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Pah, The State v [1985] PNGLR 188 (28 June 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 188 - The State v James Pah 

[1985] PNGLR 188

SC296

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT RESERVATION NO 4 OF 1984 THE STATE

V

JAMES PAH

Waigani

Kidu CJ Bredmeyer Cory JJ

28 March 1985

28 June 1985

CRIMINAL LAW - Particular offences - Attempted murder - Alternative verdict - Grievous bodily harm with intent not open - Criminal Code (Ch No 262), ss 304, 315, 542.

CRIMINAL LAW - Verdicts - Alternative verdicts - Charge involving specific result - Offence of which “the causing of some specific result is an element” - Specific result to be “caused” not intended” - Charge of attempted murder - Grievous bodily harm with “intent not open - Criminal Code (Ch No 262), ss 304, 315, 542.

Held

On an indictment charging the offence of attempting unlawfully to kill as defined in the Criminal Code (Ch No 262), s 304, a verdict of grievous bodily harm with intent under s 315 of the Code is not available as an alternative verdict pursuant to s 542 of the Code.

The Criminal Code (Ch No 262), s 542(1) and (2), which provides for alternative verdicts for charges involving specific results, in referring to an offence of which “the causing of some specific result is an element” cannot apply to the charge of attempting unlawfully to kill because the causing of as distinct from the intending of a specific result (that is, a specific injury) is not an element of the charge of attempting unlawfully to kill.

Cases Cited

Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209.

PLAR No 1 of 1980 [1980] PNGLR 326.

R v Bauoro-Dame [1965-66] P & NGLR 201.

R v Kiki Kau’au (Unreported Supreme Court judgment N557 dated 18 February 1970).

R v Whybrow (1951) 35 Cr App R 141.

State, The v Wanaepe Warara [1977] PNGLR 458.

Reservation of Point of Law

This was a reservation of a point of law by Pratt J pursuant to the Supreme Court Act (Ch No 37), s 21, the details of which are set out in the judgments.

Counsel

E Kariko and J Nouari, for the State.

No appearance on behalf of the defendant.

Cur adv vult

28 June 1985

KIDU CJ: The question below was reserved for this Court’s opinion pursuant to the Supreme Court Act (Ch No 37), s 21:

“On an indictment charging an attempt unlawfully to kill as defined in s 304 of the Criminal Code (Ch No 262) do the provisions of such Code permit a court to return a verdict of either wounding with intent to cause grievous bodily harm or a verdict of causing grievous bodily harm with intent to cause grievous bodily harm where the evidence supports such alternate finding?”

James Pah was indicted with two offences — attempted murder and unlawfully doing grievous bodily harm. He was acquitted on the charge of attempted murder but convicted of the offence of causing grievous bodily harm with intent to cause grievous bodily harm, an offence not included in the indictment. The learned trial judge did this under the Criminal Code (Ch No 262), s 542(1). Section 542 provides as follows:

“542.   Charge involving specific result.

(1)      On an indictment charging a person with an offence of which the causing of some specific result is an element, he may be convicted of any offence of which an intent to cause that result, or a result of a similar but less injurious nature, is an element.

(2)      On an indictment charging a person with an offence of which an intent to cause some specific result is an element, he may be convicted of any offence that is established by the evidence and of which the unlawful causing of that result is an element.”

In his judgment the learned trial judge said the following:

“I have found that you did not have an intent to kill. It is a question of whether in law I can bring in a verdict of guilty of intending to cause grievous bodily harm.

I have, of course, the alternate count contained in the indictment, grievous bodily harm simpliciter. But as I said I am under no doubt whatsoever that your intention was to cause grievous bodily harm, that is, that you are guilty of the offence set out in s 315 of the Code. The question remains whether I am permitted by law to bring in such a verdict.

Just briefly the charge laid in the indictment is that with intention to kill Salis, the accused attempted to kill Salis. The result is death. Now that is the result referred to in s 542(1) of the Criminal Code which reads:

‘542.   Charge involving specific result.

(1)      On an indictment charging a person with an offence of which the causing of some specific result is an element, he may be convicted of any offence of which an intent to cause that result, or a result of a similar but less injurious nature, is an element.’

Now I notice here that the Deputy Chief Justice (as he then was) in The State v Wanaepe Warara [1977] PNGLR 458 was of the view that a person may be convicted on a charge of attempted murder or unlawfully wounding with intent to cause grievous bodily harm because the ‘intent to inflict grievous bodily harm is an intent to cause a result of a similar but less injurious nature’. In other words, the result intended is not death but grievous bodily harm. I have no doubt that such was intended here, and that grievous bodily harm occurred. The intent to cause grievous bodily harm is of course an element in the charge under s 315, that is, with intention to maim, or with intention to disable, or with intention to cause grievous bodily harm or with intention to wound, with any one of those intentions does cause grievous bodily harm, is guilty under the section, for although I find there was a wound I also find beyond reasonable doubt that such wound was likely to cause death or grievous bodily harm. I add in closing here that I have found nothing of any assistance to me in either s 546 or s 547 of the Code. The verdict I bring in therefore is not guilty of attempted murder but guilty that with intent to do grievous bodily harm to one Salis Malo, you did grievous bodily harm to the said Salis Malo.” [Emphasis added by trial judge.]

Section 542 applies when the following conditions are shown to exist:

Subsection (1)

(a)      The offence charged must have as one of its elements the causing of some specific result; and

(b)      the alternative offence available must be one of which intent to cause that result or a result similar but of less injurious nature is an element.

Subsection (2)

(a)      The offence charged must have as one of its elements the intent to cause some specific result; and

(b)      the alternative offence available must be one of which the unlawful causing of that result is an element.

In this reservation the first question to determine is whether attempted murder (Criminal Code, s 304) has as one of its elements the causing of some specific result or the intent to cause some specific result.

Section 304 provides as follows:

“A person who:

(a)      attempts unlawfully to kill another person; or

(b)      with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

is guilty of a crime. (Emphasis added.)”

The elements of the offence in s 304(a) are:

(1)      Intention actually to kill; and

(2)      putting one’s intention into execution by some overt act.

(See R v Bauoro-Dame [1965-66] P&NGLR 201.) No specific result is included as an element of the offence. Section 542(1) is quite specific — for it to apply the offence must have as one of its elements the causing of a specific result. In this case Pratt J was of the opinion that death was the specific result:

“Just briefly the charge laid in the indictment is that with intent to kill Salis, the accused attempted to kill Salis. The result is death. Now that is the result referred to in s 542(1) of the Criminal Code....”

With the greatest respect, s 542(1) applies to an offence which has as one of its elements the causing of a specific result and attempted murder has only two elements: causing of death is not one of them. It is the intention to kill (or to cause death) which is an element of the offence. Subsection (2) of s 542 does relate to an offence which has as one of its elements the intention to cause a specific result and attempted murder does have such an element, that is, the intention to kill. However the problem under s 542(2) is that where the offence of attempted murder is not proved the alternative offence, grievous bodily harm with intent, has no application because such alternative offence is quite different from attempted murder.

I would answer the question in the negative and remit the case to the learned trial judge for sentencing based on a verdict of guilty of grievous bodily harm.

BREDMEYER J: The accused was charged with attempted murder (Criminal Code (Ch No 262), s 304) and a second count of grievous bodily harm simpliciter (s 319) which carries a maximum sentence of seven years in hard labour. The learned trial judge acquitted of attempted murder but found as a fact that the accused committed grievous bodily harm with intent to do so and convicted him of that offence under s 315 of the Code which carries a maximum penalty of life imprisonment. The judge sentenced the offender to five years imprisonment with hard labour and took two other related offences into account when doing so.

The learned trial judge brought in the alternative verdict under the Criminal Code, s 542(1). Section 542 has been quoted in full by the Chief Justice (at 189). I note the contrast between the opening words of subs (1) and subs (2): “an offence of which the causing of some specific result is an element” (subs (1)), and “an offence of which an intent to cause some specific result is an element” (subs (2)).

The offence of attempted murder is defined in s 304 which has also been quoted by the Chief Justice (at 190). Section 4 of the Code on “Attempts to commit offences” is also relevant as to the elements of the offence.

If a person is charged with attempted murder under the Criminal Code, s 304(1), intention to kill is an element of the offence. That was held in R v Bauoro-Dame [1965-66] P&NGLR 201 per Frost J (as he then was) following the leading English case of R v Whybrow (1951) 35 Cr App R 141 and other authorities. If a person is charged with attempted murder under s 304(2) then “intention unlawfully to kill” is an element expressly mentioned in that subsection. Intention to kill being an essential element of the offence of attempted murder, an indictment charging a person with attempted murder comes within the ambit of the first part of s 524(2) of the Code, because it is an “offence of which an intent to cause a specific result” (namely, death) “is an element”.

Section 542(1) refers to an offence of which “the causing of some specific result is an element”. In my view the causing of some specific result is not an element of attempted murder. That is so whether the charge is worded under subs (1) or subs (2) of s 304. There need not be any result (that is, injury) in the offence of attempted murder. For example, in R v Whybrow (supra), the accused intended to kill his wife and connected wires and passed an electric current through her bath. She felt the electric shock and called out but did not suffer injury. In the words of our section no specific result was caused. To take another example, if a person intends to kill his wife, mixes a lethal dose of poison, puts it in her glass and hands the glass to her to drink, he is guilty of attempted murder even though, in fact, she does not drink it. Or, if a man intends to kill his wife, and swings an axe at her head, he is guilty of attempted murder even though she ducks and avoids the blow. The causing of an injury is not an element of the offence. This view can be illustrated by the forms of indictment laid down in Carter, Criminal Law of Queensland (5th ed), pp 760-761. The Queensland section is identical to ours so the forms are relevant. The two forms are:

“attempted unlawfully to kill one E.F.” (The form for subs (1)); or

“with intent unlawfully to kill one E.F. administered poison namely (strychnine) to him.” (The form for subs (2).)

Note that the result of the attempt, the injury suffered (if any), is not stated in the form. I consider that if the result is pleaded in the indictment, then it is a particular, not an element of the offence. To plead for example:

“attempted unlawfully to kill one E.F. (by striking him across the head with a sariff thereby causing him grievous bodily harm)”; or

“with intent unlawfully to kill one E.F. struck him with a bush knife across the neck (thereby wounding him)”

is to add particulars only. The words in brackets are particulars only and not elements of the offence.

To summarise what I am saying, the offence of attempted murder does not involve as an element of it the causing of a specific result (that is, a specific injury). That being so the first part of s 542(1) does not apply to an indictment for attempted murder hence that section cannot be used to bring in an alternative verdict under s 315 of grievous bodily harm with intent to do grievous bodily harm. The opening words of s 542(2) do apply to attempted murder. But the latter part of s 542(2) does not apply because the specific result intended in the offence of attempted murder is death and “the unlawful causing of that result” (that is, death) is not an element of the offence of causing grievous bodily harm with intent. The result is that a s 315 verdict of grievous bodily harm with intent is not open as an alternative verdict to attempted murder under either subsection of s 542.

I would answer the question asked of us: No. I would direct the trial judge to convict of grievous bodily harm simpliciter and sentence afresh. The victim Salis Malo suffered two cuts to the head, one of them 9 or 10cm long which went through the skull and penetrated the brain itself. He was partially paralysed and at the time of trial, had only 70 per cent effective use of his right leg and arm. The two offences taken into account on sentence were grievous bodily harm to Simon Demian and unlawfully wounding to Buaia Patrick. Bearing in mind that offences committed on different victims, even committed at the same time, normally attract cumulative sentences (Thomas, Principles of Sentencing (2nd ed, 1979), p 54), the sentence of five years for what was three offences does not seem excessive. But it is for the trial judge to determine the sentence afresh.

CORY J: This is a reservation made for an opinion of the Supreme Court on the interpretation of the Criminal Code (Ch No 262), s 542(1), pursuant to s 21 of the Supreme Court Act (Ch No 37). The opinion is sought by the trial judge Pratt J. The accused was tried upon an indictment containing two counts:

(1)      Attempt unlawfully to kill; alternatively

(2)      unlawfully did grievous bodily harm.

The accused person was acquitted of the charge of attempt unlawfully to kill, the trial judge not being satisfied of the accused’s intention to kill, but applying the Criminal Code, s 542, he was convicted for, that with intent to do grievous bodily harm, he did grievous bodily harm. Conviction was pronounced and execution thereon respited pending the opinion of the Supreme Court. The question for the Supreme Court’s determination has been quoted by the Chief Justice at 189.

A brief statement of the facts as appears from the judgment is that the accused, following an argument with the victim, ran to his house, picked up a sariff, ran back to the scene and struck the victim a blow to the head which went through the skull.

The Criminal Code, s 542(1), reads as follows:

“(1)    On an indictment charging a person with an offence of which the causing of some specific result is an element, he may be convicted of any offence of which an intent to cause that result or a result of a similar but less injurious nature, is an element.” [Emphasis mine.]

What is the meaning of the expression “an indictment charging a person with an offence of which the causing of some specific result is an element”? The trial judge in his judgment in considering the applicability of s 542 said “the result intended is not death but grievous bodily harm” and referred to the opinion expressed by the Deputy Chief Justice in The State v Wanaepe Warara [1977] PNGLR 458 at 460 when he said:

“... I consider that an alternative verdict could have been brought in under the first branch of s 554 (now s 542), were intent to murder not found. This would be on the basis that ‘intent to inflict grievous bodily harm’ is ‘an intent to cause ... a result of a similar but less injurious nature’ than the intended result of ‘attempt to murder’.” [Emphasis mine.]

Apart from this opinion being obiter, as was pointed out by the trial judge, I would agree with the State’s submission that both the Deputy Chief Justice in The State v Wanaepe Warara and the trial judge in this case have misread the first part of s 542(1); it is not the “intending” of some specific result, but where the “causing” of some specific result is an element of the offence that the section is applicable. In a charge of attempt, it follows that any specific result was not in fact “caused” but only “intended”.

The State submits that “causing of some specific result” means “causing of some specific injury” because before the revised laws came into effect, this section was headed “Charge of Specific Injury, Charge of Injury with Specific Intent”. The State further submits that “specific injuries” means those specified in the Code such as wounding, bodily harm, grievous bodily harm etc, and that if those injuries are established by the evidence, and the specific injury is an element of the charge, then the requirement of s 542 that the “offence is one of which the causing of some specific result is an element” is satisfied. In support of this construction of s 542, the State relies on the construction adopted in PLAR No 1 of 1980 [1980] PNGLR 326.

There the question was whether provocation was available as a complete defence to manslaughter or whether it was to be limited to those “offences of which an assault is an element” (s 271 of the then Code). The court held that “an offence of which an assault is an element” was to be interpreted as meaning “with reference to an offence in the commission of which an assault is committed”. But this case is distinguished from the present case, because in the case of PLAR No 1 the court was concerned to overcome the “quite capricious operation of the Code” (Wilson J at 332 approving of Gibbs J in Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209 at 238) whereby the defence of provocation would have been denied to some defendants because the word “assault” was not used in the definition of some offences. This consideration does not apply in the present case. The State has a remedy readily available to it of inserting an alternative count under s 315 of the Code. Moreover as was pointed out by my brother Bredmeyer J during the hearing of this matter, the adoption of the interpretation sought by the State would produce the anomalous position that whereas a defendant found not guilty of wilful murder, murder or manslaughter could only, under s 539 of the Code, be convicted of unlawfully doing grievous bodily harm, a defendant charged with the less serious offence of attempted murder could, under s 542 of the Code, be convicted of the more serious offence of with intent to do grievous bodily harm did grievous bodily harm, and thereby be liable to heavier sentence.

The ordinary or prima facie meaning of the words in s 542(1) is that it applies:

(1)      To an indictment in which in the indictment itself it is alleged that the person charged with an offence “caused some specific result” and that the causing of that specific result is an element of the charge, or,

(2)      To an indictment in which “the causing of some specific result” is an element of the charge.

In the indictment in the present case the first criterion is not applicable. In relation to the second criterion the elements of a charge of attempting unlawfully to kill were set out in the case of R v Kiki Kau’au (Unreported Supreme Court judgment. N 557 dated 18 February 1970) as above. Frost J said, although his opinion was obiter, that on a charge of attempting unlawfully to kill “no alternative verdict is open”.

The kind of charge where s 542(1) would be applicable is where for example a person was charged under s 315 that “with intent to do grievous bodily harm did grievous bodily harm to a person” (ie caused this specific result), then the court applying s 542 could convict the accused of any offence of which intending to do grievous bodily harm or intending to cause grievous bodily harm or a wounding was an element; in the two latter cases the intended “result” is a “result of a similar but less injurious nature”.

I would therefore answer the question: No.

I would order that the verdict and judgment be amended by setting aside the conviction that the accused with intent to cause grievous bodily harm caused grievous bodily harm under s 315 and that a verdict of guilty be entered on the charge under s 319 that the accused did grievous bodily harm to Salis Malo on 23 December 1984, that a conviction be recorded for that charge and that the case be remitted to the trial judge for sentence.

Question answered, “No”

Orders accordingly

Lawyer for the State: L Gavara-Nanu, Public Prosecutor.

Lawyer for the defendant: N Kirriwom, Public Solicitor.