Marumyapusek, Regina v [1973] PGSC 31; [1973] PNGLR 582 (9 November 1973)

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CRIMINAL LAW - Manslaughter - Provocation - Offences in which assault an element - Criminal Code (Queensland adopted) ss. 268,[dclvii]1 291,[dclviii]2 293,[dclix]3 304,[dclx]4 576[dclxi]5 and 577[dclxii]6.

An accused and wife from a remote area became involved in a domestic argument. The wife hit the accused with a piece of taro and he retaliated immediately with no intention of causing harm, by slapping her with an open hand on the ear and to the right side of the chest and kicking her with no great force at about the level of the buttocks. The wife’s spleen which was already enlarged because of malarial infection was ruptured and she died.

N1>(1) The accused’s reaction to the wife’s attack was that of an ordinary villager and danger that serious injury might result from a blow, which would be harmless to others was not appreciated. The accused had acted under provocation and the force used was not disproportionate to the provocation and was not intended nor was such as was likely to cause death or grievous bodily harm.

N1>(2) Section 268 of the Criminal Code (Queensland adopted) defines provocation for the purpose of s. 304 of the Criminal Code (Queensland adopted).

N1>(3) The words in s. 268 of the Criminal Code (Queensland adopted) namely “with reference to an offence of which an assault is an element” are to be interpreted as “with reference to an offence in the commission of which an assault may be committed.”

R. v. Nantisantjaba, [1963] P. & N.G.L.R. 148 per Smithers J at p. 152 and R. v. K. J and Another [1973] P.N.G.L.R. 93 followed.

N1>(4) An assault followed by a death with no causal relation between them is not a killing. There is only a killing when the assault causes death and if the causing of the death is justified or excused there is no unlawful causing of the death; thus the present facts do not fall within the ambit of ss. 291 and 293 of the Criminal Code (Queensland adopted).

N1>(5) The effect of s. 577 of the Criminal Code is to add a proviso to s. 576 under which, on an indictment charging a person with any unlawful killing, the accused may, if the evidence justifies it, be convicted of unlawfully doing grievous bodily harm, unlawful assault, doing bodily harm, unlawful wounding or unlawful assault. Thus for the purposes of this case, manslaughter and unlawful assault were cognate offences.

The accused was indicted for manslaughter pursuant to s. 303 of the Criminal Code (Queensland adopted). He raised the defence of provocation under s. 268 of the Code.

CLARKSON J: The accused and his wife were villagers living in a remote area in the Madang district. They became involved in a domestic argument. The woman rushed at her husband and hit him with a piece of taro. He retaliated immediately with no intention of causing her harm. He slapped her with an open hand on the ear and the right side of the chest and kicked her with no great force at about the level of the buttocks. She fell down.

It subsequently appeared that because of malarial infection the woman’s spleen was enlarged to five or six times the normal size and the spleen being thus unprotected by the rib cage was peculiarly susceptible to damage. The spleen was ruptured and the woman died. The medical evidence indicated that the rupture was caused by the slap on the right side or the kick in the region of the buttocks or the fall, although the evidence of an eyewitness suggests the woman had been injured when she fell. The rupture could well have been caused by the slap on the side of the body.

I was satisfied on the evidence that the accused’s reaction to his wife’s attack was that of the ordinary villager and that prior to this incident, danger that serious injury to the deceased might result from a blow which would be harmless to others was not appreciated. The accused was indicted for manslaughter.

Upon a consideration of the evidence, which it is unnecessary to set out, it appeared to me that the accused had acted under provocation and that the force used was not disproportionate to the provocation and was not intended nor such as was likely to cause death or grievous bodily harm.

What legal results follow from these findings? Difficult questions relating to the construction of the Criminal Code arise with much depending on the effect to be given to ss. 268 and 269, in particular the words “with reference to an offence of which an assault is an element” occurring in s. 268 and differing views as to the construction of those sections have been expressed in Queensland and also in Papua New Guinea.

The position is summarized by D. M. Campbell J in R. v. Kaporonowski[dclxiii]⁷.

“To what offences does a defence of provocation under s. 269 extend? There were two opposing views. The view of Stanley J and O’Hagan A.J in R. v. Sabri Isa[dclxiv]⁸ that the defence extends to offences of which an assault is an element in the charge actually before the court whether assault is part of the definition of the offence or not and the view of Philp J and Lucas A.J in R. v. Johnson[dclxv]⁹ that it extends only to offences which are charged by alleging or referring to assault as an element. On one view a defence of provocation under s. 269 is available in some cases of manslaughter and unlawfully doing grievous bodily harm depending on the evidence or the particulars ordered, on the other view it is never available in those cases.”

Notwithstanding the view apparently adopted by judges of the Supreme Court of Queensland until R. v. Sabri Isa[dclxvi]¹⁰ that Court appears now to have formally adopted the restricted construction of R. v. Johnson[dclxvii]¹¹. See R. v. Williams[dclxviii]¹², R. v. Kaporonowski[dclxix]¹³.

In Papua New Guinea a different view has emerged. Since 1963 a number of judges have preferred the construction adopted by Stanley J in R. v. Sabri Isa[dclxx]¹⁴. See R. v. Zariai-Gavene[dclxxi]¹⁵ per Mann C.J, R. v. Nantisantjaba[dclxxii]¹⁶ per Smithers J, R. v. Iawe-Mama[dclxxiii]¹⁷ per Minogue J (as he then was), R. v. Moses Robert[dclxxiv]¹⁸ per Frost J (as he then was). These were all cases in which the trial judge accepted s. 268 as providing the definition of “provocation” in s. 304.

The only expression of opinion to the contrary in this Court is that of Selby A.J in R. v. John Bomai[dclxxv]¹⁹.

But in my view the proper construction of ss. 268 and 269 in Papua New Guinea is finally settled by the decision of the Full Court in R. v. K.J and Anor.[dclxxvi]²⁰. The Full Court said:

“The view which has been generally adopted over the years by judges of this Court sitting at first instance is that s. 268 defines provocation for the purpose of s. 304. The contrary view prevails in Queensland and the Court of Criminal Appeal in that State considers that it should hold itself bound by the majority decision of that Court in R. v. Herlihy[dclxxvii]²¹ that the legislature in enacting s. 304 had compendiously adopted the common law concept of provocation (see R. v. Johnson[dclxxviii]²²). In Western Australia the Court of Criminal Appeal in Mehemet Ali v. The Queen[dclxxix]²³ has taken the same view of the corresponding sections of the Code in that State as has generally been taken by members of this Court, and the court there criticized earlier decisions which had been taken as authority for the contrary view.

With the greatest respect to those who hold the contrary view we would consider that the reasoning of Stanley J in R. v. Sabri Isa[dclxxx]²⁴ in favour of adopting the definition of s. 268 for the purpose of s. 304 is to be preferred. Amongst the judgments by members of this Court in which the question has been examined we would refer in particular to R. v. Iawe-Mama[dclxxxi]²⁵, R. v. Nantisantjaba[dclxxxii]²⁶ and R. v. Zariai-Gavene[dclxxxiii]²⁷. We do not consider that we could usefully add to what has been said in those judgments all of which give what to us appear compelling reasons for adopting the definition in s. 268.

We would agree with the conclusion of Smithers J in R. v. Nantisantjaba[dclxxxiv]²⁸ that the words in s. 268 “with reference to an offence of which an assault is an element” are to be interpreted as “with reference to an offence in the commission of which an assault may be committed”, and the passage in his judgment which immediately follows in our view sets out the position admirably. The learned judge there said:

“This seems a very reasonable state of affairs because it could hardly be thought that a code which was designed to dispose as far as possible with reference to the common law, should suddenly revert to the common law for the purpose of one aspect of the subject of provocation, a subject to which the authors had given detailed consideration and devised novel provisions. The other alternative would be that for the purpose of s. 304 one was relegated to an ordinary dictionary meaning. This seems equally unlikely for the same reason and also because the subject matter is one of so much technical legal learning.”

I proceed therefore on the basis that s. 268 alone does not prevent the possibility that in some cases of manslaughter provocation may amount to a complete defence.

In Queensland Hart J in R. v. Sleep[dclxxxv]²⁹ took the view that where the force used was not disproportionate to the provocation and was not intended or such as was likely to cause death or grievous bodily harm, provocation could amount to a complete defence to manslaughter. See also R. v. Pickett[dclxxxvi]³⁰. This view was disapproved by the Court of Criminal Appeal in R. v. Williams[dclxxxvii]³¹ and it would appear that the majority of the bench in R. v. Kaporonowski[dclxxxviii]³² (supra) would take the same view as expressed in R. v. Williams[dclxxxix]³³.

Although there is no relevant decision of the Full Court here, the tendency is not to adopt what might be called the narrow view of R. v. Williams[dcxc]³⁴.

In R. v. Miawet[dcxci]³⁵ Minogue J (as he then was) discussed the problem obiter. He referred to the view of Philp J in R. v. Martyr[dcxcii]³⁶ that if death be caused by assault the fact that the assault was justified or excused is immaterial to the question whether the killing was justified or excused. He proceeded:

“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 same judge indicated in R. v. Iawe-Mama[dcxciii]³⁷ that he favours the latter view.

In R. v. Nantisantjaba[dcxciv]³⁸ Smithers J expressed the view obiter “that s. 269 can provide a defence to manslaughter and other crimes of violence in the course of which an assault is committed”.

A similar view is indicated by Frost J (as he then was) in R. v. Banoro Dame[dcxcv]³⁹ “Provocation can never authorise, justify or excuse a killing unless, in the unlikely event, the assault fell within the terms of s. 269” and there is a record of a similar view being expressed by Ollerenshaw J in 1966. (See Vol. 1 Melanesia Law Journal No. 1 at p. 61.) In an unreported case, R. v. Anton Komalco[dcxcvi]⁴⁰, I took the same view adopting the reasoning of R. v. Nantisantjaba[dcxcvii]⁴¹ and R. v. Sleep[dcxcviii]⁴² and acquitted the accused.

I have obtained considerable assistance from the judgments in R. v. Williams[dcxcix]⁴³ and R. v. Kaporonowski[dcc]⁴⁴ but prefer the reasoning of Hart J in R. v. Sleep[dcci]⁴⁵ and of the minority (Skerman and Hart JJ) in R. v. Kaporonowski[dccii]⁴⁶ that s. 269 applies to a considerable number of offences “where assault is ‘de facto’ an ‘element’ in the evidence relied on by the Crown in the particular case before the Court” (per Skerman J) R. v. Kaporonowski[dcciii]⁴⁷.

Finally, I turn to the consideration that whilst s. 269 may be available when the offence charged is, for instance, unlawfully doing grievous bodily harm or unlawfully wounding it may not be available where death results. This view was taken by Philp J in R. v. Johnson[dcciv]⁴⁸ where he said “Certainly so far as manslaughter is concerned s. 269 affords no exculpation since s. 291 provides that ‘All killing is unlawful unless such killing is authorized or justified or excused by law’. The fact that the assault which led to the death was excused because it was provoked is immaterial”.

With the greatest respect to that distinguished judge I find this approach unsatisfactory. Section 293 elaborates on s. 291 by saying that a person who causes the death of another directly or indirectly is deemed to have killed him.

I prefer the view that assault followed by a death with no causal relation between them is not a killing. There is only a killing when the assault causes death and if the causing of the death is justified or excused there is no unlawful causing death.

This approach is similar to that of Hart J in R. v. Sleep[dccv]⁴⁹ and Smithers J in R. v. Nantisantjaba[dccvi]⁵⁰.

Another aspect may be noted. D. M. Campbell J in R. v. Kaporonowski[dccvii]⁵¹ expresses the view that a defence of provocation is available whenever a verdict of common assault is returnable on an indictment and says “This excludes manslaughter (s. 526) which does not belong to the same class of cognate offence as assault does.” I take the reference to s. 526 to be a misprint for s. 576. The law in Papua New Guinea is substantially different.

Sections 576 and 577 as they exist in Queensland initially applied here. In 1923, s. 577 which contains a proviso to s. 576 was amended. The effect, as the Full Court has held in R. v. S.M. and Ors.[dccviii]⁵² is to add a further proviso to s. 576 under which on an indictment charging a person with any unlawful killing the accused may if the evidence justifies it be convicted of unlawfully doing grievous bodily harm, unlawful assault doing bodily harm, unlawful wounding or unlawful assault. In this sense, for purposes of the present case, manslaughter and unlawful assault are cognate offences.

Here, I am dealing with a special case where grievous bodily harm or death was neither intended nor likely. In such a case assume that one person is provoked to pinch another’s nose. I prefer the construction whereby liability for punishment is determined by ascertaining whether the use of force is justified or excused and not by ascertaining whether the nose bleeds or whether the provoker is, unknown to anyone, a haemophiliac.

[dclvii]span>Section 268 provides so far as relevant:

N2>The term “provocation”, used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master and servant, to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered.

N2>When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give the latter provocation for an assault.

N2>...

[dclviii]Section 291 provides:—

N2>It is unlawful to kill any person unless such killing is authorized or justified or excused by law.

[dclix]Section 293 provides:—

N2>Except as hereinafter set forth, any person who causes the death of another directly or indirectly, by any means whatever, is deemed to have killed that other person.

[dclx]Section 304 provides:—

N2>When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.

[dclxi]Section 576 provides:—

N2>Upon an indictment charging a person with the crime of wilful murder, he may be convicted of the crime of murder or of the crime of manslaughter, if either of those crimes is established by the evidence, but not, except as herein expressly provided, of any other offence than that with which he is charged.

N2>Upon an indictment charging a person with the crime of murder, he may be convicted of the crime of manslaughter, if that crime is established by the evidence, but not, except as herein expressly provided, if any other offence than that with which he is charged.

N2>Upon an indictment charging a person with the crime of manslaughter he cannot, except as herein expressly provided, be convicted of any other offence.

[dclxii]The proviso to s. 577 provides:—

N2>Provided also that upon an indictment charging any person with unlawfully killing any other person, the accused person may be convicted of any of the following offences:—

(a) Unlawfully doing grievous bodily harm to the person; or

(b) Unlawfully assaulting the person and thereby doing him bodily harm; or

(d) Unlawfully assaulting the person,

if that offence is established by the evidence.

[dclxiii] [1972] Qd. R. 465, at p. 519.

[dclxiv] [1952] St. R. Qd. 269, pp. 287, 304.

[dclxv] [1964] Qd. R. 1, pp. 5, 20.

[dclxvi][1952] St. R. Qd. 269.

[dclxvii][1964] Qd. R. 1.

[dclxviii][1971] Qd. R. 414.

[dclxix][1972] Qd. R. 465.

[dclxx][1952] St. R. Qd. 269.

[dclxxi][1963] P. & N.G.L.R. 203.

[dclxxii][1963] P. & N.G.L.R. 148, at p. 150.

[dclxxiii][1965-66] P. & N.G.L.R. 96, at p. 100.

[dclxxiv][1965-66] P. & N.G.L.R. 180.

[dclxxv][1964] P. & N.G.L.R. 278.

[dclxxvi][1973] P.N.G.L.R. 93.

[dclxxvii][1956] St. R. Qd. 18.

[dclxxviii][1964] Qd. R. 1.

[dclxxix][1957] 59 W.A.L.R. 28.

[dclxxx] [1952] St. R. Qd. 269, at p. 283.

[dclxxxi] [1965] P. & N.G.L.R. 96, at pp. 99 et seq.

[dclxxxii][1963] P. & N.G.L.R. 148, at pp. 150 et seq.

[dclxxxiii][1963] P. & N.G.L.R. 203, at pp. 209 et seq.

[dclxxxiv][1963] P. & N.G.L.R. 148, at p. 152.

[dclxxxv][1966] Qd. R. 47.

[dclxxxvi][1972] Qd. R. 425.

[dclxxxvii][1971] Qd. R. 414.

[dclxxxviii][1972] Qd. R. 465.

[dclxxxix][1971] Qd. R. 414.

[dcxc][1971] Qd. R. 414.

[dcxci](Unreported Judgment No. 281 of 3rd April, 1963).

[dcxcii][1962] Qd. R. 398.

[dcxciii][1965-66] P. & N.G.L.R. 96, at p. 101.

[dcxciv][1963] P. & N.G.L.R. 148, at p. 151.

[dcxcv][1965-66] P. & N.G.L.R. 201, at p. 204.

[dcxcvi](Unreported judgment of 14th February, 1969).

[dcxcvii][1963] P. & N.G.L.R. 148, at p. 151.

[dcxcviii][1966] Qd. R. 47.

[dcxcix][1971] Qd. R. 414.

[dcc][1972] Qd. R. 465.

[dcci][1966] Qd. R. 47.

[dccii][1972] Qd. R. 564.

[dcciii] [1972] Qd. R. 465, at p. 486.

[dcciv] [1964] Qd. R. 1, at p. 5.

[dccv][1966] Qd. R. 47.

[dccvi][1963] P. & N.G.L.R. 148.

[dccvii] [1972] Qd. R. 465, at p. 520.

[dccviii](Unreported Judgment No. FC 45 of 7th May, 1973).

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Supreme Court of Papua New Guinea

Marumyapusek, Regina v [1973] PGSC 31; [1973] PNGLR 582 (9 November 1973)

Papua New Guinea Law Reports - 1973