Mamote-Kulang Of Tamagot v The Queen

Mamote-Kulang Of Tamagot v The Queen - [1964] HCA 21 - HCA 1964 case summary — Zoe

[15]

If the Code had contained no other provision bearing upon the matter, it would have been plain that the offence of manslaughter had been committed. Section 23 of the Code provides, however, that "Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible " (which by definition means "liable to punishment as for an offence") "for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident " and it is upon the words which we have put in italics that the appellant relies. The blow struck by the appellant produced unexpected results which were not shown to have been foreseen by him or to have been foreseeable. The death, so the argument runs, was therefore an event which occurred by accident. We are unable to agree that this is so. The section is a general provision and is, of necessity, couched in general language but its purpose, it seems to us, is beyond doubt. It is intended to make it clear that, subject to the express provisions of the Code relating to negligent acts and omissions, where a person is charged with the commission of a crime criminal liability shall not attach where the alleged acts or omissions which are said to amount to the commission of the crime charged have occurred independently of the will of the accused or where, in association with some act or omission of the accused, there has occurred some accidental event which has substantially brought about the final result. When one comes to apply the section in a trial for manslaughter there can, we think, be little doubt that the "acts or omissions" and the "events" which are relevant matters for consideration are those which, according to the evidence, have brought about the death. In cases such as the present, where no question arises under the first limb of the section, the question must be whether in the chain of circumstances leading to the death of the victim there has occurred some event which by reason of the fact that it has occurred by accident was something for which the accused ought not be held to be responsible. In other words the section contemplates the intervention in the series of circumstances culminating in death of some happening of an accidental nature, a happening so related to the killing as to displace the operation of the very general words of s. 293 that "any person who causes the death of another directly or indirectly, by any means whatever, is deemed to have killed that other person". In the present case it can scarcely be said that there was a chain of circumstances; there was an intentional striking of a blow and that blow resulted directly in the death of the appellant's wife.

[16]

That the blow was deliberate and intended is beyond question and if, without the intervention of some event occurring by accident, it resulted in the death of the appellant's wife the case was one of unlawful killing. But the argument is that the death was an "event", within the meaning of s. 23, and that because it was not shown that it was reasonably foreseeable as the result of the blow which was actually proved to have been struck the death was an "event" which occurred by accident. In our view this proposition proceeds from a misunderstanding of the terms of the section. At common law no such argument would have been admitted for if "the deceased was in a bad state of health that is perfectly immaterial, as, if the prisoner was so unfortunate as to accelerate her death, he must answer for it": R. v. Martin [1] . (See also R. v. Edmunds [1] and the discussion in Russell on Crime 11th ed. (1958) p. 471 concerning the case of R. v. Johnson [2] ). On this aspect of the matter we do not think that art. 316 of Stephen's Digest of the Criminal Law 9th ed. (1950) p. 260, which deals with criminal liability at common law for what is called the accidental infliction of bodily injury by lawful acts, has anything to say. However this may be, it must be remembered that we are dealing with the provisions of a Code and, in passing, it is worthy of note that, as Philp J. observed in Reg. v. Martyr [3] , "the question may be determined or affected by the positive enactment contained in s. 296 of the Code which provides (that) "A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person" " [1] . His Honour added that "The section appears to indicate that the Legislature intended that no defence to homicide could arise from the fact that death was partly due to the victim's disease or disorder which word I think includes constitutional weakness" [1] . We agree with his Honour's further observation that "Whatever may be the meaning and area of application of this section it is a specific section dealing with homicide so that s. 23 being a section of general application must be read subject to it", but, as in Martyr's Case [1] , no argument was advanced concerning the meaning and application of s. 296 and since we think that the question before us may be readily enough resolved without reference to that section we are content to put it aside.

[18]

As we have already said s. 23 is a general provision and it applies, in addition to other crimes, to all classes of homicide under the Code. As already appears the Code characterizes homicides as wilful murder, murder and manslaughter and the argument advanced on behalf of the appellant may be tested in relation to each of these concepts. The act of killing is unlawful unless it is authorized or justified or excused by law (s. 291). It is so authorized, justified or excused if it be done in any of the sets of circumstances specified in s. 31. Wilful murder is constituted by an unlawful killing accompanied by an intent to cause the death of some person whether that person is the person killed or not (s. 301). Of course, if one intends to kill another it is reasonable to assume that the means adopted will be such as might reasonably be expected to cause the intended victim's death but it is beyond question that in relation to a charge of wilful murder any enquiry as to the foreseeability of death as the immediate consequence of the means adopted would be completely irrelevant. So also would be any such enquiry if the means adopted to kill B were shown to have resulted directly in the death, not of B, but of C. Murder, as distinct from wilful murder, includes unlawful killing with intent to do to the person killed, or to some other person, some grievous bodily harm (s. 302). "Grievous bodily harm", by definition, includes "any bodily injury of such a nature as to cause or be likely to cause permanent injury to health" (s. 1). Obviously, therefore, once the necessary intent be established, it is immaterial whether the death of the intended victim was reasonably foreseeable as the immediate consequence of the means adopted by the person charged; it matters not whether the grievous bodily harm intended or actually inflicted was likely to cause death or whether death, as a consequence thereof, was reasonably foreseeable. Like observations might be made with respect to other paragraphs of s. 302. In the result, therefore, the appellant's argument would find no place in the case of a person charged with wilful murder or murder constituted by an unlawful killing accompanied by an intent to do to the person killed or to some other person some grievous bodily harm. Yet it is asserted that in the case of a charge of manslaughter - an unlawful killing under such circumstances as not to constitute wilful murder or murder (s. 303) - criminal responsibility for that crime will not attach if death as the direct consequence of the accused's actions could not be said to be reasonably foreseeable by a person unaware of some physical weakness of the deceased. However, the observations which we have made do not depend upon the view that the language of ss. 301 and 302 precludes the full operation of the relevant part of s. 23 in relation to wilful murder and murder; they depend upon the view that "event" in the lastmentioned section means, in the case of such crime, an event in the chain of circumstances by which the death is brought about. After all what is made punishable as homicides by ss. 301, 302 and 303 are the acts by which death is brought about, that is to say, the act or acts which constitute the killing. It is true that the consequences of the blow in question here were not intended by the appellant. If he had intended them, he would have been guilty of wilful murder, or, if he had intended to inflict some grievous bodily harm, he would have been guilty of murder, and the fact that he had no such intent and that the consequences which directly followed were not foreseeable by him does not, in our view, make it proper to describe the killing as an event occurring by accident and therefore not a killing for which criminal responsibility attaches.

[19]

Reliance was, however, placed upon some passages in the judgments of this Court in Vallance's Case [1] in which s. 13 of the Tasmanian Code was under consideration. That Code differs in many respects from the Queensland Code but s. 13 resembles s. 23 of the latter enactment in that it provides that "no person shall be criminally responsible for an event which occurs by chance". Dixon C.J. expressed the view "that this somewhat difficult phrase covers events which the person who might otherwise be criminally responsible neither intended nor foresaw as possible results of his conduct: they must too be fortuitous in the sense that no one would reasonably expect them to occur as a consequence of that conduct" [1] . And Kitto J. said "I agree that an event which the person charged actually foresaw as a possibility substantial enough to be worthy of attention in deciding whether to do the act or not cannot properly be described as having occurred by chance; but it does not follow that every event which he did not foresee may be so described. In addition to having been unforeseen by him it must, I think, have been one so unlikely to result from the act that no ordinary person similarly circumstanced could fairly have been expected to take it into account it seems to me that "by chance" is an expression describing an event as having been both unexpected by the doer of the act and not reasonably to be expected by any ordinary person, so that it was at once a surprise to the doer and in itself a surprising thing" [1] . Based on these statements, the submission put forward on behalf of the appellant was that the rupture of the deceased's spleen and her death were consequences which the appellant was not shown to have foreseen and which were not shown to have been reasonably foreseeable by a person in his position and that it therefore followed that the killing had occurred by accident. But the passages upon which counsel relied must be read in the light of the facts then being considered. The case was one in which the accused was charged with unlawful wounding. He had fired a loaded air-gun with the intention, so he said, of frightening a young girl who had been annoying him. The slug from the air-gun struck and wounded her but the accused said that he had not intended that result and that he had merely pointed the air-gun at the ground near her and pulled the trigger. One of the suggestions put forward by the defence was that the slug had hit and wounded the girl as the result of striking some object which had diverted its course and that, for this reason, the wounding was to be regarded as an event which had occurred by chance. It was with this hypothesis that the Chief Justice and Kitto J. were dealing. What their Honours were pointing out, as it seems to us, was that it was not enough to say that the wounding was not foreseen by the accused as a possible result of firing the shot. It must also have been shown that the wounding would not have been foreseen by a reasonable person before it could be said that it had occurred by chance. But it is, we think, fallacious to argue that, because these two elements are necessary ingredients in the concept of an "event occurring by chance" (or by accident), it follows that whenever they are present what directly results from the intentional doing of an act is properly to be described as an event occurring by chance or accident. In the result we find ourselves in agreement with the conclusion reached by the Queensland Court of Criminal Appeal in Reg. v. Martyr [1] , a case in which the facts are indistinguishable from those in the present case. If, as here, death is the immediate and direct result of an intentional blow, the fact that the person struck has some constitutional defect, be it an enlarged spleen or an egg-shell skull, unknown to the person striking the blow and which makes the recipient of the blow more susceptible to death than would be a person in normal health does not enable the accused to assert that he is being sought to be made criminally liable for an "event" occurring by accident.

[35]

In Reg. v. Martyr [1] it was decided that death resulting from an intentional blow could not be accidental. There, in the course of a brawl the accused struck the deceased who died from a blow on the jaw causing haemorrhage of the brain because of a peculiar weakness in the constitution of the deceased. The facts that the killing or the death was not intended and not foreseen by the accused and could not have been foreseen by a person of ordinary prudence were not regarded as making the consequence of an intentional blow an event which occurred by accident. If this decision be correct, then so is the decision under appeal, for I can see no point of distinction. It is necessary for me, therefore, to say in some detail why, with respect to the learned judges who so decided, I consider that decision is incorrect. Mansfield C.J. said: " "Accident" therefore, in my view does not include an existing physical condition or an inherent weakness or defect of a person, such as an egg-shell skull, or as in this case, a possible inherent weakness in the brain" [1] . With this I agree but, with respect, it does not seem to me to follow that "the meaning to be attributed to the expression "event which occurs by accident" is a result which is caused by an unforeseeable occurrence" [1] . The limited meaning which the learned Chief Justice attributed to the latter part of the first paragraph of s. 23 is stated as follows: "The words "which occurs by" imply the notion of causation, and the latter part of the section in my view covers the case where in consequence of an intentional act by A (whether lawful or unlawful) an unintended and unforeseen happening occurs which is the proximate cause of an injury resulting in death". It seems to me, however, that the words "which occurs by accident" - which are not the equivalent of "which occurs as the result of an accident" (see Mills v. Smith (Sinclair, Third Party) [1] ) - are not really directed to the notion of causation any more than are the words "which occurs by chance" in the Tasmanian Code, nor have I found any reason why it is necessary to confine the provision to a case where there is an intervening accidental event between the act and its consequences. The event in the case of Vallance v. The Queen [2] was the wounding and this could have been by chance even if the pellet flew directly from the rifle to the girl without ricocheting or anything of that nature. To aim away from a person and yet hit that person directly could be wounding by accident. Philp J. said: - "But was Scott's death an event or result which occurred by accident? I will assume that Scott's death would not have resulted from the blows if he had not been suffering from some invisible and highly unusual weakness or constitutional abnormality. Now the appellant was charged with killing a particular person - Scott - and the fact that Scott had a constitutional abnormality did not in my view make his death an "accident" as that word is used in the section. If a haemophilic bleed to death from a small cut, his death cannot be said to be an accidental outcome of the cut. The words under discussion I think have operation in the following circumstances. If a non-fatal blow be struck and there supervenes upon the blow an unforeseeable happening whereby the actually fatal force is applied to the body of the victim, his resultant death occurs by accident. But that is not the case here, since here the death was the immediate - the direct result of the willed act" [1] . In this passage Philp J., like Mansfield C.J., insists upon the presence of an intermediate event as that which occurs by accident but, if a woman were to strike a bag snatcher with her umbrella and he were to die from the blow by reason of some idiosyncrasy, although she would not be protected by s. 274, nevertheless, it does not seem to me to follow inevitably that she would be guilty of manslaughter by virtue of s. 291 without any excuse under s. 23. Townley J. said: - "My opinion on the matter has varied from time to time but I have finally concluded that, if a person kills or injures another by a "willed" blow with his fist, although the death or particular injury is not reasonably foreseeable, the death or injury is not an event which occurs by accident. The event occurs by reason of something which is intended and is not merely accidental. It is the direct and immediate result of an intentional act" [1] . It is for the reasons already stated that I cannot agree with this conclusion. It appears to me, moreover, that the earlier portion of the first paragraph of s. 23 would usually cover the case of an unintentional act whereas the second part is apt to cover the case of an accidental consequence of an intentional act and there is not sufficient warrant for limiting the "event" to something happening between the act and its indirect but ultimate consequence which is an element in the corpus delicti. I would add, moreover, that my conclusion would not be different if the killing of Donate rather than her death were to be regarded as the event for the purposes of s. 23. The killing, like the death, was something which occurred by accident.

[57]

The first question that arises is, therefore, whether the accused "unlawfully killed" the deceased woman. That is to say, Was the killing "authorized or justified or excused by law"? If it was not, it was unlawful (s. 291). Clearly it was not authorized. Could it be said to be justified or excused? The words "justified" and "excused", used in relation to homicide, sound back through centuries. Their present meanings come from their past history. Homicide justifiable or excusable was not in either case a felony. Nevertheless the distinction between a justifiable and an excusable homicide was important in early times; for if a homicide were only excusable, not justified, the offender's goods were forfeited unless he obtained a pardon. Killing in the execution of public justice, as by an executioner, or by a constable in seeking to apprehend a felon resisting arrest, was justifiable, and a ground for an absolute acquittal. Homicides excusable, but not justified, were killing in self-defence, se defendendo, or by misadventure, per infortunium. For these a forfeiture was exacted unless a pardon were had. But in later times a pardon could be had as of course for an excusable homicide, the prisoner having only to sue for one and pay a fee. "And indeed", said Blackstone, "to prevent this expense in cases where the death has notoriously happened by misadventure or in self-defence, the judges will usually permit (if not direct) a general verdict of acquittal." Finally, in 1828, even the formality of a pardon was abolished by 9 Geo. IV c. 31 s. 10, which provided that "no punishment or forfeiture shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner without felony". The distinction between justifiable and excusable homicides then ceased to have any practical significance. But the terms remained in the law as convenient and compendious descriptions of the circumstances in which the law treated homicide as not amounting to either murder or manslaughter.

[58]

Section 291 of the Code thus speaks in words which had an established meaning in criminal law when the Code was enacted. And unless the Code itself introduces some other meaning, it must in my opinion be taken when it employs those well-known terms to use them with the meanings they then had. The Code does, in ss. 31, 247, 256, 271, 272 and elsewhere, cover some relevant matters that the common law covered. But it does not deal expressly with the case of homicide excusable because caused by misadventure, except in so far as that is covered by s. 23. Leaving that section aside for the moment, there can be no doubt that in this case there was a homicide which was not excused by law. For the common law left the matter beyond doubt. Hale put it in these words: "He that voluntarily and knowingly intends hurt to the person of a man, tho he intend not death, yet if death ensues, it excuseth not from the guilt of murder, or manslaughter at least; as if A. intends to beat B. but not to kill him, yet if death ensues, this is not per infortunium, but murder or manslaughter, as the circumstances of the case happen": Pleas of the Crown, p. 472. That passage states the common law as it still is. If death is a consequence, direct not remote, of an unlawful act done with intent to do grievous bodily harm, it is murder. If it is a consequence, direct not remote, of an unlawful act done with intent to hurt but not to do grievous bodily harm, it is manslaughter. To prevent misunderstanding, I should add at this point that, whatever may have been the position in earlier times, it is not now enough to constitute manslaughter at common law that a man is killed in the course of an unlawful act of any kind. To make an unintended and unexpected killing a crime at common law, it must now be, generally speaking, the result of an unlawful and dangerous act, or of reckless negligence. There is, however, no doubt that at common law a man is guilty of manslaughter if he kills another by an unlawful blow, intended to hurt, although not intended to be fatal or to cause grievous bodily harm. It does not avail an accused charged with manslaughter in such a case to say that death was unexpected and that it was only because the person struck was in ill-health or had some unsuspected weakness that the blow proved fatal. That does not make homicide excusable. A killing is not the less a crime because the victim was frail and easily killed.

[70]

The word "accident" is used in law, and also in common parlance, with varying meanings. All of them have something in common, for an accident is always a happening that was not designed or intended. Sometimes no more is meant than an occurrence not, in any sense, caused by the accused person or defendant. The word is used with that meaning when, for example, evidence of similar facts is said to be admissible to rebut a defence of accident. Sometimes an accident means an occurrence in which the accused or defendant was in some way concerned, but which he could not by any exercise of skill or care have prevented. An occurrence caused by an external agency over which the accused or defendant had no control has been called an "inevitable accident" since 1618 or earlier: see Weaver v. Ward [1] . Foster, in his Discourse on Homicide, used the word in that sense when he spoke of "an accident which human prudence could not foresee or prevent". In cases of the kinds abovementioned the accused is absolved from legal responsibility for an occurrence, either because he did not cause it at all, or because he only caused it remotely. But an occurrence, regarded as the event, outcome, or consequence of conduct, can be described as accidental not only by reference to its causal or to its casual character, but by emphasizing that, although a consequence, and a direct consequence, of something done, it was a consequence that was not intended and one that would not have been expected. This meaning of accident is that which Stephen adopted for the purposes of his Digest of the Criminal Law; but, of course, he did not regard accident so defined as a sufficient ground of excuse for a homicide caused by an unlawful blow. It was argued that this meaning was to be imported into the Code so that if the accused did not intend to cause death, and if death was not a consequence which a reasonable person would have expected would follow the blow, then the killing was an event which occurred by accident. But this argument seems to me, with respect to all those with whom it has found favour, to be mistaken. The question is not whether the death, not being intended, would be called accidental in ordinary speech. It is whether the homicide, the act which attracts the criminal law, was an event which occurred by accident. The blow was not an accident. The fact that the deceased woman had an enlarged spleen was not an accident. No accidental occurrence intervened between the blow and its outcome or event, the death.

[75]

Before parting with the case it is necessary to consider one aspect of the argument for the accused, that founded upon the judgments of members of this Court in Vallance v. The Queen [1] . That was a case of alleged unlawful wounding, a crime the mental elements or accompaniments of which make it very different from manslaughter. It was a case under the Tasmanian Criminal Code. And the wording of s. 13 of that Code is different from that of s. 23 of the Queensland Code. It was a case that turned largely on whether the word "act" in the Tasmanian section comprehended the whole act of wounding or was restricted to the physical actions which produced the wounding. But in the judgments some observations occur as to the effect of the words "event which occurs by chance", the equivalent in the Tasmanian Code of the "by accident" of s. 23. The argument for the accused in this case, based on what was said in that case, can be summarized as follows: An event occurs by accident within the meaning of s. 23 if its occurrence was, first, not intended, secondly, not foreseen by the accused as a likely consequence of his act, and thirdly, was not a consequence that a person of ordinary prudence in the position of the accused would reasonably expect to follow such an act. Put more briefly, it was said that any event that is unintended, unforeseen and unforeseeable occurs by accident. Foreseeability is a word that has recently come into vogue. Sometimes it is used without any postulation of the degree of knowledge or of ignorance that is to be assumed in the person whose capacity to foresee is in contemplation. Given a sufficient and exact knowledge of existing conditions and an adequate knowledge of the physical laws that govern them, the consequences of any act are predictable. If the conditions in which it operates remain unaltered, the outcome of the act cannot be unexpected by a person having sufficient knowledge and giving his attention to the matter. Different considerations, however, arise if the necessary knowledge of the conditions is lacking, or if the conditions do not remain constant but are affected by some supervening occurrence. As I see the matter, the most that can be got from Vallance's Case [1] that could be relevant in this case is that a killing cannot be an event which occurs by accident if the person charged intended to kill, or foresaw death as a likely result of his act, or if a reasonably prudent person in his position would have realized that death was a likely result of such an act. But that an occurrence is not accidental if any one or more of certain qualities can be predicated of it does not mean that it is accidental if none of them can be predicated. As a logical proposition, the argument adduced involved the fallacy of an undistributed middle term. The test proposed may suffice in some cases to determine whether an event occurs by accident. But it will not suffice in a case of manslaughter; for, as I have said, that assumes a killing that (provocation apart) was not intended and not expected to occur. In this the Code and the common law do not differ.

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