[1971-72] PNGLR 124

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V.

KALIT

Prentice J

7-8 May 1971

CRIMINAL LAW - Unlawful killing - Defences - Act occurring independently of deceased’s will - Event occurring by accident - “Dangerous thing” - The Criminal Code, ss. 23[clv]1, 289[clvi]2.

The accused, a youth, threw a piece of wood at his brother but hit his uncle who was trying to separate the two youths. The blow from the piece of wood ruptured the uncle’s spleen and led to his death. It was found that the accused had no intention of hitting his uncle, whom he did not know was present until just before he threw the wood. The accused was charged with unlawful killing, and raised defences under s. 23 of The Criminal Code.

Held:
That the accused’s act was dangerous, but was not done with reckless indifference: it was an act occurring independently of the accused’s will. The uncle’s death was also an “event occurring by accident” as he unexpectedly received a blow intended for another. On both these grounds the defence under s. 23 succeeded and was not precluded by s. 289, the billet of wood not being a “dangerous thing”.

R. v. Timbu Kolian, [1967-68] P. & N.G.L.R. 320; (1968) 119 C.L.R. 47, applied. Nature of a “dangerous thing” within s. 289 of The Criminal Code, considered.

Trial.

Wak Kalit (the accused), charged upon indictment that he unlawfully killed Nalau, relied upon the provisions of s. 23 of The Criminal Code. The relevant facts are fully set out in the reasons for judgment hereunder.

Counsel:

Harrison, for the Crown.
Williams, for the accused.

8 May 1971

PRENTICE J:  The accused Wak, and one Hopone, are brothers. Wak is charged with unlawfully killing his uncle Nalau. The Crown has asked for a verdict of manslaughter. Clearly the accused caused the death of the deceased and therefore had “killed” him (s. 293 of the Code). The defence early indicated that it would rely on defences under s. 23. I have to consider whether the killing was excusable.

I find the facts as follows:

(a)      Nalau died from a ruptured spleen when he was struck under the left armpit at the base of the ribs by a billet of wood, a split log, some four feet long and some six inches diameter, weighing some six or seven pounds.

(b)      The billet had been thrown by the accused at his brother from a distance of some ten to fifteen feet; immediately after Hopone had thrown the same object at and hit the accused on the back, from a similar distance.

(c)      The accused at the time of throwing intended to hit and hurt his brother.

(d)      After the billet had hit the accused, and apparently as he picked it up to throw, or as he was in the act of throwing, the boys’ uncle stepped or ran between them to separate them, saying what was interpreted half in pidgin, half in English as “you two stop the cross”— meaning presumably, “you two stop quarrelling”.

(e)      In doing so, the uncle received the force of the thrown log.

(f)      The rupture of the spleen and death of Nalau was directly attributable to the blow from the billet.

(g)      The accused had no intention of hitting or hurting his uncle.

(h)      There was on evidence that the accused was aware of the presence of the deceased prior to his throwing the log. Just prior to the quarrel the uncle had been inside the house. The accused’s brother saw the uncle just before he (first) threw the wood at the accused.

The Crown case has now been presented. I have been considering the case and have come to a firm conclusion at this stage.

I have been endeavouring to approach consideration of the facts along the lines adopted by Windeyer J. in Timbu-Kolian v. The Queen[clvii]3. I have first considered whether the act of the accused may be excused from constituting manslaughter at common law on the basis suggested by his Honour, namely, that an act may be thus excusable if, though it was unlawful, it was neither in the circumstances dangerous, nor done with reckless indifference. I consider, having regard to the nature of the object thrown, the direction in which it was thrown, and the close presence of persons (that they were Niuginians may also be an important factor); that the act was dangerous in the circumstances, though there was no evidence of reckless indifference. I would not find the act excusable at common law.

I have next considered the application of the two parts of s. 23. In deciding whether the act of the accused was a “willed act” I have assumed that the “act” is the throwing and thereby striking the uncle (Timbu-Kolian’s case). I consider that the accused’s will went with the throwing of the log to hit his brother, to be beyond question. But I consider that he did not will or choose thereby to strike his uncle to be equally beyond question.

I would therefore find the act of the accused to be an act occurring independently of his will (s. 23), and therefore excusable under the section.

In applying the test suggested by Owen J. in Timbu-Kolian v. The Queen[clviii]4 I have additionally asked myself “Did the uncle unfortunately and unexpectedly run between them and receive a blow intended for another?” I answer the question “Yes”, and would therefore find the blow to the uncle which caused his death, to be accidental — ”an event occurring by accident”, and excusable on this basis under s. 23.

The operation of s. 23 in the accused’s favour could be precluded by s. 289 if the billet of wood could be said to be a “dangerous thing” of a kind to which that section applies; and the accused had failed to take proper precautions to avoid the dangers of its use. I have had the advantage of Crown counsel’s address on this aspect of the case. I am aware that in Queensland even an object such as a pencil has been held to be a “dangerous thing” within the comparable section. But, with respect, I would prefer to be guided by Windeyer J.’s apparent understanding that the section is intended to refer to a special category of “the use of things which are in their nature dangerous in ordinary use”. I would not find myself able to accept that a billet of wood of the kind thrown here was a “dangerous thing” within such a category. But if I am wrong in entertaining such an opinion of the application of s. 289, I would still consider that the way in which the billet was thrown here, having regard particularly to its nature, and that it had just been thrown at and hit the accused without untoward consequences, did not involve such a degree of criminal negligence as apparently would be necessary to bring s. 289 into operation.

In the result, I consider s. 23 has been shown positively by the evidence, to apply and its action not to be excluded by s. 289. I do not propose to call on the accused. I acquit him and there being no other charges, discharge him.

Accused discharged.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[clv]Section 23 of The Criminal Code provides: “Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial. Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.”

[clvi]Section 289 is 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 such 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.”

[clvii][1967-68] PNGLR. 320, at pp. 330 et seq.; (1968) 119 CLR. 47, at pp. 56 et seq.
[clviii][1967-68] PNGLR. 320, at p. 345; (1968) 119 CLR., at p. 71.