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Kipali, Regina v [1967] PGSC 25; [1967-68] PNGLR 119 (5 October 1967)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 119 - Regina v Kipali-Ikarum

[1967-68] PNGLR 119

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

KIPALI-IKARUM

Laiagam

Clarkson J

20 September 1967

2-5 October 1967

CRIMINAL LAW - Evidence - Dying declaration - Common-law rule - Whether statute modifies or excludes - Examinability of declarant�s religious beliefs - Criminal Procedure Ordinance 1889 (Papua, adopted), s. 32.

CRIMINAL LAW - Accident - Wilful murder - Intended injury inflicted in unintended manner - The Criminal Code (Queensland, adopted), ss. 23, 293, 302^*[cxci]1 .

Section 32 of the Criminal Procedure Ordinance of 1889 (Papua, adopted) merely supplements the common-law rule on admissibility of dying declarations by adding a further category of declarations which the court in its discretion may admit. Where the declarant believes without hope of recovery that he is about to die the admissibility of the declaration is governed by the common law.

R. v. Donohoe, [1963] S.R. (N.S.W.) 38; 79 W.N. 693, referred to.

In applying the common-law rule to a woman of mature age who, although not baptized, had received some instruction in the Christian religion, who attended a Christian church and who lived in a community a large number of the members of which were claimed to be adherents of the Christian faith, a doubt as to whether the deceased had a proper understanding of the Christian faith will not suffice to render the dying declaration inadmissible where it is not shown that the deceased had no belief in a future state after death. It may be that the courts will not now embark on inquiry as to the personal religious beliefs of a declarant to determine the admissibility of the dying declaration as opposed to its weight.

R. v. Hope[1909] ArgusLawRp 9; , [1909] V.L.R. 149, at p. 157; R. v. Woodcock [1789] EngR 2091; (1789), 1 Leach 500; 168 E.R. 352; R. v. Pike [1829] EngR 417; (1829), 3 Car. & P. 598; 172 E.R. 562; R. v. Perkins [1840] EngR 206; (1840), 9 Car. & P. 395; 173 E.R. 884; R. v. Barclay (1873), 2 C.A. (N.Z.) 251; R. v. Kuruwaru, [1860-1907] Q.C.R. 372; R. v. Wadderwarri (Unreported. Supreme Court of N.T., 20th March, 1958); R. v. Madobi-Madogai, [1963] P. & N.G.L.R. 252, considered.

The accused was charged with the wilful murder of his wife. He had attacked his wife in their house with an axe handle one blow from which fractured the wife�s leg. During the attack the accused dislodged some firewood which was suspended from the roof of the house and some of which fell on or near the deceased. Death, due to a fractured skull, might have been caused either by a blow from the axe handle or from the falling wood.

Held:

N1>(1)����� The accused directly or indirectly caused the death of his wife while intending to cause grievous bodily harm and was therefore guilty of murder by the combined operation of ss. 293 and 302(1) of The Criminal Code.

N1>(2)����� If the fatal injury were caused by the falling wood, the force applied to the axe handle was absorbed in setting in motion the firewood which inflicted the injury intended by the accused. This was not a case of an unexpected result following on an intended blow as the blow of the axe handle was as likely to cause and was intended to cause the same injury as the falling wood was assumed to have caused. That the intended injury was inflicted in a manner different from that intended did not absolve the accused from criminal responsibility under s. 23 of The Criminal Code.

R. v. Martyr, [1962] Qd. R. 398; Mamote-Kulang of Tamagot v. The Queen, [1963] P. & N.G.L.R. 163; (1964), 111 C.L.R. 62; Vallance v. The Queen [1961] HCA 42; (1961), 108 C.L.R. 56; R. v. Tralka, [1965] Qd. R. 225, distinguished.

Criminal Trial.

Kipali-Ikarum was charged that on or about 28th February, 1967, he wilfully murdered his wife Munam-Iara. The facts appear sufficiently from the judgment. On 3rd October, 1967, his Honour ruled that the dying declaration of Munam-Iara was admissible in evidence and that he would publish his reasons at a later date. On 5th October, 1967, his Honour convicted the accused of murder and delivered a short oral judgment again indicating reasons would be published at a later date. The ruling and judgment reported hereafter were delivered after the conclusion of the trial.

Counsel:

Mrs. I. Luke, for the Crown.

Lindsay, for the accused.

3 October 1967

CLARKSON J:� At this trial the accused is charged with the wilful murder of his wife. The Crown seeks to lead evidence, to which objection has been taken, of certain statements said to have been made by the deceased wife after she had suffered the injuries which caused her death and shortly before she died. These statements refer to the cause of her death and identify her assailant.

The contention for the Crown is that such statements by the deceased woman constitute what is commonly known as a dying declaration and as such are admissible as evidence of the matters contained in them.

There are several kinds of statements by deceased persons which may be receivable as evidence of the truth of their contents. One of these is a dying declaration. The common-law rule as to the admissibility of a dying declaration is stated by Cross on Evidence, 2nd ed., p. 419, as follows: �The oral or written declaration of a deceased person is admissible evidence of the cause of his death at a trial for his murder or manslaughter provided he was under a settled, hopeless expectation of death when the statement was made and provided he would have been a competent witness if called to give evidence at that time.� In some jurisdictions where this common-law rule applied, it has been dealt with by statute in a variety of ways.

Section 242 of the Criminal Procedure (1955) of South Africa[cxcii]²ï¿½provides that a declaration made by any deceased person upon the apprehension of death shall be admissible or inadmissible in evidence in every case in which such declaration would be admissible or inadmissible in any similar case depending in the Supreme Court of Judicature of England.

Section 33 of the Evidence Act (1945) of Nigeria[cxciii]³ï¿½provides that statements written or verbal of relevant facts made by a person who is dead are themselves relevant facts in certain cases including the following:

�When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person�s death comes into question; such statements are relevant only in trials for murder or manslaughter of the deceased person and only when such person at the time of making such declaration believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery.�

Section 408 (1) of the Crimes Act 1900 (N.S.W.) (as considered in R. v. Donohoe[cxciv]⁴) provided that every declaration by a person since deceased shall be admissible in evidence �in any case where a dying declaration is now admissible�, if the declarant was at the time aware of his danger and on the whole believed that he would shortly die although he entertained some degree of hope.

It will be seen that in South Africa the common-law rule applied in England was adopted without modification. In Nigeria the rule has been completely restated in terms which differ in some respects from the common law, whilst in New South Wales the section referred to above �has relaxed the strictness of the common law as to dying declarations by sanctioning their admission although the declarant entertained some degree of hope� (R. v. Donohoe[cxcv]⁵).

The Criminal Procedure Ordinance of 1889 of Papua was adopted in the Territory of New Guinea on 9th May, 1921, on the same day as the Laws Repeal and Adopting Ordinance 1921.

Section 16 of the latter ordinance provides:

N2>�16.��� The principles and rules of common law and equity that were in force in England on the 9th May 1921 shall be in force in the Territory so far as the same are applicable to the circumstances of the Territory and are not repugnant to or inconsistent with the provisions of any Act, Ordinance, law, regulation, rule, order or proclamation having the force of law that is expressed to extend to or applied to or made or promulgated in the Territory.�

Section 32 of the Criminal Procedure Ordinance provides:

N2>�32.��� The declaration of a deceased person whether it be made in the presence of the accused person or not may if the Chief Magistrate shall see fit be given in evidence if the deceased person at the time of making such declaration believed himself to be in danger of approaching death but yet had hopes of recovery.�

The Crown�s first argument is that s. 32 has effected a sweeping change of the law and that the test of whether a dying declaration is admissible at a criminal trial as evidence of the facts therein stated, is now contained wholly within that section and that the court is not obliged to have regard to the common-law rule.

An alternative view conceded by the Crown as possible is that argued by the defence, namely that s. 32 merely effects a minor refinement of one of the common-law conditions of admissibility in that while the common law would admit only statements of a declarant who had a settled, hopeless expectation of death the court can now admit the statement of a declarant who believed himself to be in danger of approaching death but yet had hopes of recovery. On this view the common-law requirements, except as modified in this particular respect, still operate.

After consideration I have reached the conclusion that the Crown�s first contention is not correct.

I see s. 32 as merely supplementing the common-law rule which was made applicable in the Territory by the Laws Repeal and Adopting Ordinance.

At common law, provided a dying declaration satisfied certain conditions, it was admissible and its admissibility did not depend in addition on the exercise of a discretion in the court to admit or reject.

To the category of declarations which, if they satisfy the required conditions, the court is bound to admit has been added a further category of declarations which the court in its discretion may admit. The two categories do not overlap since no declaration which is admissible only by reason of s. 32 could be admitted at common law.

The section deals only with declarations made in a particular and no doubt somewhat rare circumstance, namely, that at the time of making the declaration the declarant believed himself to be in danger of approaching death but yet had hopes of recovery. When the declarant believes, without hope of recovery, that he is about to die or when, as it is commonly said, he has a settled, hopeless expectation of death, the section has nothing to say.

If the Crown�s first contention were correct then the only category of dying declarations which can now be admitted are those where the declarant has hopes of recovery. This would exclude all the dying declarations admissible under the common law. I prefer the view that the section was aimed at and has achieved an expansion of the class of dying declarations which are admissible.

I appreciate that this construction of s. 32 does not resolve all the difficulties which can arise. At some time it may be necessary to decide whether a declaration admissible under s. 32 is only admissible at a trial for the murder or manslaughter of the declarant, whether it is only admissible in so far as it relates to the cause of the declarant�s death and whether it is only admissible if the declarant would have been a competent witness. However, these questions do not arise in this trial and it is unnecessary to express a final opinion on them. I merely say that the fact that a declaration may be admitted under s. 32 only if the court shall see fit ensures that the construction I have placed on s. 32 is unlikely to lead to injustice or absurdity.

My view is therefore that in the circumstances so far revealed, s. 32 of the Criminal Procedure Ordinance has no application and that the admissibility of the statements made by the deceased woman falls to be determined under the principles and rules of the common law adopted by s. 16 of the Laws Repeal and Adopting Ordinance.

There is ample to show that the common-law conditions of admissibility literally read are satisfied in the present case. The deceased�s statement relates to the cause of her death; it was made when she had a settled, hopeless expectation of death; she died shortly after it was made; the statement is tendered as evidence at the trial of the accused for the deceased�s murder and the declarant, if she had lived, would have been competent, whether sworn or affirmed, to give evidence at this trial.

But the defence maintains that this is not enough. Counsel has referred me to dicta in a number of cases which indicate that a further element may be necessary. In R. v. Hope[cxcvi]⁶�Madden C.J. said: �The general principle on which courts of justice act is that testimony should be given on oath and with all the solemnity that an oath suggests. In the case of a person who is actually dying, however, and who must be conscious of the cumulative responsibility which comes upon every human being of speaking the truth in the same Presence as if on oath administered in the box, it is thought highly probable that he will tell the truth. Such a person has no motive to tell a lie. All resentment and vindictiveness will probably have faded down, for before many moments that judgment must be faced which we are all taught to expect. It is thought that the sanction upon the conscience in such circumstances to tell the truth will be at least as great as taking the oath in the witness-box.�

In that judgment the learned Chief Justice quotes from the judgment of Eyre C.B. in R. v. Woodcock[cxcvii]⁷, portion of which Cross on Evidence, p. 419, sets out and refers to as �the classic statement of the rationale of this exception to the hearsay rule�. These words are: �Now the general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice�[cxcviii]⁸. The Chief Baron goes on to refer to the point in Woodcock�s case[cxcix]⁹, namely, whether the deceased at the time of making the declaration �herself apprehended that she was in such a state of mortality as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertions�. In that case the deceased was �a baptized mulatto and native of the East Indies� to whom an oath had been administered because she �appeared sensible of the impiety and dangers of falsehood�. Apparently there was no further inquiry as to her religious beliefs.

There are a number of other cases in which the same sentiments are expressed and from these the defence argues that when, for any reason, it appears that the declarant may not have held a belief in divine punishment or reward after death the court is placed on inquiry and that the absence of any such belief on the part of the declarant make the declaration inadmissible.

If this is so, there appears to be remarkably few cases in which the inquiry has been undertaken.

In 1829 in R. v. Pike[cc]¹⁰�Parke J. said: �We allow the declaration of persons in articulo mortis to be given in evidence, if it appear that the person making such declaration was then under the deep impression that he was soon to render an account to his Maker. Now, as this child was but four years old, it is quite impossible that she, however precocious her mind, could have had that idea of a future state which is necessary to make such a declaration admissible.�

In 1840 in R. v. Perkins[cci]¹¹ï¿½a dying declaration had been made by a ten year old boy and was objected to on the ground that �unless there be some evidence that the deceased was acquainted with the nature of an oath his declaration in articulo mortis is not receivable�. The child had said he expected to go to hell if he told a lie and to heaven if he told the truth and Alderson B. said, �the deceased says he expects to be punished hereafter if he does not tell the truth�. The declaration was held properly receivable.

Thereafter except for three cases to which I will refer, I am unable to find in the reports available to me, any case in which an inquiry or the necessity for it, is referred to.

It is interesting to note that since legislation was passed in the latter part of the 19th century, permitting atheists and agnostics to give evidence on affirmation, there appears to be no case in the reports in which the court has been called on to consider the admissibility of the dying declaration of an atheist or of an agnostic and in the period of more than a hundred and twenty years since Perkins� case, I find no case where the beliefs of a person professing to be a Christian were examined to determine whether in fact the declarant held a belief in divine punishment (cf. R. v. Barclay[ccii]¹²).

In 1900 in R. v. Kuruwaru[cciii]¹³ï¿½the Full Court of Queensland ruled admissible the dying declaration of a Mohammedan. The argument against its admission is reported as follows: �The rule as to the admission of dying declarations was a strong exception to the criminal law; that the rule was introduced at a time when the common law was still confined in its operation to persons resident in Great Britain, who were presumedly Christians; the courts took notice of the Christian religion and its doctrines, but with regard to Mohammedanism, the mere proof that a man professed that religion would not entitle the judge to draw the inference, without evidence of the fact, that that religion inculcated in its adherents the sinfulness of falsehood and the likelihood of punishment hereafter for false declarations made in life�[cciv]¹⁴. Griffith C.J. for the court said: �I know of no rule of law which would exclude the dying declarations of a Mohammedan. Mohammedanism, as we know, is one of the great religions of the world. Its adherents number some hundreds of millions of people, of whom more than 100,000,000 are British subjects. We see them giving evidence in our courts, and taking the oath on the Koran. It would be a singular thing, indeed, for a British court to decide that the dying declaration of a Mohammedan is not admissible on the ground that he had no religious belief�[ccv]¹⁵.

In an unreported decision R. v. Wadderwarri (see �A Matter of Theology� by P. Brazil[ccvi]¹⁶) Kriewaldt J. in the Supreme Court of the Northern Territory excluded the dying declaration of an Australian aborigine. His Honour is reported as saying to the jury: �The law in this Territory is that aborigines are tried according to exactly the same rules and according to exactly the same law as white people are tried. You saw an example of that this morning. If the accused had been a white person, and if the deceased had been a white person, it is almost certain that the evidence which Mr. Ryan proposed to tender of what the deceased had said when he was about to die would have been admitted, but because I have to apply the same rules to aborigines and whites I did not admit that evidence on the basis that the reason for admitting the evidence in the case of a white person is that he has a belief that God will punish him if he tells a lie just as he is about to die. So far as the aborigines are concerned, we know that they have not that type of belief in the hereafter and therefore, applying the same rule to aborigines as I do to whites, I excluded any statement the deceased might have made shortly before his death�[ccvii]¹⁷.

There is nothing to indicate what inquiries had been made before the declaration was ruled inadmissible.

The last of the three cases to which I referred earlier, is R. v. Madobi-Madogai[ccviii]¹⁸.

This was a decision of Ollerenshaw J. given at Losuia in the Trobriand Islands. His Honour found that the declarant believed he was about to die and was without hope of recovery. Section 32 of the Criminal Procedure Ordinance which is not referred to in the report therefore had no application and the learned judge after reference to Wadderwarri�s case[ccix]¹⁹�and Woodcock�s case[ccx]²⁰�said: �It is generally assumed that such a sanction exists where the deceased was a civilized member of a Christian community and such an assumption is made in the application of the principle in Australia, but, I have not had occasion to consider its application to the dying declaration of a member of a native community in this Territory. However, I apprehend that it is based upon the Christian belief in a hereafter and that the �most powerful considerations to speak the truth� are those which exercise the mind of a Christian about to meet his Maker. This exception to the hearsay rule evolved under a strong sense of punishment for falsehood and other sins.

It may very well be that the principle would apply, also, in the case of members of other faiths, holding beliefs materially similar to those of Christianity. I imagine that it would be applicable to some natives of this Territory, particularly those who have been admitted, with understanding, into the Christian faith; but, what little I do know about the expectations for their illimitable future of the natives of this community here in Kiriwina does not lead me to think that they anticipate anything like a judgment upon their sins that would create a solemn sanction to speak truthfully upon the eve of such a judgment. I understand that their traditional belief was in some sort of existence, after this life, upon those uninhabited islands which may be seen from the wharf and its approaches�[ccxi]²¹.

The learned judges who decided Wadderwarri�s case[ccxii]²²ï¿½and Madobi�s case[ccxiii]²³ï¿½approached the problem in much the same way. In Wadderwarri�s case Kriewaldt J. said that �the reason for admitting the evidence in the case of a white person is that he has a belief that God will punish him if he tells a lie just as he is about to die�. This I think must be read in its context as containing the assumptions firstly, that �white persons� in the Northern Territory are Christians and secondly, that as Christians they believe in divine punishment. To the extent that the passage suggests that the religious beliefs of �white people� might be examined by the court to ascertain whether a belief in divine punishment was in fact held it suggests a course which does not appear to have been followed in Australia, nor since 1840 in England.

As Ollerenshaw J. says in Madobi�s case[ccxiv]²⁴�the sanction is assumed to exist where the deceased is a civilized member of a Christian community and such an assumption is made in the application of the principle in Australia and with this I respectfully agree.

In the next step, both the learned judges are able to draw on their wide experience in their respective jurisdictions. Kriewaldt J. says �we know that aborigines do not have that type of belief in the hereafter�, and Ollerenshaw J. also takes judicial notice of the religious beliefs of the inhabitants of Kiriwina.

I hesitate not to follow two such experienced judges but it is their very experience which leads them where I, lacking their same experience, cannot follow. I have no knowledge of what beliefs might be held by inhabitants of the Laiagam area and therefore cannot say whether any non-Christian beliefs which may be held there contemplate punishment after death and if so for what sins.

In the present case the evidence of the deceased�s father is that although she was not baptized, the deceased used to attend a Lutheran Mission Church before her marriage and also attended a church, I gather of another denomination, after her marriage.

The annual reports for Papua and New Guinea (1965) show that almost 3,000 non-indigenous Christian missionaries are in the Territory and claim adherents in excess of 1,250,000, which is more than half the total population. Notwithstanding this and the evidence to which I have referred, I could not be satisfied that the deceased had been �admitted, with understanding, into the Christian faith� (R. v. Madobi-Madogai[ccxv]²⁵).

If, as appears to be the case, the personal beliefs of a declarant are not examined in England or Australia, where it can safely be assumed that a sensible part of the community hold no religious beliefs and no belief in divine punishment (see figures quoted by Mr. Brazil, 34 Australian Law Journal 196) it is difficult to see on what basis such an examination should be undertaken in the Territory. The stage may well have been reached when this Court should not embark on the necessary inquiries (cf. Cross on Evidence, 2nd ed., p. 422). This view was apparently followed in South Africa where I have already noted the common-law rule was wholly adopted.

Gardiner & Lansdown[ccxvi]²⁶�states: �It is certain that the courts will not reject a declaration because of the absence of proof by the party who desires to put it in that the declarant had a belief in a future state. Where such proof is adduced, it might be argued that the declaration should not be admitted, since the consideration which chiefly influences the law in the acceptance of this class of proof is absent, namely, the assumption that a person who is aware of his impending dissolution will be no party to falsity if he believes that he is shortly to stand in the presence of his Maker to whom account must be rendered. As qualifying this view, it must be noted that it is the established practice in South Africa to accept the dying declarations of heathen natives who, notwithstanding vague notions of a future existence, have little idea of future accountability for falsehood in the Christian sense. This is an instance of a tendency, frequently seen in legal and other human affairs, to extend the operation of an established practice to cases which, at the inception of the practice, would not have been regarded as proper for its application.�

In the article referred to by counsel[ccxvii]²⁷�the author takes the view that there is in law a requirement that the declarant should have a belief in divine punishment; that the significance of this requirement is substantially affected in practice by a presumption that the belief exists but that if the court is satisfied that the declarant had no such belief, the declaration will be rejected.

Other suggestions have, however, been made as to the basis on which dying declarations are admitted. �The grounds of admission are necessity, since if the evidence of the victim were excluded such crimes might often go unpunished, and the sense of impending death which may provide a potent incentive to speak the truth�[ccxviii]²⁸. See also Phipson[ccxix]²⁹, where the grounds of admission are stated to be �(1) death; (2) necessity, for the victim being generally the only eye-witness of such crime, the exclusion of this statement would tend to defeat the ends of justice; and (3) the sense of impending death which creates a sanction equal to the obligations of an oath�.

I note also the opening passage of the judgment of Madden C.J. to which I have already referred (R. v. Hope[ccxx]³⁰): �It seems to me the principle upon which these dying declarations are admissible in evidence against persons charged with murder or manslaughter is that it is eminently important in the administration of justice that the truth shall be found, in order that those guilty of committing such crimes shall not escape.�

The considerations to which I have referred lead me to the conclusions that the deceased�s declaration should be admitted in evidence. The true position may well be that referred to earlier, namely, that this court would not now embark on inquiry as to the personal religious beliefs of a declarant to determine admissibility as opposed to weight, but in any event the evidence here is that the deceased was a woman of mature age who had received some instruction in the Christian religion and who attended a Christian church. She lived in a community a large number of the members of which are claimed to be adherents of the Christian faith. One may well doubt whether she or many of her neighbours had a proper understanding of that faith but it has not been shown that the deceased, whether supported by the Christian faith or the beliefs of her ancestors or a synthesis of them, had no belief in a future state after death.

In these circumstances, once it appears, as it does, that the deceased would have been a competent witness at this trial, I am prepared to rule that the declaration is admissible. What weight should be given to it I will determine at a later stage.

Ruled: Dying declaration to be admitted in evidence.

CLARKSON J:� It is clear from the evidence that the deceased died as a result of injuries received following an argument with her husband, the accused. There was no independent witness of the events which occurred. The accused has told me his version of what happened and I have admitted in evidence certain statements made by the deceased. In addition an amount of relevant circumstantial evidence has been given by other witnesses.

The basic facts are largely undisputed. The accused and the deceased were in their house together. The accused attacked the deceased, who was unarmed, with an axe handle which he was making. Immediately after the attack the accused left his village and the deceased was found in the house suffering from a number of injuries. The injury which caused her death was a fractured skull.

The axe handle used by the accused was an instrument capable of causing serious injury and I am satisfied that one blow from it fractured the deceased�s leg. The accused says that he was annoyed because he had been insulted and it is obvious that he was not gently chastising his wife but attacking her with the intention of causing grievous bodily harm.

If these were the only relevant facts it would be difficult to escape the conclusion that the accused should be convicted of murder. There is however, a complicating factor on which the defence strongly relies.

I do not review the whole of the evidence but I am satisfied that during the attack the accused dislodged some fire wood which was suspended from the roof of the house and that this fell, some of it on or near the deceased. I am not satisfied on the evidence that the accused intentionally dislodged the fire wood. The defence argues that the fall of fire wood may have caused the fatal head injury, that the Crown has not excluded this beyond reasonable doubt as the cause of death, and that in those circumstances the Crown has not excluded a defence of accident raised under s. 23 of The Criminal Code.

Before dealing with this defence, I dispose of one other matter raised by the Crown. At the autopsy conducted some two days after the deceased suffered her injuries, she was found to have a number of puncture wounds in her abdomen. I have listened carefully to the Crown�s submissions but I cannot draw from the existence of these wounds any inference adverse to the accused. They were not fatal; there is no attempt to explain how or when they occurred; they need not have occurred at the same time as the other injuries. There is no evidence of any weapon available to the accused which could have caused them. The nature and spacing of the wounds and the angle of intrusion are not suggestive of the hot-headed attack which the accused made but of some more deliberate procedure, the object or author of which I do not attempt to identify. I merely say that on the evidence I cannot hold them against the accused.

I turn now to the defence raised under s. 23. The Crown maintains that the wood which fell could not have caused the fatal injury. This may well be so. The wood was not produced and the descriptions of it and of the distance from which it fell varied markedly. However, if I give some weight to the evidence of the constable who inspected the scene and saw what was probably the wood which had fallen, it appears that some pieces of it were quite substantial in size and I cannot assume even if the deceased were standing when the wood commenced to fall, that some of it did not hit her after she herself had fallen. Also I note Dr. Pharaoh�s opinion that in a fall of wood of the size described to him, which was that specified by the witness Aiak, a head injury of the sort suffered by the deceased could be caused.

As I indicated yesterday, in the course of argument it is easy to take only the circumstances in which the attack commenced and some of the medical evidence and say that the fatal injury was caused by a blow to the head by the axe handle. This is of course a definite possibility but after considering all the evidence I do not have that degree of satisfaction which I think I should have in that conclusion to exclude on a consideration of the facts the argument put forward by the defence.

The facts then on which the accused�s criminal responsibility must be determined may be summarized as follows. The accused commences an attack on his defenceless wife with an axe handle intending to cause her grievous bodily harm and he succeeds in causing some harm of this nature. In endeavouring to pursue his attack he dislodges some fire wood stored in the roof above him which inflicts the same sort of injury on his wife as he himself was attempting to inflict and which he was in the circumstances capable of inflicting.

This is not a fact situation similar to that in any of the cases to which I was referred. In R. v. Martyr[ccxxi]³¹ï¿½and Mamote-Kulang of Tamagot v. The Queen[ccxxii]³²ï¿½the intended blow struck home but had unexpected results. In Vallance v. The Queen[ccxxiii]³³ï¿½the bullet fired by the accused inflicted the wound although its path may have been altered by ricocheting. In R. v. Tralka[ccxxiv]³⁴�the wrong person may have been hit merely because of the unexpected halting of the vehicle.

Nor is it a case where a gentle blow delivered by way of reprimand is converted by some chance to a lethal blow. It is no doubt to some such situation as that that Mansfield C.J. and Philp J. referred in Martyr�s case. Here the blow of the axe handle was just as likely, if not more likely, to cause the same injury as the falling wood is assumed to have caused, and the blow with the axe handle was certainly intended to cause such injury.

I do not attempt to formulate any general reconciliation of ss. 23 and 293. I respectfully adopt what Dixon C.J. said in Vallance v. The Queen[ccxxv]³⁵�when discussing the terms of a similar provision in the Tasmanian Criminal Code: �Indeed I think that it is only by specific solutions of particular difficulties raised by the precise facts of given cases that the operation of such provisions . . . can be worked out judicially.�

I am content to summarize my view of the present case by saying that the accused attacked intending to cause grievous bodily harm. In the course of the attack he directly or indirectly caused the fatal injury and consequently the death of his wife (see s. 293). This fits exactly the definition of murder (see s. 302 (1)).

He made his attack in the confined space of the house. Once the attack commenced, injury of the sort intended could easily have occurred in a number of ways.

I think I can imagine some sets of events in which chance intervenes so decisively as to remove what happens thereafter from the operation of s. 293.

I think I can also imagine situations in which s. 23 would have no application; for instance, if, as the accused struck, one piece of fire wood had been dislodged and had fallen so as to be interposed between the axe handle and the deceased�s head at the moment of impact and the same sort of injury had been caused as that which the axe handle would have inflicted, I do not think s. 23 would have any application.

If, as occurred here, the force applied to the axe handle is absorbed in setting in motion the fire wood which inflicts the intended injury, again I cannot see how the section applies. All that can be said is that the intended injury was inflicted although not precisely in the manner intended.

It is unnecessary to pursue the inquiry further. In particular it is not necessary for my decision to suggest any hypothesis of which s. 23 would apply in circumstances similar to those of the present case nor to decide whether the accused, if not guilty of murder, was guilty of criminal negligence.

I return a verdict of 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.