Crim. Case No: HAC 135 of 2019
reckless as to a risk that the conduct will cause serious harm to the deceased.
- The above passage referred to by Goff LJ in Pagett (supra)&#/b>defindefines the causation of Manslaughter, that the alleged act of the accused must be a qua non of the the death ofdeceaseceased. The causation is the relationship between the unlawful act committed by the ed and the resulting
effect of that act: the victim’s death. (vide Hetb>Hettige JA ingilevuilevu v State [2016] FJSC 19; CAV 023.2015 (22 June 2016).
- Goff LJ in Pagett (supra) had then gone gone on and explained the scope of the causation, where he held that:
“8220;It is usus usually enough to direct them simply that in law the accused’s act need not be the sole c or ehe main
cause, ofe, of the victim’s death. It being enough that his act contributed sted significantly to that result.”
- Hence, the Prosecution is only required to establish that the accused's act had contributed significantly to the death of the deceased
and no need to establish that his action was the sole or the main cause of death.
- In this matter, the cause of death of the deceased is Ischaemic heart disease ducoronary artery disease and left ventricular hypertrophy.
Dhy. Doctor Kumar, in his evidence, explained that the panic situation caused by the accident would have increased the heart rate
of the deceased, and it can be a contributing factor for the heart to function in a non- synchronize harmony, causing Arrhythmias.
Therefore, as Doctor Kumar testified, the most possible cause was the cardiac arrhythmias that have caused death. However, Doctor
Kumar further said that it cannot be established in an autopsy, unlike living patience attached to the cardiac monitor. Doctor Kumar
further said that after concluding that there were no other injuries, externally or internally, caused by the motor vehicle accident,
the deceased's heart condition could be the most likely cause of death.
tyle='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='22' value="22">Based on Doctor Kumar's evidence, the learned
Counsel for the Defence submitted that it cannot be certain that the panic or heightened state of the deceased's heartbeat was caused
by the motor accident. Therefore, the evidence presented by the Prosecution lacks the required standard of proof to convict the accused
of Manslaughter.
- The Court of Appeal of England in R v Dawson (81 Cr App0 C150 CA at 153, 154)&had discussed the proper approach of evaluating the expert pert opinion given by the doctor's evidence. In Dawson (supra) masknd men, one was carrying a pickaxe handle and another ther armed with a replica gun, while the third accused kept watch, demandeey
from a 60 years old petrol filling station attendant, who, unknown to the accused, was swas suffering from heart disease. The attendant
pressed the alarm button, and the suspects fled the scene. Shortly after the police arrived, the attendant collapsed and died from
a heart attack. The three accused were charged, , for Manslaughlaughter. During the hearing, the medical experts were of the opinion that the attempted robbery was responsible for
the attendant's death. However, they could not rut the possibility of a hear heart attack has occurred before the attempted robbery.
The three accused were convicted and then appeal to the court of appeal on the following grounds:
“The learned judge
- failed to withdraw the offence of manslaughter from the jury seeing that the medical evidence amounted to it being no more than a
high probability or that it was most probable that the attempted robbery started the heart attack which caused death.
- directed the jury that putting a person in such terror that he may suffer such emotional or physical disturbance as would be detrimental
could for the relevant purpose constitute harm. It is argued that it is not open to a jury to convict if they find merely that an
emotional disturbance that was detrimental was suffered by a deceased.
- directed the jury upon the burden of proof with regard to the expert medical evidence as to the cause of death. Both medical witnesses
said they could to be sure that the robbery started the heart attack. They said it was no more than highly probable that it did.
- failed to direct the jury that the opinion it was highly probable that death was so caused was based on the assumption that the deceased’s
condition was stable minutes before the attempted robbery.
- failed to direct the jury that if the heart attack had or may have started before the attempted robbery there was no or no sufficient
evidence that the attempted robbery substantially caused death.
- directed the jury that the sane and reasonable people referred to in the test for the creation of the risk of some harm to the person
must connote people who know all the facts, including, it is to be inferred, that the deceased suffered from chronic heart disease.
There was no evidence that the appellants were aware of that condition.
- The Court of Appeal in Dawson (supra), dealing with ground 1 and 3 of the appeal, which the Court later found had no merits, concluded that the direction given by the
learned trial Judge based on the Bral directions (1979) 679) 68 Cr. App. R 44 at 49) on how to ete the Doctoror’s evidence and the distinction between the scientific proof and legal proof was correct. I find
the direction given by the trial Judge wson has a significant persuasive value in this matter, whi, which I reproduce below.
“You must remember this, that a doctor, and you may have thought that Dr. Green was a splendid example of fairness, is speaking
from a scientific point of view. He was saying, ‘I cannot as a scientific certainty rule out that which you postulate, namely
partial asphyxia, recovery and then a heart attack,’ but, he said, ‘I incline strongly against that view.’ You
will remember ladies and gentlemen that your duty is not to judge scientifically or with scientific certainty. You judge so that
as sensible people you feel sure and even say that what might not satisfy Dr. Green as a scientific certainty, might, with propriety,
satisfy you so that you felt sure. Do not be misled. There is no such thing as certainty in this life, absolute certainty. You
ask yourselves the simple question upon the whole of the evidence do I feel sure? Take account of course of the doctor’s evidence.
It is the most important evidence on this aspect. He is really the only one qualified to speak here. Take account of his reservation
fully. That direction, in our judgment, correctly draws the distinction between what might be described as scientific proof on the
one hand and legal proof on the other. It is, with respect, an admirably lucid and succinct way of dealing with a problem which
often arises in connection with scientific evidence. It is, of course, part of cross-examining counsel’s duty to invite expert
witnesses to consider alternative hypotheses and, after examining them in detail, to conclude by asking, ‘Can you exclude the
possibility?’ The available data may be inadequate to prove scientifically that the alternative hypotheses is false, so the
scientific witness will answer, ‘No, I cannot exclude it,’ though the effect of his evidence as a whole can be expressed
in terms such as, ‘But for all practical purposes (including the jury’s) it is so unlikely that it can safely be ignored.’
This is in substance what Dr. Green said.”
- As mentioned above, Doctor Kumar testified, explaining that the panic situation caused by accident would have increased the deceased's
heart rate, and it can be a contributing factor for the heart to function in a non- synchronize harmony, causing Arrhythmias. Therefore,
the most possible cause of death was cardiac arrhythmias. However, Doctor Kumar further said that it cannot be established in an
autopsy, unlike living patience attached to the cardiac monitor. Doctor Kumar also said that after having concluded that there were
no other injuries caused by the motor vehicle accident, the deceased's heart condition could be the most likely cause of death.
- During the cross-examination, the learned Counsel for thence asked Doctor Kumar whether drinking, smoking dancing could also be a
cause to increase ease the heart rate. Answering that question, Doctor Kumar said, "Well, dancing it can, but it depends on how hard their dancing, yes, but it can". Accordingly, Doctor Kumar only affirmed that dancing could be an alternative possibility. However, there is no evidence presented
or pointed out by the Defence that the deceased was dancing before this alleged accident. Additionally, the learned Counsel for
the Defence did not venture further in exploring other alternate possibilities during his cross-examination.
- Doctor Kumar's evidence of opinion of the cause of deatfounded on probabilities and not on certainty. As expounded in Dawson (supra),, the is not obliged to conc conclude that the cause of death of the deceased is not sure based on the opinion of "probability' or
"cannot be excluded the possiy" giy the Doctor (vide p 154 of Dowson (supra))). I). If then, there is no purpose in giving this Court the jurisdiction to adjudicate the facts of the dispute. Of course, the
opinion of the Doctor has the greatest importance. However, the Court needs to make its judgment on the whole of the evidence presented
during the hearing, including the Doctor's opinion.
style='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='28' value="28">Mr. Kolinisau had heard the deceased's c when
she was stranded inside the car after it fell upside down in the creek. It had takentaken nearly 30 minutes to get her out of the
vehicle. During that period, Mr. Kolinisau had observed her crying faded away. She was unconscious when she was taken out. This
evidence was not disputed or suggested otherwise by the Defence. Thus, it establishes that the deceased was awake and aware of the
accident when the car fell into the creek. According to Doctor Kumar, if the deceased was awake or aware of the accident, it is
natural that her heart rate would increase in response to the feeling of fright. Besides that, the Doctor had not found any external
or internal injuries caused by the accident to rule out other possibilities. For these reasons, I find the evidence of Prosecution
has established that the accident had caused or substantially contributed to increasing the deceased's heart rate, which then ultimately
caused her death. Accordingly, I find that the Prosecution has established beyond reasonable doubt the actus reus of ohis ce, that the accuseccused was engaged in conduct, which was the driving of the car after consuming alcohol, and involved
in an accident, and that accident had substantially contributed the death of the deceased.
Mens Mens Rea
- I now turn to mens rea
- I do not find much distinctions between a conduct that poses a risk of causing a serious and a dangerous conduct that causes serious
harm. On that that account, the test adopted by the Courts of England in determining the dangerous act and corresponding fault element
of the said dangerous act could be adopted with necessary variances.
The House of Lords in DPP v Ny (19.C. 500, H.L, H.L) had discuthe mens rea pertaino the dthe dangerouserous act, where Lord Salmon held
“I agree entirely with Lawton LJ that that is an admirably clearclear statement of the law which had been appliny times. It
makes it plainplain (a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act with was unlawful
and dangerous and that the act inadvertently caused death and (b) that it is unnecessary to prove that the accused knew that the
act was unlawful or dangerous. This is one of the reasons why cases of manslaughter very so infinitely in their gravity. They, may
amount to little more than pure inadvertence and sometimes too little less than murder.”
- The House of Lords in Ny (supra) enun;enunciated anctive tese test to determine the accused's mens rea. The objective test is whetll sober and reasonable people would recognize that the act was dangerous and unnecessary tary to establish
whether the accused recognizeddanger.
- The Court of Appeal of England in Dawson (supr60;had ehad elaborated the meaning of sober and reasonable man. In dealing with the appeal ground 2 and 6, where the Appellants contended
that direction of the trial Judge to the jury in respect of the reasonable person was erroneous, the Court found that:
“This test can only be undertaken upon the basis of the knowledge gained by a sober and reasonable man as though he were present
at the scene of and watched the unlawful act being performed and who knows that, as in the present case, an unloaded replica gun
was in use, but that the victim may have thought it was a loaded gun in working order. In other words, he has the same knowledge
as the man attempting to rob and no more. It was never suggested that any of these appellants knew that their victim had a bad heart.
They knew nothing about him.”
- In Pagett (supra), Goff LJ found that the trial Judge's direction, which was founded on the above discussed objective test, was fair and lucid directions.
I0;R v F (J) and E (N) (2015) 2 Cr. App. R.S. CA) the CourAppeal (Criminal inal inal Division) had considered whether the subjective test adopted in R 20030 UKHL 50, (2004) 004) 1 AC 1034) could be applied to thence ence of ManslaughIn this case, a teenage boye boy and a girl were prosecuted on the counts of Manslaughter
through unlawful and dangerous act and arson, beeckless as to whether life was endangered. Having considereidered the previous decisions
of Rurch (1965) 49 Cr. App. App. R. 206) R v Lamb (1967) 51 Cr. App. R. 417) and R v Newbury (supra), Lord Thomas of Cwmgiedd CJ concluded that the Court must athe objective test enunciated by those cases in order to deto determine
whether the act was dangerous.
- In view of the above discussed judicial precedents of Ed, I find it would be more practical to adopt an objective test based on a
sober and reasoneasonable man, but obviously with the necessary variation that suits the requirement of Section 239 of the Crimes
Act, to determine whether the alleged conduct of the accused had the risk of causing serious harm to the deceased.
- The learned Counsel for the Defence urged in his submission that the Court has to determine whether the drinking and driving, itself
reckless conduct? The learned Counsel submitted further, apart from the mere drinking and driving, the Prosecution must prove certain
other conduct of the accused such as over speeding, indifference to weather condition, dangerous overtaking, or reckless disregard
of pedestrians' life etc.
- There are certain conducts in our ordinary life, which are inherently capof ca a risk of harm to others. Driving a motor vehiclehicle
care carries such an inherent risk or danger of damaging other vehicles or causing serious harm/harm to other people. (vide Blackstone’s 2020 Ed p 25; Hill te [2018] FJCA 123; 123; AAU109.2015 (10 August 2018)) Such risks or dangers have been mitigated with a set of laws, rules and regulationserning the manner of driving motor vehicles.
Section 103 (103 (1) of the Land Transport Act is one such law stipulated to maintain the driving of the drivers with due care and
attention. Section 103 (1) of the Land Transport Act has prescribed that it is an offence if a person drives or attempts to drive
a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his or her
blood. According to Regulation 3 of the Land Transport (Breath Test and Analysis) Regulations 2000, the prescribed concentration
of alcohol is 80 milligrams of alcohol in 100 millilitres of blood.
- It appears that the legal regime in Fiji has found a driving a vehicle while having over 80 milligrams of alcohol in 100 millilitres
of blood is a prohibited act. Such an action has the potential of undermining the capacity of the driver to drive the vehicle with
care and proper attention, thus exposing the public and other vehicles to the inherent risk associated with the driving of a motor
vehicle. According to PC Naicker, the breath analysis test confirmed that the accused had 158.4 milligrams of alcohol in 100 millilitres
of his blood. As a consequence of this evidence, I find that any sober and reasonable bystander, who knew the circumstances that
were known to the accused at that material time, will find the driving of the accused after consuming alcohol had a risk of causing
serious harm to the deceased, who travelled with the accused in his car.
- The next issue is whether the sober and reasonable bystander knew that the deceased was havingschaemic Heart Disease. There is no
evidence to establish tish that the accused knew the heart condition of the deceased. It was the first time the accused had met the
deceased that night at the club. There is no evidence of what happened or what kind of conversation took place between the accused
and the deceased during their journey in the car before the accident. Under such circumstances, could the Court safely conclude that
the sober and reasonable man, who had the same knowledge as the accused, would find the driving of the accused after consuming alcohol
will cause serious harm as he did not know about the heart condition of the deceased? Together with this issue, the Court has to
determine further whether the fright or sudden panic caused by the accident, triggering the increase of heartbeat, is considered
serious harm.
- In Dawson (supra)
“There seems to us to be no sensible reason why shock produced by fright should not come within the definition of harm in this
context. From time to time one hears the expression “frighten to death” without thinking that the possibility of such
event occurring would be affront to reason or medical knowledge. Shock can produce devastating and lasting effects, for instance
upon the nervous system. That is sure harm, i.e. injury to the person.”
- However, the Court found in Dawson (supra) that thal Judge's directionction to the jury regarding the objective test was erroneous. Hence, the Court had not considered whether
the Appellant's lack of knowledge about the poor heart condition of the deceased could exonerate the Appellants from their criminal
culpability of Manslaughter.
- In Regina v M (J) and another (2013) 1 WLR 1083), the accused were involved in an alterc at a nightclub with some oome of the doormen. One of the doormen, who appeared to be in good
health and had not been aware that he had a renal artery aneurysm, died. The accused were charged with Manslaughter on the basis
that they had contributed to the victim's death. The Prosecution's case was founded on the allegation that the cause of death was
the rupture of the aneurysm consequent on shock and a sudden surge in blood pressure due to the release of adrenalin during the altercation.
The trial Judge ruled that to enter a conviction for Manslaughter, the Prosecution has to prove that the victim died due to the harm
the affray risked causing.
- The Court of Appeal of England in Regina v M nd another (ser (supra), allowing the appeal, found that it is not required that the accused should have foreseen any specific harm or the reasonable bystander
would have recognized the precise form or nature of the harm, which had in fact ensued and caused the death of the victim. What required
is whether the reasonable and sober bystander would have recognized that the accused's unlawful activities had inevitably put the
victim at risk of some harm resulting from such activities.
- Accordingly, it is not required to satisfy in this matter that the accused or the reasonable and sober bystander would have realized
the risk of the actual nature of the harm ensued to the deceased. It is sufficient to establish that the reasonable and sober bystander
would have realized that the alleged conduct of the accused, that was driving a car while having 158.4 milligrams of alcohol in 100
millilitres of his blood, would have put the deceased at risk of some serious harm resulting from that conduct. Accordingly, there
is no requirement to establish that the accused had the knowledge or would have known the actual condition of the deceased's heart
to determine the accused's conduct had caused a risk of serious harm to the deceased.
< - The High Court of Australia in MaKulang v The Queen (19n (19CA 21[1964] HCA 21; , (1964) 111 CLR 62) held that the frailty of the the victim's health is not an excuse for the offence of Manslaughter. In&Mamote Kulang (supra), thused had punched ched hisd his wife on her upper part of the abdomen. The blow caused her great pain, and she died soon after she
received the blow. It was found at the post-mortem that the blow had ruptured her spleen, which was the cause of death. It was further
found that the spleen was a typical malarial spleen, large, soft and mushy and more susceptible to rupture than a normal spleen.
The accused contended that he was not aware of the condition of her spleen; hence, the death was an accident.
- Windeyer J in Mammoth Kulang (supra p79) held that:
“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.”
- The Supreme Court of Fiji in Nacagilevu v State [2016] FJSC 19; CAV 023.2015 (22 June 2016) found that the contention that the medical condition of the deceased of which the Petitioner was unaware would have rendered the victim
susceptible to death than a person of normal health is not a valid ground to excuse the Petitioner from criminal liability of Manslaughter.
- Section 246 (2) (d) of the Crimes Act states that:
- Without limiting the right of a court to make a finding in accordance
with subsection (1), a person is deemed to have caused the death of another person although the act is not the immediate or the sole
cause of death in any of the following cases—
- if by any act or omission he or she hastened the death of a
person suffering under any disease or injury which apart from such act or omission would have caused death;
- Accordingly, there is no requirement to establish that the accused knew about the actual condition of the deceased's heart to find
him culpable for causing the death of the deceased. Moreover, the accused is not allowed to use the lack of knowledge of the deceased's
weak heart condition as a shield to exonerate him from the culpability of causing the death of the deceased. Given the evidence presented
during the hearing, I am satisfied that a sober and reasonable bystander will find the conduct of the accused, that was driving a
car while having 158.4 milligrams of alcohol in 100 millilitres of his blood, had put the deceased at risk of some serious harm resulting
from that conduct. Accordingly, I find the Prosecution has proven the mens rea
In conclusion, I hold that the Prosecution has proven beyond a reasonabsonable doubt that the accused has committe offence of Manslaughter
ater as charged in the information. I, therefore, find the accused guilty of the offence of Manslaughter, contrary to Section239
(a) & (b) & (c) (ii) of the Crimes Act and convict him for the same accordingly.
.......................................................
Hon. Mr. Justice R.D.R.T. Rajasinghe
Aa
10th March 2021
Solicitors
Offp>Office of the Director of Public Prosecutions for the State.
Vosarogo Lawyers for the Accused.
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