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Bena, Regina v [1966] PGLawRp 14; [1965-66] PNGLR 329 (15 August 1966)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 329 - Regina v Bena-Forepe

[1965-66] PNGLR 329

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

BENA-FOREPE

Goroka

Ollerenshaw J

10-12 August 1966

15 August 1966

CRIMINAL LAW - Attempted unlawfully to kill - Intoxication - Intention - The Criminal Code, ss. 4, 28, 302, 305, 306.

The accused Bena, and one Juroa, worked as domestics at single bank officers’ quarters. On the day in question the two commenced an argument on the back steps of the quarters, but a bank officer intervened and Bena, who was armed with a hammer, retired to the kitchen. Shortly afterwards the argument resumed and Bena re-armed himself with a hammer and leaped down the stairs and struck Juroa a heavy blow on the head, which fractured his skull and pulped the brain beneath the fracture. Bena then aimed two more blows at Juroa as he fell to the ground, one of which may have hit him on the small of the back but it did no damage. At the time the accused was to some extent under the influence of liquor.

Held:

N1>(1)      In a charge under s. 306 of the Criminal Code the Crown must prove an intent to kill and not merely an intent sufficient to render a person responsible for murder as defined in s. 302.

N1>(2)      In the terms of s. 28, intoxication may be regarded for the purpose of ascertaining whether the intent to kill in fact existed.

N1>(3)      Though the accused was moderately under the influence of liquor at the time of his attack on Juroa, he was not so drunk as to be incapable of forming the intention to kill, and did in fact form that intention.

N1>(4)      The accused’s conduct amounted to an attempt within the meaning of s. 4 of the Criminal Code for the means he employed manifested and were adapted to the intention and purpose of killing.

Cases Referred To:

Director of Public Prosecutions v. Beard, [1920] A.C. 479; Broadhurst v. The Queen, [1964] A.C. 441; Thomas v. The Queen [1960] HCA 2; (1960), 102 C.L.R. 584; Smyth v. The Queen [1957] HCA 24; (1957), 98 C.L.R. 163; R. v. Wendo and others, [1963] P. & N.G.L.R. 217; R. v. Nicholson, [1956] Q.S.R. 520; 51 Q.J.P.R. 11.

Trial on Indictment.

The facts appear sufficiently from the judgment.

Counsel:

Wignall, for the Crown.

Broadley, for the accused.

15 August 1966

OLLERENSHAW J:  The accused Bena, son of Forepe, is charged under s. 306 of the Criminal Code that he attempted unlawfully to kill Juroa, son of Fumare.

There is no doubt in my mind, nor do I think, notwithstanding the use of the words “Attempt to murder” in the heading to this section, that there could be any doubt that this charge places upon the Crown the obligation to prove an intent to kill and that an intent that would, in appropriate circumstances, render a person responsible only for murder, as defined in s. 302, would not be sufficient. The very words of s. 306 make this clear and the draftsman probably headed this section “Attempt to Murder” because in the preceding s. 305, headed “Punishment for Murder”, wilful murder and murder are combined and he failed to make the distinction when coming to provide a heading for the next section, s. 306.

There is an alternative charge of doing grievous bodily harm with that intent under s. 317, item (1).

Both Bena and Juroa were employed as domestic servants at the mess of the officers of the Bank of New South Wales at Goroka and prior to the incident out of which the charge arose they were friends. In the evening of the 25th December last, Bena was heard and observed by one of these officers to be taking the main part in a rather one-sided argument with Juroa while he, Bena, held a hammer concealed from Juroa behind his back. Juroa was at the foot of the steps at the rear of the building and Bena was on the landing.

A little later, after the bank officer had “broken up” the argument and Bena had placed the hammer on top of a refrigerator in the kitchen, which formed a corridor to the landing, he was heard and observed to resume, from the landing, what he had to say to Juroa and then to recover the hammer from the refrigerator, run back to the landing and leap down the stairs aiming a blow at Juroa’s head, which found its mark and fractured Juroa’s skull, pulping the brain beneath the fracture. He aimed two more blows at Juroa as he fell to the ground, one of which may have hit him on the small of the back, but it did no damage.

For a description of the encounter the Crown relies upon the bank officer, John David Lutze. There is no dispute, nor could there be any that Bena did fracture Juroa’s skull with his blow with the hammer. However, this officer’s evidence has been criticized strongly as being the somewhat dramatized account of a rather young man, with a view, as I understand it, to casting doubt upon the accuracy of his description of the manner of the attack, inasmuch as it points to deliberate conduct on the part of Bena in aiming a blow with considerable violence and in achieving an intended purpose.

It was the evening of Christmas Day and the defence is intoxication, that is to say that at the relevant time Bena was under the influence of liquor to such an extent that he was incapable of forming an intention to kill and that he did not, in fact, have this intention.

The common law upon such a defence is to be found in Director of Public Prosecutions v. Beard[cccxx]¹ subject to the qualifications as to the burden of proof to be found in Broadhurst v. The Queen[cccxxi]², where the expression of Lord Birkenhead’s third conclusion is criticized as not laying down the law upon the burden of proof and as an unwise dictum to use in a direction to a jury, and, subject to the qualification that there is no presumption that a man intends the natural consequences of his acts: see Thomas v. The Queen[cccxxii]³; and Smyth v. The Queen[cccxxiii]⁴. I would add here that although, as was said in R. v. Wendo and Others[cccxxiv]⁵, in some circumstances, what was done is a useful guide to what it was intended to do, that would not be a proper approach in a case such as this.

For my purposes the relevant law is to be found in the third paragraph of s. 28, relied upon by counsel for the defence, in these terms:

“When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.”

While this section refers to “an intention to cause a specific result” the common law speaks of the “specific intent essential to constitute the crime”. Whether or not there is any difference, see, e.g., the cases cited in Carter’s Criminal Law, 2nd ed., at p. 30, is of no consequence in this trial.

I am in agreement with counsel for the defence that the onus is upon the Crown to satisfy me beyond all reasonable doubt that Bena had the intention to kill Juroa, the intention to cause his death and that before coming to such a conclusion I must take into consideration Bena’s condition from drink for the purpose of ascertaining if such intention existed: Thomas v. The Queen[cccxxv]⁶ and R. v. Nicholson[cccxxvi]⁷.

I have carefully considered all the evidence and my assessment of the witnesses for the Crown, the bank officer Lutze, Senior Inspector Beattie, Juroa and Bena, himself, who gave evidence in his defence.

I see no reason for not accepting the evidence of the bank officer as an accurate description of the events. I find him to be not immoderate and a truthful as well as intelligent witness rather than one given to exaggeration and, what is of a most material importance, a witness not unfairly disposed towards Bena, particularly when in answer to the question: “Did the accused show any signs of having had strong drink?” he replied “That is a hard question to answer. I could not answer that definitely although his action seemed in anger, which was most unusual for the accused.” There is no doubt that Bena did very seriously fracture Juroa’s skull and I have no doubt that he did it in the manner described.

One important thing that emerges from the evidence of the witness Lutze-I do not here repeat it all-is that in all Bena’s actions, although obviously angry about something or other, some grievance he felt, real or imaginary, he did not act at the time like a drunken man too incapable to form an intention but rather like a man angry and deliberate and quite capable of controlling and directing his actions. This, of course, by itself, would not mean that he was capable of forming an intention to kill and I must look to the whole of the circumstances proved in evidence.

For what it is worth, Juroa, like the bank officer, did not know of Bena having had any drink, and for what it is worth Juroa did not describe a drunken man. Of course Bena, who, unlike Juroa, did drink, may very well have indulged in some celebration of this Christmas Day and I accept his evidence that he had had some drink.

When Senior Inspector Beattie saw him, some half hour or more after the incident, his speech was slurred, he was unsteady on his feet and this police officer formed the opinion that although not drunk he was moderately under the influence of liquor and that he might not understand the nature of the charge the officer had in mind.

Nevertheless, the accused then took him to the mess and after a fruitless search for a knife and an axe, with which the accused then claimed that Juroa had attacked him, the accused then said “I put the hammer in there” and opened and took from a cupboard a hammer, which he handed to the police officer.

An axe was found next day on the wood heap of the mess, and I would say here that I consider, upon all the evidence, that Bena’s claim about an attack by Juroa with a knife and/or an axe was a mere excuse for his own violent deed, and I have no doubt that it is not relevant to the question of the criminal responsibility of the accused upon the present charge nor do I understand it to be contended that it is.

Next day Bena told the police officer that he had had two half glasses of whisky, given to him on the day by a bank officer of the mess. In this trial Bena first gave evidence that he had had one glass of beer, given to him by a bank clerk, and, when reminded that he had told the police officer that he had said that he had whisky to drink, he said, with some hesitation, that he had had three glasses of whisky, which he did not see mixed with water, but later he said that he had sat at a table with a bank officer and saw the whiskies poured by the officer into his glass and the glasses filled with water before they were handed to him.

The story of the whisky, like that of the attack by Juroa, may be a fabrication or it may even be that between the time of his attack upon Juroa and the time when Inspector Beattie interviewed the accused he took some whisky at the mess to fortify or relieve himself after his deed. He told this police officer that he put the hammer back in the cupboard in the kitchen and if he really did this he must have done so after his attack and before his apprehension. There is no other evidence as to what Bena was doing or where he was during this interlude and I do not think that I should accept that he did so replace the hammer or that during this period he had any more to drink. I accept that he was moderately under the influence of liquor at the time of his attack upon Juroa, although he showed no signs of it apart from his apparent anger and although it may be that such liquor as he had drunk had not worked its full effect upon him at the relevant time.

However, I do not think that he was so drunk as to be incapable of forming the intention to kill, although it is probable that drink made some contribution to his conduct.

He may well be a slow thinker, but he was not and is not without some cunning, and I do not think that he is confused about the happenings of the evening in question nor that he was then so confused as has been submitted. I thought that such hesitations as he showed in his evidence had quite another significance. I think that he did hesitate to say what he knew to be untrue. I am not sure what it was that stirred him to attack Juroa in this violent fashion although, just possibly, it may have been that Bena secretly nursed a grievance towards Juroa because the mess regarded him not as intelligent, for instance, as Juroa and some drink may have brought this grievance to the surface, or, possibly, it may have been, as Bena himself said in evidence, that the blow followed some questioning by Juroa of Bena’s reasons for bringing an ice cream to his master.

I appreciate that if I have any reasonable doubt upon this question of capacity and intention it would be my duty, and it would be my pleasure to acquit. I do not have any doubt that when he struck Juroa the accused intended to kill him and that he did show a not unnatural prowess when he attempted to fulfil his purpose with a hammer, such prowess as I would expect him to show with the more usual axe.

I have considered all the submissions made by counsel in his thorough defence of the accused and I do not take time here to discuss them except to mention his submission that if Bena, on this Christmas evening, had wanted to kill Juroa he had opportunity to finish him off as he lay helpless on the ground, convulsing and bleeding profusely from his fractured skull and unattended during the short time that the bank officer was engaged on the telephone, immediately after the attack. Although when, at the instance of the bank officer, the accused stood-off from the attack he was still very excited, it seams clear, from the evidence that he soon calmed down. It was the bank officer’s presence and intervention that saved Juroa from further blows and perhaps, having been interrupted, Bena was satisfied with what he had done and it would be but a very short time before he realized the consequences that were about to ensue for himself.

There could be no doubt upon the evidence that, given the intent, the accused person’s conduct fulfilled the requirements of s. 4 of the Code in its definititon of an attempt. In the words of the section, certainly, the means he employed manifested and were adapted to the intention and purpose of killing.

I have found the necessary intention and I am satisfied beyond reasonable doubt that the accused is guilty of the crime firstly charged.

I find upon the first count a verdict of guilty.

It is not necessary for me to find a verdict upon the second count.

Verdict: Guilty of attempt to murder.

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

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

[cccxx][1920] A.C. 479.

[cccxxi] [1964] A.C. 441.

[cccxxii][1960] HCA 2; (1960) 102 C.L.R. 584 per Fullagar J., at p. 594, and Kitto J., at p. 596.

[cccxxiii](1957) 98 C.L.R. 163.

[cccxxiv][1963] P. & N.G.L.R. 217, at p. 239.

[cccxxv][1960] HCA 2; (1960) 102 C.L.R. 584 per Fullagar J., at p. 594, and Kitto J., at p. 596.

[cccxxvi] [1956] Q.S.R. 520; 51 Q.J.P.R. 11