Diru, Regina v [1963] PNGLR 115 (26 May 1960)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 115 - Regina v Diru

[1963] PNGLR 115

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

DIRU

Madang

Mann CJ

26 May 1960

MANSLAUGHTER - Defence of Accident - Criminal Code (Queensland, adopted), Sections 23, 288, 289 and 291.

Section 23 of the code applies to cases of manslaughter so that subject to the express provisions of the Criminal Code relating to negligent acts and ommissions an act which causes death is not culpable if that act occurs independently of the will of the Accused or if the event of death is accidental. In cases falling under Sections 288 and 289 of the Code even if the death be accidental negligence has still to be considered.

A death occurs by accident when at the time of the performance of the act which in fact causes the death, it would not have been reasonably forseeable to a person in the position of the Accused that the life, safety or health of the person killed might be endangered thereby.

Counsel:

L. Cervetto: for the Crown.

R. S. O’Regan: for the Defence.

MANN CJ:  The Accused is charged with the manslaughter of his father Kumunga. The Crown case alleges that the Accused was quarrelling with his sister, the witness Waura, and in the course of the quarrel, kicked her and made her cry.

The father, Kumunga, who was ill, and lying asleep in the house, woke up at this stage and told his son that he must not strike his sister, whereupon it is alleged the Accused made an unprovoked attack on his father, in the course of which he kicked his father in the abdomen, causing his enlarged spleen to rupture, resulting in Kumunga’s immediate death.

The Crown case is not very strongly supported by the available evidence. The only persons present were the deceased and his two children. The two witnesses Kaspar and Tongia heard noises which caused them to come to the house, but the events which caused Kumunga’s death had already taken place. Waura, a small child of little if anything over twelve years of age, was crying and did not see or hear much of what happened. The evidence contains material which is said to raise the defence of accidental death if such a defence is open under the Criminal Code. I think it appropriate to consider whether and to what extent such a defence may be open before considering whether the evidence to support the Crown case is sufficient to exclude that defence on the facts.

The defence arises, if at all, by the application of Section 23 of the Code, to a charge of manslaughter. It has been a widely held view in the Territory that the section does not apply to cases of manslaughter, because the statutory definition of unlawful killing does not involve any element of intent, and therefore any killing, unless authorized, justified or excused by law, is manslaughter, however accidental or unintentional may have been the actions of the Accused.

This is an important question which frequently emerges in circuit cases where we have few facilities for legal research, and having had the assistance of Counsel’s argument I propose to interpret the sections involved and state my reasons, with an intimation that in the absence of other authority, I propose to adopt the same conclusion in other cases.

The view to which I have referred, as widely held in the Territory, seems to be based on the notion that the crime of unlawful killing depends upon the performance by the Accused of a single act of “killing” (i.e., the destruction of human life), and that it matters not whether the act was intentional or not. Otherwise, once intent came into the question the crime would become wilful murder. This single notion of killing involves a direct act of destruction on the part of the Accused. Some support for this view arises on the wording of Sections 291, 300 and 303. But Section 293, in defining “killing” makes it clear that this is not a single act, but consists of some action on the part of the Accused which directly or indirectly causes death. Life and death are not caused by a human being, but the process of life may continue or cease by reason of causes or conditions introduced by human agency.

Section 7 of the Code makes it clear that various kinds of actions or omissions are sufficient to constitute that part of a criminal offence which is performed by the offender, and Section 23 (Parts 2 and 3), would establish, if applicable, that in cases where intent as to a particular result is not part of the offence the actual intent of the Accused is not material.

Section 23 is, on the face of it, intended to have general application and under Section 36 as applied by Section 13 and the Second Schedule of the Laws Repeal and Adopting Ordinance 1921-1952 the provisions of that section are made applicable to all offences against the Statute Law of the Territory, which includes the Criminal Code. As a matter of construction I can see no sufficient reason for excluding manslaughter cases from the operation of the provisions under Section 23. Its exclusion would result in considerable redundancy in the section itself with regard to cases of negligence. It would lead also to some harsh verdicts entirely contrary to the notion that crime is something which deserves punishment. The argument that the Court can meet these cases by imposing no sentence does not carry weight, for liability to conviction of manslaughter is no trivial matter.

The result of applying Section 23 to manslaughter is that any act (or omission, etc.) which causes death is culpable unless it (i.e., the act, not the death), occurs independently of the exercise of the will of the Accused, or unless the event of death (which occurs as a result of that act) is accidental. Thus a death due to an act which the Accused did not intend to perform does not render him responsible, nor does an accidental death caused by some intended act.

Of course cases of accidental death caused by criminal negligence are made subject to the terms of Sections 288 and 289 by the opening words of Section 23 itself.

I do not think that in regard to manslaughter cases any distinction exists between the word “event” in the first paragraph and the word “result” in the second paragraph of Section 23. A result is an event which occurs in consequence of a cause and, in cases of manslaughter at least, the death is both an event which happens as a consequence of, and a result of, some act of the Accused.

In applying both these parts of Section 23 to manslaughter, it is however, clear that there may be a difference between an accidental event, and an intended result, for the latter is irrelevant in such cases.

It is therefore, in my opinion, open to the Accused in this case to set up as a defence either:

(a)      That the actual blow which caused the ruptured spleen was not part of an intended assault and not itself an intended act.

(b)      That the death which followed was not legally referable to any blow, but arose accidentally by virtue of circumstances not attributable to any blow delivered by him or to any assault made by him.

So far, my interpretation of the relevant sections appears to have the support of authority. It appears to be directly supported by R. v. Scarfa[cxlv]¹, and by Philp J. in Dearnley v. R.[cxlvi]², and in R. v. Callaghan[cxlvii]³. The only authority available to me which would support a contrary view consists of the views of the majority of the Judges, obiter, in Callaghan’s[cxlviii]⁴ Case (supra), a case which appears readily distinguishable.

There remains a point on which I have no authority to assist me, and that is as to the meaning of the words “by accident” in Section 23. That they do not mean “unintentional” seems clear for in these cases intention as to a result is irrelevant. That the test is not one of causation is also clear, for a direct or indirect cause must have been established, to satisfy Section 293. In the absence of authority, I hold that an event has occurred by accident when, at the time of performing the act which in fact caused the event of death, it would not have been reasonably foreseeable to a man in the position of the Accused that the life, safety or health of the person killed might be endangered thereby. I adopt this definition by analogy with Section 238 and 289, for it is in cases of accident that those sections apply the standards of care required to be observed when a dangerous act is in fact committed.

In cases where a death occurs as a result of an act but in such circumstances as to constitute an unforeseeable accident then, if in fact risk was involved in the performance of the act, Section 289 might well apply to require the person concerned to exercise care. But a death caused by the Accused by an act which was not dangerous and therefore involved no foreseeable risk to any person would be attributable to mere chance and would therefore be an accident excused by law for the purpose of Section 291.

To summarize, if the event was a foreseeable consequence of a voluntary act, the Accused is guilty of manslaughter regardless of his actual intention, if any, but if the event was unforeseeable he is not guilty unless he was doing something dangerous, in which case he is liable if he failed to exercise care as required by Sections 288 and 289.

The risk of rupture of an enlarged spleen is so great and so well known in the Territory at the present time as a very common cause of death, that the application of any objective test to the Accused would render him liable for the consequences of his intentionally kicking his father in the abdomen. I hold therefore that the event which took place, that is the death of Kumunga, if caused by the voluntary act of the Accused, was not accidental.

The remaining question therefore, is whether on the evidence the Crown has established that the death was caused by a voluntary act on the part of the Accused.

Waura, under cross-examination, revealed that she did not see the Accused kick his father, but assumed that he had kicked him in the abdomen by the sounds she heard and from her knowledge that a kick in the stomach would kill him. She also heard her father say, “You have kicked my stomach and it is no good”.

She saw them struggling together at one stage, but since she was was crying and her eyes were smarting from contact with taro peelings, she did not see much, and she was evidently making too much noise to hear all the conversation.

I think that the evidence is too slender to satisfy me beyond reasonable doubt that an intended kick caused the spleen to rupture. The Accused is a boy of about 15 and may have struggled to elude his father, or the rupture may have been due to some other intervening cause or even some action on the father’s part. The medical evidence was of necessity rather sketchy and does not enable me to select with any certainty a voluntary kick as the cause. Since there is no reliable account of the events which occurred which gives a complete picture, I cannot say with sufficient assurance that the rupture occurred as part of an assault, although an assault by the Accused undoubtedy did take place.

Verdict: Not guilty of Manslaughter, guilty of Common Assault.

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

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

[cxlv]1945 St.R.Qd. 38.

[cxlvi]1947 St.R.Qd. 51.

[cxlvii]1942 St.R.Qd. 40.

[cxlviii] 1942 St.R.Qd. 40.