Director of Public Prosecutions v Namaduk [1978] NRSC 10; [1969-1982] NLR (D) 74 (25 September 1978)

[1969-1982] NLR (D) 74

IN THE SUPREME COURT OF NAURU

Criminal Appeal No. 32 of 1978

DIRECTOR OF PUBLIC PROSECUTIONS

v.

PETER NAMADUK

25th September, 1978.

Section 285 of the Criminal Code of Queensland (adopted) - duty to provide necessaries - extent of duty.

Appeal against the acquittal of the respondent on a charge of unlawfully omitting to do an act, contrary to section 285 of the Criminal Code. The respondent and his wife permitted an elderly female relative to come to stay in an outbuilding at their home. When she first came she was able to walk about and mix milk drinks for herself but after some time she became ill and was confined to the outbuilding. She was seen by a doctor. However, in the two days before her death her condition deteriorated suddenly and seriously. The respondent's wife and daughter attended upon her but the respondent himself did not do so. The doctor was not called.

There was no evidence that the respondent knew that the woman's condition had deteriorated. By Nauruan custom it would have been regarded as improper for the respondent, as a man, to go into the outbuilding occupied by the woman.

Held: (1) The obligation imposed by section 285 of the Criminal Code is to take steps which are reasonable in the circumstances to ensure that the person to whom the duty is owed is provided with the necessaries of life.

(2) The duty does not arise unless the person alleged to owe the duty knows that the person to whom the duty is alleged to be owed is unable to withdraw himself from his charge.

Appeal dismissed.

R.J. Hooker for the appellant
Respondent in person

Thompson CJ.:

The respondent appeared before the District Court charged with manslaughter, contrary to section 303 of the Criminal Code of Queensland (adopted), and with unlawfully omitting to do an act whereby bodily harm was caused, contrary to section 328 of that Code. At the commencement of the proceedings the learned magistrate informed counsel that he would hold a preliminary inquiry in respect of the count alleging manslaughter and defer consideration of the second count until he had decided whether the respondent should be committed for trial on the first count. Presumably he meant that, if he decided that the respondent should not be committed for trial on that count, he would then decide whether a case had been made out on the second count and, if it had, he would proceed with the trial of the respondent on that count in accordance with the provisions of section 173 of the Criminal Procedure Act 1972. Counsel for both the appellant and the respondent agreed to his adopting the course he proposed.

At the end of the preliminary inquiry the learned magistrate found that the offence of manslaughter had not been made out and discharged the respondent on the first count. He found that the evidence adduced did establish prima facie that the respondent had a legal duty to provide the necessaries of life for the person whose death he was alleged to have caused and that failure to provide medical treatment had contributed to causing her death. But he considered that the evidence was inadequate to remove all reasonable doubt as to whether the respondent's failure to provide such medical assistance was culpable. In particular, he considered that it was not established that the respondent knew that she was in need of medical treatment. He, therefore, found that a prima facie case had not been established in respect of the second count. This appeal is against that decision.

Mr Hooker, appearing for the appellant, has submitted that, once a person has undertaken the duty of providing the necessaries of life a person who is unable to withdraw from his charge, he has an obligation to ascertain what necessaries are required and when, and that is no defence to show that he had not become aware of the requirement of any particular necessary. Stated in those terms the proposition is too widely expressed; what is required is that the person who has undertaken the duty should take steps which are reasonable in the circumstances to ensure that the necessaries of life are in fact provided as needed. That means, for instance, that, if he knows that the person in his charge is ill, he should from time to time check to see what that person's condition is and what medical treatment, if any, is apparently required. If that person becomes seriously ill, he should check his condition more often. But his failure to learn of a sudden deterioration in that person's condition and a consequent unexpected need for medical attention is not to be regarded as culpable if he has carried out the checks which a reasonable person in the circumstances would have carried out.

I have dealt with that point because it was raised by Mr. Hooker and it is desirable that it should be dealt with. But, before the question of whether the evidence established that the respondent did not discharge his duty arises for consideration, it is necessary to decide whether the evidence did in fact establish that the duty existed. The learned magistrate held that it did because the respondent and his wife had agreed to take the deceased, Eigabwedia Detenamo, into their home and to look after her. In doing so he appears to have overlooked the fact that the duty arises by virtue of section 285 of the Code only where a person has charge of another who is unable by reason of age, sickness, unsoundness of mind, detention or any other cause to withdraw himself from that charge and is unable to provide himself with the necessaries of life. The evidence of those with whom Eigabwedia stayed before going to live with the respondent establishes that at the time when she went there she was able to walk about and mix milk drinks for herself. It has not been established even on a balance of probabilities that she was unable to withdraw from the charge of the respondent before the last few days of her life.

The evidence establishes that the respondent agreed to have Eigabwedia live in his house and to look after her. But there is no evidence that he ever knew that she had become unable to remove herself from his house and that he undertook charge of her as a person incapable of doing so. Evidence was given that he spent many hours each day at work away from home and that, as a male, it would not have been proper for him to take any part in actually ministering to Eigabwedia, a female. Contrary to the learned magistrate's finding, therefore, I consider that the evidence did not establish that the respondent had a duty under section 285 to provide Eigabwedia with the necessaries of life. Nor is there evidence that a legal duty was imposed on him in any other way.

Accordingly, I find that the learned magistrate's decision that there was no case for the respondent to answer on the second count was correct. The appeal is dismissed.