IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

CORAM: MANN, C.J.

REGINA v. MARABURA-LAMA

REASONS FUR JUDGMENT

1967 
February 14.
Wewak.
Mann, C.J.

The accused was charged with the manslaughter of his wife. A plea of "Not Guilty" was entered by Counsel by leave.

On the 22nd November, 1966, the accused and two other natives brought Mosep, the wife of the accused to the Wewak Hospital for treatment. Her condition made it fairly obvious that she was suffering from head injuries involving, in an advanced degree, pressure or brain damage. The accused told the medical officer that his wife had been injured when she took up a load of firewood which was placed on her head, whereupon she fell over. This story was untrue. The medical officer suspected a fractured skull but could find no external sign of such a condition. Some three hours after admission a lumbar puncture was performed and a substantial quantity of blood was found to be present in the cerebro-spinal fluid. In the absence of any case history involving violent attacks the medical officer was inclined to think that the patient had suffered a ruptured aneurism. She was given antibiotics and intravenous fluids and allowed to rest. She died 4½ hours after admission.

At post mortem examination two days later the medical officer found that there was a linear fracture of the skull involving the left parietal and temporal bones. There were two heamatomae, a small one, extra-dural, in the region of the fracture and a massive one, sub-dural, on the opposite side. The medical officer was unable to find any sign of ruptured blood vessel or damage which would allow the haemorrhages to occur. There was no sign of brain damage anywhere and there was no indication of fragmentation or depression of the skull fracture. The skull was of normal thickness, presenting no observed abnormalities. In the medical officer's opinion the cause of death was concussion and the massive sub-dural haematoma, which he described as consistent with the deceased having fallen and hit her head, but inconsistent with injuries that one would expect to be caused by an instrument such as a club. There was no sign of any other injury anywhere.

The medical evidence was not entirely satisfactory, for the Hospital records were not produced and the medical officer could not remember some of the details as to diagnosis. He was much inclined to blame the accused for the patient's death, saying that if he had known the true story there might have been a chance of saving the woman's life, and that the story that she had fallen over whilst carrying a load of firewood had misled the medical officers. I do not think that this is entirely a valid criticism, because the patient was so obviously suffering from pressure or injury to the brain. It is known that the Hospital is not equipped to handle the frequent cases of brain injury that arise, and that the treatment given was the only treatment normally available, although the medical officer said that if he had been told or had been able to discover that the patient had a fractured skull it might have been possible to attempt an operation, making burr-holes to locate the site of damage. At the time, the fact that there was a fractured skull was unknown to the accused, and it seems to me that if the case history of a fall whilst carrying firewood, coupled with the symptoms shown by the patient, did not induce an exploratory operation, the additional information which accused could have given, would not have made any obvious difference.

On the morning of the 23rd November, that is after the patient had died but before the post-mortem examination, the accused came into the police station at Wewak and told Sub-Inspector Weir that his wife had died. When asked by Sub-Inspector Weir whether his wife had been sick, either in the stomach or in the head, the accused replied "No, I hit her with my hand and her head hit a post of the house. She became weak and unconscious and vomited and I took her to Hospital". At this stage neither the police nor the Hospital authorities had any knowledge or suspicion that the accused had had anything to do with his wife's death. Her body had been taken back to the village and Sub-Inspector Weir made arrangements for it then to be returned to the Hospital for post-mortem examination. The only evidence as to the circumstances in which Mosep received her injuries comes from the accused himself. The accused is a man of good reputation and character and his credit is in no way attacked.

His story in substance is that he and his wife were happily living together and sharing domestic duties in the ordinary way. On the occasion in question, at the end of what appeared to have been quite a normal day's activity, the wife started to tease the accused about his alleged association with women a fortnight before, when he had spent some time away from home at Wewak. The wife had not behaved in this fashion before, nor had Marabura previously been accused of infidelity or immorality of any kind. The wife persisted in her accusations and became excited and gave the impression that she was going to attack the accused. Her accusations of infidelity on this occasion were direct and specific. The accused became very angry and concerned about his wife's behaviour and he strongly resented her accusations. He struck her once on the side of the face with his open hand. The information available to the Court does not give precise details of how far away from the post the woman was standing at the time, nor does it indicate whether she was moving, turning or attempting any evasive or other action. All that is known is that upon the blow being struck, her head came into contact with a heavy post which was part of the structure of the house. One expression used was that she had "fallen" against or upon the post and had struck her head, but since this information came through Pidgin, the word "fall" cannot be taken as a precise term of art. The accused himself said that he had struck her "very hard" but again, and for the same reason, the degree of force actually used cannot be taken as having been precisely described. Thus, the possible range extends from a heavy blow on the side of the head which caused the deceased to fall sideways against the post, to a relatively light but sharp blow which caused a sudden movement of the head so that the head came sharply but not necessarily heavily into contact with the post. The part of the skull which was fractured would not require a very great force to suffer the kind of injury encountered, provided that the post was heavy and rigid, as it appears to have been.

The entire absence of any observable injury to the face or head, and the absence of any kind of brain damage which could be observed in post-mortem examination indicates that the force of contact between the woman's head and the post was likely to have been light and sharp, rather than hard and heavy. This is also indicated by the edges of the bone fracture and the absence of depression or complicated involvement of the bone-fracture. Having regard also to the onus of proof, I find that the blow actually struck by the accused was not such a violent blow as to be disproportionate to the insult and apparent attack which, in my view, and in the community in which the accused and his wife lived, would have constituted provocation such as to be likely to induce a reasonable and peaceful native to lose his self control to the extent of making just such an attack upon his wife as the accused in fact did.

There is no evidence to show that the accused either foresaw the danger of his wife striking her head against the post or that he ought, under the circumstances, have fore-seen this or realised that such an event might happen. Thus, so far as the intended actions of the accused are concerned, I hold that the defence of provocation excuses his conduct. He certainly did not intend to injure his wife.

The question remains, what of the subsequent event, that is the striking of the head against the post, causing the injuries from which the woman died? She sustained no other injuries. On the evidence, I feel no doubt that it was in fact the blow to the face which caused the head to strike against the post and that this action, either from its own force or assisted by some involuntary movement of the woman herself was the direct cause of her subsequent death. I do not doubt that the slap on the face was the cause of the injury, and therefore of the death.

The defence of accident arising under Section 23 of the Criminal Code was not canvassed in argument, on the assumption that I would be bound, as I believe I am bound, by the majority judgment of the High Court of Australia in Momote-Kulang v. R. in which the Justices forming the majority affirm the correctness of the decision in Reg. v. Martyr (1962) S.R. (Q) 398. Instead, Counsel for the defence relied strongly on the defence of provocation. Since there were no law reports available at Wewak where this case was heard on circuit, I deemed it necessary to adjourn the hearing to Port Moresby to enable me to re-read some of the recent cases.

In Reg. v. Tsagaroan-Kagobo (1965), file number 354, I had a case in which a wife threw a stick at her husband in the darkness inside the house and her husband retaliated by throwing it back at her. The stick that was thrown struck and killed their baby, who was, unknown to the Father, being held by the Mother. The Father's direct act caused the death but striking the child was not intended. I had some difficulty in deciding whether the actus reus extended all the way to the stage at which the child was struck by the stick, or whether it was correct to say that the stick left the thrower's hand as intended, but that it's miscarriage in the darkness was an intervening event which occurred without the volition of the accused. One difficulty was that the stick travelled precisely along the path intended and would have hit the wife of the accused, as intended, had not the infant's head been in the way. In that case the throwing of the stick was a highly dangerous thing to do in the circumstances and the solution to the case seemed most clearly to lie in the field of criminal negligence. In the present case before me, having regard to the situation which flared up suddenly and not as a result of any action of the accused, I would not be prepared to hold that the accused was in any degree negligent in failing to notice that there might be a risk of his wife's head coming into contact with the post.

Section 291 and 293 of the Code taken together seem to leave some obscurity in the present case. It might be said that the direct cause of death was contact with the post and that the blow in the face was an indirect cause of death, being the direct cause, of the striking of the head against the post. Should this be so, the accused would still be within Section 293 and is deemed to have killed his wife by an indirect cause.

In Reg. v. Martyr, Philp J., referring to Section 291, said with much emphasis that the section specifies that the "killing" is the thing that must be authorised, justified or excused by law. He said "I stress the word 'killing' because an accused escapes liability for manslaughter only if the killing be authorized, justified, or excused. The mere fact that the blow or other act causing death was authorised, justified or excused is no defence to manslaughter. In the next paragraph, Philp J. gives as an illustration of this situation the case of a person who commits an assault under provocation; he says "The assault is justified but if death be caused by the assault the mere fact that the assault was justified is immaterial to the question whether the killing was justified or excused." If these passages quoted from Martyr's case are to be considered as coming within the terms of the approval expressed by the High Court as to the decision in that case, it appears to me that Section 269 cannot in such a case even afford a defence to manslaughter. Section 270 of the Code may improve the position of the accused. In the circumstances prevailing at the time there was nothing in the amount of force applied by the accused going beyond what was reasonably necessary to prevent the repetition of the insults offered by his wife and to protect him from the threatened attack. The force used was certainly not intended to cause death or grievous bodily harm and looking at the situation and assessing it before the result was known, I would conclude that up to the time when the force was implied, its application was not in fact likely to do so.

Although I did not have the benefit of a prepared argument on the applicability of Martyr's  case, it is necessary for me to consider its possible application. In that case, the majority of the justices of the High Court emphasized that the entire act which caused death, that is the punch that was delivered and was the direct cause of death was an intended blow; and the fact that the victim had some unobservable and unforeseen weakness without which his death would not have been likely to occur, is irrelevant and does not bring the death within the terms of Section 23 as an event which occurs by accident. In Marty's case (1962) S.R. (Q) 398, Mansfield, C.J., said on page 406 that the accidental discharge of a firearm in the example cited by him was both unintentional and unforeseeable and occurred independently of the exercise of the will of A and is therefore protected by the first part of the section. He gives another example where A intentionally discharges a firearm in a place where it could be in range and the bullet strikes and kills B who, unknown to A was in fact within range. Mansfield, C.J. said that this example illustrates the application of the latter part of the section. He then goes on to say that "it is clear that the striking of B or any person with the bullet (which was the proximate cause of the injury resulting in death) was unintended and could not reasonably have been foreseen, and therefore the killing of B was an event which occurred by accident and is covered by the latter part of the section.

In the same case, Mansfield C.J. citing the early case of R. v. Coupland (see pages 405-407 of the report in Martyr's case), makes it clear that the issue which the jury had to decide, according to the summing up of Griffith, C.J. was, in his own words "You will have to consider first whether his fall was an accident caused by his tripping over the door mat. If it is so, Coupland is not responsible but if it was caused by Coupland's violence, although the death was not an intended result, the defence of accident will not be available, for Coupland's acts, whatever they were, were not accidental but intentional. If you think the fall was accidental and not due to Coupland's violence, there is an end of the case. Another recent case having a bearing on the present is Tralka's case (1965 Qd. R. 225) which was a charge of unlawful wounding, and the Court of Criminal Appeal was concerned with the defence of accident under Section 23. The court did not consider the case as giving rise to any question of negligence. The conclusion was that under Section 23 an even occurs by accident, if it is caused by a happening which is not foreseen by the actor and is not reasonably forseeable by an ordinary person. The case is very similar to Vallance's case, 108 CLR 56. The judgment of the Court of Criminal Appeal distinguishes the case from Martyr's case. The ground of distinction was that in Tralka's case the willed "unlawful act" was the throwing of an axe with the intention of hitting one individual; the hitting and subsequent wounding of a different individual was not part of the willed "unlawful act" was the throwing of an axe with the intention of hitting one individual; the hitting and subsequent wounding of a different individual was not part of the willed "unlawful act" itself. In Martyr's case the willed unlawful act was the very thing which caused the death in fact. The conclusion appears to be that if the precise cause of death was something not intended, not willed, not foreseen and not forseeable, Section 23 is applicable and the defence of accident is established. In the present case, the striking of the head against the stump fulfills all these conditions. The intervening event required in Momote's case is not required to be of any particular magnitude but must be a separate happening or act. It need net break the chain of causation, for an indirect cause is sufficient, (Section 293). The defence is not that accused was not the cause of death within the meaning of Section 293, but rather that he physically caused an unforseeable event to take place, which in turn caused the death. If the chain of causation were broken this would also constitute a defence. (See Momote's case - per Windeyer J. 1965 2 P. 6. N.G. L.H. at P.178).

Thus, in the present case, although the intended act of slapping the woman's face led naturally to the contact between her head and the post, which was the direct cause of death, contact between the head and the post was not within the contemplation, intention or will of the accused. It would, therefore, for the purpose of the distinction which arises, constitute an accidental event which actually caused the death and likewise it would constitute, so far as it was due to the actions of the accused, an unwilled act on his part.

The only willed act, the slapping of the face without causing any injury, is excused by provocations.

There is another point relied upon by the Crown as an alternative ground upon which the accused should be held guilty of manslaughter. Ieliance was placed upon Section 290 of the Code to the effect that when a person undertakes to do any act, the omission to do which is, or may be, dangerous to human life or health, it is his duty to do that act. The Section goes on to provide that 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.

The Crown contended that the failure of the accused to convey the true case history and correct information as to his wife's injuries misled the medical authorities into omitting to give the patient the proper treatment for a fractured skull thereby denying the patient a fair chance of recovery. I was much impressed by this argument during the trial because the accused did tell the medical officer a story which he knew to be false but, on further reflection, I think that the factual foundation is deficient.

The argument for the defence was that Section 290 can only apply where it is proved that the person involved had undertaken to do some specific thing in the sense that he was legally obliged to do it, by virtue of some contract or by operation of law, in circumstances which would amount to an implied contract or other legal undertaking. In the absence of specific authority on the point, I do not think that the section can be naturally read in that way. If a contractual, or like obligation, were required it would amount to a contract for services and, therefore, in the ordinary case would be unenforceably by civil action. It might, of course, and normally would be, still a valid legal obligation, even though not enforceable by some particular kind of action but it would be somewhat unexpected to find a criminal sanction being applied to a civil contract when the Civil Courts do not enforce the obligation. Section 290 does not seem to me to be intended as a means of enforcing obligations. It is concerned with questions of behaviour which may be dangerous to human life or health and with the particular circumstances which may be involved. Thus, I think that the section may be more naturally read so as to mean that when a person embarks on a particular course of action and fails to complete his mission he is held responsible for certain consequences. The sole justification for imposing the criminal sanction is that the specified behaviour is recognised as dangerous to human life or health.

In the present case, I think it may be said quite appropriately and consistently with the section that when his wife was injured the accused voluntarily "undertook" to do a number of things, in the same physical sense as a ship might "undertake" a voyage, regardless of whether the ship owners were contractually bound to do so. In this sense the accused undertook the care and hospitalization of his wife and, in fact, took her safely to hospital. When questioned by the hospital authorities, he was under no obligation to make any admission of fact which might have incriminated him, therefore he had a choice to give information or withhold it. He voluntarily elected to give the information but gave it falsely. The essence of his conduct so far as the section is concerned is that he undertook to give information but omitted to do so, notwithstanding that this might have endangered his wife's life. I think that the argument raised by the Crown is valid but that the medical evidence to support the elements involved is lacking. The medical officer certainly made this criticism of the accused but, as previously indicated, I think that criticism not entirely valid. I could not, in the present circumstances, reach an affirmative conclusion that any information then available to the accused, if supplied to the medical officers, would have made any difference either to the patient's treatment or to her chance of survival. So far as the evidence goes, the story told by the accused was the clinical equivalent of the truth, so that I cannot affirmatively hold that his omission was the cause of any consequences to the patient. Apart from the fractured skull which was undiscovered on medical examination, the actual point of emission of the haemorrhages was not discovered even in post mortem, so that in the absence of information not in the possession of the accused, the patient's condition at the hospital was equally consistent with the truth or with the story told by the accused; or indeed with a history of violent sneezing or sudden shaking of the head. It is a salutary rule that the corpus delicti must be clearly proved, and if this is achieved there is room for minor uncertainty in the details, but here I find the essence of an offence arising by virtue of Section 290 to be unsupported by specific evidence.

I find the accused not guilty. Discharged.