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Kiandari, Regina v [1967-68] PNGLR 31 (16 March 1967)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 31 - Regina v Kiandari

[1967-68] PNGLR 31

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

KIANDRI AND OTHERS

Bereina

Clarkson J

16 March 1967

CRIMINAL LAW - Wilful murder - Intention to kill - Intention to cause permanent injury - Parties - Counselling or procuring - Acting in concert - The Criminal Code, ss. 7, 8, 302(2).

The six accused, of whom Kiandari was one, were labourers from Wabag employed at Moribai Plantation. The deceased was a member of a group of Lufa men employed there. Kiandari was assaulted by some Lufa men, and thereafter told the other accused what had happened. All accused agreeing that revenge should be taken, formed a plan to assault, causing harm only, the first Lufa man to come past their quarters. Kiandari then sat at the door of their quarters, with a sarif, watching, while the other accused armed with sticks, and one of them with a knife, waited inside. The deceased, a Lufa man, then unarmed, walked nearby and the accused attacked in accordance with the plan except that instead of causing harm as intended the deceased’s death was caused. Each of the accused took part in the attack. The accused formed no intention to kill, but to inflict injury of such a nature as to cause permanent injury to health.

Held:

In these circumstances that:

(1)      Section 8 of The Criminal Code does not apply for each accused took part actively or directly in the assault upon the deceased.

(2)      Each of the accused is a principal offender within the meaning of s. 7 of The Criminal Code and is deemed to have taken part in committing the offence constituted by the assault upon the deceased.

(3)      Section 302(2) of The Criminal Code contemplates a dangerous act which is done while prosecuting some purpose other than that of doing the dangerous act.

(4)      Under s. 301(2) of The Criminal Code, each of the accused intending to inflict injury of such a nature as to cause permanent injury to health, is guilty of murder.

The relevant provisions of ss. 7, 8, and 302 of The Criminal Code appear in the reasons for judgment.

Criminal Trial.

Kiandari and five other natives were charged on indictment that on 12th November, 1966, they wilfully murdered one Vusuki-Sate. All the relevant facts appear in the reasons for judgment.

Counsel:

Baird, for the Crown.

Luke, for the accused.

16 March 1967

CLARKSON J:  The six accused are charged with the wilful murder on 12th November, 1966, of one Vusuki-Sate.

The accused were labourers from Wabag employed on Moribai Plantation. There was some friction between them and a group of Lufa men employed on the same plantation. It appears that on the day of the alleged crime, one of the accused, Kiandari, was assaulted by a number of Lufa men. Kiandari required treatment at the aid post and returned in the afternoon to his house, which he shared with others, including the other accused persons. While these men were in their house, the deceased Vusuki, a Lufa man, came past. The deceased was assaulted by the six accused and suffered injuries from which he died that night.

To provide a detailed account of the events surrounding the assault, the Crown relies principally on the evidence of Mendo and Karef. Mendo was in the house with all the accused and Karef was a cook. Each was said to be a witness of what happened in the house before the assault. Generally I found Mendo’s evidence convincing but I do not accept that Karef was a witness of anything relevant that occurred before the assault. I think he is relying largely on what the accused themselves, or some of them, described to him afterwards. The Crown also relied on the deposition of three of the accused, Kiandari, Nerisigari and Kembos. None of the accused gave evidence.

Many of the essential facts are quite clear. I am satisfied that when Kiandari returned to the house and told his story all the accused were angry and that, then and there, they agreed that revenge was to be taken. I do not think it matters, at this stage, who first made the suggestion that the first Lufa man to pass should be attacked. The important point is that all six accused adopted the plan and prepared to execute it. Kiandari sat at the door with a sarif or grass knife, watching, while the others armed with sticks, and one of them with a knife, waited inside.

Vusuki was the luckless victim. As he passed, Kiandari left the house and struck Vusuki with the sarif. He was followed and supported by the other accused. Kiandari held Vusuki, at least while the latter was struck by a knife wielded by Nerisigari. Vusuki fell to the ground, unable to resist or escape, where he was attacked by the other accused with sticks. The deceased was subsequently found to have suffered a gaping wound to the left shoulder, a deep wound in the base of the neck on the right side, a large cut across the lower back and multiple fractures to the right arm. The deceased, then mortally wounded, was picked up by his attackers and thrown into the nearby rubber trees where he lay until discovered some time later by the manager of the plantation.

It was suggested that the accused did not in fact act jointly except in the final act of disposing of the body, but this I do not accept. Everything points to an agreement between them, to prepare to assault and a concerted action in assaulting Vusuki and then disposing of his body.

I turn now to the nature of the offence committed and this requires a consideration of other aspects of the evidence.

The first inquiry I make is whether there was, on the part of any accused, any intent to kill. I do not review all the evidence. It is sufficient to say that I accept the defence submission that there was a genuine confusion and indeed a real doubt as to what was meant when it was said firstly that it was intended “to kill” a Lufa man, and secondly that the accused said they had “killed”. The interpreter assisting the Court explained to me that he first took the phrase used as indicating an intentional killing, but that as the evidence continued he realized that the witness intended the words used to convey a meaning of “wound” or “hurt”.

In spite of the weapons used by two of the accused, on all the evidence, I am not satisfied that there was an intent to kill as opposed to an intent to do harm. It follows that I must find the accused not guilty of wilful murder.

This brings me to consider the alternative verdicts which are open to me, and which were canvassed by counsel. Both counsel addressed me on the application to the present facts of ss. 7, 8, and 302 of The Criminal Code. My failure to deal with each submission does not reflect a view that they are not substantial, but on the conclusions of fact I have reached, it is unnecessary to deal with a number of them, and I do not wish to embark on a consideration of legal arguments which are not directly relevant to these facts.

As I have indicated, I am satisfied there was an agreement to prepare for the assault and to assault, and that the attack was carried out pursuant to the plan which had been formed. What was planned to be done was done, except that, on the findings I have made, the attack resulted not only in the intended harm but also the unintended death.

In these circumstances, I find some difficulty in applying either s. 8 or s. 302(2).

The relevant portion of s. 302 reads:

“(2)    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 my view, this contemplates a dangerous act which is done while prosecuting some purpose other than that of doing the dangerous act. Here the dangerous act was the striking and the purpose was to strike. The provision is, I think, aimed at a situation where an act, such as a striking occurs when some other and distinct purpose, such as, for instance, an armed robbery, is being pursued. See Hughes v. The King[xliii]¹ and Brennan v. The King[xliv]².

I find somewhat similar difficulties in applying s. 8 to the present circumstances where all the actors are present at the critical time and take part in the assault. The section is aimed at the partner in the unlawful purpose who does not take part directly or actively in the committing of the offence referred to in the section.

But here, all took part. There was already, to use a phrase from Brennan v. The King[xlv]³ “guilty complicity”.

In my view the present situation is covered by s. 7 of The Criminal Code, which reads:

“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:

(a)      Every person who actually does the act of makes the omission which constitutes the offence;

(b)      Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c)      Every person who aids another person in committing the offence;

(d)      Any person who counsels or procures any other person to commit the offence.

In the fourth case he may be charged with himself committing the offence or with counselling or procuring its commission.

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.”

When the six accused planned to assault the first Lufa man to come past, my view is that each counselled the other to commit that offence. When, in concert, they all attacked Vusuki, each did the act which constituted the offence and each was procured by the others of them to commit the offence.

I think also that each of the accused aided the others within the meaning of the section. Each, knowing what was intended, encouraged and assisted the others.

Although the full report is not available to me, I think the views I have expressed are consistent with those of the High Court in Brennan v. The King[xlvi]⁴ and of Philp J. in R. v. Solomon[xlvii]⁵.

This brings me to the final consideration, the nature of the offence committed. I have held it was not wilful murder. I have held there was an attack and that the attack was planned and executed jointly. It is clear the accused intended bodily harm to the deceased. Counsel for the defence suggested that this was not sufficient to constitute grievous bodily harm. He relied again on the uncertainty which arose in respect to the use of the word “kill”. But the word was used to mean at least “wound” and the circumstances in which the attack took place are sufficient to dispel any doubt I might otherwise have had.

Each knew how the others were armed. I am satisfied that when the six accused set upon the unarmed Vusuki with a sarif, a knife and four sticks, to avenge the attack on Kiandari they intended to inflict injury of such a nature as to cause permanent injury to health. It is only too clear that they did so.

In my view the accused fit the description in s. 302(1) of The Criminal Code of persons who have unlawfully killed another while intending to do that other some grievous bodily harm. My verdict is that each of the accused is guilty of murder.

Verdict: Guilty of murder.

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

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

[xliii](1951) 84 C.L.R. 170.

[xliv](1936) 55 C.L.R. 253.

[xlv](1936) 55 C.L.R. 253.

[xlvi](1936) 55 C.L.R. 253.

[xlvii] [1959] Qd.R. 123.