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Queen v Dimi [1962] PGSC 21 (19 November 1962)

IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

Coram: Smithers J.

THE QUEEN

v.

DIMI

DARU
17^th and 19^th November,
1962.

JUDGMENT

The accused is a well-built native apparently in his early twenties and obviously physically strong.

On the 19th October last he was a married man. His wife's name was AROGE and they had one infant child.

It seems that for 2 days and nights prior to 19th October AROGE had gone off on a fishing expedition leaving the infant at home with the consequence that it was left without the benefit of its mother's breast. The child had cried all night much to DIMI's distress. This angered DIMI and he decided that on his wife's return he would beat her. He regarded this as a serious decision and informed the Councillor, one of the important men of the village, of his decision. This man did not criticise or forbid the proposed beating.

When the canoe came to the village shortly after one O'clock at night DIMI told all the other passengers to get out of the way as he was going to beat the woman. He jumped into the canoe and started to beat the woman using his hands. She jumped out of the canoe and ran up the centre of the village her husband chasing her close behind.

She sought shelter behind a villager. Trying to hit AROGE DIMI hit the villager and he moved away. The woman ran further and was caught by DIMI who continued to beat her for some unspecified time when DARU, the woman's father came from behind DIMI and hit him on the arm. The blow was struck with a fighting stick (EXHIBIT D.) about 3'3" long weighted and shaped like a knife at the far end with fairly narrow or sharp edges. This blow caused some injury to the arm with bleeding and DIMI cried out that his arm was spoiled.

DIMI thereupon ceased to beat AROGE but turned towards his house. He stopped to show his arm to one PADOWA and to ask him to come with him to examine it by the light in his house. PADOWA declined and DIMI went on alone. His house was some five houses and about 100 yards from the place where DARU hit him

On arrival at the house he searched for a particular stick which he knew was under a lot of rubbish, found it and returned running to the scene to "pay back" the hurt he had received. As he ran he called loudly "clear" meaning thereby to warn the villagers to keep out of the way so that they would not impede him or get hurt in the course of the pay back fight.

DIMI says that as he approached DARU the latter walked towards him and made a hostile downwards two-handed blow with his stick but missed and that almost at the same time but a little later he DIMI made a blow at DARU with his stick. I think this was so. It accords with the probabilities of the order of blows. DIMI tells the story in a way that shows that he realised that DARU having spent his downwards effort, the way was clear for DIMI to deliver effectively a sideways swipe. DIMI's stick was 5'3" long and it was a sapling which had been pulled up by the roots. It was about 1 ½" to l ¾" thick broadening to more than that at the butt from where there protruded almost at right angles 3 prongs about 4 - 5 inches long. There was considerable weight at the butt end. The blow was delivered by DIMI by a sideways swing from right to left, the stick being held by the left hand at the end near DIMI's body and the right hand further from the body. The grip was a natural one for the type of blow intended and the best for imparting power and swing.

Taking into consideration the weight at the end, the stick was an appropriate weapon to deliver a swinging blow gathering power the further it went. The blow was delivered through an arc of about 160º. A demonstration of the manner of delivery was given by two witnesses and it is clear that the blow was delivered with great force. DIMI says he measured the distance for the blow so that the prongs would not go into DARU's body but nevertheless the blow was delivered with considerable power. It was delivered in great anger and was intended to pay back DARU for the blow he had struck and for his interference with the beating of AROGE. It was also intended to incapacitate DARU from further fighting by way of defence or offence by causing him injury and pain.

The stick hit DARU on the back and the left side near the bottom of the ribs. The next day there was a collection of discoloured blood under the skin with blood oozing through the skin. The discolouration was as big as a man's hand, about 5" x 7" and extended from about the midline of the left side almost to the middle of the back.

Immediately after the blow DARU raised his stick to strike DIMI again but he collapsed in the attempt and never spoke again. He died in about five minutes.

To those present at the time, including DIMI, it was apparent that DIMI had killed DARU.

DIMI says in his statement - "That's all how I killed that man."

DARU was to all intents and purposes a healthy man of middle age or a little more who had no apparent or known physical defects so far as the witnesses were concerned and none were suggested. If DARU died from the effects upon him of the assault by DIMI then subject to Sec. 23 DIMI is guilty of manslaughter. I am satisfied that DIMI had not been deprived by DARU's blow of the power of self control, he did not act "on the sudden" within the meaning of that expression in Section 269 and the force used against DARU was disproportionate to the provocation. There was an element of deliberation and delay incompatible with acting on the sudden by a man having lost his power of self control.

The main submission for the accused is that it is not shown by the Crown that the death of DARU was an event which did not occur by accident.

I am of opinion that DIMI did not intend to kill and there is no evidence that he desired to kill.

The evidence is that he intended to deliver a blow with the intention and of the force described above, and at or about the part of the body where it was in fact delivered. So far as such a blow might have consequences those consequences were subordinate to the main objective of revenge and the prevention of further hostilities on the part of DARU and which DIMI intended to achieve at all costs. These objectives comprehended pain and injury of severe but unmeasured degree to be inflicted by the application of great force from a long swinging weighted stick.

It is probably true that DIMI did not expect that the blow would cause death. I have no knowledge of the extent of DIMI's knowledge of the anatomy or make-up of the human body. I consider, however, that he must know that inside the body there are physical features vital to life and injury to which may lead to cessation of life. He would know also that the application of great force to the body sufficient to cause pain and injury sufficient to deter this fighting man from action defensive or offensive would be likely to cause serious tearing, compression, distortion and injury to internal physical features the precise nature and effect of which he did not understand. He would know that it was quite possible that the effects might be so far reaching as to cause death. If he did not think about it at all then he has just acted wantonly without regard to consequences.

It seems to me impossible for any rational creature to be unaware that a blow struck with the power and in the area of this one might have internal effects, the nature and extent of which he could not measure and which might possibly result in death. The degree of possibility would be such that an ordinary person, and I include an ordinary native, before striking the blow could fairly have been expected to take it into account.

I consider that DIMI either took the possibility into account and decided to subject DARU to the risk of whatever the possibilities were, or, in his desire for revenge, he struck the blow wantonly without regard to, or thought of the consequences whatever they might be.

It seems to me that it is not intended by Section 23 that an event is to be treated as an accident merely because the doer being blinded to its consequences by hate and rage fails to forsee the consequences that would be present to his mind if he thought rationally about the matter.

I take the judgment in Vallance v. The Queen 35 A.L.J.R., page 182, to indicate that an event which occurs by accident is one which the person doing the act did not foresee as a possibility substantial enough to be worthy of attention in deciding whether or not to do the act, and the event was so unlikely to result from the act that no ordinary person similarly circumstanced could fairly have been expected to take it into account. (See Kitto J. at page 7.87).

This seems to exclude from the category of events occurring by accident an event, within the range of the various alternative possible consequences any one of which might happen, a consequence of a nature so serious, if it should happen and with such a degree of possibility that it may happen, that a reasonable person would have taken it into account, as a risk to which he was subjecting the victim and as a consideration bearing materially upon the question whether the act should be performed or not.

This seems to me to be in line with the expression of Menzies J. at page 191 to the effect that accident is excluded if the doer thought it likely that the event might happen as a consequence of the act.

I am quite satisfied either that this accused thought it likely that death might happen or did not think of the consequences at all and that any ordinary native similarly circumstanced would have considered there was a real possibility of death and that that event was of sufficient likelihood that it had to be taken into account in deciding whether to do the act or not.

In dealing with the second criterion of an event which occurs by accident certain of the judgments in Vallance's case refer to what a reasonable person would "expect" and to the "expectation" of a reasonable man. To my mind, the word "expect" indicates a state of mind in which the person concerned thinks that it is more probable than not that the event in question will happen.

If the accused had thought about the possible consequences of his assault I am satisfied he would have considered that death was a possibility which was not negligible and I am also satisfied that an ordinary native exercising judgment would have considered it was a possibility not negligible and of such probability that it would have deterred him from performing the act, but I am not satisfied that the accused or the ordinary native contemplated would have thought death more probable than not.

The resilience of the human body is notorious.

Mr. Justice Windeyer refers to the man who is a poor shot firing at another person 1,000 yards away and who by chance hits the other. He says that Section 13 (1) of the Tasmanian Code would not avail the shooter, yet in such a case the event of the man being hit was improbable and unlikely and would have been regarded as such both by the doer and the reasonable onlooker. The reason why the event is not by chance or by accident appears to me to be that it is foreseen by the doer as a possibility and, despite its improbability, as something of importance in relation to the act because of its fatal effect if the event occurs, and it would be regarded by the reasonable onlooker as possible and relevant to the decision as to whether the act should be performed or not for the same considerations.

Thus, I do not regard the references to the "expectation" of the reasonable man in the judgment of the Chief Justice, Kitto J. and Windeyer J. as meaning that an event occurs by accident if being an event not foreseen by the accused as a possibility it could also be said of it that a reasonable onlooker would have regarded the event as a substantial possibility but as less probable to happen than not to happen.

If that were the law then the accused in this case is not guilty of manslaughter but of a lesser crime. (See Sec. 577). I cannot be sure that he actually foresaw death as a possibility as he may not have adverted to the less immediate possible consequences of his attack and I think that a reasonable or ordinary native would have thought death less probable than survival. I think he would have thought the risk of death was substantial but the chances of survival outweighed those of death.

In consideration of this question of accident, I have of course had the benefit of the remarks of the Chief Justice in The Queen v. Gamumu decided by him last year. Vallance's case has been decided since that decision and amplifies it in the manner indicated above. It is my view that, from a general point of view, this case is to be distinguished from The Queen v. Gamumu in various ways, the most significant being the force and weapon with which the blow was struck.

There remains the question whether the assault upon DARU by DIMI caused the death directly or indirectly (Section.293).

The medical evidence, having regard to the distances involved is almost necessarily confined to a survey of the possible causes of death in the circumstances in which it happened.

These circumstances seem to be the incitement of DARU into action hostile to DIMI followed by a pause during which DARU remains quiet and DIMI runs 200 yards, speaks to a friend, searches for a stick and returns. During that time DARU appears to be in good shape and to be standing around the place where he had struck DIMI. DARU advanced to meet DIMI at the ready and apparently in full vigour and struck a downwards blow which missed. He is himself then struck on the side. His daughter intervened. He tried to hit DIMI again while his daughter was talking to him to disuade him from further effort. He raised his stick but was not strong enough and then and there fell down. The only event of importance to occur between DARU in full vigour and his collapse was the heavy blow. What had happened to DARU was some internal lesion or other event as the result of which he collapsed, never spoke again and died in about 5 minutes.

According to the medical evidence, the only events which would have produced such a death were a rupture of the spleen, a rupture of the aneurism or atheroma, or a second coronary occlusion.

The doctor has had considerable experience in the Territory and in this area. He considers the chance of a second coronary occlusion very remote. Heart disease of this nature is rare amongst the natives and it does not occur in moments of mental and physical activity. A rupture due to an aneurism or antheroma would itself be due to a sudden rise in blood pressure placing too great a strain on the affected part. Such an event would not be probable in the circumstances disclosed by the evidence but was according to the doctor on the facts put to him which omitted the collapse some minutes before death, not a negligible possibility. The doctor was asked his opinion of the cause of death on a set of facts stated in terms that there was a man in good health, middle aged, but not an old man, who was hit on the left side and back over the lower 3 - 4 ribs on that side with the stick produced (short of the points) a reasonably bad blow about the size of a man's hand and where it was there appeared to be blood collection, the fact that spleens in malarial areas are commonly enlarged and peculiarly liable to rupture, and are easily ruptured even when not enlarged, and particulars of the death fitted the normal course of a rupture spleen. The area of DARU's village is a malarial area in the sense in which he used those words.

The doctor said that, apart from the blow and a rise in blood pressure brought on by the event as described to him as above, the only really conceivable events fitting the facts were a second coronary which might be fatal or a mere spontaneous stoppage of the heart. In the circumstances of this case where the deceased collapsed after a blow which was clearly sufficient to have caused injuries leading to death by rupturing the spleen or in the unlikely event of there being an aneurism or atheroma of the nature specified to have caused a rupture of the aorta, it is fanciful to think that there was a coincidence in which either the heart stopped of its own accord or he suffered a second occlusion at the same moment or practically at the same moment or practically at the same moment or practically at the same moment as he suffered this crippling blow. The chances against it would be astronomical. In my opinion there is not open in this respect a hypothesis reasonably consistent with death from any cause other than the blow.

It is argued that it is possible on the evidence that the rupture of the aorta occurred before the blow or in any event was due entirely to rising blood pressure which occurred before or otherwise independently of the blow. I am quite satisfied, however, that, the aorta, if it ever was ruptured, suffered its rupture after the blow, and that the blow contributed materially to cause it.

DARU exhibited full strength until after being struck. The accused who saw him at all times and describes the events fully refers to no symptoms of weakness until after the blow was struck, and is clear that the collapse occurred thereafter. This is what would have happened if the blow ruptured the spleen or the shock of the blow caused the blood pressure to rise suddenly and rupture the aorta. The evidence is that death would follow almost immediately on a rupture of the aorta, and I understood the doctor to mean that literally, and also that exertion such as striking a blow with a stick would be impossible with a ruptured aorta. As it was, even after the blow DARU was trying to hit DIMI again and AROGE was talking to him and trying to stop him, and it was while she was talking to him that he first fell down.

This is a case in which the admission of DIMI that he killed DARU by hitting him with the stick confirms what one gathers from the events which occurred and the order of those events.

Indeed, one feels that it is fanciful to have any doubt that the blow with the stick was the cause of death.

It was. argued that no reasonable man would have foreseen that DARU might have had an atheroma or aneurism and that the assault on him would raise his blood pressure, and that it is fanciful to think that the accused thought of this or foresaw it as a possibility and that therefore the event of death if it occurred in this way was an event which occurred by accident.

I quite, agree that it would probably not have occurred to the accused or to any person that death might have occurred in this manner as the result of the assault, but I do not think that that is critical. My judgment generally proceeds upon the view that the accused and even the ordinary reasonable onlooker might well be unacquainted with the internal mysteries of the human body. All they would know would be that violence disturbing to the internals, as a blow of this kind was, was dangerous to life and, if death followed, it would almost inevitably follow in a manner the detail of which would be unknown and remain a mystery to all ordinary observers.

If the accused or the reasonable onlooking stranger was as ignorant as they might well have been of the anatomy of the human body the rupture of the spleen and consequent death might well have been little better understood than a rupture of a weak aorta due to sudden rise of blood pressure.

Once it is seen that the death of DARU was a consequence which was foreseen as a possibility so that death is not to be regarded as an event occurring by accident within section 23, then the actual mechanical details of the manner of death is beside the point.

To one becoming accustomed to the pattern of native life and experience in the Territory, the evidence in this case carries full conviction that the deceased died of a ruptured spleen. I myself have no doubt on this point. The doctor regards this as the obvious cause, and all else is in the realm of conjecture remote I think from the sensible possibilities, and is fanciful when regarded alongside the obvious connection between the well-known, widespread vulnerability of the spleen of the natives of the area, the blood, the blow, the collapse and the death within a few minutes, and the admission of the accused himself that he killed DARU with his blow.

The accused will be convicted of manslaughter.

There remains the question of sentence.

The accused did not intend to kill. He at all times acted under a sense of injury. His wife had failed him. He regarded himself as entitled to beat.

He did this openly and undoubtedly considered this his right.

DARU had interfered between husband and wife. He had legal justification but the wisdom of doing so was doubtful. He really hurt the accused. The accused genuinely regarded himself the injured party.

His fault was the resort to violence of a possibly lethal character.

He must be punished.

The punishment must be substantial.

It must demonstrate to the people that lethal attacks are not permissible.

You must not take risks with other people's lives.

Two years is enough for this purpose.