Timbu, Regina v [1967] PGSC 43; [1967-68] PNGLR 310 (26 April 1968)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 310 - Regina v Timbu-Kolian

[1967-68] PNGLR 310

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

TIMBU-KOLIAN

Wabag & Laiagam

Clarkson J

8-9 April 1968

26 April 1968

CRIMINAL LAW - Manslaughter - Death result of blow aimed at another - Accused unaware, and could not have reasonably foreseen, victim’s presence - Event which occurs by accident - Mistake of fact - Criminal Code (Queensland, as adopted in New Guinea), ss. 23^*[ccclxxxi]1, 24^*[ccclxxxii]2*.

The accused and his wife were quarrelling. Being angered he decided to chastise her and, picking up a stick, he walked towards her. Whether there was sufficient light to show her silhouette or whether he judged her whereabouts by her voice was not clear from the evidence. As he approached he struck an overhand blow with the stick intending to hit her. Unbeknown to the accused his wife was carrying their infant son at the time. The accused did not know this and could not reasonably have foreseen it. The stick struck the child, fracturing his skull, and he died. The medical evidence indicated that the same blow delivered to an adult native woman in good health would be unlikely to cause any significant damage or injury but there was no evidence of the state of health of the accused’s wife. The accused was indicted for the unlawful killing of the child.

Held:

N1>(1)      That the child was in his mother’s arms when the blow was struck was not sufficient to constitute an event occurring by accident within the meaning of s. 23 of the Code.

Vallance v. The Queen [1961] HCA 42; (1961), 108 C.L.R. 56; R. v. Martyr, [1962] Qd.R. 398; R. v. Manga-Gabi, [1963] P. & N.G.L.R. 97; R. v. Knutsen, [1963] Qd.R. 157; Mamote-Kulang v. The Queen [1963] P. & N.G.L.R. 163; (1964), 111 C.L.R. 62; R. v. Tralka, [1965] Qd.R. 225; and R. v. Yofia-Abone, [1967-68] P. & N.G.L.R. 277, referred to.

N1>(2)      In striking the blow the accused was not acting under a mistaken belief as to a state of things such as is necessary to satisfy the requirements of s. 24 of the Code.

R. v. Gould and Barnes, [1960] Qd.R. 283, referred to.

Criminal Trial.

An indictment was presented charging Timbu-Kolian that he on 8th January, 1968, unlawfully killed Kandamain. The deceased was the accused’s son approximately five months of age. All relevant facts appear in the judgment hereunder.

Counsel:

Wilson, for the Crown.

Williams, for the accused.

Cur. adv. vult.

26 April 1968

CLARKSON J:  The accused is indicted for the unlawful killing on 8th January, 1968, of his son Kandamain, a child of five or six months. On the evidence there was no dispute as to the facts. The accused and his wife went to a sing-sing. When they returned to their home, a quarrel developed regarding the preparation of a meal and the accused left the house with a bag of pig-meat which he had brought from the sing-sing. He sat down some short distance from the house. His wife who had abused him in the house came into the open where it was now dark and continued her abuse. The accused being angered decided to chastise his wife. He picked up a stick and walked towards her. Whether there was sufficient light to show her silhouette or whether he was guided by her voice is not clear. As he approached he struck an overhand blow with the stick intending to hit her. Unbeknown to the accused his wife was carrying their infant child. The stick struck the child, fracturing its skull, and it died.

The medical evidence showed that the cause of death was brain damage due to the fractured skull. Doctor Bridgewater after examining the stick expressed the opinion that a very heavy blow from the stick, which appeared to be unusually light for its size, would have been necessary to cause the injuries sustained. He also expressed the opinion that the same blow delivered to an adult native woman in good health would be unlikely to cause any significant damage or injury. There was no evidence of the state of health of the accused’s wife. It was not denied that the striking of the blow was unlawful.

The Crown case rested on the allegation that the accused’s actions constituted a breach of s. 289 of The Criminal Code amounting to what is commonly called criminal negligence, and on the further allegation that the killing resulting as it did from an unlawful blow was itself unlawful within the meaning of s. 303 of The Criminal Code.

The defence raised was that of accident; furthermore it was said that in all the circumstances there was no breach of the duty referred to in s. 289.

I deal first with the defence of accident. I was referred to a number of cases including— R. v. Tralka[ccclxxxiii]³, R. v. Knutsen[ccclxxxiv]⁴, Mamote-Kulang v. the Queen[ccclxxxv]⁵ and R. v. Yofia-Abone[ccclxxxvi]⁶. I indicated in the course of argument my acceptance of these submissions made by the defence on the facts: that the accused did not in fact foresee the presence of the child with his mother and that he did not intend any harm to the child. I indicated that because of the doubts I held I was also prepared to assume in the accused’s favour that the presence of the child in its mother’s arms would not in all the circumstances have been reasonably foreseeable by the ordinary village native. There was no evidence of where the child was at any time before the assault. It was nighttime, when the child could reasonably be expected to be asleep in the house, and it seemed to me unlikely that the woman would take the child with her out into the darkness while she was continuing an argument with her husband.

I was then asked by the defence to rule on the reasoning of Tralka’s case[ccclxxxvii]⁷, that s. 23 excused the killing which was therefore not unlawful. The relevant provisions of this section are as follows:

“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.”

The submission was based on the provision that “a person is not criminally responsible . . . for an event which occurs by accident”. No submission was made to me by either counsel in respect to the second paragraph of s. 23. The defence submission was put almost as though in Tralka’s case[ccclxxxviii]⁸ the Court of Criminal Appeal of Queensland had said that the striking or wounding of Buddy Facer was an event which occurred by accident. I do not read what was said in that case in this way. My understanding is that the Court expressed the view that the trial judge should have left it open to the jury to consider whether it was an accident or not.

However, the view pressed by the defence before me was that if an event was unintended, unforeseen and not reasonably foreseeable: then it was necessarily an event which occurred by accident. It is unnecessary for me to decide to what extent this view is supported by Tralka’s case[ccclxxxix]⁹ because that case was decided before the decision of the High Court was given in Mamote-Kulang v. The Queen[cccxc]¹⁰ on appeal from this Court, and on my understanding of Mamote’s case[cccxci]¹¹ the defence submission to which I have referred is not correct.

Referring to what was said in Vallance v. The Queen[cccxcii]¹² by Dixon C.J. and Kitto J., Taylor and Owen JJ. In Mamote’s case[cccxciii]¹³ said:

“One of the suggestions put forward by the defence was that the slug had hit and wounded the girl as the result of striking some object which had diverted its course and that, for this reason, the wounding was to be regarded as an event which had occurred by chance. It was with this hypothesis that the Chief Justice and Kitto J. were dealing. What their Honors were pointing out, as it seems to us, was that it was not enough to say that the wounding was not foreseen by the accused as a possible result of firing the shot. It must also have been shown that the wounding would not have been foreseen by a reasonable person before it could be said that it had occurred by chance. But it is, we think, fallacious to argue that, because these two elements are necessary ingredients in the concept of an ‘event occurring by chance’ (or by accident), it follows that whenever they are present what directly results from the intentional doing of an act is properly to be described as an event occurring by chance or accident.”

A similar view is taken by Windeyer J.[cccxciv]¹⁴

The facts in Mamote’s case[cccxcv]¹⁵ were not distinguishable from those in R. v. Martyr[cccxcvi]¹⁶ but are clearly distinguishable from the facts in the present case. At the same time however certain general observations are made in Mamote’s case regarding the operation of s. 23 of the Code in relation to manslaughter and to these I now refer. McTiernan J., after saying that it was reasonable to infer that the accused did not foresee that death might result from the blow, went on to say:

“It is, of course, not to be presumed that when the accused struck the blow he knew her spleen was in the condition proved by the medical evidence. But these matters are not enough, in my opinion, to make the case one of accidental killing. What is missing is proof of an accidental cause of death. Certainly the blow was not an accidental occurrence; nor was the disease to her spleen such an occurrence. The defence of accident must fail because the accused struck the blow intentionally and it directly and immediately caused the injury to Donate-Silu from which she died. The blow was the sole cause of her death. It was not intended to cause death, but this does not give the blow or the death the quality of an accidental occurrence. I think that no case arises on the evidence for the application of s. 23”[cccxcvii]¹⁷.

Taylor and Owen JJ. speaking of s. 23 said:

“The section is a general provision and is, of necessity, couched in general language but its purpose, it seems to us, is beyond doubt. It is intended to make it clear that, subject to the express provisions of the Code relating to negligent acts and omissions, where a person is charged with the commission of a crime criminal liability shall not attach where the alleged acts or omissions which are said to amount to the commission of the crime charged have occurred independently of the will of the accused or where, in association with some act or omission of the accused, there has occurred some accidental event which has substantially brought about the final result. When one comes to apply the section in a trial for manslaughter there can, we think, be little doubt that the ‘acts or omissions’ and the ‘events’ which are relevant matters for consideration are those which, according to the evidence, have brought about the death. In cases such as the present, where no question arises under the first limb of the section, the question must be whether in the chain of circumstances leading to the death of the victim there has occurred some event which by reason of the fact that it has occurred by accident was something for which the accused ought not to be held to be responsible. In other words the section contemplates the intervention in the series of circumstances culminating in death of some happening of an accidental nature, a happening so related to the killing as to displace the operation of the very general words of s. 293 that ‘any person who causes the death of another directly or indirectly, by any means whatever, is deemed to have killed that other person’. In the present case it can scarcely be said that there was a chain of circumstances; there was an intentional striking of a blow and that blow resulted directly in the death of the appellant’s wife”[cccxcviii]¹⁸.

Windeyer J., after referring to the meaning of accident adopted in Stephen’s Digest of Criminal Law, said:

“It was argued that this meaning was to be imported into the Code so that if the accused did not intend to cause death, and if death was not a consequence which a reasonable person would have expected would follow the blow, then, the killing was an event which occurred by accident. But this argument seems to me, with respect to all those with whom it has found favour, to be mistaken. The question is not whether the death, not being intended, would be called accidental in ordinary speech. It is whether the homicide, the act which attracts the criminal law, was an event which occurred by accident. The blow was not an accident. The fact that the deceased woman had an enlarged spleen was not an accident. No accidental occurrence intervened between the blow and its outcome or event, the death.

“Section 23 does not, in my opinion, alter the elements or ingredients of any particular offence created or defined by the Code. It is a provision that hovers, as it were, over them all without altering the nature of any of them. In this case the offence charged was manslaughter. The peculiar essence of that offence is the absence of an intent to kill. If there be an unprovoked intent to kill, it is murder, not manslaughter. The Code defines manslaughter in terms which exclude murder. It is therefore not to the point, I think, to say that the accused did not intend to kill, unless we are to say that a person cannot be guilty of manslaughter unless he intended to kill the person whom he in fact killed. To say that would be to subvert the definitions of both murder and manslaughter in the Code and to obliterate the distinctions it makes between wilful murder, murder and manslaughter.

“The act and the intent that together make up manslaughter in a case such as this are an act which, without justification or excuse, was done with intent to inflict some bodily harm, but not fatal harm, but which in fact caused death. If the accused did not in the exercise of his will do such an act with such an intent he is not criminally responsible. If, although he did intend to hurt, death was caused by some agency unexpectedly intervening, then again he is not criminally responsible; for in that case the death is not a consequence, in the legal sense, of his conduct. Whether that was so or not is a question of causation as a determinant of legal responsibility. It is whether there was a break in the chain of causation, and a new cause. It is a matter of remoteness of consequence, a familiar question in many branches of law: see for an example of its application in criminal law, the case of R. v. Thomas Joseph Smith[cccxcix]¹⁹. But in the present case there was no intervening happening. Nothing other than the blow that the accused delivered was in any relevant sense the act which caused the death”[cd]²⁰.

Some of the statements to which I have referred can be applied directly to the facts of the present case but it is of course necessary to remember that their Honours were referring to a blow which struck the person at whom it was aimed. It then becomes necessary to determine the proper tests to be applied in the present case where the blow aimed at the accused’s wife struck his child.

It is clear enough from the express terms of ss. 301 and 302 of the Code that if in the present case the accused had intended to kill or to cause grievous bodily harm to his wife he would have been guilty of the wilful murder or murder of his child and it seems to me that in a case such as the present one, where a person strikes an unlawful blow which results in death, the killing is, subject to the general provisions of Chapter V of the Code, nonetheless unlawful when it is shown that the person who was struck was not the person at whom the blow was aimed. The accused in relation to the death of his son fits the description in s. 293 of a person who causes the death of another directly or indirectly and he is therefore deemed to have killed his son. Section 291 then explains that any killing of a person is unlawful unless the killing is authorized or justified or excused by law. It appears therefore that if the fact that the accused hit his son when he intended to hit his wife is to assist him the assistance must be derived from such exculpatory provisions as those contained in ss. 23, 24 and 25 and the section to which the defence points is s. 23.

The passages from Mamote’s case[cdi]²¹ which I have quoted all refer to the notion of an intervention in the circumstances leading to death. McTiernan J. referring to the facts in that case says— “what is missing is proof of an accidental cause of death”[cdii]²². Taylor and Owen JJ. posed the question as being “whether in the chain of circumstances leading to the death of the victim there has occurred some event which by reason of the fact that it has occurred by accident was something for which the accused ought not be held to be responsible”[cdiii]²³. They add that “the section contemplates the intervention in the series of circumstances culminating in death of some happening of an accidental nature, a happening so related to the killing as to displace the operation of the very general words of s. 293 . . .”[cdiv]²⁴. Windeyer J. says that criminal responsibility would not attach in manslaughter “if although he did intend to hurt, death was caused by some agency unexpectedly intervening”[cdv]²⁵.

I am satisfied on the authorities that if the accused had succeeded in striking his wife and as a result of that blow she had died unexpectedly the accused would have been guilty of manslaughter and the question which now arises is whether having aimed the blow at his wife and the blow having struck his son causing his death the result is any different. On the view I take of the authorities, and in particular of Mamote’s case[cdvi]²⁶, I have come to the conclusion that it is not. The fact that the child was in his mother’s arms when the blow was struck was not “some agency unexpectedly intervening” nor was it an “event” which occurred in the chain of circumstances leading to death, nor was it an “happening” of an accidental nature which intervened in the series of circumstances culminating in death. It was simply part of the state of things which existed when the accused commenced to advance upon his wife.

The view which I take may be illustrated by comparing the facts of this case with those of R. v. Yofia-Abone[cdvii]²⁷, where the accused in exasperation aimlessly and with no intention of hitting anyone hurled his axe in the general direction of the building into which his wife had disappeared. After he had committed himself to this action the youth, Eva, suddenly and unexpectedly appeared into the path of the axe. In such a case in my respectful view the trial judge trying the case without a jury was entitled to conclude as he did, that s. 23 applied.

So far I have referred to the first paragraph of s. 23 and in particular to the reference to an event which occurs, by accident. The second paragraph of that section does not appear to have been considered in detail in any of the cases to which I was referred and its exact scope may be difficult to determine. I have however concluded that it does not assist the accused. The intention to cause a particular result is not declared to be an element of the offence of unlawful killing with which the accused is charged. If one takes the view that the striking is the “act” referred to in this paragraph then the result intended to be caused, namely the hurt to the wife, is immaterial; so in the present case it is immaterial when the accused in fact hit and injured his child that he had intended to hit and so hurt his wife (cf. R. v. Manga-Gabi[cdviii]²⁸).

I have said that in my view the presence of the child in his mother’s arms was part of the state of things existing before the assault commenced and although the question was not raised at the trial I have given the best consideration I can to whether s. 24 assists the accused but I have concluded that it does not. I do not attempt to explore the difficulties of s. 24 but state in summary form the reasons for my conclusion.

The section assists the accused only if he acted under a mistaken belief as to a state of things. I set aside the requirements of reasonableness and honesty.

The phrase to act under a mistaken belief in the existence of a state of things means something more than to act merely in ignorance of the state of things which in fact exists. It requires that a mistaken belief be held and that the act be done under the influence of that belief. Also a belief in what might subsequently occur is not within the description of a belief in the existence of a state of things (R. v. Gould and Barnes[cdix]²⁹). It is sufficient to say I have been unable to find any relevant belief which satisfies these requirements.

Having reached these conclusions it becomes unnecessary to determine whether the accused was criminally negligent under s. 289. I should however record my view that if it were necessary to decide this issue I would hold that in all the circumstances a case of criminal negligence based on a breach of s. 289 had not been made out.

My verdict is Guilty as charged.

Verdict: Guilty of manslaughter.

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

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

Note: This decision was reversed by the High Court of Australia, see Timbu-Kolian v. The Queen[cdx]³⁰ - Ed.

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[ccclxxxi]* Section 23 of the Criminal Code (Queensland, as adopted in New Guinea) provides, inter alia, as follows:

“Subject to the express provisions of this Code relating to negligent acts or 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. . . .”

[ccclxxxii]** Section 24 of the Criminal Code (Queensland, as adopted in New Guinea) provides, inter alia, as follows:

“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. . . .”

[ccclxxxiii][1965] Qd.R. 225.

[ccclxxxiv][1963] Qd.R. 157.

[ccclxxxv][1963] P. & N.G.L.R. 163; (1964) 111 C.L.R. 62.

[ccclxxxvi][1967-68] P. & N.G.L.R. 277.

[ccclxxxvii][1965] Qd.R. 225.

[ccclxxxviii] [1965] Qd.R. 225.

[ccclxxxix][1965] Qd.R. 225.

[cccxc][1963] P. & N.G.L.R. 163; (1964) 111 C.L.R. 62.

[cccxci][1963] P. & N.G.L.R. 163; (1964) 111 C.L.R. 62.

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

[cccxciii][1963] P. & N.G.L.R., at p. 168; (1964) 111 C.L.R., at p. 69.

[cccxciv][1963] P & N.G.L.R., at pp. 179, 180; (1964) 111 C.L.R., at p. 85.

[cccxcv][1963] P. & N.G.L.R. 163; (1964) 111 C.L.R. 62.

[cccxcvi][1962] Qd.R. 398.

[cccxcvii][1963] P. & N.G.L.R., at p. 164; (1964) 111 C.L.R., at pp. 63, 64.

[cccxcviii][1963] P. & N.G.L.R., at p. 165; (1964) 111 C.L.R., at pp. 65, 66.

[cccxcix] (1959) 43 Cr.App.R. 121, at p. 131.

[cd][1963] P. & N.G.L.R., at pp. 177, 178; (1964) 111 C.L.R., at pp. 82, 83.

[cdi][1963] P. & N.G.L.R., at pp. 177, 178; (1964) 111 C.L.R., at pp. 82, 83.

[cdii][1963] P. & N.G.L.R., at p. 164; (1964) 111 C.L.R., at p. 64.

[cdiii][1963] P. & N.G.L.R., at p. 165; (1964) 111 C.L.R., at pp. 65, 66.

[1963] P. & N.G.L.R., at p. 165; (1964) 111 C.L.R., at pp. 65, 66.

[cdv][1963] P. & N.G.L.R., at p. 178; (1964) 111 C.L.R., at p. 83.

[cdvi][1963] P. & N.G.L.R. 163; (1964) 111 C.L.R. 62.

[cdvii][1967-68] P. & N.G.L.R. 277.

[cdviii][1963] P. & N.G.L.R. 97, at pp. 104-105.

[cdix][1960] Qd.R. 283.

[cdx][1967-68] P. & N.G.L.R. 320; (1968) 42 A.L.J.R. 295.