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Mamote-Kulang v Regina [1963] PNGLR 163 (4 December 1963)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 163 - Mamote-Kulang v Regina

[1963] PNGLR 163

PAPUA NEW GUINEA

[HIGH COURT OF AUSTRALIA]

MAMOTE-KULANG

V.

REGINA

Sydney

McTiernan Taylor Menzies Windeyer Owen JJ

2 December 1963

4 December 1963

25 March 1963

Mamote-Kulang appealed to The High Court against conviction and sentence.

Held:

By McTiernan, Taylor, Windeyer and Owen JJ. (Menzies J. dissenting) that the phrase “an event which occurs by accident” in S. 23 of the Code contemplates the intervention of some happening of an accidental nature. Where on a charge of manslaughter it appears that an intended blow caused the death because the deceased was suffering from an abdominal constitutional defect not reasonably foreseeable then the death is the immediate and direct result of the blow and not within the meaning of the phrase.

R. v. Martyr, (1962) Q. S. R. 398 approved

Vallance v. The Queen[1961] HCA 42; , (1961) 108 C. L. R. 56 considered.

Held:

By McTiernan, Owen and Taylor JJ. that the sentence did not appear to exceed the discretion to be allowed to a trial judge.

Decision of the Supreme Court of the Territory of Papua and New Guinea (Ollerenshaw J.) affirmed.

Counsel:

C. A. Porter, for the appellant.

D. A. McGregor, for the respondent.

MCTIERNAN J:  This is an appeal by leave from a judgment of the Supreme Court of the Territory of Papua and New Guinea in a case in which the appellant Mamote-Kulang was convicted of the manslaughter of his wife, Donate-Silu. The trial judge was Mr. Justice Ollerenshaw. There was no jury.

The case falls to be decided upon the provisions of The Criminal Code of the Territory of Papua and New Guinea. Section 23 of the Code provides “ . . . a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident”. The term “criminally responsible” is defined by Section 1. It means in Section 23 “liable to punishment as for an offence”. The question in the appeal is whether the trial pudge was wrong in holding that a defence of accident in terms of Section 23 was not available to the accused.

The facts on which the appellant was convicted can be stated shortly. He dealt his wife a blow with the back of his hand on the right side of the body, in the upper part of the abdomen; the accused’s fist was clenched when he hit her, the blow had a substantial degree of force, he made it by swinging his right arm from his left side. The blow caused her great pain and she died soon after she received it. The trial judge found that the accused struck his wife to punish her and that he intended to hurt and cause her pain. Evidence was given of a post mortem examination of the body of the deceased. This evidence proves that the blow ruptured her spleen and this was the cause of death. The doctor who made the examination of her body said in evidence that the spleen was “a typical malarial spleen, large, soft and mushy and more susceptible to rupture than a normal spleen”.

In my opinion it would be reasonable to infer from the evidence that the blow would not have been fatal if the woman’s spleen had been reasonably sound; also that the accused did not foresee that death might result from the blow. It is, of course, not to be presumed that when the accused struck the blow he knew her spleen was in the condition proved by the medical evidence. But these matters are not enough, in my opinion, to make the case one of accidental killing. What is missing is proof of an accidental cause of death. Certainly the blow was not an accidental occurrence; not was the disease to her spleen such an occurrence. The defence of accident must fail because the accused struck the blow intentionally and it directly and immediately caused the injury to Donate-Silu from which she died. The blow was the sole cause of her death. It was not intended to cause death, but this does not give the blow or the death the quality of an accidental occurrence. I think that no case arises on the evidence for the application of Section 23.

The appellant complains that the sentence he received, imprisonment with hard labour for two years, is too severe. I do not think that there is any ground for altering it. It is not disproportionate to the circumstances of the case and does not exceed the bounds of the discretion of the trial judge in respect of punishment.

In my opinion the appeal should be dismissed.

TAYLOR AND OWEN JJ:  In a fit of temper the appellant, a native of New Guinea, intentionally struck his wife a strong back-hand blow with his fist, hitting her in the stomach. The blow ruptured her spleen which was abnormally large and, in consequence, she died. The appellant intended the blow to cause pain to his wife but he did not intend to kill her or to do her grievous bodily harm, and, had her spleen been of a normal size, it was unlikely that it would have been ruptured by the blow. It was not proved that the appellant foresaw, or that a person unaware of the deceased’s abnormality would reasonably have foreseen, that death might follow as a consquence of the blow. He was indicted upon a charge of manslaughter and was convicted and from that conviction this appeal is brought.

It is clear that on these facts the appellant would have been guilty of manslaughter under the common law but we are considering here, not the common law but The Criminal Code of Queensland as adopted in the Territory of Papua and New Guinea. Its immediately relevant provisions are as follows: Section 291: “It is unlawful to kill any person unless such killing is authorized or justified or excused by law”. Section 293: “Except as hereinafter set forth, any person who causes the death of another directly or indirectly, by any means whatever, is deemed to have killed that other person”. Section 300: “Any person who unlawfully kills another is guilty of a crime, which is called wilful murder, murder, or manslaughter, according to the circumstances of the case”. Section 301: “Except as hereinafter set forth, a person who unlawfully kills another, intending to cause his death or that of some other person, is guilty of wilful murder”. Section 302 states the elements of the crime of “murder” as opposed to “wilful murder”. It provides (inter alia) that an unlawful killing is “murder” if the offender intends to do some grievous bodily harm to the person killed. Section 303: “Any person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter”. If the Code had contained no other provision bearing upon the matter, it would have been plain that the offence of manslaughter had been committed. Section 23 of the Code provides, however, that “Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible” (which by definition means “liable to punishment as for an offence”) “for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident” and it is upon the words which we have put in italics that the appellant relies. The blow struck by the appellant produced unexpected results which were not shown to have been foreseen by him or to have been foreseeable. The death, so the argument runs, was therefore an event which occurred by accident. We are unable to agree that this is so. The section is a general provision and is, of necessity, couched in general language but its purpose, it seems to us, is beyond doubt. It is intended to make it clear that, subject to the express provisions of the Code relating to negligent acts and omissions, where a person is charged with the commission of a crime, criminal liability shall not attach where the alleged acts or omissions which are said to amount to the commission of the crime charged have occurred independently of the will of the accused or where, in association with some act or omission of the accused, there has occurred some accidental event which has substantially brought about the final result. When one comes to apply the section in a trial for manslaughter there can, we think, be little doubt that the “acts or omissions” and the “events” which are relevant matters for consideration are those which, according to the evidence, have brought about the death. In cases such as the present, where no question arises under the first limb of the section, the question must be whether in the chain of circumstances leading to the death of the victim there has occurred some event which by reason of the fact that it has occurred by accident was something for which the accused ought not be held to be responsible. In other words the section contemplates the intervention in the series of circumstances culminating in death of some happening of an accidental nature, a happening so related to the killing as to displace the operation of the very general words of Section 293 that “any person who causes the death of another directly or indirectly, by any means whatever, is deemed to have killed that other person”. In the present case it can scarcely be said that there was a chain of circumstances; there was an intentional striking of a blow and that blow resulted directly in the death of the appellant’s wife.

That the blow was deliberate and intended is beyond question and if, without the intervention of some event occurring by accident, it resulted in the death of the appellant’s wife the case was one of unlawful killing. But the argument is that the death was an “event”, within the meaning of Section 23, and that because it was not shown that it was reasonably foreseeable as the result of the blow which was actually proved to have been struck the death was an “event” which occurred by accident. In our view this proposition proceeds from a misunderstanding of the terms of the section. At common law no such argument would have been admitted for if “the deceased was in a bad state of health . . . that is perfectly immaterial, as, if the prisoner was so unfortunate as to accelerate her death, he must answer for it”; R. v. Martin (1828). [1832] EngR 349; 5 Car. & P. 128; [172 E.R. 907.] [See also R. v. Edmunds (1909), 25 T.L.R. 658, and the discussion in Russell on Crime (11th ed. (1958) p. 471) concerning the case of R. v. Johnson (1827), 1 Lewin C.C. 164; (168 E.R. 999.)] On this aspect of the matter we do not think that art. 316 of Stephen’s Digest of the Criminal Law (9th ed., at p. 260), which deals with criminal liability at common law for what is called the accidental infliction of bodily injury by lawful acts, has anything to say. However this may be, it must be remembered that we are dealing with the provisions of a Code and, in passing, it is worthy of note that, as Philp J. observed in Reg. v. Martyr, [1962] S.R. (Q.) 398, at p. 415, “the question may be determined or affected by the positive enactment contained in Section 296 of the Code which provides (that) ‘A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person’ “. His Honour added that “The section appears to indicate that the legislature intended that no defence to homicide could arise from the fact that death was partly due to the victim’s weakness or disorder which word I think includes constitutional weakness”. We agree with His Honour’s further observation that “Whatever may be the meaning and area of application of this section it is a specific section dealing with homicide so that Section 23 being a section of general application must be read subject to it”, but, as in Martyr’s Case, no argument was advanced concerning the meaning and application of Section 296 and since we think that the question before us may be readily enough resolved without reference to that section we are content to put it aside.

As we have already said Section 23 is a general provision and it applies, in addition to other crimes, to all classes of homicide under the Code. As already appears the Code characterizes homicides as wilful murder, murder and manslaughter and the argument advanced on behalf of the appellant may be tested in relation to each of these concepts. The act of killing is unlawful unless it is authorized or justified or excused by law (Section 291). It is so authorized, justified or excused if it be done in any of the sets of circumstances specified in Section 31. Wilful murder is constituted by an unlawful killing accompanied by an intent to cause the death of some person whether that person is the person killed or not (Section 301). Of course, if one intends to kill another it is reasonable to assume that the means adopted will be such as might reasonably be expected to cause the intended victim’s death but it is beyond question that in relation to a charge of wilful murder any inquiry as to the foreseeability of death as the immediate consequence of the means adopted would be completely irrelevant. So also would be any such inquiry if the means adopted to kill B were shown to have resulted directly in the death, not of B, but of C. Murder, as distinct from wilful murder, includes unlawful killing with intent to do to the person killed, or to some other person, some grievous bodily harm (Section 302). “Grievous bodily harm”, by definition, includes “any bodily injury of such a nature as to cause or be likely to cause permanent injury to health” (Section 1). Obviously, therefore, once the necessary intent be established, it is immaterial whether the death of the intended victim was reasonably foreseeable as the immediate consequence of the means adopted by the person charged; it matters not whether the grievous bodily harm intended or actually inflicted was likely to cause death or whether death, as a consequence thereof, was reasonably foreseeable. Like observations might be made with respect to other paragraphs of Section 302. In the result, therefore, the appellant’s argument would find no place in the case of a person charged with wilful murder or murder constituted by an unlawful killing accompanied by an intent to do to the person killed or to some other person some grievous bodily harm. Yet it is asserted that in the case of a charge of manslaughter - an unlawful killing under such circumstances as not to constitute wilful murder or murder (Section 303) - criminal responsibility for that crime will not attach if death as the direct consequence of the accused’s actions could not be said to be reasonably foreseeable by a person unaware of some physical weakness of the deceased. However, the observations which we have made do not depend upon the view that the language of Sections 301 and 302 precludes the full operation of the relevant part of Section 23 in relation to wilful murder and murder; they depend upon the view that “event” in the last mentioned section means, in the case of such crime, an event in the chain of circumstances by which the death is brought about. After all what is made punishable as homicides by Sections 301, 302 and 303 are the acts by which death is brought about, that is to say, the act or acts which constitute the killing. It is true that the consequences of the blow in question here were not intended by the appellant. If he had intended them, he would have been guilty of wilful murder, or, if he had intended to inflict some grievous bodily harm, he would have been guilty of murder, and the fact that he had no such intent and that the consequences which directly followed were not foreseeable by him does not, in our view, make it proper to describe the killing as an event occurring by accident and therefore not a killing for which criminal responsibility attaches.

Reliance was, however, placed upon some passages in the judgments of this Court in Vallance’s Case [1961] HCA 42; (1961), 108 C.L.R. 56, in which Section 13 of the Tasmanian Code was under consideration. That Code differs in many respects from the Queensland Code but Section 13 resembles Section 23 of the latter enactment in that it provides that “no person shall be criminally responsible for an event which occurs by chance”. At p. 61, Dixon C.J. expressed the view “that this somewhat difficult phrase covers events which the person who might otherwise be criminally responsible neither intended not foresaw as possible results of his conduct: they must too be fortuitous in the sense that no one would reasonably expect them to occur as a consequence of that conduct”. And at p. 65, Kitto J. said: “I agree that an event which the person charged actually foresaw as a possibility substantial enough to be worthy of attention in deciding whether to do the act or not cannot properly be described as having occurred by chance; but it does not follow that every event which he did not foresee may be so described. In addition to having been unforeseen by him it must, I think, have been one so unlikely to result from the act that no ordinary person similarly circumstanced could fairly have been expected to take it into account . . . it seems to me that ‘by chance’ is an expression . . . describing an event as having been both unexpected by the doer of the act and not reasonably to be expected by any ordinary person, so that it was at once a surprise to the doer and in itself a surprising thing”. Based on these statements, the submission put forward on behalf of the appellant was that the rupture of the deceased’s spleen and her death were consequences which the appellant was not shown to have foreseen and which were not shown to have been reasonably foreseeable by a person in his position and that it therefore followed that the killing had occurred by accident. But the passages upon which counsel relied must be read in the light of the facts then being considered. The case was one in which the accused was charged with unlawful wounding. He had fired a loaded air-gun with the intention, so he said, of frightening a young girl who had been annoying him. The slug from the air-gun struck and wounded her but the accused said that he had not intended that result and that that he had merely pointed the air-gun at the ground near her and pulled the trigger. One of the suggestions put forward by the defence was that the slug had hit and wounded the girl as the result of striking some object which had diverted its course and that, for this reason, the wounding was to be regarded as an event which had occurred by chance. It was with this hypothesis that the Chief Justice and Kitto J. were dealing. What their Honours were pointing out, as it seems to us, was that it was not enough to say that the wounding was not foreseen by the accused as a possible result of firing the shot. It must also have been shown that the wounding would not have been foreseen by a reasonable person before it could be said that it had occurred by chance. But it is, we think, fallacious to argue that, because these two elements are necessary ingredients in the concept of an “event occurring by chance” (or by accident), it follows that whenever they are present what directly results from the intentional doing of an act is properly to be described as an event occurring by chance or accident. In the result we find ourselves in agreement with the conclusion reached by the Queensland Court of Criminal Appeal in Reg. v. Martyr, [1962] S.R. (Q.) 398, a case in which the facts are indistinguishable from those in the present case. If, as here, death is the immediate and direct result of an intentional blow, the fact that the person struck has some constitutional defect, be it an enlarged spleen or an egg-shell skull, unknown to the person striking the blow and which makes the recipient of the blow more susceptible to death than would be a person in normal health does not enable the accused to assert that he is being sought to be made criminally liable for an “event” occurring by accident.

A further submission was made that the sentence imposed upon the appellant, which was one of imprisonment with hard labour for two years, was excessive and that this Court should intervene and impose a lesser punishment. In our opinion we should not do so. The learned trial judge, with his experience of the administration of the criminal law in the Territory, was in a better position than is an appellate court sitting in Sydney to determine what was the appropriate sentence to impose. Nothing that we have heard in argument has caused us to think that his Honour’s discretion “miscarried” or that “the exercise of it was unsound or unreasonable” (Harris v. The Queen [1954] HCA 51; (1954), 90 C.L.R. 652, at p. 656).

The appeal should be dismissed.

MENZIES J:  Upon the trial of Mamote-Kulang for unlawfully killing his wife Donate, Ollerenshaw J. convicted him of manslaughter, having declined to hold that the accused was not criminally responsible for killing his wife on the footing that the Crown had failed to prove that her death was an event which did not occur by accident. This appeal concerns the application of the first paragraph of Section 23 of The Criminal Code (Q.) to the facts found by his Honour. The legislative provision is as follows: ‘Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.”

Donate, unknown to Mamote, had a spleen twice as large as the average native spleen and six times larger than a normal European spleen. In this condition it could readily be ruptured. Believing that Donate had given him cause for punishing her, the accused struck her a strong blow in the stomach. It was a backhand blow with the fist clenched. This ruptured her spleen causing an intra-abdominal haemorrhage from which she died. When asked by a police officer, did he know that his wife would probably die if he punched her in the stomach, Mamote replied: “No, I did not try to kill her. I punched her that is all”.

His Honour’s findings of fact were as follows: (1) “I am satisfied beyond reasonable doubt that the accused Mamote struck his wife Donate a blow with his right fist in the region of her upper abdomen”. (2) “I am satisfied beyond reasonable doubt that it was a good strong blow, dealt by way of punishment by a strong native man, who had lost his temper with his wife”. (3) “I am satisfied beyond reasonable doubt that the accused, when he struck his wife, intended to hurt her and cause her pain”. His Honour added: “I am not prepared to find that he could not have foreseen death as a result of his blow. I am bound to accept that he did not intend to kill his wife and, this being so, I am prepared to assume that he did not actually foresee her death as a possible consequence of his attack . . . If he did think about it at all I think that he would realize that there is a danger of death, however remote”. (4) “I am satisfied to the same extent that the violence of the blow ruptured his wife’s spleen immediately, causing her severe pain, and that she died shortly afterwards from the effects of this rupture”. (5) “I am satisfied beyond reasonable doubt that Donate’s spleen was enlarged to about twice the size of the average spleen of natives, exposed to recurrent attacks of malaria, and about six times the size of the usual spleen of a normal European, not so exposed”. (6) “I am satisfied beyond reasonable doubt that Donate’s spleen was much more susceptible to rupture from violence than it would have been had it been a normal spleen”. (7) “Accepting that the blow that caused the damage was a backhand blow, delivered to the right side of her stomach, I am not satisfied that it would have ruptured her spleen had it been a normal spleen”.

Upon these findings his Honour considered the proper verdict was manslaughter. In the careful statement of his reasons for this conclusion, his Honour said that in his view Donate’s death was not “an event” for the purposes of Section 23 and, if he was wrong about this, nevertheless her death was not an event occurring by accident, because it was the direct result of a deliberate blow of substantial violence to her body. For this latter proposition his Honour relied upon R. v. Martyr, {1962} S.R.(Q.) 398, which fully bears out his Honour’s proposition.

I have, however, come to the conclusion that death can be “an event” for the purposes of Section 23 and that death resulting from an intended blow can be death occurring by accident.

Throughout the law many references may be found to death occurring by accident (see, for instance, Halsbury’s Laws of England, 3rd ed., vol. 8, pp. 519-525) and an event is merely an occurrance or a consequence. Death due to an accidental blow is an event occurring by accident and so it seems to me is death from an intentional blow which was not intended to harm and was apparently unlikely to harm-such, for instance, as a friendly slap on the back or a fair blow in a boxing contest. Football too provides many occasions for heavy physical contact with the intention of stopping an opposing player. Where a blow, a tackle or a bump causes death because of an idiosyncrasy of the deceased; it is not the idiosyncrasy which is the accident; it is the surprising consequence of slapping, striking, tackling or bumping someone with an unknown idiosyncrasy. Here it is perhaps convenient to interpolate that one thing that Vallance v. The Queen [1961] HCA 42; (1961), 108 C.L.R. 56, did decide is that, contrary to the view which I had there formed upon the provisions of the Tasmanian Criminal Code, an event does not happen “by chance” within the meaning of Section 13 of that Code unless it is both unintended and unexpected by the doer and it is fortuitous or surprising in the sense that an ordinary person would not reasonably expect it to happen as a consequence of what was done: see Dixon C.J. at p. 61, Kitto J. at p. 65 and Windeyer J. at p. 82. This, of course, applies equally to the words “by accident” in the Queensland Criminal Code.

In Reg. v. Martyr (supra) it was decided that death resulting from an intentional blow could not be accidental. There, in the course of a brawl the accused struck the deceased who died from a blow on the jaw causing haemorrhage of the brain because of a peculiar weakness in the constitution of the deceased. The facts that the killing or the death was not intended and not foreseen by the accused and could not have been foreseen by a person of ordinary prudence were not regarded as making the consequence of an intentional blow an event which occurred by accident. If this decision be correct, then so is the decision under appeal, for I can see no point of distinction. It is necessary for me, therefore, to say in some detail why, with respect to the learned judges who so decided, I consider that decision is incorrect. Mansfield C.J. said (at p. 407): “‘Accident’ therefore, in my view does not include an existing physical condition or an inherent weakness or defect of a person, such as an egg-shell skull, or as in this case, a possible inherent weakness in the brain”. With this I agree but, with respect, it does not seem to me to follow that “the meaning to be attributed to the expression ‘event which occurs by accident’ is a result which is caused by an unforeseeable occurrence”. The limited meaning which the learned Chief Justice attributed to the latter part of the first paragraph of Section 23 is stated as follows: “The words ‘which occurs by’ imply the notion of causation, and the latter part of the section in my view covers the case where in consequence of an international act by A (whether lawful or unlawful) an unintended and unforeseen happening occurs which is the proximate cause of an injury resulting in death”. It seems to me, however, that the words “which occurs by accident” - which are not the equivalent of “which occurs as the result of an accident” (see Mills v. Smith (Sinclair, Third Party), {1963} 3 W.L.R. 367) - are not really directed to the notion of causation any more than are the words “which occurs by chance” in the Tasmanian Code, nor have I found any reason why it is necessary to confine the provision to a case where there is an intervening accidental event between the act and its consequences. The event in the case of Vallance v. The Queen (supra) was the wounding and this could have been by chance even if the pellet flew directly from the rifle to the girl without ricocheting or anything of that nature. To aim away from a person and yet hit that person directly could be wounding by accident. Philp J. said (at p. 414): “But was Scott’s death an event or result which occurred by accident? I will assume that Scott’s death would not have resulted from the blows if he had not been suffering from some invisible and highly unusual weakness or constitutional abnormality. Now the appellant was charged with killing a particular person - Scott - and the fact that Scott had a constitutional abnormality did not in my view make his death an ‘accident’ as that word is used in the section. If a haemophilic bleeds to death from a small cut, his death cannot be said to be an accidental outcome of the cut. The words under discussion I think have operation in the following circumstances. If a non-fatal blow be struck and there supervenes upon the blow an unforeseeable happening whereby the actually fatal force is applied to the body of the victim, his resultant death occurs by accident. But that is not the case here, since here the death was the immediate - the direct result of the willed act”. In this passage Philp J., like Mansfield C.J., insists upon the presence of an intermediate event as that which occurs by accident bur, if a woman were to strike a bag snatcher with her umbrella and he were to die from the blow by reason of some idiosyncrasy, although she would not be protected by Section 274, nevertheless, it does not seem to me to follow inevitably that she would be guilty of manslaughter by virtue of Section 291 without any excuse under Section 23. Townley J. said (at p. 417): “My opinion on the matter has varied from time to time but I have finally concluded that, if a person kills or injures another by a ‘willed’ blow with his fist, although the death or particular injury is not reasonably foreseeable, the death or injury is not an event which occurs by accident. The event occurs by reason of something which is intended and is not merely accidental. It is the direct and immediate result of an intentional act”. It is for the reasons already stated that I cannot agree with this conclusion. It appears to me, moreover, that the earlier portion of the first paragraph of Section 23 would usually cover the case of an unintentional act whereas the second part is apt to cover the case of an accidental consequence of an intentional act and there is not sufficient warrant for limiting the “event” to something happening between the act and its indirect but ultimate consequence which is an element in the corpus delicti. I would add, moreover, that my conclusion would not be different if the killing of Donate rather than her death were to be regarded as the event for the purpose of Section 23. The killing, like the death, was something which occurred by accident.

I wish to express my agreement with the following statements of Philp J. in R. v. Callaghan, {1942} Q.S.R. 40, at p. 51, “But I do not agree ... that if the blow was not intended to do grievous bodily harm or to kill, but was intended as a blow, and in the result the man at whom the blow was directed is in fact killed, the killing could not be an accident within the meaning of the Code”; and in R. v. Knutsen, [1963] Qd. R. 157, at p. 165, “In my view Section 23 implies that a person is criminally responsible for his willed act and for the foreseeable consequences of that act - the non-accidental events of that act”. It appears to me that these views and those which I have expressed substantially adopt the concept of accident to be found in Stephen’s Digest of the Criminal Law, 9th ed., at p. 260, cited and applied by Minogue J. in Reg. v. Miawet: “An event is said to be accidental when the act by which it is caused is not done with the intention of causing it and when its occurrence as a consequence of such act is not so probable that a person of ordinary intelligence ought under the circumstances in which it is done to take reasonable precautions against it”. My conclusion is also in accordance with the Oxford English Dictionary meaning of accident - that is “Anything that happens without foresight or expectation; an unusual event, which proceeds from some unknown cause, or is an unusual effect of a known cause”.

It is not an altogether simple task to apply the law as I have stated it to the facts as found by his Honour but, as I construe those findings, the blow here was delivered with the intention of hurting but not of harming, and Donate’s death or the killing of Donate was a consequence which Mamote did not intend or expect and was not reasonably to be expected by an ordinary native villager: Kwaku Mensah v. The King, {1946} A.C. 83, at p. 93. It was, therefore, an unusual effect of such a blow. Consequently I consider that the killing was excused by Section 23 or, at least, that the Crown did not negative the excuse provided by Section 23 and I would accordingly allow this appeal.

WINDEYER J:  This is an appeal from a conviction of manslaughter. It comes to this Court by leave granted pursuant to Section 12 of the Supreme Court Ordinance 1949 of the Territory of Papua-New Guinea.

The appellant, whom I shall call the accused, is a native of New Guinea. He killed his wife, a native. He struck her in anger, intending to hurt her. He struck her in the stomach. She died. He did not mean to kill her. The blow was not one that would be likely to have killed a robust person who was in good health. But this woman had a greatly enlarged spleen, easily ruptured. In many parts of New Guinea the natives commonly have enlarged spleens, the result of recurrent malaria. The danger of a blow to the lower part of the body of a native is, I suppose, known to most European residents of the Territory. It may not be generally known to the natives themselves, although deaths from ruptured spleens seem to have occurred not infrequently. The learned trial judge, in the course of his statement of the facts as he found them, said: “I am satisfied beyond reasonable doubt that the accused, when he struck his wife, intended to hurt her and cause her pain. As I have said, it is part of the knowledge which I have as a jury that some native people know of the particular danger of violence bearing upon the spleen. I am not convinced that the accused was unaware of this, but I could not be satisfied that he did know of it. He would have the general awareness of an adult native of the danger of violence to the human body, not significantly different, I would think, from that of an ordinary European person. I am not prepared to find that he could not have foreseen death as a result of his blow. I am bound to accept that he did not intend to kill his wife and, this being so, I am prepared to assume that he did not actually foresee her death as a possible consequence of his attack. He acted in anger without thinking about it.”

The question then is whether the accused could be held guilty of manslaughter under The Criminal Code of Queensland, which has been adopted as part of the law of New Guinea. The same question has arisen there in several other cases, more or less similar. It has led to a marked division of judicial opinion there.

The Criminal Code was enacted in 1899 as the law of Queensland. It is perhaps inevitable in statutory interpretation that words are often considered separately and their meanings debated in the abstract. That happened to some extent in the argument in this case and in other similar cases to which we were referred. Bur it seems to me that when the Code employs words and phrases that had before its enactment been part of the language of criminal law, and had been long used to embody and express ideas deeply rooted in its history, we should read those words in the Code in their established meanings, unless of course they be displaced by the context.

This case turns upon the meaning and effect of Section 23, which is one of the general provisions of Ch. V of the Code concerning criminal responsibility, read in relation to the particular provisions making homicide culpable that appear later in the Code. The general provisions are couched in an exculpatory form. Instead of stating, as in a more modern approach might perhaps be expected, the elements of will, intent or knowledge which the doer of an act must have for him to be held guilty of a crime, their absence is stated as a matter of defence or excuse. In adopting this form the Code follows earlier models, and they, not surprisingly, were influenced by the traditional form nisi mens sit rea. The Queensland Code owes much to the works of Sir James Fitzjames Stephen and to the Draft Code of 1879. Stephen regarded “the principles relating to matter of excuse and justification for acts which are prima facie criminal” as a part of the unwritten criminal law, in need, so he considered, of codification: see his History of the Criminal Law (1883), vol. III, p. 351. In placing in the forefront matters negativing criminal responsibility, the draftsman of nineteenth century codes were merely following the tradition of earlier writers on the criminal law: see, for example, the second chapter of Hale’s Pleas of the Crown.

Before coming to the words of Section 23 on which the accused relies to exculpate him from the charge of manslaughter, it is necessary to consider the provisions of the Code which make homicide culpable.

Those that are directly relevant are: Section 291: “It is unlawful to kill any person unless such killing is authorized or justified or excused by law.” Section 293: “Except as hereinafter set forth, any person who causes the death of another directly or indirectly, by any means whatever, is deemed to have killed that other person.” Section 300: “Any person who unlawfully kills another is guilty of a crime, which is called wilful murder, murder, or manslaughter, according to the circumstances of the case.”

Section 301 states that any person who unlawfully kills another, intending to cause his death or that of some other person, is guilty of wilful murder. Section 302 defines murder. It is unnecessary to set it out in full here. It suffices, for present purposes, to refer to two of the five cases in which it states that a person who unlawfully kills another is guilty of murder. These are (i) “if the offender intends to do to the person killed or to some other person some grievous bodily harm”. In that case “it is immaterial that the offender did not intend to hurt the particular person who is killed”. And (ii) “if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life”. In that case “it is immaterial that the offender did not intend to hurt any person”.

This statutory definition of murder is significant. Apart from the distinction made between murder and wilful murder - the former being originally made a capital offence, the latter punishable by imprisonment for life - the Code defines the crime of murder more or less as it was understood at common law. And it adopts the common law doctrine of transferred malice in its simplest form. A person intending to kill A, or to do him some grievous bodily harm, is guilty of murder if, without lawful justification or excuse, he kills B, although it was not his intention to kill him or hurt him. But - except in the particular cases numbered (3), (4) and (5) in Section 302, which it is not necessary to set out here - the Code does not adopt the crude rule of the early common law that a killing in the course of committing any felony was murder.

The essence of the crime of manslaughter is defined in the Code in the way the common law stated it, that is to say as, in effect, any culpable homicide not amounting to murder: Section 303: “A person who unlawfully kills another under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter.”

The first question that arises is, therefore, whether the accused “unlawfully killed” the deceased woman. That is to say, Was the killing “authorized or justified or excused by law”? If it was not, it was unlawful (Section 291). Clearly it was not authorized. Could it be said to be justified or excused? The words “justified” and “excused”, used in relation to homicide, sound back through centuries. Their present meanings come from their past history. Homicide justifiable or excusable was not in either case a felony. Nevertheless the distinction between a justifiable and an excusable homicide was important in early times; for if a homicide were only excusable, not justified, the offender’s goods were forfeited unless he obtained a pardon. Killing in the execution of public justice, as by an executioner, or by a constable in seeking to apprehend a felon resisting arrest, was justifiable, and a ground for an absolute acquittal. Homicides excusable, but not justified, were killing in self-defence, se defendendo, or by mis-adventure, per infortunium. For these a forfeiture was exacted unless a pardon were had. But in later times a pardon could be had as of course for an excusable homicide, the prisoner having only to sue for one and pay a fee. “And indeed,” said Blackstone, “to prevent this expense in cases where the death has notoriously happened by misadventure or in self-defence, the judges will usually permit (if not direct) a general verdict of acquittal.” Finally, in 1828, even the formality of a pardon was abolished by 9 Geo. IV c. 31, Section 10, which provided that “no punishment or forfeiture shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner without felony”. The distinction between justifiable and excusable homicides then ceased to have any practical significance. But the terms remained in the law as convenient and compendious descriptions of the circumstances in which the law treated homicide as not amounting to either murder or manslaughter.

Section 291 of the Code thus speaks in words which had an established meaning in criminal law when the Code was enacted. And unless the Code itself introduces some other meaning, it must in my opinion be taken when it employs those well-known terms to use them with the meanings they then had. The Code does, in Sections 31, 247, 256, 271, 272 and elsewhere, cover some relevant matters that the common law covered. But it does not deal expressly with the case of homicide excusable because caused by mis-adventure, except in so far as that is covered by Section 23. Leaving that section aside for the moment, there can be no doubt that in this case there was a homicide which was not excused by law. For the common law left the matter beyond doubt. Hale put it in these words: “He that voluntarily and knowingly intends hurt to the person of a man, tho he intend not death, yet if death ensues, it excuseth not from the guilt of murder, or manslaughter at least; as if A. intends to beat B. but not to kill him, yet if death ensues, this is not per infortunium, but murder or manslaughter, as the circumstances of the case happen”: Pleas of the Crown, p. 472. That passage states the common law as it still is. If death is a consequence, direct not remote, of an unlawful act done with intent to do grievous bodily harm, it is murder. If it is a consequence, direct not remote, of an unlawful act done with intent to hurt but not to do grievous bodily harm, it is manslaughter. To prevent misunderstanding, I should add at this point that, whatever may have been the position in earlier times, it is not now enough to constitute manslaughter at common law that a man is killed in the course of an unlawful act of any kind. To make an unintended and unexpected killing a crime at common law, it must now be, generally speaking, the result of an unlawful and dangerous act, or of reckless negligence. There is, however, no doubt that at common law a man is guilty of manslaughter if he kills another by an unlawful blow, intended to hurt, although not intended to be fatal or to cause grievous bodily harm. It does not avail an accused charged with manslaughter in such a case to say that death was unexpected and that it was only because the person struck was in ill-health or had some unsuspected weakness that the blow proved fatal. That does not make homicide excusable. A killing is not the less a crime because the victim was frail and easily killed.

Blows delivered in the lawful chastisement of a child, or in a lawful game, were referred to in argument. But cases of that kind seem to me to have but little bearing on this case. In those cases, although some hurt be intended, or seen as a possibility, the blows are lawful at common law, and expressly permitted by the Code, provided they are not more severe than is reasonable. If death should unintentionally and unexpectedly occur from a lawful blow, no offence is committed. That is a clear case of a homicide excused by law. Homicide unintentionally caused by an unlawful blow is manslaughter. Homicide unintentionally caused by a lawful blow is not. This common law distinction does not arise from any doctrine of constructive illegality. It is not that an antecedent illegality makes its unintended results unlawful. It is that by the common law, and by the Code, all homicide is unlawful unless justified or excused by law, and a homicide that was the unintended and unexpected consequence of a lawful act done in a careful manner was always excusable.

I read the words of Section 291 “unless such killing is authorized or justified or excused by law” as meaning authorized, justified or excused by the common law, or by the Code itself, or by some other enactment. The homicide in this case was not justified or excused by any rule of the common law. But it was argued that the accused could not be guilty of manslaughter because of the provisions of Section 23 of the Code. To that proposition I now turn.

It is not quite clear to me whether the contention was that Section 23 made this killing one excused by law within the meaning of Section 291 and therefore not unlawful, or whether it was that Section 23 has a general overriding operation unaffected by, and unrelated to, the particular provisions in later chapters of the Code. The difference between the two approaches is considerable; but in the view I take, it is not necessary to consider them separately.

Section 23 appears in Ch. V of the Code, which is headed “Criminal Responsibility”; and the section itself has a sub-heading, “Intention: Motive”. It then reads as follows: “Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial. Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.” The term “criminally responsible” is defined by Section 1 to mean “liable to punishment as for an offence”. And by Section 3 an offence is defined as “an act or omission which renders the person doing the act or making the omission liable to punishment”.

The first sentence of Section 23 seems to have been intended by Sir Samuel Griffith, the author of the Code, to state succinctly the effect of the fundamental idea of mens rea as an essential of guilt. He treated the section as stating the whole law on the topic, and as making it unnecessary to resort to common law pronouncements: see Widgee Shire Council v. Bonney [1907] HCA 11; (1907), 4 C.L.R. 977, at p. 981. But he did not think that his Code here departed from common law principles. Rather he must have thought that it enunciated and preserved an existing principle; for, in a case, not governed by the Queensland Code but by the common law, he said, “The general rule is that a person is not criminally responsible for an act which is done independently of the exercise of his will or by accident”: Hardgrave v. The King [1906] HCA 47; (1906), 4 C.L.R. 232, at p. 237. We, of course, are concerned with the true construction of the words, not with the intention of the author. But we ought not to pre-suppose that this provision alters or does not alter the common law. In terms it seems to echo a passage in the report of the Criminal Law Commissioners of 1833. One of their remarks - quoted by Dr. Glanville Williams in his work Criminal Law: The General Part, 2nd ed. (1961), p. 30 - was: “The great object of penal laws being the prevention of wrong, the principle clearly does not extend to mere involuntary acts or even to hurtful consequences, the result of inevitable accident”.

The phrase “independently of the exercise of the will” refers, I think, to volition rather than to intention. The word “will” seems to be used in the way in which it had come to be used by writers on criminal law at the time the Code was framed, that is with the meaning that it had for Austin rather than for Blackstone. The language of Section 23 at this point may be contrasted with the different language of Section 13 of the Tasmanian Criminal Code which refers to an act that is “voluntary and intentional”. But, when read as a whole, the first sentence of Section 23 seems to me to express the idea of a willed act done to produce, and in fact producing, an immediate intended consequence-in this case a willed blow intended to hurt. The two parts of the sentence thus state two elements of the mental state that is fundamental in criminal responsibility. If they be denied, the denials can, as a recent writer has suggested, be expressed respectively, in colloquial language, as “I could not help it”, or “I did not mean to do it”. But the question in this case is in what circumstances can the statement “I did not mean to do it” avail an accused on a charge of manslaughter under the Code. The argument on the appeal was centred upon what within the meaning of Section 23 is an event which occurs by accident.

The word “accident” is used in law, and also in common parlance, with varying meanings. All of them have something in common, for an accident is always a happening that was not designed or intended. Sometimes no more is meant than an occurrence not, in any sense, caused by the accused person or defendant. The word is used with that meaning when, for example, evidence of similar facts is said to be admissible to rebut a defence of accident. Sometimes an accident means an occurrence in which the accused or defendant was in some way concerned, but which he could not by any exercise of skill or care have prevented. An occurrence caused by an external agency over which the accused or defendant had no control has been called an “inevitable accident” since 1618 or earlier: see Weaver v. Ward (1616), Hob. 134. Foster, in his Discourse on Homicide, used the word in that sense when he spoke of “an accident which human prudence could nor foresee or prevent”. In cases of the kinds above-mentioned the accused is absolved from legal responsibility for an occurrence, either because he did not cause it at all, or because he only caused it remotely. But an occurrence, regarded as the event, outcome, or consequence of conduct, can be described as accidental not only by reference to its casual or to its casual character, but by emphasizing that, although a consequence, and a direct consequence, of something done, it was a consequence that was not intended and one that would not have been expected. This meaning of accident is that which Stephen adopted for the purposes of his Digest of the Criminal Law; but, of course, he did not regard accident so defined as a sufficient ground of excuse for a homicide caused by an unlawful blow. It was argued that this meaning was to be imported into the Code so that if the accused did not intend to cause death, and if death was not a consequence which a reasonable person would have expected would follow the blow, then the killing was an event which occurred by accident. But this argument seems to me, with respect to all those with whom it has found favour, to be mistaken. The question is not whether the death, not being intended, would be called accidental in ordinary speech. It is whether the homicide, the act which attracts the criminal law, was an event which occurred by accident. The blow was not an accident. The fact that the deceased woman had an enlarged spleen was not an accident. No accidental occurrence intervened between the blow and its outcome or event, the death.

Section 23 does not, in my opinion, alter the elements or ingredients of any particular offence created or defined by the Code. It is a provision that hovers, as it were, over them all without altering the nature of any of them. In this case the offence charged was manslaughter. The peculiar essence of that offence is the absence of an intent to kill. If there be an unprovoked intent to kill, it is murder, not manslaughter. The Code defines manslaughter in terms which exclude murder. It is therefore not to the point, I think, to say that the accused did not intend to kill, unless we are to say that a person cannot be guilty of manslaughter unless he intended to kill the person whom he in fact killed. To say that would be to subvert the definitions of both murder and manslaughter in the Code and to obliterate the distinctions it makes between wilful murder, murder and manslaughter.

The act and the intent that together make up manslaughter in a case such as this are an act which, without justification or excuse, was done with intent to inflict some bodily harm, but not fatal harm, but which in fact caused death. If the accused did not in the exercise of his will do such an act with such an intent he is not criminally responsible. If although he did intend to hurt, death was caused by some agency unexpectedly intervening, then again he is not criminally responsible: for in that case the death is not a consequence, in the legal sense, of his conduct. Whether that was so or not is a question of causation as a determinant of legal responsibility. It is whether there was a break in the chain of causation, and a new cause. It is a matter of remoteness of consequence, a familiar question in many branches of law: see, for an example of its application in criminal law, the case of Thomas Joseph Smith (1959), 43 Cr. App. R. 121, at p. 131. But in the present case there was no intervening happening. Nothing other than the blow that the accused delivered was in any relevant sense the act which caused the death.

There is, I appreciate, a body of opinion among academic writers and others interested in criminal law that the mental elements in the crime of manslaughter should be re-defined in some way which would make a man guilty of that crime only if death were caused by recklessness or gross negligence. Some of the judgments to which we were referred show a sympathy with this point of view, and perhaps an anticipation of it as a development in the common law. I share that sympathy. But we must take the law as it is to be found in, and fixed by, the Code - a Code that is now more than sixty years old. It may seem to be in some respects out of harmony with a more modern approach to criminal law. It may perhaps, seen from a distance, seem to be in some respects not altogether suitable for the native people in New Guinea. They, we were told, were once accustomed, and thought it not wrong to chastise their wives. That, however, is now illegal: see Native Administration Regulations (1924), reg. 83 as amended. Furthermore many natives, we were told, are still inclined to attribute unexpected deaths to sorcery, notwithstanding that the practice of sorcery has been declared illegal: Native Administration Regulations, 1924, reg. 97. But these are not matters for this Court. The Code is there. It is the law of the Territory for natives as well as for Europeans.

In my opinion, the conviction was justified by the facts. The learned trial judge has a knowledge of the Territory based on long experience there. I do not think that this Court should interfere with the sentence he awarded.

Before parting with the case it is necessary to consider one aspect of the argument for the accused, that founded upon the judgments of members of this Court in Vallance v. The Queen [1961] HCA 42; (1961), 108 C.L.R. 56. That was a case of alleged unlawful wounding, a crime the mental elements or accompaniments of which make it very different from manslaughter. It was a case under the Tasmanian Criminal Code. And the wording of Section 13 of that Code is different from that of Section 23 of the Queensland Code. It was a case that turned largely on whether the word “act” in the Tasmanian section comprehended the whole act of wounding or was restricted to the physical actions which produced the wounding. But in the judgments some observations occur as to the effect of the words “event which occurs by chance”, the equivalent in the Tasmanian Code of the “by accident” of Section 23. The argument for the accused in this case, based on what was said in that case, can be summarized as follows: An event occurs by accident within the meaning of Section 23 if its occurrence was, first, not intended, secondly, not foreseen by the accused as a likely consequence of his act, and thirdly, was not a consequence that a person of ordinary prudence in the position of the accused would reasonably expect to follow such an act. Put more briefly, it was said that any event that is unintended, unforeseen and unforeseeable occurs by accident. Foreseeability is a word that has recently come into vogue. Sometimes it is used without any postulation of the degree of knowledge or of ignorance that is to be assumed in the person whose capacity to foresee is in contemplation. Given a sufficient and exact knowledge of existing conditions and an adequate knowledge of the physical laws that govern them, the consequences of any act are predictable. If the conditions in which it operates remain unaltered, the outcome of the act cannot be unexpected by a person having sufficient knowledge and giving his attention to the matter. Different considerations, however, arise if the necessary knowledge of the conditions is lacking, or if the conditions do not remain constant but are affected by some supervening occurrence. As I see the matter, the most that can be got from Vallance’s Case that could be relevant in this case is that a killing cannot be an event which occurs by accident if the person charged intended to kill, or foresaw death as a likely result of his act, or if a reasonably prudent person in his position would have realized that death was a likely result of such an act. But that an occurrence is not accidental if any one or more of certain qualities can be predicated of it does not mean that it is accidental if none of them can be predicated. As a logical proposition the argument adduced involved the fallacy of an undistributed middle term. The test proposed may suffice in some cases. to determine whether an event occurs by accident. But it will not suffice in a case of manslaughter; for, as I have said, that assumes a killing that (provocation apart) was not intended and not expected to occur. In this the Code and the common law do not differ.

I should add that the statement of the luluai of Tamagot village, where the accused lived, that he had not heard of anyone in the village dying from a blow with the hand seems a somewhat slender ground for thinking that a reasonable person in the position of the accused would not have appreciated the risks attendant upon his act. And I do not read what the trial judge said as a finding of that as a fact. But in considering the argument I have assumed, as we were asked to do, that it was so.

In conclusion I should say that, in my opinion, the decision of the Supreme Court of Queensland in Reg. v. Martyr, [1962] Qd. R. 398 was correct.

I would dismiss the appeal.

Appeal dismissed.

Solicitors: for the appellant, W. A. Lalor, Public Solicitor for the Territory of Papua and New Guinea; for the respondent, H. E. Renfree, Crown Solicitor for the Commonwealth.