Papua New Guinea Law Reports - 1965-66
[1965-66] PNGLR 73
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V.
KOPI-KAMI
Ambunti and Port Moresby
Mann CJ
15 February 1965
4 March 1965
CRIMINAL LAW - Attempting unlawfully to kill - Whether intention to kill put into execution by means adapted to its fulfilment - Distinction between preparation and attempt - The Criminal Code, ss. 4, 306.
At the trial of the accused on a charge of attempting unlawfully to kill his wife, the Crown adduced evidence that the accused had been seen carrying a shotgun, loading it and later going towards his house about twenty yards away still carrying the gun. At this time his wife, with whom he had quarrelled earlier in the evening, was inside the house. When the accused was only a few yards from the house, though not yet within sight of his wife, a policeman disarmed him and took him into custody. The accused did not struggle or protest. There was other evidence which would support a finding of fact that the accused intended to kill his wife. At the close of the Crown case counsel for the accused submitted that there was no case to answer.
Held:
That the accused had not yet begun to put his intention into execution within the meaning of s. 4 of the Criminal Code and accordingly the accused had no case to answer.
The distinction between preparation and attempt discussed.
R. v. Grogan[xxviii]1; R. v. Linneker[xxix]2 and R. v. Chellingworth[xxx]3*[xxxi]4 considered.
Submission of No Case to Answer.
At the close of the Crown case in the trial of Kopi-Kami, who was charged with attempting unlawfully to kill his wife, counsel for the accused submitted that there was no case to answer. The relevant facts and arguments of counsel appear sufficiently in the judgment hereunder.
Counsel:
Chaney, for the Crown.
Ley, for the accused.
4 March 1965
MANN CJ:  The abovenamed accused was charged at the Supreme Court sitting at Ambunti with attempting unlawfully to kill his wife Saungraunagi.
At the close of the Crown case the defence submitted that there was no case to answer.
So far as the evidence has gone, the facts are reasonably clear. One main issue may arise as to whether the accused had at all material times the actual intention of killing his wife. There is much evidence to suggest that he was only pretending, and to indicate that as part of his plan he set in operation forces which, depending on the pattern of social behaviour applicable, might be thought to be calculated to prevent the crime from being carried out; in fact, the accused was prevented from carrying it out by the same forces which he actually set in train. Nevertheless, there is real evidence, and a good deal of it, which would support a finding of fact that the real intention of the accused was to kill his wife, and that that intention prevailed throughout the actions that took place.
I am not yet concerned to determine this issue or to consider this part of the evidence further, but must proceed to determine a preliminary question on the view that it is open to the court to find that such was the intention of the accused.
The provisions of ss. 4 and 306 of The Criminal Code are also satisfied to the extent that there is evidence which would support findings:
(a)      that the accused had committed overt acts observable by others and actually observed by them sufficient to make manifest his intention to kill his wife;
(b)      that he had decided upon a means of killing his wife which was a means adapted to the fulfilment of his intention, to wit, shooting her with the loaded shotgun which he carried at the time when the police stopped him;
(c)      that he had begun to put into execution a plan of action which may have included within its scope the killing of his wife but may also have included other objectives which may have been collateral to the killing of his wife.
The point of law which now arises for determination is whether the accused had put into operation what I have referred to as his “plan” sufficiently to include an act or acts sufficiently proximate to or otherwise involved in the actual killing to satisfy the required test.
The case history is as follows:
The accused and his wife had been married for some years by a mission church ceremony which appears to have constituted a valid, legal marriage. The marriage was not entirely successful, and the husband acknowledged that a child born to another woman was his child. The accused wanted to resolve the position by taking either a different wife or an additional wife. In either case it was the mother of his child whom he evidently had in mind. This would not have caused great difficulty in native custom, but the wife insisted on the binding force of the mission marriage, and s. 55 of the Marriage Ordinance 1964 appears likely to support her view. The wife, during the past two or three years, has said a number of things that the accused took as highly derogatory of him and as causing him loss of social prestige.
On the evening in question there was a party proceeding at the village of Kilimbit, where all the actors were present at the time. At the party were two local government councillors, the policeman named Sino and a police constable at home on leave. The party was at the men’s house, which was a building of substantial size. One of the councillors became ill and was vomiting, and the policeman Sino sent the witness Tomeli to take the councillor down to the rest house and look after him. Tomeli met the accused, who pointed out that the rest house was a long way away, and invited him to take the councillor to the smaller of two houses occupied by the accused Kopi. Tomeli did so and stayed there with the councillor.
At about this time, but evidently a little earlier in the evening, the accused went to see his wife, who was staying at his other house, a distance of only about twenty yards away. The accused called to his wife, who went to his smaller house. There the accused showed her at least one picture and one or more letters. Something was said about papers which he proposed to burn, and something was said about his intention to marry the other woman. The conversation appears not to have been very satisfactory to either party, and the wife of the accused went back to the other house. The accused called her apparently a number of times, but she did not again respond, and so he went again to the larger house and struck her, but not with any great force. There is some conflict of evidence as to the precise nature of these blows.
A little later and whilst Tomeli was in Kopi’s house with the councillor, Tomeli heard Kopi call to him from outside the house. When Tomeli arrived, Kopi was seen to have a shotgun in his hand and was seen to place a cartridge in the gun. He told Tomeli to go and get his younger brother, and said that he Kopi was going to shoot his wife. Tomeli was afraid of this situation and he went and spoke to the policeman Sino, which necessitated a journey of about seventy-five yards to the men’s house, where the party was in progress. Sino immediately hurried down to the place where the accused was and met him apparently on the way from the smaller house to the larger house, where his wife was known to be. The accused was carrying the loaded shotgun and was seen to be carrying a hurricane lamp. He had only a very few yards to traverse before reaching the house, but his wife, being inside, was not yet in sight. The policeman Sino came up alongside the accused and took possession of the shotgun. The accused did not in any way resist, gave up the gun readily and allowed himself to be taken into custody without any protest. He did nothing more towards any plan involving any harm to his wife.
If the accused had carried out the last act which he had intended to carry out towards the killing of his wife, he might be convicted of an attempt, but the converse position is not so clear. It cannot be said that the accused could not be convicted of an attempt merely on the ground that he had not yet taken the very last action towards the achievement of his purpose.
His general plan of action from the time when it would be open to the court to find that he had formed the relevant intention, about the time when he left the smaller house, may be stated as follows:
(a)      he was to get the gun, load it and have it in his possession ready to fire;
(b)      he must transport himself and the gun to a position from which he could shoot his wife;
(c)      he must “present” the gun in the sense that it must either be aimed at his wife or at least pointing in her direction;
(d)      he must pull the trigger at a time when the circumstances were effective for his purpose.
Step (a) had been completed; step (b) had been commenced, and was still in progress when the accused was stopped. Several decisions had yet to be made and some skill had yet to be employed before his purpose could be complete.
I have been referred in detail to Glanville Williams Criminal Law—The General Part, 2nd ed., ch. 4. I have considered this chapter with care and also ch. 104 of Russell on Crime, 10th ed. I have also been referred to a considerable number of cases, many of which appear in the annotations of Mr. Carter’s text book on the criminal law of Queensland.
It appeared to me that amongst the conflicting rules which have been from time to time authoritatively propounded and academically discussed, there are principles applicable to the case at present before me which would answer the point with which I am concerned, in either direction; e.g., if s. 4 of The Criminal Code makes punishable an intent to kill without any action being taken beyond the commission of some act of such an evidentiary quality as to establish that the intention is firm (cf. Austin’s view referred to by Dr. Williams at p. 202), the conclusion might well be that the accused had committed sufficient overt acts for this purpose. He declared his intention openly, took the gun, loaded it and then went towards the house where his wife was. But s. 4 does not merely require that the intention be manifest by some overt act; it requires that the intention itself be begun to be put into execution.
Cases decided in Queensland under The Criminal Code still draw the distinction between a mere act of preparation and an act of the character required to satisfy s. 4. R. v. Chellingworth[xxxii]5. If the proximity rule is applied as a question of degree, then the accused was on any view very close in point of time and distance to a situation in which he would be ready to carry out his intention effectively, yet he clearly had several separate things to do and decisions to make in relation to them. I cannot find any case so directly in point that it could not be distinguished or set against some other case of comparable weight. It seems to me that the closest case on the material facts is that of Linneker[xxxiii]6, which must be compared with Grogan’s case[xxxiv]7.
In Linneker’s case[xxxv]8 the accused was charged with attempting to discharge a loaded revolver with intent. There was evidence that the accused “had a loaded revolver in his pocket; he put his hand in his pocket and commenced to pull it out; the prosecutor seized him, and a struggle took place between them; the prisoner got the revolver out of his pocket and endeavoured to get his arm free, at the same time using language which clearly indicated that his intention was to use the revolver, if he could” - per Lord Alverstone C.J.[xxxvi]9
To complete the offence charged, the accused only had to pull the trigger, and it is clear that he was endeavouring, during the struggle, to get the revolver pointed in the right direction to enable him to do this thing. It may be assumed from the findings of the court that if the accused had found at any time during the struggle that the revolver was pointed in a suitable direction, he would have discharged it, and it was only the application of considerable force that prevented this from happening.
In Grogan’s case[xxxvii]10, the charge and the facts proved were similar in character, but when the prisoner thrust his hand into his pocket and drew out a loaded revolver, he was immediately disarmed by the prosecutor and a bystander, who took the weapon away from him immediately and before he could make any movement with his hand. There was no prolonged struggling during which the prisoner was actually trying to discharge the weapon, and apparently no stage at which the weapon, if it had been discharged, could have injured or killed the prosecutor. Higinbotham C.J. in his judgment drew attention to the fact that “the nature of the attempt and the acts by which alone the attempt can be carried into execution are narrowly defined by the law which makes the attempt to discharge loaded firearms, with intent to murder, a felony”, at p. 342.
Attention is also drawn to the fact that under the statutory wording of the charge in question, the active ingredient of the offence was the drawing of a trigger or in any other manner attempting to discharge the firearm. This is a specific and narrowly defined ingredient of the offence, and Higinbotham C.J. supports the notion that these refined statutory offences could be better defined by comprehending the whole of them in the broader expression “whoever shall attempt to commit murder shall be guilty of a felony, etc.”[xxxviii]11
These cases, therefore, although they illustrate with refinement the distinction between acts of preparation and acts forming part of a series of acts by which the actual intention is being carried out, must be considered in the context of the narrowly specified offences charged.
It is my duty to draw a legal boundary between those acts of the accused which are of the character of acts of preparation and those which are part of the actual means adopted by the accused for the purpose of killing his wife. It seems to me that the overall plan of campaign directed towards the intended results (assuming at this stage that that was his intention) included several steps of preparation and several further steps which might have been either acts of preparation or acts directed to a different purpose, e.g., to draw attention to his actions, or to satisfy the social habits of the native background of the accused, e.g., it is not unlikely that the accused wanted his brother present to witness his actions, possibly to protect him from reprisals and to speak for him in any subsequent clan or inter-clan discussions. I must have regard to the consideration that there was yet time within which the accused might alter course, and that however firm his intention might have been, several further decisions had to be made by him which would support that intention.
I would not draw the boundary line between acts of preparation and acts of commission, before that point of time and place at which the accused was in a position to discharge the firearm at his wife. This would at least require that he had come within sight of her or was able by some means to detect her presence so that it would be possible for him to shoot her. This point had clearly not yet been reached, and the final decisions involved in the actual handling of the gun were not yet due.
In these circumstances, in my opinion, the accused had not yet begun to put his intention into execution within the meaning of s. 4 of The Criminal Code. I therefore uphold the contention of counsel for the defence that the accused has no case to answer upon the crime charged.
Ruled accordingly.
Solicitor for the Crown: P. J. Clay, Acting Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[xxviii](1889) 15 V.L.R. 340.
[xxix][1906] 2 K.B. 99.
[xxx](1954) 48 Q.J.P.R. 122; (1954) Q.W.N. 35.
[xxxi]*  [R. v. Chellingworth (supra) was disapproved in R. v. Williams, Ex p. Minister for Justice and Attorney-General [1965] Qd.R. 86 (C.C.A.). - Ed.
[xxxii](1954) 48 Q.J.P.R. 122; (1954) Q.W.N. 35.
[xxxiii][1906] 2 K.B. 99.
[xxxiv](1889) 15 V.L.R. 340.
[xxxv][1906] 2 K.B. 99.
[xxxvi][1906] 2 K.B., at p. 102.
[xxxvii](1889) 15 V.L.R. 340.
[xxxviii](1889) 15 V.L.R., at p. 343.