State v Tagicakibau [2004] FJHC 147; HAC0014D.2003S (1 September 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0014 OF 2003S

THE STATE

v.

WILLIAM K. TAGICAKIBAU

Mr. N. Lajendra for State
Mr. R. Singh for Accused

Hearing: 31st August 2004
Ruling: 1st September 2004

RULING

The defence submits that there is no case for the accused to answer. Section 293(1) of the Criminal Procedure Code provides:

“When the evidence of the witnesses for the prosecution has been concluded and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court if it considers that there is no evidence that the accused or anyone of several accused committed the offence, shall, after hearing, if necessary, any arguments which the [legal practitioner] for the prosecution or the defence may desire to submit record a finding of not guilty.”

The test at this stage of the trial is whether, on the charge in the information, there is evidence that the accused committed the offence (Sisa Kalisoqo v. State Crim. App. No. 52 of 1984; State v. Mosese Tuisawau Crim. App. No. 14 of 1990). If there is some relevant and admissible evidence, direct or circumstantial, touching on all elements of the offence, then there is a prima facie case under section 293(1) of the Criminal Procedure Code.

In this case the defence says that there is no evidence of gross negligence (of the level required in a trial for manslaughter) nor of the causing of death by an unlawful act of the accused.

The prosecution submits firstly that the deceased was incapacitated by the accused driving his father’s vehicle, and secondly that the deceased’s life was shortened because the accused failed to take him to a doctor immediately. The prosecution relies on section 206(d) of the Penal Code, section 209 of the Code and on the accused’s admissions as well as the evidence of Dr Eka Buadromo.

At this stage of the trial, there must be some relevant and admissible evidence touching on each of the following elements:

1. The accused;
2. Caused the death of the deceased;
3. By an unlawful act.
   

There is no dispute that in the early morning of the 6th of November 1999, the accused without a licence, drove his father’s car on Foster Road, Walu Bay and hit the deceased. Nor is it in dispute that he drove off without stopping, leaving the deceased bleeding on the road, to be later taken to the CWM Hospital in a carrier. He later died there whilst being attended to by doctors. The evidence of Dr Eka Buadromo was that although doctors might have been able to prolong his life if he had been brought in earlier the deceased would have died anyway as a result of the head injury. The question is therefore whether the accused "caused" the death of the deceased by his negligence in leaving the deceased on the road after the collision.

Section 206(d) of the Penal Code provides:

“A person is deemed to have caused the death of another person although his act is not the immediate or sole cause of death ... if by any act or omission he hastened the death of a person suffering under any disease or injury which apart from such act or omission would have caused death.”

Section 209 of the Penal Code provides:

“It is the duty of every person having charge of another who is unable by reason of age, sickness, unsoundness of mind, detention or any other cause to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract or is imposed by law, or arises by reason of any act, whether lawful or unlawful of the person who has such charge, to provide for that person the necessaries of life; and he shall be deemed to have caused any consequences which adversely affect the life or health of the other person by reason of any omission to perform that duty.”

There is evidence that the accused by his act of colliding with the deceased, rendered the deceased unable and incapable of providing himself with urgent medical care. There is evidence therefore that (whether or not the driving of the vehicle was lawful) there was a duty of care on the accused to take the deceased to a doctor in order to obtain such medical care. The remaining question is whether, in omitting to provide the deceased with such care, the accused was being grossly negligent.

In Bateman (1925) 94 KB 791 the English Court of Criminal Appeal considered an appeal against conviction for manslaughter in respect of medical negligence. A doctor had been convicted of manslaughter by negligence in respect of the death of a woman who died after childbirth.

Hewert L.C.J. said at p. 11:

“In explaining to juries the test which they should apply to determine whether the negligence in the particular case amounted or did not amount to a crime, judges have used many epithets, such as “culpable”, “criminal”, “gross”, “wicked”, “clear”, “complete”. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life or safety of others as to amount to a crime against the State and conduct deserving punishment.”

In Andrews v. DPP (1937) AC 576, the appellant who was driving very fast, hit a pedestrian and did not stop after the collision. Adopting the passage quoted above in Bateman the House of Lords dismissed the appeal against conviction, Lord Atkin saying at p. 583:

“The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as well constitute civil liability is not enough: for the purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established.”

In R. v. Adamako [1994] UKHL 6; (1995) 1 AC 171, the House of Lords held that the ordinary principles of the law of negligence involving a breach of duty applied to ascertain whether there was a breach, but that thereafter the next question was whether it caused the death of the victim and whether it is a case of gross negligence. This last was ultimately a question for the jury, that is, whether the accused’s conduct was so bad that in all the circumstances it amounted to a criminal act or omission.

In this case, the State concedes that there is no evidence of negligent driving on the part of the accused. Instead, it relies on the omission to take the deceased to hospital to prove unlawfulness. As a matter of law, and under section 209 of the Penal Code, I find that he did owe the deceased a duty of care to provide necessaries, because, the deceased was lying on the road injured and incapable, as a result of the accused’s vehicle colliding with him. Whether he was grossly negligent as opposed to merely careless, is a question for the assessors.

The principle underlying section 209 of the Penal Code, is an old and well-recognised common law principle. It is summarised in the authority of the Queen v. Instan [1893] UKLawRpKQB 28; (1893) 1 QB 450, cited to me by counsel for the prosecution. In that case, the accused lived with a seventy-three year old aunt and took care of her. The aunt was unable to take care of herself due to illness. In the last ten days of the aunt’s life, the accused failed to give her food or provide her with nursing attention. Death was accelerated by the accused’s neglect.

Lord Coleridge CJ said (at p.453):

“There can be no question in this case that it was the clear duty of the prisoner to impart to the deceased so much as was necessary to sustain life of the food which she from time to time took in, and which was paid for by the deceased’s own money for the purpose of the maintenance of herself and the prisoner it was only through the instrumentality of the prisoner that the deceased could get the food. There was, therefore, a common law duty imposed upon the prisoner which she did not discharge.”

The duty, under common law and section 209, does not arise in a vacuum. Not every person has a legal duty to provide necessaries for others. However, when it is the accused’s act (lawful or unlawful) which renders the deceased dependent on the accused for such necessaries, then a legal duty arises.

I consider therefore that there is sufficient evidence for the assessors to consider in relation to all ingredients of the offence. If they accept Dr Buadromo’s evidence, that the delay in obtaining medical care for the deceased hastened his death then it is open to them to find causation. It is not in dispute that the accused failed to obtain the necessaries of life for the deceased and whether such act was so grossly negligent as to call for criminal sanction, is a matter for the assessors.

There is a case for the accused to answer and he must be put to his defence.

Nazhat Shameem
JUDGE

At Suva
1st September 2004