Tsagaroan, Regina v [1965] PGSC 44; [1965-66] PNGLR 122 (27 May 1965)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 122 - Regina v Tsagaroan-Kagobo

[1965-66] PNGLR 122

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

TSAGAROAN-KAGOBO

Wabag and Port Moresby

Mann CJ

5-7 May 1965

27 May 1965

CRIMINAL LAW - Manslaughter - Provocation - Accident - Criminal negligence - Foreseeability of injury - The Criminal Code, ss. 23, 24, 289.

The Criminal Code, s. 23, 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.”

The accused, his wife and month-old child shared a house with the accused’s mother and two young sisters. On the night in question the accused returned home from work when it was quite dark and entered a room in which the five other occupants of the house were gathered. The fire was low and, when the accused began to place more wood on the fire, his wife objected that it was wood she had cut for the next day. He ignored her request to desist and she threw a piece of partly burned stick at him, causing his head to bleed. The accused immediately threw the stick back at his wife and it struck their baby, then on his wife’s knee, causing injuries which resulted in the child’s death. The accused did not know of the whereabouts of the child at the time. The accused was charged with the manslaughter of his child.

Held:

N1>(1)      The fact that an act is unlawful does not prevent the conclusion that a death flowing from that act was due to an accident within the meaning of s. 23.

N1>(2)      Of the many different circumstances under which a charge of manslaughter can arise, there is a distinction to be observed between cases involving negligence and those that do not.

N1>(3)      The defence of provocation did not excuse the throwing of the stick, because the child gave no provocation and, as regards both the wife and the child, the throwing of the stick was likely to cause grievous bodily harm.

N1>(4)      The defence of accident under s. 23 failed because the child was struck as a result of criminal negligence and, considerations of criminal negligence apart, the accused ought to have foreseen the danger flowing from his act.

Meaning of the term “act” in s. 23 discussed.

Doctrine of transferred malice considered.

Reasons for extending leniency to the accused stated.

Cases referred to:

R. v. Vallance [1961] HCA 42; (1961), 108 C.L.R. 56; R. v. Martyn, [1962] Qd.R. 398; R. v. Gross (1913), 23 Cox 455; R. v. Fenton (1830), 1 Lew. 179, 168 E.R. 1004; Mamote Kulong v. R., [1963] P. & N.G.L.R. 163; R. v. Franklin (1883), 15 Cox C.C. 163; R. v. Callaghan (1942), 36 Q.J.P.R. 58; Eugeniou v. R. (1964), 37 A.L.J.R. 508; Callaghan v. R. (1952), 87 C.L.R. 115; R. v. Tralka, [1965] Qd.R. 225.

Trial on Indictment.

The facts are sufficiently stated in the judgment.

Counsel:

Shaw, for the Crown.

Germain, for the accused.

7 May 1965

MANN CJ:  The accused is charged with the manslaughter of his unnamed infant child, less than one month old. There is no substantial conflict in the evidence.

The accused and his wife were living happily together in a house in which his mother and two young sisters also lived. On the night in question the accused came home from some work at Laiagam station in the evening at about 7 o’clock, when it was quite dark. He entered what may be described as the living room of his native materials house. The room measured about 8 ft. x 12 ft. The other occupants of the house were also in the room, making six persons in all including the baby.

The accused went to eat some food previously prepared by his wife, but found something like fire-ash on a piece of corn-cob he was eating and went to stoke the fire to give enough light to see what he was eating.

The fire, having fulfilled its purpose for the time being in cooking, had been allowed to die down to an extent that at most some pieces of wood were smouldering, and not emitting enough light to make any material contribution to visibility. Witnesses who were sitting within a few feet of each other could not see each other, or even make out dark shadows sufficient to indicate their presence. Nevertheless, as people accustomed to living under these conditions, they were able to locate each other by means of sounds of movement or voice.

When the wife of the accused detected that her husband was stirring up the fire and putting more fuel in the fire-place, from a supply left there previously by her, she protested to the effect that she had cut this firewood herself for the next day and asked him why he was using it. He ignored her and she became angry and picked up a piece of stick, about 1 in. in diameter and about 2 ft. long. She knew it was lying in the fireplace, partly burned. She threw this at her husband in the fashion in which one throws a dart. He was only about 7 ft. away from her, and the stick struck him on the ear and caused him pain and some bleeding, enough for him to feel the blood on his neck. He “fell over” according to the evidence, but I would not think that this means more than that in a squatting or crouching position he momentarily lost balance.

The accused picked up the stick immediately and threw it back at his wife. It is most likely that he threw it in a different manner from that adopted by his wife, but at all events the stick struck with considerable force the forehead of their infant son, whom the wife happened to be nursing in her arms at the time. The infant was asleep and making no sound that would reveal its presence. The wife immediately revealed what had occurred and her mother-in-law called for help.

The aid post orderly came in from nearby with a lamp which revealed a depressed area on the infant’s upper left temple. The skin was not broken and there was no bleeding. The infant had a very feeble pulse. The aid post orderly then attended to the injury of the accused and came back to the infant and found it already dead. It was buried in the early morning and then the accused and others came in to Laiagam station to report the occurrence. There was no attempt to avoid any trouble.

The infant had been in good health and was asleep at the time. It was the practice of the infant’s mother to leave it in a string bag, or “bilum”, when asleep, on the floor in a place which may be termed its bed, a few feet, perhaps 8 ft., from where she was now sitting. When the infant woke she took it from its string bag, fed it and nursed it until it was soundly asleep again, whereupon it was her practice to put it back in its string bag in the usual place.

There was no medical evidence, beyond that of the observation of the aid post orderly, as to the cause of death, but I find no difficulty in concluding without doubt that the blow from the stick caused the death of the infant, which was apparently alive and well up to that time.

The accused said that he did not know that the infant was in his mother’s arms and that he would not have thrown the stick if he had known it. I do not hesitate to accept that. He had no special reason to know that fact, since no reference had been made to the baby in their conversation and the baby had made no noise. On the other hand, he had no reason for any affirmative view that the infant was in its bed. I think the only reasonable conclusion is that he did not think either of the baby or of the four others who might have been endangered, and threw the stick at his wife thinking only of her and the pain he had felt.

I think, therefore, that the accused cannot rely on s. 24 of the Code. I do not think that he had any affirmative belief as to the precise whereabouts of the baby, and if he had thought of it at all, I do not believe that he would have thrown the stick without further investigation.

To conform with the arguments addressed to me on both sides, I make specific findings as follows:

N2>(a)      The baby’s death was the direct and probable result of the blow on the head from the stick.

N2>(b)      The stick was thrown intentionally by the accused of his own volition, with the intention of causing pain and minor hurt to his wife.

N2>(c)      It was thrown accurately and did not in fact endanger any of the other occupants of the room; i.e., excluding the wife and baby. (In another social setting a different conclusion might be reached.)

N2>(d)      The throwing of the stick was in fact highly dangerous to both the wife and the infant in the position they both in fact occupied.

N2>(e)      The accused knew accurately his wife’s position but would not be in a position to avoid striking her eye or any other vulnerable part, because of the darkness.

N2>(f)      The accused was in fact unaware of the infant’s presence in the mother’s arms and had no reason to suppose that it might be there, apart from the fact that she was, as he knew, in the habit of breast-feeding the child and handling it as appropriate for other reasons, without observing any particular time-table.

N2>(g)      The accused did not voluntarily or intentionally strike the infant, nor did his will or intent extend to any injury harm or risk to the infant.

N2>(h)      The accused did not intend, or will, that any action of his should result in the death, or any risk of death, of the infant.

N2>(i)       The throwing of the stick was in fact provoked by the actions of the wife in throwing the same stick with substantial force and causing pain, surprise and bleeding.

N2>(j)      The actions of the accused were not disproportionate to the provocation, particularly in the social climate of the area, and were not intended to cause death or grievous bodily harm, but in the circumstances were in fact likely to cause grievous bodily harm (in each case to the wife).

N2>(k)      The infant offered no provocation, nor did the accused believe that he had.

N2>(l)       The provocation was such that it would deprive an ordinary village native of his area of self-control to the extent of making it likely that he would retaliate as the accused did, and the accused lost his self-control to that extent.

All of these findings are supported by clear and uncontradicted evidence and I entertain no doubt about the facts.

In Vallance v. The Queen[cvii]¹, the firing of the weapon was intentional and voluntary, the wounding was not. It was not a case of negligence.

In Martyr’s case[cviii]², the death was the direct and immediate result of the willed act, which extended all the distance from the accused to the victim.

In the present case before me the willed “act” considered as a physical act alone was the throwing of the stick. The striking of the child was in no sense a willed act, but may have been something which occurred as an “event”, or as a result. The death may have been an event or a result, in either case in direct consequence of the willed act.

If the term “act” in s. 23 extends beyond the physical acts of the accused, so as to include the whole actus reus (see article on s. 23 of the Criminal Code of Queensland by J. M. Morris, 1964, Qld. Univ. Law Rev., vol. 4, pp. 255 et seq.) or some part of it going beyond the physical acts of the accused, then the relevant act specified in the present case may not be wholly governed by the volition of the accused, and the unexpected presence of the infant must be considered as something which may constitute an accident.

There is much authority at common law for the proposition that if A shoots at B and kills C he is guilty of murder or manslaughter, depending on his intent and the effect of defences such as self defence and provocation.

In R. v. Gross[cix]³ where if she had killed A it would have been manslaughter, the accidental killing of B instead was held to be manslaughter. There are other cases where the chance killing of a person not known to be there amounted to manslaughter, and a stone thrown at one person and glancing off and killing another is given as an instance of manslaughter. Where there is no intent, these all appear to me to be cases of negligence, subject to considerations of which s. 23 operates.

Other cases which do not involve negligence but occur directly as between two “parties”, as it were, to an incident seem to depend more simply and directly upon the wrongfulness of the act and the cause of a death not authorized, justified or excused by law, but the fact that an act is unlawful does not prevent it from coming within s. 23 (Martyr’s case (supra)—Philp J.)[cx]⁴.

If the intervention of the child is not an accident, I think that the accused is clearly guilty of manslaughter because the death was the direct consequence of the unlawful act of throwing the stick at his wife intending to hurt her. Quite apart from s. 269 he could not justify throwing the stick. It was not an innocent act on his part.

It was argued that the throwing of the stick was unlawful only towards the wife (if unlawful at all, for provocation was relied on), and not intended or unlawful towards the child. But if A shoots at B with or without intent, and kills C, he cannot say that he was acting lawfully towards C. Unexplained it would be murder. His actual intent or other mental element, if relevant, is transferred to the actual victim.

If the intervention of the child constitutes an element of accident, it must be taken subject to considerations of negligence.

In my view the presence of the child, although not foreseen in fact by the accused, was an event which he should have foreseen in the living room of the house at night. There were only two places where the baby was likely to be; one was in its string bag where it would be safe so long as the accused exercised the skill he did exercise, and the other would be with his mother, either being fed or otherwise handled. In this event he would be in the danger that he was in fact in. Having no knowledge of the baby’s actual position, I think that the throwing of the stick at the mother, in the darkness, constituted a reckless disregard for the safety of the child as well as of the mother. The case is similar to others where vehicles or objects are launched to the danger of the lives of any persons who might very well be expected to be in the path. The baby was lawfully in the path of the object, as the mother was known to be.

I rule that the defence of provocation does not excuse the throwing of the stick, because the child gave no provocation, and as regards both the wife and the infant the throwing of it was likely to cause grievous bodily harm.

On the facts of this case I think that the accused is guilty of manslaughter. I therefore return a verdict of guilty as charged. I have indicated my findings and reasons in general terms in order not to delay the present circuit programme. I desire to refer in my reasons to other cases and will give further reasons after returning to Port Moresby, where I may have access to more appropriate facilities.

At Port Moresby on the 27th May, 1965, the Chief Justice delivered the following additional reasons:

One of the points arising in argument which gave me some difficulty was the contention that the acts of the accused were not wrongful towards the child. It appeared to me that of the many different circumstances under which a charge of manslaughter can arise, there is a distinction to be observed between cases involving negligence and those that do not. In cases where the allegation simply is “you committed a wrongful act which was the direct cause of this death” or “you unlawfully killed”, there is no question of negligence involved. This is clear from the judgment of Tindal C.J. in R. v. Fenton[cxi]⁵. The typical example is of a felonious act which directly causes death. If intent is present it is murder.

If the act causes the death of the wrong person by chance, the doctrine of transferred malice applies and, whatever relevant mental elements may apply to the particular charge, as well as the unlawful character of the actions in question, will be transferred from the intended to the unintended victim. (See R. v. Gross[cxii]⁶, a case of manslaughter, and the explanation of the application of the common law doctrine of transferred malice under the Code in the judgment of Windeyer J. in Mamote Kulang v. R.[cxiii]⁷)

In Fenton’s case[cxiv]⁸, (supra), Tindal C.J. appears to have applied the short formula for manslaughter, as consisting of a wrongful act causing death, to a case where only a civil wrong, i.e., a trespass, was involved. It might be difficult to apply the notion of transferred malice to an unintended victim in a case where the wrongful act involved only a civil wrong. This difficulty was overcome in R. v. Franklin[cxv]⁹. This case is also referred to in the judgment of E. A. Douglas J. in R. v. Callaghan[cxvi]¹⁰.

In Franklin’s case[cxvii]¹¹ (supra) only a civil wrong was alleged in the act of throwing a substantial box into the sea from a pier. A boy, who happened to be swimming under the pier at the time, was struck by the box and this caused his death. The prosecution argued that this being a wrongful act actually causing death, the charge could be put to the jury in that short form, relying on Fenton’s case[cxviii]¹² (supra). Field J., after consulting Mathew J., expressed a great abhorrence of constructive crime, and stated that Fenton’s case was not binding upon the court “in the facts of this case” and that, therefore, the civil wrong was immaterial. Field J. regarding the case as not coming within the principle of Fenton’s case, went carefully through the evidence with the jury and put the case to them as one of negligent killing. I think that the case before me is correspondingly a case of negligent killing, but I have the argument based on s. 23 to dispose of.

It seems to be clear that the unlawfulness of an act does not prevent the conclusion that death was due to accident. In Callaghan’s case[cxix]¹³, E. A. Douglas J. at p. 64 cites Hale’s Pleas of the Crown and indicates that he was disposed to think that an unlawful act would not come within the meaning of the term “accident”, but this must be taken in the context of the facts of the case then before the court. It was a case in which the circumstances all pointed very strongly to wilful murder and the jury so found. The actual intent of the accused, not the unlawfulness of his actions negatived accident. This point appears to have been cleared up in Martyr’s case[cxx]¹⁴, where again, on the facts, it was possible for the court to regard the process of killing as a single concept, owing to the presence of the actual intention or volition to deliver the blow which caused death.

In the present case the physical acts performed by the accused were separated from the consequential death by a sufficient margin to permit the intervention of circumstances not known to the accused, hence the argument whether the volition of the accused is something which must attach to the whole actus reus, or whether it is sufficient for his volition to cover the things that he actually did; regarding subsequent events caused by those acts in the circumstances existing as part of the consequence and not as part of the acts of the accused requiring the support of volition. As part of the consequence they may be accidental.

In Evgeniou’s case[cxxi]¹⁵, a case of negligence, a decision of the High Court delivered on the 12th April, 1964, I had at the trial endeavoured to comply with the requirements of s. 23 of the Code by taking the matter in two steps. The first question was, “Was this an accident?” and, if the answer were in the affirmative, the second question would be, “Was it due to criminal negligence?” The High Court on appeal concluded that this was not the correct way to use s. 23 and, following Callaghan’s case[cxxii]¹⁶ (not the Callaghan referred to above, but Callaghan v. R.), pointed out that upon the trial of a person for manslaughter based upon a breach of the duty imposed by s. 289, s. 23 has no application.

Vallance’s case[cxxiii]¹⁷, which has many characteristics of similarity to the case at present before me, was not a case arising under the Queensland Code and it was not a case involving a charge an element of which was criminal negligence.

I have been able to borrow a copy of the judgment of the Court of Criminal Appeal of Queensland in the case of R. v. Tralka[cxxiv]¹⁸. It was an extraordinary case in which the accused threw an axe at a person who was driving a utility truck. The axe was thrown over a considerable distance variously described as 18 yards or 8 to 10 yards. The axe was thrown with the intention of hitting the driver of the car, but either because the truck unexpectedly stopped moving, or because of faulty judgment on the part of the accused, the axe missed the driver, went through the windscreen of the truck and caused a severe laceration on the right shoulder of a passenger sitting in the cabin.

The learned trial judge ruled that “it was not open to the jury to consider a defence of accident in the terms of s. 23 of The Criminal Code, because on the evidence the wounding was the direct, although the unintended, result of a willed act of the appellant”. The learned trial judge also ruled that “provocation was not a defence to a charge of unlawful wounding because an assault was not necessarily an element of such an offence” (per Mansfield C.J.). On the appeal the argument as to provocation was abandoned because there was no evidence to establish that the party who was unintentionally injured had given provocation to the accused.

In Tralka’s case[cxxv]¹⁹ the charge was one of unlawful wounding and, again, the Court of Criminal Appeal was much concerned with the definition of “accident” under s. 23. It was not concerned with any issue as to negligence or breach of duty involved in the actions of the accused. The court concluded that under s. 23 an event occurs by accident if it is caused by a happening which is not foreseen by the actor and is not reasonably foreseeable by an ordinary person. The appeal succeeded upon the ground that the appellant was entitled to have the issue of foreseeability submitted to the jury. Therefore, the conviction was quashed but, having regard to the circumstances, including the fact that the appellant had been released on a recognizance, the Court of Criminal Appeal did not order a new trial.

The learned Chief Justice in his judgment stated: “The willed unlawful act was the throwing of the axe with the intention of hitting John Facer. The hitting and consequent wounding of Buddy Facer was not part of the willed unlawful act itself. If the hitting of Buddy Facer was not a foreseeable consequence of the willed act it was an accident and the wounding was an event which occurred by accident This was a matter which the appellant was entitled to have submitted to the jury.” In his judgment in Tralka’s case[cxxvi]²⁰, Jeffriess J. stated: “Furthermore, I do not think that the instant case is covered by Martyr’s case[cxxvii]²¹ (supra). There the accused deliberately struck the victim a blow which resulted in death by reason of the constitutional weakness of the victim, which was, of course, unknown to the accused. In the instant case, although the throwing of the axe was a willed act, the appellant did not intend that the axe should hit B. A. Facer and the question arises whether he is responsible for the consequences of the axe striking some person other than the one whom he intended to hit. Applying these principles I think the appellant was entitled to have it put to the jury that he did not foresee the axe would strike Buddy Facer and that a reasonable man in the circumstances would not have foreseen that the axe would strike Buddy Facer, the onus being on the Crown of excluding the provisions of s. 23 relating to accident.”

It was argued before me that the act of throwing the stick was justified towards the mother and innocent towards the child. I am not favourably impressed by this argument but I am not called upon to express a view on it, for I found that the throwing of the stick at the mother was likely to cause grievous bodily harm. I feel no doubt on this point whatever, having seen and handled the stick.

It seems to me that the argument under s. 23 must fail. Taking as a starting point the assertion that the striking of the child was not a willed act of the accused, this could only result in an acquittal in a case in which no element of criminal negligence was involved, for s. 23 operates subject to that question. Quite apart from criminal negligence the other argument under s. 23 would fail, because the danger that was not foreseen ought to have been and was foreseeable to any young parent knowing that such a young infant was in that dark room under the circumstances prevailing at the time.

Looking at all the cases that have been cited and canvassed in argument, I conclude that the substance of this case is to be found in the breach of a duty to take care for the safety of others.

If there were a jury and the Crown case were one of direct killing the defence would be entitled to have the issue of accident put to the jury, but the Crown would be entitled to have a case based on negligence put to the jury also, and on this case accident would not be a defence, although foreseeability would be one aspect of negligence.

If in Tralka’s case[cxxviii]²², a new trial had been ordered, I think that it would have been more appropriate for it to be conducted upon a charge involving an element of negligence. In the case at present before me, the launching of the stick into the darkness, without thought of the danger to the child, was a situation coming within the terms of s. 289. The accused’s failure to discharge his duty to use reasonable care and take reasonable precautions to avoid the danger, was a breach of duty of such a degree as to satisfy the test for criminal negligence. As the father of an infant about a fortnight old coming into the darkened house at night time, he should have been especially concerned for the safety of the child, and I think that his neglect even to think of the child or its whereabouts involved such a rejection of his parental responsibilities that his omission involves a very high degree of moral culpability. The risks involved in activities of this kind are so very dangerous in the presence of young children that I have no hesitation or doubt in concluding that this sanction of the criminal law should attach in a case such as this.

On the question of penalty I was asked at the trial to release the accused at the rising of the court. There were many circumstances in favour of extending the court’s leniency to the accused. He and his wife are both quite young and are apparently of very fine character. This, unfortunately, was their first quarrel and neither party had been causing, or looking for, trouble. They were both devoted to the child, which was their first, and suffered very greatly in consequence of its loss. Since then they have had another child and the present proceedings have been commenced a long time after the incidents which gave rise to them. The accused has been out on bail in the unusual circumstances of the case.

I declined to accede to the submission because there is always a danger in a purely nominal penalty being understood to imply that the court takes the view that the offence is of a trivial character. I thought that there was an alternative course which would avoid inflicting further hardship on the accused and, at the same time, impress upon him and his wife the serious risks and serious consequences of behaviour of this kind, which is by no means uncommon amongst village people. The course I proposed might also have the effect of impressing the same notion on the minds of other people. I therefore explained the case and the result to the accused and his wife and to the representative group of people from the area where they lived who were in attendance at the court. I told the wife that her own action in throwing the stick at her husband was of a kind which might easily involve her in a substantial prison sentence, and I told all concerned that the court takes a very serious view of this class of behaviour. I then released the accused on a bond to be of good behaviour for two years and to come up for sentence if called upon, and told him that he and his wife should both regard this as a period of probation and that if there were further trouble between them the question of punishment could be reopened.

Ordered accordingly.

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

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

[cvii](1961) 108 C.L.R. 56.

[cviii][1962] Qd.R. 398.

[cix](1913) 23 Cox 455.

[cx][1962] Qd.R. 398.

[cxi](1830) 1 Lew. 179; 168 E.R. 1004.

[cxii](1913) 23 Cox 455.

[cxiii][1963] P. & N.G.L.R. 155, 163.

[cxiv](1830) 1 Lew. 179; 168 E.R. 1004.

[cxv](1883) 15 Cox C.C. 163.

[cxvi] [1942] 36 Q.J.P.R. 58, at p. 64.

[cxvii](1883) 15 Cox C.C. 163.

[cxviii](1830) 1 Lew. 179; 168 E.R. 1004.

[cxix] (1942) 36 Q.J.P.R. 58, at p. 64

[cxx][1962] Qd. R. 398.

[cxxi](1964) 37 A.L.J.R. 508.

[cxxii](1952) 87 C.L.R. 115.

[cxxiii](1961) 108 C.L.R. 56.

[cxxiv][1965] Qd.R. 225.

[cxxv][1965] Qd.R. 225.

[cxxvi][1965] Qd.R. 225.

[cxxvii][1962] Qd.R. 398.

[cxxviii] [1965] Qd.R. 225.