Moonbeam Investments Ltd v State [2010] FJHC 389; HAC058.2010 (10 September 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 058 OF 2010

BETWEEN:

MOONBEAM INVESTMENTS LIMITED
Applicant

AND:

STATE
Respondent

Mr. C.B. Young for the Applicant
Ms M. Fong for the State

Date of Hearing: 05 August 2010
Date of Ruling: 10 September 2010

RULING

[1] The applicant, a registered company in Fiji, makes application to have the charge of manslaughter proffered against it, quashed; on the grounds that a corporation cannot be convicted of manslaughter by unlawful omission committed in August 2006.

[2] The applicant company trades as Tokoriki Island Resort Fiji, a licensed hotel and the initial charge brought against the company is worded rather clumsily as follows:

'Moonbeam Investments Limited trading as Tokoriki Island Resort Fiji a licensed hotel under Hotel and Guest Act 1973 of P.O. Box 10547 Nadi Airport on the 9th day of August 2006 at Nadi in the Western Division by an unlawful omission, that is failing in their duty to secure a live electric wire that was attached to a clothes line at Tokoriki Resort, caused the death of Luke John Molnar.'

[3] This charge was laid under sections 198, 201 and 213 of the Penal Code, Cap. 17 which was at the time of the death, operative. It is no longer operative and has been replaced by the Crimes Decree 2009 which specifically allows for corporate criminal liability by section 51 of that Decree.

Facts

[4]

i. On the 9th August 2006 a small group of volunteers involved in conservation projects was staying on Tokoriki Island in the Mamanuca Group. One of the group received an electric shock when hanging out a T-shirt to dry and the deceased on coming to assist him grabbed the clothes line for support and was immediately electrocuted. He was unable to release his grip on the line and he was dashed to the ground with the line underneath him flowing with electricity. The power source was traced and shut off after the deceased had been subject to the electrical surge for about 10 minutes. A government vessel was moored nearby with a Doctor on board. This doctor pronounced the victim dead after some emergency medical procedures.

ii. Investigations later revealed that the clothes line was connected to another line which in turn had been connected to a power source to provide light for a temporary shed during Christmas 2005. It had been connected by an electrician then working at the resort and when he left the resort in early 2006 the power was never disconnected.

iii. An investigation by the F.E.A (Fiji Electricity Authority) concluded (unsurprisingly) that a high risk situation had been created and left unattended. The circuit breakers were ineffective and all of the electrical wiring at the resort was substandard.

[5] In addition to the charge being proffered against the company, the State has also charged the electrician, one Kitione Rokosuka and Suren Chand the general maintenance manager who was Rokosuka's superior.

[6] Learned Counsel for the applicant has submitted several legalistic and nice arguments in favour of his application of which only one has real force. He submits (in his Ground 3) that if the legislature had intended to include a body corporate under section 198 it would have clearly stated so but it did not. He prays in aid the provisions in the new Crimes Decree 2009 which do endorse corporate liability for the crime as further proof that there was no liability under the old Penal Code. Such a submission having force, is however misconceived in that it totally ignores the availability of the common law to sanction a corporate prosecution. Discussion of that avenue will follow hereafter.

[7] Learned Counsel for the State submits that the applicant's submissions are too restrictive and that the word "person" referred to in section 198 of the Penal Code (the manslaughter section) is capable of being read as natural person as well as a body corporate. She prays in aid the interpretation of person in the Interpretation Act, Cap. 7 which specifically defines person to include corporations or associations; however she does concede that where there is an inconsistency in the primary legislation, then the interpretation in that legislation shall prevail.

[8] There can be no doubt that the Penal Code does not allow for a corporation to be charged with murder or manslaughter. The Code was received into our jurisprudence by way of East African colonial criminal codes, operative in more simple and unsophisticated societies where the criminality of body corporates was not even contemplated. Had the legislators of yore intended corporations to be criminally liable for manslaughter offences, then they would have made provision for it, just as has now been effected in England by the passing of the Corporate Manslaughter and Corporate Homicide Act 2007 and in present day Fiji in the Crimes Decree 2009.

[9] There being no statutory power to charge a company then, resort must be had to the common law which in very limited circumstances does allow for such prosecutions.

[10] The criminal liability of corporations was first examined in depth in the case of Tesco Supermarkets Limited v Natrass [1971] UKHL 1; [1972] AC 153. In that case the company ("Tesco") was relying on a statutory defence to an offence under the Trade Descriptions Act, the defence being that the offence was due to the acts or defaults of another person, and therefore the company was not criminally liable. The House of Lords held that the manager was indeed "another person" and as such was someone apart from the company. In terms of the defence the other person did not carry the "identity" of the company.

In his speech to the House, Lord Diplock said at p. 198:

"A corporation is an abstraction. It is incapable itself of doing any physical act or being in any state of mind"

And later at page 199:

"to constitute a criminal offence, a physical act done by any person must generally be done by him in some reprehensible state of mind. Save in cases of strict liability where a criminal statute, exceptionally, makes the doing of an act a crime irrespective of the State or mind in which it is done, criminal law regards a person as responsible for his crimes only. It does not recognize the liability of a principal for the criminal acts of his agent: because it does not ascribe to him his agent's state of mind. Qui peccat per alium peccat per se is not a maxim of criminal law."

[11] The principle there being expounded is that a company not being able to think or to form a mens rea, cannot be criminally liable unless a statute prescribes an offence of absolute or strict liability, when mens rea is not relevant.

[12] The House did in Tesco's case however go further than that in propounding the principle of the "directing mind" which was described by Lord Reid as follows:

"A living person has a mind which can have knowledge or intention or be negligent and he had hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company, or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability."

[13] In the within case the gross act of negligence in leaving a live wire connected to the washing line is clearly the fault of a casual employee of the company, a servant who could never be said to be representing the persona of the company itself, that is being a "directing mind".

[14] The liability of corporations for manslaughter was specifically addressed by the English Court of Appeal in Attorney General's Reference No. 2/1999 [2000] EWCA Crim. 91.

Two questions were posed to the Court for its opinion, the questions being:

1. Can a defendant be properly convicted of manslaughter by gross negligence in the absence of evidence as to that defendant's state of mind? and

2. Can a non-human defendant be convicted of the crime of manslaughter by gross negligence in the absence of evidence establishing the guilt of an identified human individual of the same crime?

[15] These questions are not entirely apposite to the present application however the Court in resolving these questions did canvass the authorities on corporate manslaughter in the common law thitherto. In that respect, the judgment of the Court provides a useful guide in determining the present application.

[16] After reviewing the authorities Lord Justice Rose (the V.P.) said:

"There is, as it seems to us, no sound basis for suggesting that, by their recent decisions, the Courts have started a process of moving from identification to personal liability as a basis for corporate liability for manslaughter"

And later –

"In our judgment, unless an identified individual's conduct, characterisable as gross criminal negligence, can be attributed to the company the company is not, in the present state of the common law, liable for manslaughter."

[17] The case of R v P & O Ferries (Dover) Ltd (1991) 93 Cr. App. R is a case where this identification principle was used to charge a corporation for manslaughter. Counsel for the State responding to the present application relies on the case as an example of general common law liability for corporate manslaughter however with the greatest respect, that submission misses the point entirely.

[18] The common law as having developed since Tesco v Natrass lays down the following principles:

1. Corporations cannot themselves be criminally liable for manslaughter.
   
2. There are exceptions of course for crimes of no mens rea.
   
3. A company may be charged where an officer who is the "directing mind" of the company can be identified, and he (as the persona of the company) is responsible for the gross negligence relied upon.
   

[19] Counsel for the State would have this Court place a very constrained interpretation on section 198 of the Penal Code, or alternatively allow a prosecution under the common law. As the House of Lords said in C (A Minor) v DPP [1996] 1 AC 3, per the speech of Lord Lowry at page 28, when dealing with the problems of judicial law making:

"(1) If the solution is doubtful, the judges should beware of imposing their own remedy;

(2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched;

(3) Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems;

(4) Fundamental legal doctrines should not be lightly set aside.

(5) Judges should not make a change unless they can achieve finality and certainty."

As did Lord Lowry, I am persuaded that all of these aids, in varying degrees point away from the course proposed by Ms Fong for the State.

Conclusion

1. There is no provision in the Penal Code to charge a body corporate for the crime of manslaughter, and therefore resort must be had to the common law.

2. There being no person identified as the directing mind of the company committing acts of negligence on Tokoriki Island, the owner Moonbeam Investments Limited cannot be criminally responsible.

3. The application by Moonbeam Investments Limited is allowed and any proceedings against the said company for manslaughter on the 9th August 2006 are quashed.

Paul K. Madigan
Judge

At Lautoka
10 September 2010