Mamote-Kulang Of Tamagot v The Queen [1964] HCA 21

High Court of Australia McTiernan, Taylor, Menzies, Windeyer and Owen JJ. Mamote-Kulang Of Tamagot v The Queen [1964] HCA 21

ORDER Appeal dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

1964, March 25 McTiernan J.

This is an appeal by leave from a judgment of the Supreme Court of the Territory of Papua and New Guinea in a case in which the appellant Mamote-Kulang was convicted of the manslaughter of his wife, Donate-Silu. The trial judge was Ollerenshaw J. There was no jury.

The case falls to be decided upon the provisions of The Criminal Code of the Territory of Papua and New Guinea. Section 23 of the Code provides " 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". The term "criminally responsible" is defined by s. 1. It means in s. 23 "liable to punishment as for an offence". The question in the appeal is whether the trial judge was wrong in holding that a defence of accident in terms of s. 23 was not available to the accused.

The facts on which the appellant was convicted can be stated shortly. He dealt his wife a blow with the back of his hand on the right side of the body, in the upper part of the abdomen; the accused's fist was clenched when he hit her, the blow had a substantial degree of force, he made it by swinging his right arm from his left side. The blow caused her great pain and she died soon after she received it. The trial judge found that the accused struck his wife to punish her and that he intended to hurt and cause her pain. Evidence was given of a post mortem examination of the body of the deceased. This evidence proves that the blow ruptured her spleen and this was the cause of death. The doctor who made the examination of her body said in evidence that the spleen was "a typical malarial spleen, large, soft and mushy and more susceptible to rupture than a normal spleen".