[1973] PNGLR 714

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

MESSULAM WAUTA

Goroka
Frost SPJ

5 November 1973

CRIMINAL LAW - Indictment - Joinder of counts - Dangerous driving causing several deaths - Joinder of counts not permitted - The Criminal Code, ss. 328a[dccli]1, 567[dcclii]2.

Section 328a of the Criminal Code provides inter alia: “Any person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanour and is liable to a fine ....

If the offender causes the death of or grievous bodily harm to another person he is liable upon indictment to imprisonment with hard labour for five years.”

Held

(i)       the offence is committed by a person driving dangerously within the meaning of the section, and the fact that the offender causes the death of one person or more than one is a circumstance of aggravation which exposes him to a more serious punishment.

(ii)      accordingly, where the act of driving causes the death of two or more persons, separate counts of dangerous driving differing only in respect of the name of the deceased killed by the act of driving may not be joined in the one indictment.

Motion to Quash Indictment

The Crown presented an indictment containing six counts of dangerous driving, and counsel for the accused moved to quash the indictment on the ground of improper joinder. The facts, and the arguments of counsel, are set out in his Honour’s ruling.

Counsel

G. L. Georgeson, for the Crown.
J Bradshaw, for the accused.
Cur. adv. vult.

5 November 1973

FROST SPJ: In this case the Crown has presented an indictment charging the accused with six counts of driving a vehicle dangerously and thereby causing the death of another pursuant to s. 328a of the Code. Mr. Bradshaw on behalf of the accused has moved to quash the indictment on the ground of the improper joinder of certain of the counts. In effect he submits that the Crown can proceed with either counts one or two, and he does not object to the joinder of any one of the counts three to six.

The case put by the Crown as outlined by Mr. Georgeson is that on the night of the 4th August, 1973, whilst driving on the Highlands Highway from Kainantu to Goroka, the accused ran into a number of people upon the roadway and by reason of his dangerous driving caused the death of the persons named in the first and second counts. The Crown then alleges that the accused momentarily slowed down then accelerated, and after going about 90 feet, he then ran into a second group of persons including the persons named in counts three to six, who were also killed. The joinder was supported by the Crown under s. 567 and s. 568 (6) of the Criminal Code. However the latter section in my opinion clearly relates to the case of joinder of defendants and not of a number of offences against the same accused, and is thus inapplicable. The relevant provisions of s. 567 are as follows:

“Except as hereinafter stated, an indictment must charge one offence only, and not two or more offences.

Provided that when several distinct indictable offences are alleged to be constituted by the same acts or omissions, or by a series of acts done or omitted to be done in the prosecution of a single purpose, charges of such distinct offences may be joined in the same indictment against the same person.

But, if in any such case it appears to the Court that the accused person is likely to be prejudiced by such joinder, the Court may require the prosecutor to elect upon which of the several charges he will proceed, or may direct that the trial of the accused person upon each or any of the charges shall be had separately.”

Mr. Georgeson supports the joinder on the ground that there are six several distinct indictable offences constituted, as to the first two counts, by the same acts or omissions in respect to the driving of the accused, and as to the remaining four counts, by another and different set of acts and omissions but, together with the first two counts, constituting a series of acts done or omitted to be done in the prosecution of a single purpose, viz. the driving of the accused on the journey.

Mr. Bradshaw’s argument was based upon the proper construction, as he submitted it was, of s. 328a of the Code. The relevant portions of that section are as follows:

“Any person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanor and is liable to a fine etc.

If the offender causes the death of or grievous bodily harm to another person he is liable upon indictment to imprisonment with hard labour for five years.”

Mr. Bradshaw’s submission was that the offence was committed by a person driving dangerously within the meaning of the section, and the fact that the offender causes the death of one person or more than one is a circumstance of aggravation which exposes him to a more serious punishment. The term “circumstance of aggravation” is defined to mean and include all circumstances whereby an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance, see s. 1.

The submission is also supported by the provision that a word in the singular includes the plural. Ordinances Interpretation Ordinance, 1949-1967, s. 9 (b). It follows from Mr. Bradshaw’s argument that the causing of the death of a single person is not an element of the offence. In this respect the charge differs from that of manslaughter. In my opinion this submission is sound, and accordingly it is for the Crown to elect upon which of the counts one and two together with any one of the counts three to six it will proceed.
Order accordingly.

Solicitor for the Crown: P. J Clay, Crown Solicitor.
Solicitor for the accused: G. R. Keenan, Acting Public Solicitor.

[dccli]Infra p. 716.
[dcclii]Infra p. 715.