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Marut, The State v [1979] PGNC 27; [1979] PNGLR 181 (13 June 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 181 - The State v Mathew Marut�

[1979] PNGLR 181

N194

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

MATHEW MARUT

Rabaul

Greville Smith J

13 June 1979

CRIMINAL LAW - Unlawful killing - Duty of persons in charge of dangerous thing - Criminal responsibility - Tests applicable - Empty coffee jar - Thrown at wife - Five months old son killed - Verdict of guilty - Sentenced to rising of court - Criminal Code, s. 292[cciv]¹.

The accused was charged with the unlawful killing of his five months old son, in circumstances where he had in the course of an argument with his wife, thrown a lidless empty coffee jar intending to hit his wife, but hitting the child on the back of the head causing its death some hours later.

Held

N1>(1)����� The coffee jar when being thrown was a thing under the control of the accused of such a nature, within the meaning of s. 292 of the Criminal Code, that in the absence of care in its use the life or safety of the child might be endangered, and also the safety of the accused�s wife.

N1>(2)����� It should have been reasonably foreseeable to a person in the position of the accused that the throwing of the jar in the circumstances (including his agitated state) and with the force that it was thrown, and in the general direction that it was thrown would cause substantial danger of death or serious injury to the child, and also substantial danger of serious injury to the wife.

N1>(3)����� That by throwing the jar as and in the circumstances that he did the accused failed to use reasonable care to avoid those dangers.

N1>(4)����� That such failure to use reasonable care was a failure to take reasonable care within the meaning of s. 292 of the Criminal Code, as defined in R. v. Bateman (1925), 19 Cr. App. R. 8, at p. 11, and in Andrews v. Director of Public Prosecutions, [1937] A.C. 576, at p. 583.

N1>(5)����� That there should be a verdict of guilty as charged.

N1>(6)����� Taking into account, one month in custody awaiting trial, payment of compensation to the wife�s family, the grief suffered and a sense of dignity, co-operation and remorse displayed, the accused should be sentenced to the rising of the court.

Trial

This was the trial of an accused on a charge of unlawful killing, the victim being his five months old child.

Counsel

M. Maraleu, for the State.

M. Ridsdale, for the accused.

Cur. adv. vult.

13 June 1979

GREVILLE SMITH J: The accused in this case is charged that he on the 8th May, 1979, in Papua New Guinea, unlawfully killed one George Mathew.

There has been virtually no dispute as to the facts, which I find as follows.

The accused is a middle aged married man with four children who on the date in question was living at Rabaul with his wife Maria Kalava and his family, the youngest being the deceased George Mathew, aged five months. On the day in question at about 3.30 p.m., the accused and his wife and the deceased child were together at their home. The wife was sitting on one end of a camp stretcher, facing directly away from the opposite end with her legs, below the knees, perpendicular. Her husband was standing twelve to fifteen feet away from her on her left side and rather forward of the normal alignment of her shoulders. Sitting in front of her about two feet from her feet on a mat on the floor with his back towards his father was the child. The accused was standing near a table and either in his hand or on the table was a lidless empty coffee jar, cylindrical and squat in shape, of thick glass and weighing about six ounces, from which the accused had just drunk water.

The accused and his wife had been quarrelling off and on for about two hours, and in the situation hereinafter set out the accused at that point in the quarrel lost his temper and with his right arm threw the jar, intending to hit his wife with it. Instead the jar hit the child directly on the back of the head causing its death about five hours later.

The accused is a solidly built man of medium height. The jar was thrown from a standing position from the level of about the accused�s ear and, of course, to hit the child on the head its trajectory would have been at an angle downwards. Concerning the force with which he had thrown the jar the accused stated to the police �I threw it very strongly.�

The post-mortem examination disclosed �inter alia� the following:

�A large haematoma (soft tissue swelling) was visible in between the scalp and the skull on the left parietal aspect. Upon the exposure of the skull, two fractures were found in both parietal regions, corresponding to the x-ray findings. Some brain tissue was squeezed through the fracture lines and lying outside. The skull was then opened and considerable contusion was found in the parts of the brain related to the fracture sites. The contusion in the left parietal aspects of the brain, extended well into the cerebral cortex.

Hence the cause of death is head injury due to cerebral laceration and contusion secondary to fractured skull. The extent of the fracture is such that the coffee bottle could well have been thrown at a very close range and at a high velocity as well.�

As will be seen, the opinion of the doctor who performed the autopsy was that the extent of the fracture was such that �... the coffee bottle could well have been thrown at a very close range and at a high velocity as well.� He also said that the force could have fractured an adult�s skull had it struck the temple. As a matter of common knowledge I am of opinion also that it could have caused serious damage had it struck the wife in the eye.

Section 292 of the Criminal Code provides as follows:

�It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid that danger, and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.�

I further find as follows:

N2>1.������ The coffee jar when being thrown was a thing under the control of the accused of such a nature, within the meaning of s. 292 of the Criminal Code, that in the absence of care in its use the life or safety of the child George Mathew might be endangered, also the safety of the accused�s wife.

N2>2.������ That it would have been readily apparent to and would have been foreseen by a reasonable person in the position of the accused that the throwing of the jar in the circumstances (including his agitated state) and with the force that it was thrown, and in the general direction that it was thrown would cause substantial danger of death or serious injury to the child, and also substantial danger of serious injury to the wife.

N2>3.������ That by throwing the jar as and in the circumstances that he did the accused failed to use reasonable care to avoid those dangers.

N2>4.������ That such failure to use reasonable care was a failure to take reasonable care within the meaning of s. 292 of the Criminal Code as defined by Lord Hewart in Bateman�s case[ccv]²�and as defined in Andrews v. Director of Public Prosecutions[ccvi]³, and involved operative negligence of such a degree as to call for punishment as for a criminal offence. Accordingly I find the accused guilty as charged.

OBSERVATIONS ON SENTENCE

The accused has been in custody for one month awaiting trial, and will pay compensation to his wife�s family. Had the child been someone else�s child it would have been inevitable that a considerably longer period in custody must have been imposed. As it is the accused has already suffered understandable grief at the loss of his child and so has his wife. He has conducted himself with dignity in this Court, has not sought to excuse himself or to blame his wife, and has consented to his wife giving evidence against him. This she has done with sadness but without rancour, and has told exactly what happened, as was her duty having been called as a witness. Her attitude matches that of her husband. She, I am sure, has had a hard lesson also.

I am satisfied that the accused will never again behave in a fashion such as has led to the tragic result out of which this case arose. And I think that that tragic result is in itself a sufficient warning to others.

I see no good purpose to be served in further penalising the accused.

He is sentenced to the rising of the Court.

Verdict of guilty as charged.

Solicitor for the prosecution: K. B. Egan, Public Prosecutor.

Solicitor for the accused: Mari Kapi, Public Solicitor.

[cciv]Infra p. 183.

[ccv] (1925) 19 Cr. App. R. 8, at pp. 11.

[ccvi] [1937] A.C. 576, at p. 583.