Queen v Miawet [1963] PGSC 37 (3 April 1963)

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

THE QUEEN –v- MIAWWET.

REASONS FOR JUDGMENT

Minogue J.

TRIAL AT LAE
1^st, 2^nd & 3^rd
APRIL, 1963

The accused was charged that on or about the 24th day of December, 1962, he unlawfully killed his wife KAWAIN and so committed the crime of manslaughter.

Mr. Pratt appeared for the Crown and Mr. O'Regan for the accused.

The facts as I find them are these: On the morning of the 24th December, 1962 the accused, who lived with his wife in the village of Lawasambulae, went to another village to obtain a drum for ceremonial dancing. On his return with the drum, he went for a short time to his mother's house from whence, at his wife's instigation, he was summoned by their child to his midday meal. After he had finished eating, his youngest child, who appears to have been little more than a baby, came to him and sat on his knee. His wife took the child away from him, saying that she was not going to let the baby sit on his knee as he had been masturbating, and the child would get sick. She, at the time of uttering these remarks, was seated close to and with her back to him. The words were uttered in a loud voice, and I am satisfied that they were uttered in such a tone as could have been heard by most of the other people in the village.

By reason of the foregoing, the accused felt ashamed, lost control of himself, and in an outburst of anger, rose to his feet and administered a kick to his wife. This was done with the sole of his right foot in an area on the left side of her back, extending from the spine in the lower thoracic region diagonally downwards to the left, with his heel making contact slightly below the lowest left posterior rib. The kick was of moderate severity but not such as to leave any mark on his wife's body. The deceased fell to her left on to a dish of food, writhed in pain vomited and urinated. The accused attempted to get her to lay straight, and applied some hot water to the place where he had kicked her with the idea of easing the pain from which she was obviously suffering, and then went to his mother's place.

No medical attention was summoned, nor does any seem to have been available. KAWAIN died somewhere about six o'clock in the evening. A post mortem examination revealed that her spleen was between two and three times normal size, that it was ruptured with a transverse laceration about three inches in length on its posterior surface, that is, the surface facing the posterior ribs. The post mortem examination did not take place until the 29th December, and the body had undergone a considerable amount of putrefaction by this time. However, without setting out the medical evidence in detail, I am satisfied that the deceased died from a ruptured spleen and consequent loss of bloods and that the rupture of the spleen was a direct result of the flat-footed kick administered by the accused.

I am further satisfied on the evidence that the accused knew nothing of the danger of enlarged spleens nor of the dangerous consequences of administering any trauma to the area surrounding or in the vicinity of the spleen.

The village in which the accused lived has been long under strong administrative and Mission influence. The Luluai of the village, MOMBWAI, was called, and from his evidence I am satisfied that neither he nor the people of his village had any awareness of the danger of the rupturing of the spleen by the administration of violence to any part of the body. The Luluai has lived in the village all hisnlife, except for a period of ten years spent in the Royal Papua and New Guinea Constabulary, and in his life he has neither seen an instance of death from this cause nor has he ever heard of one. He was well aware of the fact that people should not be assaulted, but upon being pressed vigorously for the reason for his awareness, it appeared to be solely that people committing assault render themselves liable to a term of imprisonment.

I am satisfied that in the environment in which this accused lived, the probability or indeed possibility of death ensuing as a result of such a kick as that administered by him would not be foreseen, and that the event of death in this case was a complete surprise to the accused, and would have been to the other villagers.

I find also that the words uttered by the deceased were grossly insulting and calculated to deprive a village native in the accused's environment of his power of self-control and did in fact so deprive him. The insult was also unlawful, as it contravened the provisions of Regulation 83 of the Native Administration Regulations made under the Native Administrative Ordinance (New Guinea) 1921-1962.

In these circumstances, Mr. O'Regan, for the defence, submitted that the Crown had not negatived the defence of accident and that consequently I could not convict the accused of manslaughter, although I could convict him of assault under Section 577 of the Queensland Code adopted in New Guinea. He argued further that I should find the accused not guilty because, by Section 269 of the Code, he could not be held guilty of unlawful assault, and that (as I understood him) having acquitted the accused of manslaughter, I should also acquit him of the unlawful assault. As an alternative, I understood Mr. O'Regan to argue that the accused was entitled to an acquittal directly by virtue of Section 269, even if I were to hold his submissions with regard to accident not to be made out.

By Section 23 of the Code subject to the express provisions relating to negligent acts and omissions a parson 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, and by virtue of Section 36 of the Code and Sections 13 and 17 of the Laws Repeal and Adopting Ordinance 1921-1939 of the Territory of New Guinea the provisions of Section 23 are applicable to all statutory offences including therefore homicide. The express provisions relating to negligent acts or omissions are contained in Sections 288 and 289 but those have no bearing in the circumstances of this case.

The first question to be decided then is, was the event attracting criminal responsibility one that occurred by accident, or perhaps more accurately can I be satisfied beyond reasonable doubt that it was not. To answer that question one must first conclude (leaving aside any question of accident) what is the event for which the accused would be criminally responsible. That event, in my opinion, is the killing of KAWAIN. MIAWET was not charged with wilful murder (Section 301) or murder (Section 302) but with the residual offence of manslaughter (Section 303) i.e., the unlawful killing is authorised or justified or excused by law. Section 293 defines killing as the causing by any person of the death of another directly or indirectly by any means whatever, and it is clear beyond doubt that MIAWET directly caused the death of KAWAIN and so must be criminally responsible (i.e., liable to punishment for that offence – see Section 1 of the Code) unless the killing be authorised or justified or excused by law.

It is difficult to regard a causative process as an event because in the case of a causative process ending in death it seems logically and analytically more accurate to regard such a process as a series of events culminating in the final event of death. To illustrate, there was the event of kicking, the event of trauma being applied to the deceased's spleen, the event of rupture, the event of the draining of blood into the abdominal cavity, the event of the heart ceasing to beat, and then last of all, the event of death. The Shorter Oxford Dictionary defined an event as an incident or occurrence and also as the outcome, issue, of a course of proceedings; that which results from the operation of a cause; a consequence. Philp J. in R v. Callaghan 1942, S.R.Q. 40 at p.50 adopts these meanings when he says "now the word 'event' has two ordinary meanings, namely, (1) an incident or happening and (2) a result or consequence of action."

I think it proper to regard the "unlawful killing" dealt with in Sections 291 and 303 as being the culminating point or incident in the causative process set in train by the accused; that is to say, that the killing by the actor and the death of the subject are one and the same event. Both are the result or consequence of action. This construction gains supports from the wording employed in the section. The words "occurs by" seem to me to imply the idea of causation.

Did this death or killing occur by accident? "Accident" is not defined in the Code nor is it a term of art. I would have thought, considering the matter apart form authority, that an event occurs by accident when it is unwilled an unexpected – when a bystander viewing the event would have been moved to say, "who would have thought that would or could happen."Such a bystander would not of course be an abnormally incredulous person or a person with special knowledge of the processes involved in the event, but an ordinary person of ordinary intelligence and understanding in the environment in which the event happens.

In the circumstances of this case I am of opinion that any native in Lawasambulae, in relation to KAWAIN's death, would have said just that. The administration of physical chastisement to wives with either hands or feet is, I feel, not an uncommon happening in the lives of people such as the accused and his wife, and no-one had ever heard of fatal or even serious results following such conduct. The particularly vulnerable nature of the spleen was, I am confident, quite unknown in this environment, and so is the test I have proposed be the correct one, KAWAIN's death did occur by accident.

Is there then any authority which must compel me to a view contrary to that which I have taken? I am conscious of the oft-repeated, and with respect, correct opinions that the Code is to be interpreted as the written document that it is and not necessarily as the statutory embodiment of the common law. But it seems to me that the view of Philp J. that the whole intention of the Code is to statutorily accelerate the evolution of the law of homicide from an almost exclusive concern with the external act which occasions death to a primary concern with the mind of the man who did the act and to make the mind of the killer the crucial test is to correct view. And I do not think one can disregard the evolution of the common law in interpreting the Code except of course where the clear meaning of the words used compels otherwise. After all it is an instrument which is intended to embody the whole criminal law in a society whose attitudes must of necessity change and evolve from time to time. Stephens Digest of the Criminal law 9th ed.260 says of accident - "An event is said to be accidental when the act by which it is caused is not done with the intention of causing it and when its occurrence as a consequence of such act is not so probable that a person of ordinary intelligence ought under the circumstances in which it is done to take reasonable precautions against it." To me this seems to embody the common sense of the common law and I can see nothing in the relevant sections of the Code which compel me to a different construction of that word in the Code. Again, as was said by Lord Lindley in Fenton v. J. Thorley & Co. Limited [1903] UKLawRpAC 48; 1903 A.C. 443 at p. 453, "The word 'accident' is not a technical legal terms with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means unintended or unexpected occurrence which produces hurt or loss." The event here, that is, the death or killing, was, in my view, both unintended and unexpected and one which would not have been expected by any village native in the accused's environment. A similar view has been taken by the learned Chief Justice of this Territory in The Queen v. Diru (26^th May, 1960) in The Queen v. Gamumu (6^th June, 1960) and by Smithers J. in The Queen v. Dimi (19^th November, 1962) and in The Queen v. Talu (25^th February, 1963). Such a view, too, has been expressed by the Justices of the High Court in Vallence v. The Queen [1961] HCA 42; 35 A.L.J.R. 182. See per Dixon C.J. at p.185, Kitto J. at p. 187, per Menzies J. at p. 190, and per Windeyer J. at p. 194.

However, the Full Court of Queensland in R v. Martyr 1962 S.R.Q. p. 398, in circumstances not greatly different from those existing in this case, allowing for the differences in environment, held that the death was not caused by accident within the meaning of Section 23 of the Code. As I read the reasons of the Judges in that case, they all agree that the defence of accident is available in a case where in consequence of an intentional act by the accused (whether lawful or unlawful) an unintended and unforeseen happening occurs which is the proximate cause of an injury resulting in death, but because in that case the death was regarded as the direct result of the willed act they held that that death was not the result of accident. With the greatest respect to the learned Judges who comprise that Court, I prefer the reasoning of Smithers J. in R v. Talu (supra). Section 23 is, in my opinion, available whether the causation be direct or indirect, and I agree with what was said by Philp J. in R v. Callaghan (supra) at p. 50, "so that if A unintentionally strike B a light blow but the accident grievous bodily harm results, the blow is not an incident which occurs by accident, but the grievous bodily harm is a result which occurs by accident. That under these circumstances A should escape liability for the grievous bodily harm while being liable for the assault is quite consistent with one's notion of justice. Why then should not the section have a similar application when the accidental result of the blow intended as a light blow is death?"

We have long been accustomed in the Workers' Compensation jurisdiction to the notion of accident happening by physiological change occurring within the body, and if unforeseeability and unexpectedness be the criterion, which I believe them to be, it seems contrary to one's conception of justice that criminal responsibility should attach to the unforeseeable and. unexpected result.

From the reasons that I have earlier set out it will be seen that I cannot agree with the meaning given to "event" by Ollerenshaw J. in R v. Manga (30th January, 1963), nor do I agree with his view that where death results from an unlawful assault the offence is manslaughter. To take the example cited by Philp J. in R v. Martyr (supra) I cannot see why in the case of a haemophilie who receives some slight scratch in the course of a minor assault and consequently dies, his death should be any the less an accident than if in the course of avoiding the same assault the had tripped, fallen, and in the course of falling incurred the same fatal scratch from some agency other than the assailant. To hold otherwise seems to me to be reverting to the earlier common law view that death caused in the doing of any unlawful act is manslaughter, and to be out of line with what I conceive to be the developing modern tendency to equate criminal responsibility with moral culpability. That death unintentionally caused in the course of an unlawful act is manslaughter seems, from what was said in Andrews v. Director of Public Prosecutions 1937 A.C. at p. 576, to be too wide a proposition. The correct statement of the common law appears to me to be that a man in prima facie guilty of manslaughter if he, without having any intention to kill or do grievous bodily harm, kills another by an act which is both unlawful and dangerous and realised by him to be dangerous: See R v. Turner [1962] VicRp 2; 1962, V.R. 30 and R. v. Longley 1962 V.R. 187 per Shell J. at p.142.

Unless there is that degree of recklessness as to consequences of an act which would lead intention to be ascribed in the sense adverted to by Dixon C.J. in R. v.Vallence (supra) or to the extent that criminal negligence should be held to exist, in either of which cases of course the defence of accident would not be open, I cannot see anything in the Code which compels me to hold that merely because an event is a direct or immediate result of a willed act, no matter how unforeseeable or unexpected that result, it should attract criminal liability. This does not mean to say that if an act which brings about the event is unlawful, i.e., if it transgresses some portion of the Code, it should not attract criminal responsibility for that act, but to punish for the accidental event rather then for the wrongful act seems to me contrary to the intention of the Code.

Accordingly in my opinion the death of KAWAIN was an event which occurred by accident and the accused must be acquitted of the charge of manslaughter.

By Section 577 of the Criminal Code (Q' 1d adopted), as amended, upon an indictment charging any person with unlawfully killing any other person the accused person may be convicted of, inter alia, unlawfully assaulting the person if that offence is established by the evidence. "Assault" is defined in Section 245 and Section 246 makes an assault unlawful and an offence unless it is authorised or justified or excused by law. Prima facie, the kick administered by MIAWET to his wife was an assault, but Mr. O'Regan sought to justify or excuse it by virtue of the provisions of Sections 268 and 269 of the Code.

On the facts as I have found then, I am satisfied that KAWAIN gave the accused provocation for an assault within the meaning of Section 268. Section 269 enacts that a person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault if he is in fact deprived by the provocation of the power of self-control and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation and is not intended, and is not such as is likely, to cause death or grievous bodily harm. The section goes on to enact that whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered, and whether in any particular case the person provoked was actually deprived by the provocation of the power of self-control, and whether any for used is or is not disproportionate to the provocation are questions of fact.

I interpret the words "ordinary person" as being an ordinary village native of the village and area of Lawasambulae, and I hope that I have already sufficiently made clear my view that the insult proffered by KAWAIN was such as to be likely to deprive such an ordinary person of the power of self-control and to induce him to assault her. I have already found that MIAWET was deprived by the provocation of this power of self-control, and I further find that the force used was not disproportionate to the provocation. It was a single kick with the bare foot, administered suddenly in anger, immediately following upon the insult and consequently before there was time for the anger to abate. I am quite satisfied that it was not intended to cause death or grievous bodily harm.

The only remaining question is as to whether the kick was likely to cause such death or grievous bodily harm. Possessed of all the facts as we now are, the kick was likely to and did in fact cause death, but in my opinion, the situation must be looked at at the time and in the place of the assault. The test is, would it have seemed to MIAWET or to anyone in his village as if death or grievous bodily harm would happen as the result of such a kick? I am not satisfied that it would, and indeed I am satisfied that it would not. This being so, it follows that Section 269 is applicable, and the accused is not criminally responsible for the assault, and must be acquitted.

In the light of what I have said, it is unnecessary for me to decide whether Section 269 of itself affords a complete defence to an accused charged with manslaughter. It may be that though the assault is justified under that section if death be caused by the assault the mere fact that the assault was justified is immaterial to the question whether the killing was justified or excused. See R v. Martyr (supra) per Philp J. at p. 414.

On the other hand the proper view may well be that if the assault is justified no criminal responsibility can attach to the consequences of that assault. The question is an important one and needs more detailed argument than was able to be devoted to it in this case. Accordingly I do not propose to consider this defence further but prefer to await the benefit of further and fuller argument if and when the appropriate case calls for it.