to a place in the body where a fatal lesion occurs, then, whether that journey be fast or slow or long or short, if in truth it would never have been taken or completed but for some unexpected and unforeseeable feature of that particular body, to my mind the occurrence of death has the quality of accident. If a man turns on a switch which he has good reason to believe will turn on the dining-room light, but because of circumstances which he could not have foreseen the wires have been changed and in fact the kitchen light lights up, it would not be unreasonable to say that the illumination of the kitchen occurred by accident. If a man delivers a blow to a part of the human body which he has good reason to believe will not set up a reaction in any fatal or dangerous part, but by reason of some unforeseeable circumstances there is a channel of communication from the part struck to a fatal organ and there is a fatal reaction in that organ, is that any the less an event which has occurred by accident.

As to proposition (c), all that Section 296 does is to make it impossible for a person who has killed another to contend that he did not kill that other person merely because the victim was labouring under some disease which contributed to the death. In Martyr’s case[clxxxii]¹¹ and in the case before me there is no contention that the accused did not kill the deceased. What is said is that, although he killed the deceased, the death occurred by accident. I am unable to understand how this provision assists in the solution of the present problem.

Under the Code criminal responsibility attaches to a person who kills unlawfully, that is to a person who by some means or other directly or indirectly so causes death. There is authority that responsibility attaches whatever the intent of the person concerned and, in the case of assault, even if that assault be not unlawful. With this primary position of law established, it would be surprising that with respect to a serious crime, like manslaughter, some criterion of criminal responsibility related in some way to blameworthiness should not appear. Section 23, if interpreted as Section 13 (1) of the Tasmanian Criminal Code was by the High Court in Vallance v. Regina[clxxxiii]¹², or as interpreted by the Chief Justice of this Court in Regina v. Diru[clxxxiv]¹³ supplies this criterion. It is reasonable that criminal responsibility should be related to blameworthiness and it is fair that blameworthiness should be related to the foreseeability of possible consequences of one’s actions. Such a view eliminates the element of injustice and, indeed, of caprice, in a law which makes criminal responsibility depend on causation alone.

The idea that wholly accidental and unintended harm is not culpable is deeply imbedded in our law.

In these circumstances the considered observations of the High Court and of the Tasmanian Court of Criminal Appeal in Vallance’s case[clxxxv]¹⁴ ought to be of assistance. They indicate that for the purposes of Section 13 of the Tasmanian Criminal Code directness of causation is not inconsistent with chance occurrence and that foreseeability is the appropriate test to determine whether an event has occurred by chance.

Considerations affecting the interpretation of Section 13 (1) are obviously closely related to those affecting the first paragraph of Section 23 of the Queensland Code. In one section the critical words are “occurs by chance” and in the other they are “occurs by accident.”

In Vallance’s case[clxxxvi]¹⁵ the accused deliberately fired a gun and caused a bullet to fly and wound the victim, but the accused did not intend so to wound her. The wound was thus a direct and immediate result of a deliberate act of firing. The suggestion of accident arose from the contention of the accused that he only fired “an unaimed snapshot”, “not at the victim,” “I just pulled the rifle up and pointed it at the ground.”

It would seem that the Judges of the Court of Criminal Appeal of Tasmania[clxxxvii]¹⁶ treated the facts of the case as legitimately raising the issue of the occurrence by chance of the event of the wounding of the victim. So doing they arrived, I gather, at the conclusion that the proper direction to the jury on this issue required an intimation, in substance, that there should be an acquittal unless the event (the wounding) was a result of the act of firing the gun which the accused foresaw as a possible, or not unlikely, consequence of firing and nevertheless he fired. Some of the Judges of the High Court indicate that an acquittal should only result if, not only did the accused not foresee the result as possible, or as having the requisite degree of likelihood, but also if no reasonable person in his situation would not have so foreseen, but I do not understand any of them to say that the issue of chance was not legitimately raised on the evidence. It is true that some of Their Honours solve the problem of Vallance’s case[clxxxviii]¹⁷ through the first part of Section 13 (1) which provides that an act is culpable only if intentional. They point out that the scope of things intended extends to all consequences foreseen as not unlikely of an act which is nevertheless dliberately performed. The result is that the direction formulated by these Judges does not differ widely from the view taken by the Full Court of Tasmania, although that view was reached by means of the later words of Section 13 (1), namely, “nor . . . . for an event which occurs by chance.”

Some of the judgments delivered in the High Court appear to me expressly to support the view that the evidence in Vallance’s case[clxxxix]¹⁸ legitimately raises the issue of chance under Section 13 (1), and I think that all do by implication. There is no suggestion anywhere that the directness of the wounding as a consequence of the shooting was inconsistent with occurrence by chance, or that the issue of chance was not to be determined as an ordinary issue of fact. It is clear that there is agreement that the issue is to be determined upon considerations, subjective and/or objective, of the foreseeability of the ultimate event as a not unlikely consequence of the act which caused it These views accord also with those of the Chief Justice of this Territory.

It seems to me that Martyr’s case[cxc]¹⁹ conflicts with this current of opinion. I do not think I should depart from it despite the respect which one accords to the Court which decided Martyr’s case[cxci]²⁰. Counsel has not satisfied me that I should so depart, and although the disquisitions in Vallance’s case[cxcii]²¹ relate to so cognate a problem, the learned Judges in Martyr’s case[cxciii]²² do not devote any space to a discussion of anything said therein. The distinction between the two Codes, pointed out by Mr. Justice Windeyer at p. 194, appears to strengthen the case for adhering to the view which I have formed.

The comments of Ollerenshaw J. in Manga’s case[cxciv]²³ do not really assist me because, if one takes the view which is that of His Honour, namely, that a death caused by an assault cannot be an event within the meaning of Section 23, the discussion really ends at that point.

With respect to this view of His Honour, it is not clear to me why the expiry of life is not an event, according to the ordinary meaning of that word, whether or not it is the result of an assault. Indeed, it is an event of great significance in homicide cases. I do not gain the help from the second paragraph of Section 23 which His Honour does. The fact that there may be culpability for results not intended does not appear to be inconsistent with a provision that there is to be no culpability if the result occured by accident. An accidental result must be not only unintended, but also unforeseeable. The Code may not permit a man to escape the results of his actions merely because they are unintended, but at the same time it may well exclude culpability for results which neither the doer, nor any reasonable person in his shoes, could foresee as a possibility - in other words for results which are accidental albeit that such results are necessarily also unintended. All the second part of Section 23 says is that, subject to the exception specified, the result intended to be caused by an act is immaterial.

That death caused by an assault should be an event within the meaning of Section 23 for the purpose of an enquiry as to whether it occurred by accident does not seem to strain the meaning of any of the words of the Code, or to produce a conclusion that is not desirable. Certainly two of the Judges in Martyr’s case[cxcv]²⁴ accepted the view that death caused by an assault is an event for the purpose of Section 23, and I think the same may be said of the judgment of the Chief Justice. Those Judges did not say that the death was not the relevant event. They said it did not occur by accident.

In the result I return to the view I expressed in R. v. Dimi[cxcvi]²⁵ at Daru in November, 1962:

“I take the judgment in Vallance v. Regina[cxcvii]²⁶ to indicate that an event which occurs by accident is one which the person doing the act did not foresee as a possibility substantial enough to be worthy of attention in deciding whether or not to do the act, and the event was so unlikely to result from the act that no ordinary person similarly circumstanced could fairly have been expected to take it into account. (See Kitto J. at p. 187).”

I think, therefore, that it is my duty to act in accordance with this view. Having regard to my findings, therefore, I am unable to exclude the possibility that the event of the death of Talu’s mother was an accident within the meaning of Section 23. Accordingly he is not guilty of manslaughter.

(His Honour returned a verdict of not guilty of manslaughter but guilty of assault occasioning bodily harm.)

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

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

[clxxii]* Section 23 of the Criminal Code provides:

“Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial. Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.”

[clxxiii]** Section 296 of the Criminal Code provides:

“A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another case, is deemed to have killed that other person.”

[clxxiv][1961] HCA 42; 35 A.L.J.R. 182 at p. 191.

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

[clxxvi](1963) P. & N.G.D.R. 97.

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

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

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

[clxxx]P. & N.G. Supreme Court, 1962 November, Daru: Smithers J.

[clxxxi] (1942) Q.J.P.R. 58 at 69.

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

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

[clxxxiv](1963) P. & N.G.LR. 15.

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