Papua New Guinea Law Reports - 1987
[1987] PNGLR 51
SC332
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
WILLY KELLY GOYA
V
THE STATE
Waigani
Kapi DCJ Woods Barrett JJ
27 August 1986
30 April 1987
CRIMINAL LAW - Parties to offences - Offences committed in prosecution of common purpose - Conviction for wilful murder - What findings required - Finding that one intended to kill not supporting conviction - Criminal Code (Ch No 262), s 8.
The Criminal Code (Ch No 262), s 8, provides that:
“where:
(a)      two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and
(b)      in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose, each of them shall be deemed to have committed the offence.”
Held
(1)      To justify a conviction of wilful murder pursuant to s 8, there must be proof beyond reasonable doubt that the intention to kill was the common purpose which was shared by all involved or that it was a probable consequence of their common purpose.
(2)      Where the common purpose which is shared is to attack a person with the intention merely of causing grievous bodily harm and death results, the proper conviction is murder even though one of the assailants may form the intention to actually kill.
(3)      Accordingly, a conviction of murder should be substituted for a conviction of wilful murder in circumstances where four persons together attacked two other men with stone, feet and fists and with such force as to cause death from internal injuries and where the trial judge found that at least one person in the group of four had an intention to kill.
Appeal
This was an appeal against conviction and sentence on a charge of wilful murder.
Counsel
E V Batari, for the appellant.
K Bona, for the State.
Cur adv vult
30 April 1987
KAPI DCJ WOODS BARRETT JJ: This is an appeal against conviction for two counts of wilful murder and against the two sentences of life imprisonment imposed by the trial judge.
The facts found were that the appellant was one of four men who attacked two men who were walking with some girls. They first attacked the deceased Pais, punching, kicking and hitting him forcefully with a large stone on his head, leg and chest. Death was instant and the medical evidence was that his more serious injuries included:
“fractures of 2nd — 10th ribs on the left side fractures of 5th and 6th ribs on the right side a bruise 5” or 6” diameter on the left thigh a fracture of the radius and ulna of right forearm with bones protruding.
Head no fracture but a sub dural haematoma
Lung — laceration of right lung, lower segment of upper lobe
Laceration of left lung, lower lobe and upper lobe
Heart
—       a tear in the pericardium
—       laceration of left ventricle
—       hole in right atrium
Abdomen
—       tear in left diaphram
—       part of the stomach and whole of the spleen in the chest cavity
—       spleen torn into pieces (no evidence that it had been enlarged or not)”
Eye-witness accounts show that four persons, including the appellant were actively involved in fighting the deceased Pais with a stone, feet and fists. The medical evidence shows that extreme force must have been used — sufficient to cause several fatal internal injuries. The degree of force necessary to shatter and then force abdominal organs up into the chest cavity suggest that he must have been stamped upon or hit with extreme force by a rock or feet. On that evidence the judge was justified in finding that at least one person in that group had an intention to kill.
It is not known however which injuries were actually caused by the appellant himself. It is uncontested that he was part of a common purpose to attack the deceased and that death resulted. Whether or not he should have been convicted of wilful murder will depend on whether the intention to kill was the common purpose which he shared with the others or whether it was a probable consequence of their common purpose. If the purpose which they all shared was to attack with the intention merely to cause grievous bodily harm then the appellant should nave been convicted of murder even though one of the other assailants formed the intention to go further and to actually kill the deceased. We find no sufficient evidence which would have justified the trial judge in being satisfied beyond reasonable doubt that this appellant himself formed the intention to kill and that his blows caused death. Nor is there sufficient evidence to show that the group formed a common purpose within the meaning of the Criminal Code (Ch No 262) s 8 (which the appellant shared) to actually kill the deceased. Nor was the offence of wilful murder a probable consequence of their unlawful common purpose.
The actual intention of the appellant is also crucial when considering the effect of s 7 of the Criminal Code. Undoubtedly the appellant was aiding the others to commit an offence but the question still remains: was it the offence of wilful murder requiring that the accused had the specific intention that Pais should die or did the appellant merely envisage the infliction of grievous bodily harm — in which case he aided the offence of murder only.
The trial judge’s basic findings of facts before and during the attacks have not been challenged during this appeal. According to the view of the law which we have stated, the trial judge should not have convicted the appellant of wilful murder unless those findings of fact justified him drawing the inference, beyond all reasonable doubt, that the appellant himself shared a common purpose to deliberately kill Pais. We find that the highest degree of culpability which can be safely inferred from the facts found by the trial judge was that he must, at least, have joined in a common purpose to cause grievous bodily harm to Pais. That being the case, and as death resulted, the appellant should have been convicted on count 1 of the murder of Pais.
The same reason applies equally to count 2 concerning the death of Francis. He also was attacked by the appellant and his group. One serious blow was dealt to his head by a man named Robert, who may well have intended to kill him. Before that, however, the appellant and the others had joined in punching Francis. As previously stated we are satisfied they had a common purpose to cause grievous bodily harm to Pais and the nature of the attack upon Francis which then followed immediately afterwards would justify an inference that their common purpose was also to cause at least grievous bodily harm to Francis. Even if Robert may have intended to kill Francis, we find that is insufficient evidence for the learned trial judge to find beyond reasonable doubt that all the others, including the appellant, shared this specific intention to kill. Nor was the offence of wilful murder a probable consequence of their unlawful purpose. Nor, within the meaning of s 7, should he have been satisfied that the offence the appellant was aiding the others to commit was the offence of wilful murder. This conclusion is supported to some extent by the fact that they left Francis unconscious but alive. It would have been a different matter if they had noticed he was still breathing and then finished him off.
Accordingly we find that the learned trial judge erred in convicting the appellant of wilful murder. On each of the two counts the most serious, and the proper, offence established to the required standard of proof was that of murder.
SENTENCE
It follows that the sentence also must be reconsidered. We disagree with the trial judge if his remarks about there being no motive and his remarks relating to it being like a “thrill kill” indicate that he placed this offence in the category of senseless killing done merely for the thrill of killing. In view of the evidence that the girls were known to the appellant and that the appellant and the others resented the fact that the two deceased were sexually embracing them in the early hours of the morning it seems highly likely that there was a motive for these particular attacks — though of course such motive as he had does not provide a defence nor any significant factor of mitigation.
We follow his Honour’s reasoning in placing this case in the more serious category of murder however, as the appellant committed not one but two murders. For this reason, notwithstanding he is a first offender with a previously good reputation we feel the appropriate sentence should be 20 years IHL on each count — the two sentences to be served concurrently.
ORDER OF THE COURT
Appeal upheld.
Convictions for the offence of murder substituted for the convictions for wilful murder.
Sentences of life imprisonment be quashed.
Sentences of 20 years imprisonment with hard labour be imposed for each offence.
Such sentences to be served concurrently.
Lawyer for the appellant: Public Solicitor.
Lawyer for the State: Public Prosecutor.