Yambiwato and Apibo, Regina v [1967] PGSC 49; [1967-68] PNGLR 222 (27 June 1967)

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CRIMINAL LAW - Wilful murder - Cause of death - Acceleration of death - Aiding - Self defence - Fear of harm on future occasion insufficient - Excessive force - Murder or man -slaughter - The Criminal Code, ss. 7^*[cclxxxvii]¹, 271^*[cclxxxviii]^2*, 273^*[cclxxxix]^3**, 291, 293, 296.

In a dispute over land N. struck Y. with his axe and was about to strike Y. again when A., in defence of his uncle Y., shot two arrows into N. who retreated and fell to the ground. Y. then also fired two arrows into N. as he lay on the ground and asked A. to give him a stick. A. handed Y. an axe and Y. then struck N. with the axe on the head and twice on the thigh. A. then took the axe and struck N. with it again on the thigh. N. was still alive when Y. struck him on the head with the axe, but the three thigh wounds were incapable of causing or even contributing to death. It was not possible to show whether any of the arrow wounds would have caused death. N. died at the moment of or shortly after the infliction of the head wound which hastened his death.

N1>(1) Sections 291 and 293 of The Criminal Code are widely drawn and a case where the act complained of results in the immediate death of the victim appears to come within their terms whether or not the victim is at the time diseased, injured, senile or in danger of immediate death from some other hand.

N1>(2) By reason of s. 7 of The Criminal Code A. was guilty of any offence committed by Y. in striking N. with the axe.

N1>(3) Although N.’s original assault was of such a nature as to cause reasonable apprehension of death or grievous bodily harm to Y. a defence based on s. 271 of The Criminal Code failed because N. was incapacitated when the head injury was inflicted and the fear of death or grievous bodily harm on some future occasion would not provide a defence under the section.

N1>(4) A verdict of manslaughter was not open because The Criminal Code made no provision for the principle in R. v. Howe [1958] HCA 38; (1958), 100 C.L.R. 448 and that principle could not be applied where the excess of force was applied not in defence against an assault but to forestall a possible future assault.

Yambiwato and Apibo were charged jointly that they, on 30th January, 1967 wilfully murdered one Nanamiko. The facts are sufficiently set out hereunder.

CLARKSON J: The accused of Oiwa village are jointly charged with the wilful murder on 30th January, 1967, of Namamiko of Hamo, a neighbouring village.

The inhabitants of this area were described to me as being very primitive. They have had little contact with the Administration or with missions which, as yet, have established no general influence. The traditional way of life continues. I was told it would be a rare sight in this area to see an unarmed man. A man ordinarily carries at least his bow and arrows and probably an axe, the latter for use principally in the working of his gardens which are held under a complicated land tenure system. Against this savage background the events of 30th January, 1967, took place.

The investigating officer described to me how from Oiwa village he was led through extensive garden areas over a creek and a hill to a newly cleared area. There on the day of the killing the youth Apibo had been working. He was approached by Nanamiko who said: “All your fathers and ancestors are dead, now you have come to make a new garden. You go back on top or you will die too.” Apibo wisely said nothing but retired up the hill to where his father’s brother Yambiwato was working. Together they returned to where Nanamiko was.

Yambiwato’s simple description of the start of the fighting was as follows. “I said to Nanamiko ‘this is not your ground, it belongs to Apibo’s ancestors, your ground is down below. We marked the line before but now you have come on top.’ He did not reply to me. He swung a metal axe he had been working with, to hit me. I lifted my bow and arrows to try to stop the axe. The accused hit me on the face, I fell down and my eyes went round.”

The evidence shows that Nanamiko then immediately advanced and lifted his axe to strike Yambiwato again. Yambiwato, injured and temporarily defenceless, was undoubtedly in great danger. Apibo, some ten paces away, raised his bow and shot two arrows into Nanamiko who then retreated and fell to the ground behind two logs.

Apibo’s timely action enabled Yambiwato to recover himself. He also shot two arrows, one of them steel tipped, into Nanamiko who was still on the ground. Yambiwato called to Apibo to give him a stick. Apibo handed him an axe and with it Yambiwato struck Nanamiko on the head and then twice on the thigh. Apibo then took the axe and struck Nanamiko another blow on the thigh.

Yambiwato and Apibo returned immediately to their village and told the Luluai what had occurred. A message was sent to Aseki the nearest patrol post and following the investigations which then commenced, the present charge was laid.

Counsel for the defence naturally drew my attention to the absence of any expert evidence as to the precise nature and likely effect of the various injuries suffered by the deceased. The argument was that Apibo’s two arrows were fired, as the Crown properly conceded, in defence of Yambiwato. Either of the wounds so caused, it was said, could have been fatal. Whether or not any of the subsequent woundings were justified or excused, no reasonable jury could in the circumstances find that any of them caused the deceased’s death. This argument suggested a situation reminiscent of that in Sirinjui v. The Queen[ccxc]⁴ but in spite of the lack of expert medical evidence I have rejected this contention.

Constable Kawas who journeyed from Aseki saw the body of the deceased before it was disturbed. No arrows were then in the body and the metal tipped arrow was held in the deceased’s hands in such a way as to lead Constable Kawas to conclude that the deceased himself had pulled it from his body. Other arrows lay nearby. There was evidence from Inspector Bourquin who subsequently examined the body that the arrow wounds were filled with dry blood. There was no evidence of any accumulation of blood in the gashes on the thigh. The head injury consisted of a large hole in the right side of the skull some three inches long.

The most likely reconstruction from these observations is that the deceased himself removed the arrows while lying near the logs and the arrow wounds bled because he was still alive; that he was killed by the blow to the head with the result that no bleeding of the gashes in the thigh was noted.

At the close of the Crown’s case I held that this was a view of the facts which a jury could adopt and for that reason rejected a defence submission that neither accused had a case to answer (May v. O’Sullivan[ccxci]⁵).

Yambiwato then gave evidence which is of importance in considering this and other aspects of the case and I set out extracts which I think present a fair summary of what he said.

“I shot him with two arrows and hit him with (the) axe. At that time I was thinking this man was a strong man and I was . . . very much afraid. It would be no good if he killed me. When I shot the two arrows into him he was lying down. This man was (a) very strong man, it would have been no good if he could stand up and kill me. I thought he was starting to get up so I hit him with the axe.”

It was put to Yambiwato that after Apibo had shot his two arrows, wounding the deceased, both the accused could have run away. Yambiwato’s reply was:

“It would be no good if we only shot him with two arrows and ran away. At a later date he would have killed us. He was a strong man so we killed him. After Apibo shot his two arrows and he (the deceased) fell, I was frightened he would come back later and kill us . . . . After four arrows (had been fired) I am still frightened.”

To my mind, this evidence when considered with the facts to which I have earlier referred establishes beyond reasonable doubt that the deceased was still living when struck by the axe.

It is clear that death finally resulted from one or more of the wounds inflicted by the arrows and the axe. I disregard the three gashes to the thigh which appear to me as a layman to have been incapable of causing or even, in the circumstances, contributing to death.

In some circumstances it would be unnecessary to consider this aspect of the case further. If, for instance, both accused acted throughout in defence against an unprovoked murderous assault, or if the true position had been that they launched an unprovoked assault against the deceased for which both were criminally responsible because of the operation of s. 7 or s. 8 of The Criminal Code, the effect of each wound inflicted on the deceased, or even who inflicted it, would not be greatly significant, but this is not a case where all the acts complained of were done pursuant to a plan. (Cf. Thabo Meli v. The Queen[ccxcii]⁶; R. v. Church[ccxciii]⁷)

While the Crown concedes that Apibo fired his two arrows in defence of Yambiwato, a real question arises whether any of the subsequent wounds were justifiably inflicted. In addition, while it could be said that Apibo by handing Yambiwato the axe aided him, it seems clear that Apibo was even less concerned in or a party to the firing of the third and fourth arrows than Yambiwato was to the firing of the first and second. Different results might well follow then, according to what the evidence establishes as to the cause of the deceased’s death. I have therefore thought it best, before examining the questions of law which arise, to set out my findings of fact relevant to this issue.

I am unable to reach any firm conclusion as to the effect of any of the arrow wounds. The first two, fired by Apibo, inflicted injuries sufficiently serious to cause the deceased to retreat, to fall and to remain lying on the ground. He was in that position when struck by Yambiwato’s two arrows and thereafter he was able to extract all four arrows. Whether or not any of the arrow wounds would have caused death, I cannot say. If my findings rested there I would feel obliged to acquit both accused, because I would be unable to say that the deceased’s death was not caused by one of Apibo’s arrows fired in defence of Yambiwato.

However, as I have already indicated, I am satisfied the deceased, whether mortally wounded or not, was still living when struck on the head by Yambiwato. At that moment, or shortly thereafter, the deceased died. I cannot say that the deceased would have recovered if he had not received the injury to his head, but on a consideration of all the evidence I am satisfied that at least the head injury hastened his death. It was a “large hole” three inches long and the displaced bone was so far depressed inwards that the edge of the skull surrounding the site of the injury was visible. At the trial it was taken for granted that this injury would have caused the deceased’s death, if when it was inflicted the deceased was still living; the defence contention which I rejected was that I could not be satisfied that the deceased was still alive when the blow was struck. In addition I note that Yambiwato was satisfied that by this blow he had ended the deceased’s life. For the reason he gave he was determined the deceased should die and it was immediately after the axe blows that he left the scene. He could not have thought that the gashes to the thigh contributed to death.

Section 291 provides that it is unlawful to kill any person except in the circumstances then set out.

Section 293 provides that any person who causes the death of another directly or indirectly, by any means whatever, is deemed to have killed that other person.

I have found that Yambiwato at least hastened Nanamiko’s death with the axe blow to the head and it is necessary to consider this finding in the light of the relevant provision of The Criminal Code. I also refer expressly to s. 296 which reads:

“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 cause, is deemed to have killed that other person.”

In my view Yambiwato killed Nanamiko. Sections 291 and 293 are widely drawn and a case where the act complained of results in the immediate death of the victim appears to me to be within their terms. In one sense the causing of death is always a hastening of death and I have been unable to find any authority for the view that a killing is any less a killing because the victim is at the time diseased, injured, senile or in danger of immediate death from some other hand.

The “true meaning and area of application” of s. 296 are difficult to determine (see R. v. Martyr[ccxciv]⁸; Mamote v. The Queen[ccxcv]⁹), but I cannot accept that the section operates to produce the result that a person who causes the immediate death of a person dying from injuries as opposed to disease does not kill him within the meaning of the sections to which I have referred.

The view I have adopted could perhaps be supported by giving a somewhat wider meaning than usual to “disorder” in s. 296 but in any event I think my conclusion follows from a proper construction of the wide terms of ss. 291 and 293.

I have also concluded that whatever criminal responsibility might attach to Yambiwato for this incident, would attach also to Apibo. Yambiwato called for a stick. It was obvious that he in tended to use it to strike Nanamiko, then prostrate on the ground. Apibo handed him an axe. By reason of s. 7 Apibo is deemed to have taken part in and to be guilty of committing any offence committed by Yambiwato by striking Nanamiko with the axe.

I turn now to the defence raised under ss. 271 and 273 of the Code. Before doing so I should perhaps say that no defence of provocation was raised. There was fear, but no loss of control. What was done was done deliberately to prevent further attack either then or at a later date.

“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.”

I am concerned here with the second paragraph. I am satisfied Nanamiko’s original assault was of such a nature as to cause reasonable apprehension of death or grievous bodily harm to Yambiwato but after that, the difficulties arise. Once Nanamiko lay incapacitated on the ground, the two accused could safely have retired. They did not do so because it was their belief, not unjustified, that if Nanamiko were left alive he would return to the attack at a later time. If these events had occurred in some more civilized part of the Territory where access to and communication with the police or other sources of aid and protection were quick and easy I would have had no difficulty in holding that s. 271 did not assist the accused. I confess to considerable sympathy for the accused and the assessment they made. A battle not of their choosing was joined which, once joined, would almost inevitably end in death. To them it was courting disaster to forgo the vital advantage which Apibo’s prompt action had gained and to permit the attacker to choose the time and place for another attempt at murder.

The death or grievous bodily harm from which the person defended cannot otherwise be preserved is the death or grievous bodily harm apprehended from “the nature of the assault” . . . “When a person is unlawfully assaulted”. It is not death or harm which may be inflicted on some future occasion if the opportunity to inflict it presents itself to the attacker.

Further, the degree of force which may be used is limited by the requirement that it must be necessary for “defence”. Again the section makes it clear that this defence is defence against the threat or other act constituting the assault which occurs “when a person is unlawfully assaulted”.

Having reached the conclusion that neither accused is entitled to a verdict of not guilty under ss. 271 and 273, I have examined the other verdicts open to me and in particular to the possibility that having regard to the position at common law as revealed in R. v. Howe[ccxcvi]¹⁰ the proper verdict might be manslaughter. I do not deal with the arguments in detail. I have considered Howe’s case, Masnec v. The Queen[ccxcvii]¹¹, R. v. McKay[ccxcviii]¹², R. v. Johnson[ccxcix]¹³, an article by Dr. E. J. Edwards published in (1963) 6 U.L.R. (W.A.) 457 and authorities referred to therein.

I have decided that I cannot apply the principle considered in Howe’s case for two reasons.

Firstly, I respectfully agree with the Queensland Court of Criminal Appeal in R. v. Johnson that The Criminal Code makes no provision for it and secondly even if I were wrong in that opinion, the principle could not be applied in a case such as the present where the excess of force was applied not in defence against an assault but to forestall a possible future assault.

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[cclxxxvii]* Section 7 of The Criminal Code provides: “When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say — (a) every person who actually does the act or makes the omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) every person who aids another person in committing the offence. . . .”

[cclxxxviii]** The provisions of s. 271 of the Code are set out at pp. 228, 229 hereunder, and ss. 291, 293 and 296 at p. 227 hereunder.

[cclxxxix]*** Section 273 of the Code provides: “In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first-mentioned person”.

[ccxc][1967-68] P. & N.G.L.R. 198; (1962) 36 A.L.J.R. 9.

[ccxci](1955) 92 C.L.R. 654.

[ccxcii][1954] 1 All E.R. 373.

[ccxciii][1965] 2 All E.R. 72.

[ccxciv] (1962) Qd. R. 398, per Philp J., at p. 415.

[ccxcv][1963] P. & N.G.L.R. 163, at p. 166; [1964] HCA 21; (1964) 111 C.L.R. 62, at p. 66.

[ccxcvi](1958) 100 C.L.R. 448.

[ccxcvii][1962] Tas. S.R. 254.

[ccxcviii][1957] V.R. 560.

[ccxcix] [1964] Qd.R. 1.

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Supreme Court of Papua New Guinea

Yambiwato and Apibo, Regina v [1967] PGSC 49; [1967-68] PNGLR 222 (27 June 1967)

Papua New Guinea Law Reports - 1967-68