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Bauoro, Regina v [1965-66] PNGLR 201 (15 February 1966)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 201 - Regina v Bauoro-Dame

[1965-66] PNGLR 201

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

BAUORO-DAME

Port Moresby

Frost J

8-11 February 1966

15 February 1966

CRIMINAL LAW - Breaking and entering a dwelling-house with intent to commit a crime - Attempting unlawfully to kill - Whether actual intention to kill necessary - Whether provocation a defence - Woman firing pistol shots at and wounding man who had attacked her in bedroom - Whether shooting provocation for subsequent attack with axe - The Criminal Code, ss. 4, 268, 269, 271, 291, 304, 306, 419.

Section 306 of The Criminal Code provides, inter alia, as follows:

“Any person who:

(1)      Attempts unlawfully to kill another . . . is guilty of a crime . . . .”

Section 269 of The Criminal Code provides, inter alia, as follows: “A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous bodily harm ....”

The accused entered the room of a European woman at night. On being threatened by her with a pistol, he assaulted her and, although she fired several times, he took the pistol from her and fled. Later he re-entered the room and wounded the woman with an axe. He was charged with breaking and entering a dwelling-house in the night with intent to commit a crime therein and with attempting unlawfully to kill.

Held

(1)      Upon a charge of attempting unlawfully to kill contrary to s. 306 the Crown must prove an intention actually to kill.

R. v. Zerafa, [1935] Q.S.R. 227 referred to; R. v. Whybrow (1951), 35 Cr. App. R. 141, Regina v. Grimwood, [1962] 2 Q.B. 621, R. v. Spartels, [1953] V.R. 194, R. v. Catlin[1961] TASStRp 25; , [1961] Tas.S.R. 191 followed; proceedings for leave to appeal to High Court of Australia in Muar, Daughter of Enk v. The Queen considered.

(2)      Section 269 provides no defence to a charge of attempting unlawfully to kill.

R. v. Cunningham, [1959] 1 Q.B. 288 and R. v. Falla, [1964] V.R. followed.

R. v. Newman[1947] VicLawRp 44; , [1948] V.L.R. 61 and R. v. Carter[1959] VicRp 19; , [1959] V.R. 105 not followed; R. v. Spartels (supra) not followed on this point; Le Chun-Chuen v. Regina, [1963] A.C. 220, referred to.

(3)      The Crown had established beyond reasonable doubt that Bauoro-Dame was guilty of breaking and entering as charged.

(4)      Even if provocation were a defence to a charge of attempting unlawfully to kill, the Crown had negatived provocation beyond reasonable doubt.

Trial on Indictment

Bauoro-Dame was charged, inter alia, with breaking and entering in the night time the dwelling-house of Elaine Hope Cupitt, by whom he was employed as a domestic servant, with intent to commit a crime therein and with attempting unlawfully to kill Cupitt. Evidence was adduced by the Crown and accepted by the court that on the evening in question Cupitt was awakened when Bauoro-Dame crept into her bedroom. Cuppitt warned Bauoro-Dame that she had a pistol (with which she had armed herself earlier in the week in anticipation of an attack from certain other employees) and that she would shoot him if he did not get out. Bauoro-Dame then grasped Cupitt’s left thumb, breaking the bone at the joint, and in order to repel her assailant she fired four shots, two of which wounded him. However, he overpowered her, grabbed the pistol and fled. Shortly afterwards he broke into the room with an axe, threatened to kill Cupitt and directed a violent blow at her head with that weapon; Cupitt tried to ward off the blow, which struck her on the forehead, causing a laceration approximately two and a half inches long corresponding with a linear chip in the bone. Seconds later Bauoro-Dame was disarmed by a fellow employee.

Counsel

Greville Smith, for the Crown.

Shaw, for the accused.

Cur. adv. vult.

15 February 1966

FROST J:  The two main charges against the accused man, Bauoro-Dame, are:

(1)      Under s. 419 of The Criminal Code, that on or about the 7th November, 1964, in the night time, he broke and entered the dwelling-house of Elaine Hope Cupitt with intent to commit a crime therein; and

(2)      Under s. 306 of the Code, that on or about the 7th November, 1964, he attempted unlawfully to kill the said Elaine Hope Cupitt.

During the Crown case, there being no objection from the defence, I allowed the Crown to amend the indictment by adding to the first charge the words “in the night time”.

There are alternative counts charging that the accused without lawful excuse broke and entered the said dwelling-house, and further unlawfully wounded the said Elaine Hope Cupitt.

The accused pleaded not guilty to all counts except the unlawful wounding. To this charge he pleaded, “I struck her with a torch”. After the Crown case was opened, and it appeared that the Crown allegation was that the accused struck Mrs. Cupitt with an axe, I decided not to accept that plea as a plea of guilty to the charge of unlawfully wounding, but as a plea of not guilty.

Mr. Greville Smith appeared to prosecute, and Mr. Shaw appeared for the accused.

I propose to deal at the outset with two questions of law which were raised during the trial in respect of the charge of attempting unlawfully to kill.

Mr. Shaw first submitted that the Crown must prove an intention actually to kill. It was not sufficient, he said, to prove an intention merely to do grievous bodily harm. He cited R. v. Zerafa[ccvi]¹, where the point was left open by the Full Court of Queensland. That the view he put forward is plainly the rule at common law is established by the authorities Mr. Shaw cited, viz: R. v. Whybrow[ccvii]²; R. v. Grimwood[ccviii]³; R. v. Spartels[ccix]⁴; R. v. Catlin[ccx]⁵ (a decision under the Tasmanian Code).

The learned prosecutor did not argue to the contrary that the same rule applies under the Code. Under s. 4 of the Code for a person to be said to attempt to commit an offence he must intend to commit that offence, viz: in this case actually to kill. Having regard to the scheme of the Code, the heading “Attempt to Murder” is itself equivocal and cannot be used to qualify the clear meaning of s. 306. There is thus no warrant under that section for importing into s. 306 any lesser intention such as an intention to do grievous bodily harm.

In the proceedings on the 31st August, 1964, for leave to appeal before the High Court of Australia in Muar, Daughter of Enk v. The Queen, the transcript of which I have read, the court assumed without argument, as it had been held by Ollerenshaw J. at the trial, that it was necessary for the Crown to prove an actual intention to kill. In my opinion, this submission is plainly right.

Next, Mr. Shaw argued that provocation was available as a defence to the charge of attempting unlawfully to kill under s. 304. He relied on the Victorian cases of R. v. Newman[ccxi]⁶; R. v. Spartels[ccxii]⁷; R. v. Carter[ccxiii]⁸, in which this defence was left to the jury, in each case the charge being wounding with intent to murder under the Crimes Act of Victoria, the present section being s. 11 (1). The view accepted in those cases was that, if the jury found provocation, they should acquit on the charge of wounding with intent to murder, because the intent “would not have been an intent to commit the crime which the law would regard as murder, but to commit the crime of manslaughter”: per Sholl J. in R. v. Spartels[ccxiv]⁹.

However, in England in R. v. Cunningham[ccxv]¹⁰, the Court of Criminal Appeal held that the defence of provocation is available only on a charge of murder to reduce the crime to manslaughter, and that it is not available on any lesser offence than murder. In R. v. Falla[ccxvi]¹¹, Pape J. accordingly declined to follow the earlier Victorian cases.

Under the Code provocation is a defence under s. 269, and it reduces murder to manslaughter under s. 304. Again, in s. 306, the heading cannot be used to qualify the clear meaning of the section. Under s. 291 it is unlawful to kill any person unless the killing is authorized or justified or excused by law. Provocation can never authorize, justify or excuse a killing, unless, in the unlikely event, the assault fell within the terms of s. 269. In my opinion, it cannot be a defence under s. 306. Indeed, as Pape J. pointed out in R. v. Falla[ccxvii]¹², an intent to kill may be consistent with provocation. See Lee Chun-Chuen v. R.[ccxviii]¹³. Certainly such intent renders s. 269 inapplicable. This latter submission of Mr. Shaw’s thus fails.

[His Honour then considered the evidence in detail, found that both offences had been proved beyond reasonable doubt and continued:]

I should add that if I am wrong in holding that provocation is no defence, I uphold the learned prosecutor’s submission that in any event, the Crown has negatived beyond reasonable doubt there was provocation here. It is not necessary for me to determine whether, if it were a defence, the definition contained in s. 268 or s. 304 applied on the one hand, or the common law on the other. I am satisfied that when the accused entered Mrs. Cupitt’s bedroom stealthily by night and savagely grabbed her thumb, ignoring her warning, the nature of his assault was such as to cause her reasonable apprehension of at least grievous bodily harm, that on the evidence, she believed, on reasonable grounds, that she could not otherwise preserve herself therefrom, and it was thus lawful for her to have fired the pistol shots on the ground that they were necessary for her defence: s. 271. Her lawful act could not thus constitute provocation.

I thus find the accused guilty of the first and third charges under the indictment, that is to say, that he broke and entered Mrs. Cupitt’s house with intent to commit a crime therein, and that he attempted unlawfully to kill her, and I convict him accordingly.

Verdict: Guilty of breaking and entering a dwelling-house in the night time with intent to commit a crime therein; guilty of attempting unlawfully to kill.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.

[ccvi] [1935] Q.S.R. 227, at p. 233.

[ccvii](1951) 35 Cr.App.R. 141.

[ccviii][1962] 2 Q.B. 621.

[ccix] [1953] V.R. 194 (Sholl J.).

[ccx][1961] Tas.S.R. 191.

[ccxi] (1948) V.R. 61 (Barry J.).

[ccxii][1953] V.R. 621.

[ccxiii][1959] VicRp 19; [1959] V.R. 105 (Sholl J.).

[ccxiv] [1953] V.R. 194, at p. 198.

[ccxv][1959] 1 Q.B. 288.

[ccxvi][1964] V.R. 78.

[ccxvii][1964] V.R. 78.

[ccxviii] [1963] A.C. 220.