Unreported Supreme Court Decisions
SC240
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
S.C.A. NO. 27 OF 1982
BETWEEN: BENNY BAKI
APPELLANT
AND: THE STATE
RESPONDENT
Waigani
Pratt Gajewicz McDermott JJ
3 September 1982
INFERENCES TO BE DRAWN FROM FACTS - Provocation - Section 267 Criminal Code - meaning of ‘likely to cause death or grievous bodily harm considered’
Cases Cited
Karo Gamoga v. The State Unreported Judgment No. SC212 dated 27th October 1981
PLAR No. 1 of 1980 (1980) P.N.G.L.R. 326
R v. Marumvapusek (1973) P.N.G.L.R. 582
Kaporonovski v. The Queen (1974-75) 133 C.L.R. 209
Order of the Court
Appeal allowed conviction quashed, verdict of not guilty entered.
PRATT J:  In this matter the Court has given its decision upholding the appeal, quashing the conviction and substituting a verdict of not guilty. We intimated that our reasons would be handed down at a later stage.
I have had the advantage of reading the draft judgment of McDermott, J., and concur with the reasoning therein.
GAJEWICZ J:  I have had the advantage of reading the draft judgment of McDermott J in this matter and I concur with the reasoning and proposed orders therein.
MCDERMOTT J:  The accused was indicted for the unlawful killing of his wife on 29 November 1981. Her death resulted from rupture of an enlarged spleen. The accused said he was provoked and thus had a complete defence based upon the interpretation given to Code s. 267.
The accused’s assault on his wife is not disputed. It was the culmination of a verbal argument between them during which the accused told his wife he was returning to Port Moresby (to a new wife) and that she should return to her highland home, if necessary, selling her body to pay for the trip. Not unnaturally she being incensed, smashed a soft drink bottle over her husband’s head and shortly after his retaliatory assault she died.
The judgment concludes:
‘So the accused was provoked in my view within the meaning of s.271 (s.267 Revised Laws) ... I have found that he assaulted her by punching her, scracthing her, pulling her hair, punching her in the area of the spleen or sitting violently on top of her. The force he used in doing those acts was not disproportionate to the provocation he received, and was not in my view, intended to cause death or grievous bodily harm.’
His Honour further considered the Defence of Provocation Section, particularly the meaning of ‘... if the force used is not disproportionate to the provocation and is not intended to cause and (emphasis mine), is not likely to cause death or grievous bodily harm.’ He correctly concluded that the applicable test was objective and said:
‘I consider that the accused’s punch or punches to the spleen or his forceful sitting on her were likely to cause death or grievous bodily harm ... I find therefore, that the force used was likely to cause death or grievous bodily harm. Accordingly, the defence of provocation fails and I convict the accused of manslaughter.’
It is from these conclusions that the appeal arises. The appellant’s counsel submits the only safe inferences that can be drawn from the evidence were, (a) that there was an assault against the victim in the room in some form or other and (b) that the victim called for assistance. There is simply not enough evidence to particularise the assault against the victim in the way found by the trial judge.
Yenue Manaki was accepted as a witness of truth. He told of the argument, the wife breaking the bottle over the accused’s head saying:
‘Blood ran down and wife went inside the bedroom. Benny followed her inside for five minutes, the two fought inside, Baino went in first and I went in next. When I stood at the doorway, I saw Baino roused Benny’s hands off wife’s hair... Demonstrates. Accused straddles the wife knees on the floor, body in the middle, holding her hair with left hand, other hand clenched as a fist.’
(By way of explanation, junior counsel who also appeared for the accused at trial, indicated the accused was sitting on his wife’s body).
Manaki heard fight noises:
‘Noises of walls bumped and meri yelling.’
In cross examination, he was asked:
Q.       ‘Saw left hand pull wife’s hair and right hand punching her?
A.       Not hitting her just making it (clenching it) as if he was going to hit her.
Q.       You not see Benny punched wife?
A.       No.’
The other eye witness, Dominic Aiha, whilst hearing the argument did not hear the fight noises in the bedroom or the victim’s cries. He thought the accused stood straddling his wife. The trial judge accepted the evidence of Manaki being ‘much more probable.’ There is no argument with this. The accused in evidence admitted to pulling his wife’s hair. He said she was crying. He denied fighting her, sitting on her or kneeling down. He was not believed.
That in summary was all the evidence apart from the undisputed medical evidence. Were the proper inferences then drawn? This court can draw its own, see Karo Gamoga v. The State[clxxviii]1. I am of the opinion the inferences (there being no direct evidence) of punches to the spleen and the forceful sitting on the victim cannot be supported.
His Honour clearly view this case one where a restriction in the section applied.
The appellant disputes this, arguing, as his honour found the force neither disproportionate to the provocation nor intended to cause death or grievous bodily harm, he could not then say it was likely to cause death or grievous bodily harm-what follows the attack is irrelevant if there is provocation. Likewise, the victim’s enlarged spleen should not have been taken into account.
His Honour is quite correct in limiting the protection to an accused who comes within the limitations necessary for its operation. He cited ‘the severe restriction’ of the section noted by Andrew J., in P.L.A.R. No. 1 of 1980[clxxix]2. However, that case also approved of Clarkson J’s., approach to this section in R v. Marumvapusek[clxxx]3, where he said:
‘I prefer the view that assault followed by a death with no casual relation between them is not a killing. There is only a killing when the assault causes death and if the causing of death is justified or excused, there is no unlawful causing death... Here, I am dealing with a special case where grievous bodily harm or death was neither intended nor likely. In such a case, assume that one person is provoked to pinch anothers nose. I prefer the construction whereby liability for punishment is determined by ascertaining whether the use of force is justified or excused and not by ascertaining whether the nose bleeds or whether the provoker is unknown to anyone, a haemophiliac.’
The minority view in Kaporonovski v. The Queen[clxxxi]4 was also accepted as appropriate in this country. The trial judge appears to have made the type of error perceived by Gibbs J., as he then was, in this case, at p.236:
‘... In my opinion, if that section, (s.267) stood alone, it would (subject or course to the conditions which it specifies) exculpate an accused person who stood charged with manslaughter, unlawfully doing grievous bodily harm or unlawfully wounding, if the death or injury had resulted from a provoked assault. If the accused is not criminally responsible for the assault, he cannot, in my opinion, be held responsible for the death or injury which has resulted from it. To say as Philp J., did in Reg v. Martyr[clxxxii]5, that the provocation may excuse the assault but not the killing, would in my opinion, with all respect to that eminent judge, be to place altogether too narrow a construction on the exculpatory words of s.269 (s.267) and to construe s.291 (s.302) with a lavish literatism which would ignore the sense of the section and its relation to other provisions of the Code.’
In interpreting the section, his honour seemed caught by his findings. On the one hand:
‘In this and other spleen cases, there is no evidence that the accused knew that the victim had an enlarged spleen and that it was especially liable to tear following a blow to that region. That is why offenders are always charged with manslaughter for spleen deaths...’
And on the other:
And objectively speaking it is well known that many nationals in Papua New Guinea have enlarged spleens likely to rupture and lead to their death by a blow or trauma of moderate force to the spleen.
He then found the accused’s assault was ‘likely to cause death or grievous bodily harm.’
In my view, the inferences drawn about the type of assault on the victim were wrong and because they were taken into account, led to misapplication of the section.
The accused was charged with manslaughter, the essence of which is the absence of intent to kill. To then find as in this case, the accused excused or justified in making his attack and simultaneously say he must objectively appreciate the risks of it and be liable for them, introduces an unreal element to the interpretation of the section.
I would grant leave to appeal, allow the appeal, quash the conviction and enter a verdict of Not Guilty.
Solicitor for the Appellant: Public Solicitor
Counsel: C. Bruce & M. Sevua
Lawyer for the Respondent: Public Prosecutor
Counsel: K. Bona

[clxxviii]Unreported Judgment SC212 dated 27th October 1981.
[clxxix](1980) P.N.G.L.R. 326
[clxxx](1973) P.N.G.L.R. 582 at p.588
[clxxxi](1974-75) 133 C.L.R. 209
[clxxxii](1962) Qd.R. 398