Papua New Guinea Law Reports - 1991
[1991] PNGLR 254
SC413
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
PASI AND OTHERS
V
THE STATE
Waigani
Kapi DCJ Los Salika JJ
27 March 1991
5 August 1991
CRIMINAL LAW - Murder - “Act” done in prosecution of unlawful purpose - Act and purpose must be distinct - Criminal Code (Ch No 262), s 300(1)(a).
CRIMINAL LAW - Murder - Alternative verdict - Manslaughter only available - Alternative charge of murder not open unless charged - Criminal Code (Ch No 262), s 300(1)(a), (1)(b), 539(2).
CRIMINAL LAW - Practice and procedure - Indictments - Murder - Alternative charges may be made - Alternative verdict for murder not available unless charged - Criminal Code (Ch No 262), ss 300(1)(a), (1)(b), 539(2).
The Criminal Code (Ch No 262), s 300(1), provides:
“Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:
(a)      if the offender intended to do grievous bodily harm to the person killed or to some other person; or
(b)      if death was caused by means of an act:
(i) done in the prosecution of a common purpose; and
(ii) of such a nature as to be likely to endanger human life.”
Section 539(2) provides:
“On indictment charging a person with the crime of murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.”
On appeal against conviction of the offence of murder under s 300(1)(a) on a charge of murder under s 300(1)(b),
Held
(1)      For the purposes of s 300(1)(b) of the Criminal Code, the “act” which is done in prosecution of the unlawful purpose is separate and distinct from the “unlawful purpose”.
The State v Joseph Maino [1977] PNGLR 216, followed.
(2)      In the circumstances, an assault on the victim could not constitute the “act” and the “unlawful purpose” and a conviction based thereon was in error.
(3)      (Los J dissenting) Where a charge of murder is made under s 300(1)(b) of the Criminal Code only, an alternative verdict is not available under s 300(1)(a); the only alternative verdict is that of manslaughter.
(4)      (Los J dissenting) In the circumstances, a verdict of guilty of manslaughter should be entered.
Cases Cited
Joseph Maino v The State [1977] PNGLR 404.
R v Hone Dorope [1970] (Pre-Independence Supreme Court, No SC 608, unreported).
Rex Lialu v The State [1990] PNGLR 487.
Rimbink Pato v Umbu Pupu [1986] PNGLR 310.
State, The v Joseph Maino [1977] PNGLR 216.
Appeal
This was the hearing of an appeal against conviction on a charge of murder.
Counsel
D Koeget, for the appellants.
K Bona, for the respondent.
Cur adv vult
5 August 1991
KAPI DCJ: This is an appeal against both conviction and sentence.
The appellants were charged that on 28 April 1989 they murdered one, Henry Ripolin. The trial judge found the following facts:
“Firstly, that all three accused were fighting with the deceased. There has been no evidence in this case of anyone else fighting with the deceased and there has been no evidence in this case of the deceased fighting with anyone other than these three persons on the night in question. There is also evidence that this deceased died of a ruptured spleen. There is no evidence of any kind which would suggest that that ruptured spleen was caused other than by this fight. I am therefore left with a conclusion as the only reasonable hypothesis on the evidence before me that it was this fight that caused the death of the deceased.
Secondly, there is ample evidence to support the finding that a fight occurred in an initial location and that the deceased was pulled to another location where this fight continued.
Thirdly, there is ample evidence to support the proposition which I find as a fact that this deceased was kicked in the body, particularly in the region of the ribs, several times in the course of this fight. The first three State witnesses all saw Hubert Rere Bola kick the deceased in the ribs and I find that as a fact.”
This case was prosecuted pursuant to s 300(1)(b) of the Criminal Code (Ch No 262). Section 300(1) is as follows:
“Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:
(a)      if the offender intended to do grievous bodily harm to the person killed or to some other person; or
(b)      if death was caused by means of an act:
(i)       done in the prosecution of a common purpose; and
(ii)      of such a nature as to be likely to endanger human life; or ...”
The appellants raised two grounds of appeal on the proper application of s 300(1)(b) of the Code.
“1.      That the trial judge erred in convicting the appellants of murder in that there was no evidence or insufficient evidence of an unlawful purpose, which unlawful purpose is an essential element of s 300(1)(b) of the Criminal Code.
2.       The trial judge wrongly held that the appellants are guilty of murder under s 300(1)(b) of the Criminal Code where they had assaulted the deceased in such a way as to be likely to endanger his life, resulting in actual death.”
The trial judge in dealing with this issue said in his judgment:
“Mr Miviri, who appears for the State, has indicated that the State relies upon the provisions of s 300(1)(b) which would render these accused guilty of murder if the death was caused by means of an act done in the prosecution of an unlawful purpose which act was of such a nature as to be likely to endanger human life. My attention has also been properly drawn to the provisions of s 300(3) which directs me to regard as immaterial that the offender did not intend to hurt any person. That latter provision, coupled with the decision of R v Koito Kartogati (1970) No 603, tells me that test whether the act is of such a nature as to be likely to endanger human life is an objective one, that is, that the test is not whether the accused intended to endanger human life but, rather, whether a reasonable person observing the conduct in question would regard the conduct of the accused and their actions to be such as to be likely to endanger human life. The next decision to which I should refer is that R v Hone Dorope [1970] No 608 which is authority for the proposition that to sustain a charge under this section the prosecution must show a separate and distinct unlawful purpose in the course of which a dangerous act is done. In that case the act which caused death, namely a blow with an axe, was itself the unlawful purpose. I should perhaps indicate, whilst considering this statutory provision, that I regard the conduct of these three accused in fighting the deceased as an unlawful purpose and that I regard their conduct collectively as being of such a nature as to be likely to endanger human life.”
The Public Prosecutor has conceded that the trial judge erred in applying s 300(1)(b) to the circumstances of this case. The applicability of this provision is set out in the cases of R v Hone Dorope [1970] (Pre-Independence Supreme Court, No SC 608, unreported) and The State v Joseph Maino [1977] PNGLR 216. These two cases stand for the proposition that the “act” which is done in the prosecution of an unlawful purpose is separate and distinct from the “unlawful purpose”. In the present case, assault on the deceased which constitutes the act cannot also constitute the unlawful purpose. In such circumstances, s 300(1)(b) cannot be applicable. I would quash the conviction of murder for these reasons.
The Public Prosecutor has submitted that, even though he concedes that the trial judge was wrong in applying s 300(1)(b) of the Code, it was open to the National Court and is therefore open to the Supreme Court to support the conviction under s 300(1)(a) of the Code. It would have been open to discuss the application of s 300(1)(a) of the Code if, at the trial, the prosecutor proceeded on the murder charge under two alternative bases, that is to say, under s 300(1)(b) or alternatively under s 300(1)(a) of the Code: see The State v Joseph Maino. However, it is clear, and this appears from the judgment of the trial judge, that Mr Miviri, who prosecuted this case, did indicate that the State was relying only on the provisions of s 300(1)(b) of the Code. In the circumstances, therefore, it is not open to consider the application of s 300(1)(a) of the Code.
On a charge of murder, the accused person may be convicted of an alternative verdict of manslaughter: s 539(2) of the Code. Clearly s 547 of the Code is not applicable. There is no doubt that the deceased died of a ruptured spleen and there is ample evidence to show that this injury was received from the assaults committed by the three appellants and on the basis of the trial judge’s finding, Hubert Bola delivered the fatal injury and the other two persons were aiding in the fight. I find them guilty of manslaughter.
On the question of appeal against severity of sentence, it follows from my finding that the appellants are guilty of manslaughter and not murder, the sentence of eight years was based on a wrong conviction. Having regard to the approach of sentence in manslaughter cases in the case of Rex Lialu v The State [1990] PNGLR 487, I consider that the appropriate penalty for this offence would be six years IHL.
LOS J: The appellants were convicted of murder by the National Court at Kimbe on 21 March 1990 and were sentenced to eight years imprisonment in hard labour. They appeal against those convictions and the sentences.
The grounds of appeal are:
“(i)     That the trial judge erred in convicting the appellants of murder in that there was no evidence or insufficient evidence of an unlawful purpose, which unlawful purpose is an essential element of Section 300(1)(b) of the Criminal Code.
(ii)      The trial judge wrongly held that the appellants are guilty of murder under Section 300(1)(b) of the Criminal Code where they had assaulted the deceased in such a way as to be likely to endanger his life, resulting in actual death.
(iii)     The conviction of appellant Hubert Bola is wrong in law in that there was no or insufficient evidence to safely convict him of the charge of murder under Section 300(1)(b) of the Criminal Code.
(iv)     The convictions are wrong in law in that there was no or insufficient evidence to find the appellants Herman Pasi and Daniel Tangole guilty of murder under Section 7 of the Criminal Code as aiding or abetting Hubert Bola as the principal offender AND also that the evidence does not or sufficiently support the appellants Herman Pasi and Daniel Tangole as being equally guilty under Section 8 of the Criminal Code as having a common intent with the appellant Hubert Bola.
(v)      The sentence imposed against each appellant is manifestly excessive in that it was disproportionate in all the circumstances of the case.”
At the hearing of the appeal it was conceded that the convictions could not be sustained on the basis of unlawful purpose; for unlawful purpose required under s 300(1)(b) of the Code must be distinct from the acts constituting the offence. In this case the assaults were the unlawful acts themselves that lead to death. They could not form unlawful purpose.
This leaves the question whether conviction under s 300(1)(a) is open. Alternative convictions are possible under s 539 of the Code. Section 539(2) says:
“On indictment charging a person with the crime of murder, he may be convicted of the crime of murder or of the crime of manslaughter but not, except as is expressly provided in this Code, of any other offence other than that with which he is charged.”
The other alternatives are provided in subs (4):
“On an indictment charging a person with wilful murder, murder or manslaughter, the accused person may be convicted of:
(a)      unlawfully doing grievous bodily harm to such other person; or
(b)      unlawfully assaulting such other person and thereby doing him bodily harm; or
(c)      unlawful wounding such other person; or
(d)      unlawfully assaulting such other person.”
All these alternatives are for convictions of crimes placed vertically with the murder at the top. There are other provisions of the Code dealing with alternative verdicts but apart from s 540 (Homicide of child) they deal with non-homicidal crimes, and hence are not relevant to the issue.
The issue here is not whether the appellants could be convicted of any other offences. The issue is whether the appellants could still be convicted of murder for a different reason under s 300(1)(a); if the appellants had assaulted the deceased with an intention to cause grievous bodily harm which subsequently caused the death of the deceased. I think that the case of Joseph Maino v The State [1977] PNGLR 404 suggests that conviction for murder is open. In that case the conviction for murder was set aside as a matter of law because the acts causing death were not done in the prosecution of any distinct unlawful purpose. Before substituting the conviction of murder with manslaughter, the Supreme Court gave other reasons why the conviction of murder could not be maintained. At 406, 408-409 and 414, the court said the appellant was under the influence of liquor to the extent that it was not safe to take a view that he had capacity to form an intent to cause grievous bodily harm. So it was not as though the verdict of manslaughter resulted automatically for the mere reason that the equivalent part of s 300 of the Code under which the appellant was indicted was not applicable. If it were so, the court could have been giving a mechanical meaning to the provisions of s 302 of the Code which says:
“A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.”
I think the “circumstances” refer mainly to the intention of the offenders involved. An intention to do an act is an element of the crime of murder.
I consider therefore that in the present appeal conviction for the crime of murder under s 300(1)(a) is open. The question then is whether the evidence adduced in the trial could support the conviction. According to the post-mortem report, the cause of death was a ruptured spleen. But the spleen was normal. It had a 3cm tear on the surface. This implies that considerable force was used.
The primary judge reached certain findings from the evidence produced before him:
(1)      All three appellants fought with the deceased.
(2)      The fight occurred in one place then the deceased was pulled to another location where the fight continued.
(3)      The deceased was kicked on the body, particularly in the region of the ribs, several times in the course of the fight. The appellant Hubert Rere Bola kicked the deceased in the ribs.
The Supreme Court has all the powers and jurisdiction of the National Court. Under s 6 of the Supreme Court Act, the Court may therefore draw its own inferences from undisputed facts or facts established by the trial judge’s findings allowing for the trial judge’s advantage in evaluating conflicting oral testimony and the credibility of witnesses. And in assessing circumstantial evidence the Court must rely upon reasonable and definitive inferences, not conjecture, speculation and guess-work: Rimbink Pato v Umbu Pupu [1986] PNGLR 310.
At the outset I am of the view from the evidence that there could not have been any pre-meditated plan to fight with the deceased. However, the evidence clearly established intentional acts by the appellants. Two of the appellants each pulled either hand of the deceased in the opposite direction while the third one held onto the deceased’s shirt collar from behind. In this position the deceased’s body became an easy target. The appellants delivered punches on the head and on the face of the deceased. The deceased was then pulled to the road where he was punched causing him to fall down. While on the ground he was kicked on the face and his side several times. Objectively, no other inference could be drawn than that of an intent to cause grievous bodily harm.
I hold that the trial judge was correct in finding that all three appellants acted together. It is clear that, when they assaulted the deceased, they intended to cause grievous bodily harm to him.
I therefore confirm the conviction for murder and I disallow the appeal. I also confirm the sentences imposed by the National Court.
SALIKA J: I have read the draft judgment of the Deputy Chief Justice in this matter and I agree with his reasons and the orders he proposed.
(By majority) Appeal allowed.
Verdict and sentence for manslaughter.
Lawyer for the appellants: Public Solicitor.
Lawyer for the respondent: Public Prosecutor.