Maino v The State [1977] PGSC 9; [1977] PNGLR 404 (26 October 1977)

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CRIMINAL LAW - Murder - Death caused by act done in prosecution of unlawful purpose, which act likely to endanger life - Violent assault upon deceased - Principles applicable - Whether evidence sufficient to support finding that the assault was the cause of death - Death from reflex vagal inhibition - Substitution of verdict of manslaughter - Criminal Code s. 305(b)[cdxxxvi]¹.

The appellant was convicted under s. 305(b) of the Criminal Code of the murder of one Patrick, who died after the appellant had knocked him down and stamped heavily on his neck 6 or 7 times, which it was found by the trial judge disastrously affected his heart mechanism causing death by reflex vagal inhibition. The appellant, who was seriously affected by alcohol, had, it appeared, attacked the deceased after a fight between the deceased and a third man in which the deceased had knocked a large hole in the wall of the appellant�s house. On appeal against conviction and sentence of 5 years and 5 months imprisonment with hard labour (after taking into account 7 months in custody awaiting trial);

N1>(1)�� Section 305(b) of the Criminal Code relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful; the dangerous act and the unlawful purpose being distinct.

N1>(2)�� In the circumstances, the finding by the trial judge that the accused caused the death of the deceased was the only reasonable inference to be drawn from the evidence.

N1>(3)�� Section 305(b) of the Criminal Code was inapplicable to the circumstances of the case.

N1>(4)�� Accordingly, the conviction for murder should be set aside, and a conviction for manslaughter and sentence of 3 years and 5 months imprisonment with hard labour substituted.

This was an appeal against conviction and sentence on a charge of murder, the conviction being made pursuant to s. 305(b) of the Criminal Code.

FROST CJ: The appellant appeals against his conviction for the murder of one Patrick Yawi. It is a sad case because the deceased was the appellant�s grandfather to whom he was devoted.

The trouble arose at a New Year�s party at the appellant�s home in Port Moresby. A large amount of liquor was consumed. In the early hours of the morning an argument developed between the deceased man and another called Koga, in the course of which deceased pushed Koga against the wall of the house. A large gap was opened in the wall. The appellant as the householder naturally became very angry and started to fight both men. Koga ran away. The appellant then struck the deceased who fell to the floor. The appellant proceeded to stamp him hard upon the neck six or seven times. Blood began to flow from Patrick�s mouth, but there is no clear evidence as to whether he died in the house or on the journey to the hospital or at the hospital. Upon post-mortem the pathologist, Dr. Aiken, could find no obvious cause of death. It was an instance in his opinion of reflex vagal inhibition, or interference with the function of vital organs due to injuries inflicted.

The trial judge�s finding that the appellant�s assault upon the deceased was the cause of death was challenged as one main ground of the appeal. But in my opinion the finding was clearly open to the judge. Upon this ground I agree with the reasoning of Williams J. and Raine J., whose judgments I have read in draft, and I do not wish to add anything.

As no other defence was available to the appellant he was thus criminally responsible for the unlawful killing of Patrick. The issue then before the trial judge was whether the crime was murder or manslaughter.

The trial judge�s finding that the appellant was appreciably under the influence of liquor had of course a direct bearing upon whether there was sufficient proof of an intent to do grievous bodily harm under the Criminal Code s. 305(a). Intoxication may be regarded for the purpose of ascertaining whether such an intention existed, Criminal Code s. 28. The trial judge was satisfied that the appellant knew well what he was doing so that the assault could not be said to be an unwilled act, but the fact that his Honour proceeded to apply s. 305(b) indicates clearly enough that he was not satisfied upon the evidence that such an intention was proved.

This brings me to the other main ground of appeal which challenges the trial judge�s finding that, within the meaning of s. 305(b), �the accused embarked on an unlawful purpose, namely seriously to assault Patrick Yawi; that he did so assault Patrick Yawi; and that the nature, severity and persistence of his assault was such as was likely to endanger Patrick Yawi�s life and that his assault did cause Patrick Yawi�s death,� and the consequent conviction of murder. This ground of appeal was not opposed by Mr. Ryan. If it succeeds the case remains one of manslaughter.

An examination of the true effect of s. 305(b) does, in my opinion, show that it is inapplicable to the facts of this case. In Australia it has been held by the High Court that the effect of the corresponding provision in the Queensland Criminal Code (s. 302(2)) relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful. Hughes v. The King[cdxxxvii]². In that case the accused was convicted of murder on evidence which showed that he assaulted the deceased woman by violent and repeated attacks on her and that she died as a result of his blows. It was held that there was an error on the part of the trial judge in directing the jury that the accused could be found guilty under s. 302(2) if he unlawfully assaulted the deceased in such a way as to be likely to endanger her life and her death resulted. So the present case is on all fours with that case. This decision was followed in the pre-Independence Supreme Court in the case of Reg. v. Koito Kartogati[cdxxxviii]³.

In my opinion the High Court�s construction of the provision in question is sound and I would adopt it as applicable to s. 305(b). It is thus essential that the dangerous act relied upon by the prosecution and the unlawful purpose should be shown to be distinct. Cases in which it has been held that the provision in question is applicable include Reg. v. Gould and Barnes[cdxxxix]⁴, where the dangerous act was the introduction of a liquid solution into a woman�s body, there being a supervening unlawful purpose to abort her, and Reg. v. Hansen[cdxl]⁵, where an old woman was killed by a shot discharged by the accused from a rifle when she surprised him ransacking her house, and he had armed himself with it for use if he was discovered. Reg. v. Koito Kartogati[cdxli]⁶�was a similar case.

There are cases where the application of the provision has caused difficulty. In R. v. Nichols & Ors.[cdxlii]⁷�the trial judge was unable to conclude on the facts that there was any unlawful purpose other than the particular act adopted as the means of setting fire to a hotel which resulted in the death of an occupant. (In Downey v. The Queen[cdxliii]⁸, it was suggested that this was perhaps a narrow interpretation). However, it is unnecessary in this case to examine the limits of the operation of s. 305(b). It is quite clear that where personal injury to the victim is the unlawful purpose relied upon, that provision is not applicable and the prosecution must rely on s. 305(a) if it is contended that the act amounts to murder. This was the conclusion reached by the New Zealand Court of Appeal under a provision of the New Zealand Crimes Act 1961 which is similar in effect to s. 305(b). Downey v. The Queen[cdxliv]⁹�at p. 103. It must be so, because, as was pointed out by Philp J. in the earlier case of R. v. Gould and Barnes[cdxlv]¹⁰, otherwise the provision �would make a man guilty of murder if, without any intent to do grievous bodily harm, he killed by an unlawful act which, in fact, was likely to endanger human life.�

For these reasons, in my opinion the conviction and sentence for murder should be set aside and a verdict of manslaughter substituted. I agree with Raine and Williams JJ. that the appropriate sentence is three years and five months� imprisonment with hard labour.

RAINE J: The trial judge convicted the appellant of murder. The appellant�s counsel submits that the facts in this case are such that a verdict of guilty on the charge of murder was not open to his Honour and that at the very worst his client could only have been convicted of manslaughter.

The facts of the case are within a short compass. Those involved in the affair were quite seriously affected by liquor. The deceased pushed another man with considerable force causing the man pushed to be projected through the wall of the appellant�s house. Naturally enough, this upset the appellant, who attacked the deceased and jumped and stamped six or seven times on the deceased�s neck.

Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:

(a)�� if the offender intends to do to the person killed or to some other person some grievous bodily harm; or

(b)�� 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; or

As I read his Honour�s judgment he put aside subsection (a) and at the conclusion of his judgment said as follows:

�I find myself satisfied therefore to the requisite degree (that is beyond reasonable doubt), that the accused embarked on an unlawful purpose, namely seriously to assault Patrick Yawi; that he did so assault Patrick Yawi; and that the nature, severity and persistence of his assault was such as was likely to endanger Patrick Yawi�s life and that his assault did cause Patrick Yawi�s death. Consequently I must convict him of murder.�

Counsel for the appellant submits that his Honour should have followed the decision of the High Court in Hughes v. The King[cdxlvi]¹¹, which was followed here by Kelly J. in The Queen v. Koito Kartogati[cdxlvii]¹². Hughes v. The King[cdxlviii]¹³�is authority for the proposition that the assault on the deceased did not constitute both the unlawful purpose and the dangerous act. There must be both an initial unlawful purpose and some further and unlawful act before s. 305(b) can be invoked. As an example, the house-breaker armed with a knife who kills the householder is caught by s. 305(b), his unlawful act being the breaking into the house, his act likely to endanger human life being the carrying and the wielding of the knife.

Counsel for the State did not suggest that Hughes v. The King[cdxlix]¹⁴�was wrongly decided or that it should not apply. Like Frost C.J., I believe that judgment to be a sound one.

Thus, as his Honour the trial judge does not appear to have considered s. 305(a) it is apparent that the appellant should only have been convicted on a charge of manslaughter, but this is subject to some further considerations which I will now turn to.

N2>�2.�� The decision was against the evidence and the weight of evidence in that:

(ii)�� the learned trial Judge found that �Patrick Yawi died from the stamping inflicted on him by the accused, which disastrausly affected his heart mechanism.�

(iii)�� the learned trial Judge found that he was �convinced in any event, that the accused was roused to a pitch of anger by the damage to his house wall; and knew well what he was doing, when he attacked Patrick Yawi.� �

In view of the decision I have come to as to manslaughter there is no need for me to examine 2(iii).

So far as 2(i) and (ii) are concerned I can find no fault with the finding of the trial judge that the accused caused the death of the deceased. It is true that his Honour�s finding was based on what is called circumstantial evidence. Whilst such evidence must be viewed intelligently and carefully, it has often been said that it can be more effective than, or as effective as, direct evidence from eye witnesses.

N2>3.�� In what was apparently a drunken brawl the deceased pushed a man called Koga violently enough to cause Koga to crash against a wall of the house, damaging it extensively, and leaving a large hole. Koga ran away.

N2>4.�� Naturally enough this upset the accused, who was quite seriously affected by liquor. He attacked the deceased, and when the latter was on the ground, jumped or stamped hard on his neck with his bare feet.

N2>5.�� The deceased was rendered unconscious, some blood came from his mouth which fell on the floor. He did not die then and there; it is not clear when he perished. But he was dead at the hospital a few hours later.

N2>6.�� There is no evidence at all that the deceased was injured in his altercation with Koga; he was the victor in that earlier fight.

N2>7.�� Dr. Aiken, who is qualified by a post-graduate fellowship and by experience as a pathologist, examined the body of the deceased. He found no �visible� cause of death. The deceased did not have bruises and so on. He had no disease state. Dr. Aiken found the body to be that of a male Melanesian in his mid-thirties, the body being slightly obese. The eye-witness makes it clear the deceased was pretty active just before he was dealt with by the accused. Dr. Aiken observed, like the eye witness, some blood coming from the the mouth. He also saw some emerging from the nose.

N2>8.�� He found a significant quantity of alcohol in the deceased�s blood. He was asked �could alcohol be the cause of his death?� He answered �I do not think alcohol alone could possibly have caused this man�s death.� (Emphasis mine.)

N2>9.�� Dr. Aiken presumed, given that it is accepted that the accused stamped on the deceased man�s neck, that death, in absence of �visible� signs, occurred as a result of reflex vagal inhibition following untoward stimuli, even though, as he states, this need not always be super violent. He called on his own experience here as to this type of death, but also relied on Taylor�s Principles and Practice of Medical Jurisprudence, 11th ed., which wholly supports him. It seems that blows, or trauma, applied in certain areas, can simply bring the mechanism of the body to an abrupt and tragic halt. Everything�� stops. The latest edition, the 12th, of Taylor instances the Commando chop. Even a blow to the testicles can have this effect. Other examples, some quite surprising and frightening, are given.

N2>10.�� Dr. Aiken discounted any other cause of death. He conceded alcohol could be a contributing factor in the sense that vital organs prone to disturbance might be sensitized to functional disturbance.

The doctor makes it clear that this sort of death is not out of the ordinary. He has seen a number of similar cases since coming here in 1973.

Counsel for the appellant submits that the above matters are far from sufficient to establish that death was caused by the accused. I fail to see why not. What other reasonable hypothesis is there? In my opinion his Honour fell into no error. He drew a reasonable inference from the evidence, indeed, what other inference was there to draw?

His Honour passed an effective sentence of six (6) years, this for murder. What, therefore, would be an appropriate sentence for manslaughter?

It must be borne in mind that death was not caused by a single blow, this is not the case of an accused lashing out with one blow, with tragic but rather unexpected consequences. It is not, as Mr. Lalor suggests, a case analogous to a spleen killing.

In the appellant�s favour is the fact that he was justifiably angry and this whilst affected by liquor. It is also in his favour that he was a man of good character with a good family background.

In my opinion, bearing in mind he was seven (7) months in custody awaiting trial, an appropriate sentence is one of three years and five months.

WILLIAMS J: The above-named appellant was convicted of the murder of one Patrick Yawi and was sentenced to imprisonment in hard labour for five years and five months. He had been in custody for about seven months awaiting trial.

He appeals to this Court on grounds involving certain questions of law and seeks the leave of the Court to appeal on certain findings of fact.

The evidence discloses that on the night of 31st December, 1976, a party took place at the residence of the appellant in Port Moresby. It is clear that a large quantity of liquor was consumed. During the night the deceased man Patrick and a man named Koga took part in a fight during the course of which Patrick pushed Koga through a wall of the house. The appellant then fought with Patrick and Koga. Koga ran away but Patrick was knocked to the ground by the appellant who then stamped on Patrick�s neck six or seven times. Blood then poured from Patrick�s mouth. According to the evidence of one Fodi Eva, who had not been drinking, Patrick was then unconscious but breathing. This was at about 4 a.m. He did not see Patrick struck by anyone else. Patrick was then taken to the hospital. The learned trial judge accepted the evidence of Fodi Eva as being a truthful account of his observations.

Constable Peter Paia gave evidence that he went to the hospital at about 8 a.m. where the body of Patrick was identified to him by Fodi Eva. There is no evidence as to the precise time of death of Patrick although it appears to have been at some time between 4 a.m. and 8 a.m. on 1st January, 1977.

Dr. Aiken, a pathologist employed at the Port Moresby General Hospital, gave evidence of having conducted a post-mortem examination upon the body of Patrick on 7th January, 1977. He observed a small amount of blood coming from the mouth and nose but found no other significant injuries. There was no evidence of bruising or other injury around the neck and he could find no obvious cause of death. Dr. Aiken also said that it was well known amongst medical men that death can result from injury to certain parts of the body in the absence of any visible signs of such injury. This was known as death from reflex (vagal) inhibition. In these cases death is presumed to result from interference with the function of vital organs such as the heart. For example, blows to the neck can produce stoppage of the heart by stimulating nerves in the neck that control the action of the heart. Dr. Aiken went on to say that, since practising as a pathologist in Port Moresby since 1973, he had seen two or three similar cases per year. He also thought that it would be very unlikely that a person would continue to live for several hours after the application of force leading to death from reflex (vagal) inhibition.

The crime of murder is defined in s. 305 of the Criminal Code of Papua New Guinea in the following terms:

Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:

(a)�� if the offender intends to do to the person killed or to some other person some grievous bodily harm; or

(b)�� 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; or

In the first case it is immaterial that the offender did not intend to hurt the particular person who is killed.

In the second case it is immaterial that the offender did not intend to hurt any person.�

The learned trial judge found that the provisions of s. 305(b) were applicable to the circumstances of this case, that is, that the assault by the appellant upon Patrick was an act done in the prosecution of an unlawful purpose within the meaning of the subsection, that the act was of such a nature as to be likely to endanger human life and that death ensued from the act.

Two main challenges are made to the findings of the trial judge. First, it is said that as a matter of law the assault by the appellant upon Patrick was not an act done in the prosecution of an unlawful purpose within the meaning of s. 305(b). Secondly, it is contended that the evidence could not support a finding beyond reasonable doubt that the death of Patrick resulted from the assault by the appellant.

As to the first of these contentions counsel for the State conceded that s. 305(b) had no application and that the conviction could not be supported by reference to it.

This concession was, no doubt, made in the light of the decision of the High Court of Australia in Hughes v. The King[cdl]¹⁵�and, in my view, was rightly made.

Section 305(b) of the Papua New Guinea Code was taken from the Queensland Criminal Code and in Hughes v. The King[cdli]¹⁶�the High Court was considering the Queensland counterpart, namely s. 302(2). It was held that the provision relates to an act of such a nature as to be likely to endanger human life when the act is done in the prosecution of a further purpose which is unlawful. In other words the provision can only apply where the dangerous act did not itself constitute the unlawful purpose.

The decision in Hughes v. The King[cdlii]¹⁷�was followed by the New Zealand Court of Appeal in Downey v. The Queen[cdliii]¹⁸. In that case the Court was considering a provision of the New Zealand Crimes Act not in the identical terms of s. 305(b) but to the same effect.

As was observed by Philp J. in Reg. v. Gould and Barnes[cdliv]¹⁹�the contrary view of s. 302(2) of the Queensland Code would make a man guilty of murder if, without any intent to do grievous bodily harm, he killed by an unlawful act which, in fact, was likely to endanger human life. Upon this view of s. 305(b), s. 305(a) of the Papua New Guinea Code requiring an intent to do grievous bodily harm as an element of the crime of murder would be deprived of any effect.

Some difficulties have arisen in the application of the decision in Hughes v. The King[cdlv]²⁰�to particular cases (e.g. R. v. Nichols & Ors.[cdlvi]²¹). But it seems clear on authority that the �unlawful purpose� postulated by s. 305(b) must be something other than personal injury to the victim. An example of circumstances in which s. 305(b) has application may be found in a case where a person breaks into premises with the object of stealing but is confronted by the occupier who is then knifed to death. In that example the act of knifing which caused death was done in the prosecution of an unlawful purpose, namely, the breaking and entering of premises with intent to steal.

I turn to the second ground upon which the conviction of the appellant is challenged. It is said that the evidence could not support a finding beyond reasonable doubt that the death of Patrick resulted from the assault on him by the appellant. On this basis the appellant could not properly be convicted of murder or manslaughter.

After a review of the evidence of Dr. Aiken the learned trial judge expressed himself to be satisfied beyond reasonable doubt that Patrick died from the actions of the appellant stamping upon him which caused his heart mechanism to fail. His Honour also adverted to the fact that, upon the evidence, Patrick was a man about thirty-six years old and that, apart from being slightly obese, had no other apparent disabilities.

It was contended for the appellant that upon the evidence of Fodi Eva, Patrick was still alive about 4 a.m. There was also evidence that he was dead at about 8 a.m. The actual time of death had not been established. It is said that in the intervening four hours anything could have happened to him and that the evidence adduced by the State did not fill this gap.

It is true that there was not evidence of the actual time of death, nor any direct evidence that death resulted from the appellant�s acts. The finding of the trial judge must necessarily therefore have been based upon inference from the facts proved in evidence.

In my opinion the inference drawn by the trial judge was fully open to him on the evidence. To my mind the evidence did not suggest any other reasonable hypothesis. The suggestion that some other factor intervened between the acts of the appellant and the death of Patrick could only stem from mere speculation and not from any evidence given in the course of the trial.

An argument was advanced by counsel for the State (although somewhat faintly) that the verdict of murder could be supported by reference to s. 305(a) of the Code in that it could be inferred from the appellant�s acts that he intended to do grievous bodily harm to Patrick.

The third paragraph of s. 28 of the Code provides that where an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed. The trial judge found that the appellant must have been appreciably under the influence of liquor. He does not appear to have made any specific finding whether the appellant�s degree of intoxication was such as to deprive him of the capacity to form a specific intent. I think it would be unsafe for this Court to take the view that, whilst he had been drinking heavily he nevertheless had not reached the stage of being deprived of his capacity to form an intent. In consequence I do not consider that a verdict of guilty of murder by reference to s. 305(a) can be sustained.

In all the circumstances it is my opinion that the evidence supports a finding of manslaughter and that this finding should be substituted for that of the trial judge. The crime of manslaughter, of course, involves no element of intent to kill or do grievous bodily harm.

It remains to consider the sentence which should be imposed for a conviction of manslaughter. For the appellant it was argued that upon a finding of guilty of manslaughter the Court should treat the matter in the same manner as is often done in �spleen killing� manslaughters where a husband in the course of a domestic argument administers chastisement to his wife and produces an unfortunate and unintended death of his wife by rupturing her spleen. Counsel for the State, however, argued that this case is of a different type and far more serious kind. He further contended that the trial judge had correctly placed stress upon the deterrence aspect having regard to the number of cases of criminal violence coming before the Courts as a result of over-indulgence in alcohol, and that in the event that the Court reached a conclusion that manslaughter was the proper verdict no reduction should be made in the sentence originally imposed.

In my view the case should not be equated with that of a �spleen killing� case. Usually in that kind of case injury results from a single back-handed blow. In this case the appellant after knocking Patrick to the ground stamped on his neck six or seven times. Weight must also be given to the matter of general deterrence having regard to the incidence of criminal assaults following excessive drinking.

However, it has been the usual practice in the National Court to impose sentences of lesser severity for convictions for manslaughter where the element of intent to do grievous bodily harm is absent. In my opinion the proper sentence in the circumstances is one of three years and five months in hard labour, which, having regard to the period of seven months spent in custody by the appellant before trial, makes an effective sentence of four years.

Appeal allowed. Conviction for murder set aside; conviction for manslaughter and sentence of three years and five months imprisonment with hard labour, substituted.

[cdxxxvi]Infra p. 408.

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

[cdxxxviii][1974] P.N.G.L.R. 225.

[cdxxxix][1960] Qd.R. 283.

[cdxl][1964] Qd.R. 404.

[cdxli][1974] P.N.G.L.R. 225.

[cdxlii][1958] Q.W.N. 29.

[cdxliii] [1971] N.Z.L.R. 97 at pp. 102-103.

[cdxliv][1971] N.Z.L.R. 97.

[cdxlv][1960] Qd.R. 283

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

[cdxlvii][1974] P.N.G.L.R. 225.

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

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

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

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

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

[cdliii][1971] N.Z.L.R. 97.

[cdliv] [1960] Qd.R. 282 at p. 292.

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

[cdlvi] [1958] Q.W.N. 29.

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Supreme Court of Papua New Guinea

Maino v The State [1977] PGSC 9; [1977] PNGLR 404 (26 October 1977)

Papua New Guinea Law Reports - 1977