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Papua New Guinea Law Reports |
[1971-72] PNGLR 124
PAPUA NEW GUINEA
[SUPREME COURT OF
JUSTICE]
REGINA
V.
KALIT
Prentice J
7-8 May 1971
CRIMINAL LAW - Unlawful killing - Defences - Act occurring independently of deceased’s will - Event occurring by accident - “Dangerous thing” - The Criminal Code, ss. 23[clv]1, 289[clvi]2.
The accused, a youth, threw a piece of wood at his brother but hit his uncle who was trying to separate the two youths. The blow from the piece of wood ruptured the uncle’s spleen and led to his death. It was found that the accused had no intention of hitting his uncle, whom he did not know was present until just before he threw the wood. The accused was charged with unlawful killing, and raised defences under s. 23 of The Criminal Code.
Held:
That the accused’s act was dangerous, but was not done
with reckless indifference: it was an act occurring independently of
the
accused’s will. The uncle’s death was also an “event occurring
by accident” as he unexpectedly received
a blow intended for another. On
both these grounds the defence under s. 23 succeeded and was not precluded by s.
289, the billet
of wood not being a “dangerous thing”.
R. v. Timbu Kolian, [1967-68] P. & N.G.L.R. 320; (1968) 119 C.L.R. 47, applied. Nature of a “dangerous thing” within s. 289 of The Criminal Code, considered.
Trial.
Wak Kalit (the accused), charged upon indictment that he unlawfully killed Nalau, relied upon the provisions of s. 23 of The Criminal Code. The relevant facts are fully set out in the reasons for judgment hereunder.
Counsel:
Harrison, for the Crown.
Williams, for the accused.
8 May 1971
PRENTICE J: ccused Wakd Wak, and one Hopone, are brothers. Wak is charged with unlawfully killing his uncle . The CrownCrown has asked for a verdict of manslaughter. Clearly the accused caused the death of the deceased and therefore had “killed” him (s. 293 of the Code). The defence early indicated that it would rely on defences under s. 23. I have to consider whether the killing was excusable.
I find the facts as follows:
(a) t#16; Nalau died from a ruptured spleen when he was struck under the lrmpithe ba the rihe ribs bybs by a billet of wood, a d, a split log, some four feet long and some six inches diameter, weighing some six or seven pounds.
(b) The billet had been thrown by the accused at his brother from a distancsome o fiffeet; immediatelyately afte after Hopr Hopone had thrown the same object at and hit the accused on the back, from a similar distance.
(c) ټ ccusad at d at the time of throwing intended to hit and hurt his brother.
(d) &ـ After the the billet had hit the accused, and apparent he p it uthrow, or as he was in s in the athe act ofct of throwing, the boys’ uncle stepped or ran between them to separate them, saying what was interpreted half in pidgin, half in English as “you two stop the cross”— meaning presumably, “you two stop quarrelling”.
(e) ¦t In doing so, the uncle received the force
of the n log
(f) #10;  < The re of e of the spleen and death of
Nalau was directly attributable to the blow from the bil/p>
(g)&>(g) The accused had no intention of hitting or
hurting his uncle. (h) ټ#60;& 160;eTher was on evon evidence that the accused was
aware of the presence of eceased prior to his throwihrowing
the log. Just prior
to the quarrel the uncle had been inside the house. The accused’s brother
saw the uncle just before he
(first) threw the wood at the accused. The Crown case has now been presented. I have been considering the case and
have come to a firm conclusion at this stage. I have been endeavouring to approach consideration of the facts along the
lines adopted by Windeyer J. in Timbu-Kolian v. The
Queen[clvii]3. I have first considered
whether the act of the accused may be excused from constituting manslaughter at
common law on the basis
suggested by his Honour, namely, that an act may be thus
excusable if, though it was unlawful, it was neither in the circumstances
dangerous, nor done with reckless indifference. I consider, having regard to the
nature of the object thrown, the direction in which
it was thrown, and the close
presence of persons (that they were Niuginians may also be an important factor);
that the act was dangerous in the circumstances, though there was no
evidence of reckless indifference. I would not find the act excusable at common
law. I have next considered the application of the two parts of s. 23. In deciding
whether the act of the accused was a “willed act”
I have assumed
that the “act” is the throwing and thereby striking the uncle
(Timbu-Kolian’s case). I consider that the accused’s will
went with the throwing of the log to hit his brother, to be beyond question.
But
I consider that he did not will or choose thereby to strike his uncle to be
equally beyond question. I would therefore find the act of the accused to be an act occurring
independently of his will (s. 23), and therefore excusable under
the
section. In applying the test suggested by Owen J. in Timbu-Kolian v. The
Queen[clviii]4 I haditionationally
asked myself “Did the uncle unfortunately and unexpectedly run between
them and receive a blow intended
for another?” I answer the question
“Yes”, and would therefore find the blow to the uncle which caused
his death,
to be accidental — ”an event occurring by
accident”, and excusable on this basis under s. 23. The operation of s. 23 in the accused’s favour could be precluded by s.
289 if the billet of wood could be said to be a “dangerous
thing” of
a kind to which that section applies; and the accused had failed to take proper
precautions to avoid the dangers
of its use. I have had the advantage of Crown
counsel’s address on this aspect of the case. I am aware that in
Queensland even
an object such as a pencil has been held to be a
“dangerous thing” within the comparable section. But, with respect,
I would prefer to be guided by Windeyer J.’s apparent understanding that
the section is intended to refer to a special category
of “the use of
things which are in their nature dangerous in ordinary use”. I would not
find myself able to accept that
a billet of wood of the kind thrown here was a
“dangerous thing” within such a category. But if I am wrong in
entertaining
such an opinion of the application of s. 289, I would still
consider that the way in which the billet was thrown here, having regard
particularly to its nature, and that it had just been thrown at and hit the
accused without untoward consequences, did not involve
such a degree of criminal
negligence as apparently would be necessary to bring s. 289 into operation. In the result, I consider s. 23 has been shown positively by the evidence, to
apply and its action not to be excluded by s. 289. I
do not propose to call on
the accused. I acquit him and there being no other charges, discharge him. Accused discharged. Solicitor for the Crown: P. J. Clay, Crown Solicitor. [clv]Section 23 of The Criminal Code
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.” [clvi]Section 289 is as follows: “It is
the duty of every person who has in his charge or under his control anything,
whether living
or inanimate, and whether moving or stationary, of such a nature
that, in the absence of care or precaution in its use or management,
the life,
safety, or health, of any person may be endangered, to use reasonable care and
take reasonable precautions to avoid such
danger: and he is held to have caused
any consequences which result to the life or health of any person by reason of
any omission
to perform that duty.” [clvii][1967-68] PNGLR. 320, at pp. 330 et seq.;
[1968] HCA 66; (1968) 119 CLR. 47, at pp. 56 et
seq.
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Solicitor for
the accused: W. A. Lalor, Public Solicitor.
[clviii][1967-68] PNGLR. 320, at p. 345;
(1968) 119 CLR., at p. 71.
URL: http://www.paclii.org/pg/cases/PNGLR/1971/124.html