State v Amoy [1978] PGLawRp 541; [1978] PNGLR 266 (26 July 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 266 - The State v Andrew Amoy 

[1978] PNGLR 266

N164

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

ANDREW AMOY

Minj

Wilson J

13 July 1978

18 July 1978

20 July 1978

26 July 1978

CRIMINAL LAW - Manslaughter - Criminal negligence - What amounts to - Criminal negligence depends on probable not actual result - Causation of death - Substantial cause - Contributory negligence by deceased - Motor vehicle accident - Verdict of guilty.

On a charge of manslaughter the evidence disclosed that the accused drove his motor vehicle at a speed of approximately 90 m.p.h. along a familiar highway whilst aware of the presence of people in the vicinity, and deliberately not keeping a look out to the sides of the road in order to avoid his face being seen by his villagers (he being accompanied by his girlfriend) and that he ran down a person (being in fact his wife) who had run out in front of the car and who subsequently died from the injuries received.

Held

N1>(1)      Where a person is charged with manslaughter proof of criminal negligence is required.

N1>(2)      Criminal negligence is the very high degree of inadvertence to consequences variously described as “culpable”, “criminal”, “gross”, “wicked”, “clear” and “complete”.

Andrews v. Director of Public Prosecutions [1937] A.C. 576 and R. v. Bateman (1925) 19 Cr. App. R. 8 referred to.

N1>(3)      Whether or not a person has been guilty of criminal negligence is to be decided by reference to the situation prevailing when that person performed the actions in issue, not by reference to the consequences or actual result thereof.

Akerele v. The King [1943] A.C. 255 at p. 264 adopted and applied.

N1>(4)      Where death results from criminal negligence, it is necessary to show that the actions in issue were a substantial cause of the deceased’s death and something more than de minimis.

R. v. Gould (1963) 47 Cr. App. R. 241 and R. v. James Hennigan (1971) 55 Cr. App. R. 262 followed.

N1>(5)      In the circumstances, the actions of the accused in driving his motor vehicle in the manner in which he did amounted to criminal negligence, and despite the conduct of the deceased which contributed to her own death, the substantial cause of death.

Trial

This was a trial of an accused on a charge of manslaughter arising out of the driving of a motor vehicle.

Counsel

A. Alpine, for the State.

B. Gillen, for the accused.

Cur. adv. vult.

26 July 1978

WILSON J: The accused, Andrew Amoy of Yameiufa, is charged with manslaughter. It was alleged by the State that on 8th April, 1978 he was driving his Holden Kingswood motor car on the Highlands Highway at Mando where he unlawfully killed his wife, More Bulage Andrew, by running over her on the road. The State based its case against the accused on two grounds. It was contended that the accused, by driving his car in the manner he did on the afternoon in question, was guilty of criminal negligence. It was further contended, in the alternative, that the death occurred by the accused doing an unlawful and dangerous act. The State further argued that, if either ground were proved against the accused, he should be convicted of the crime as charged in the indictment, viz. manslaughter, but that, if neither were proved to the requisite extent, he should nonetheless be convicted of dangerous driving causing death. It was argued for the defence that the accused was neither guilty of manslaughter nor dangerous driving causing death and should be acquitted. The death of the deceased was solely caused by the deceased herself (so it was contended by the defence) or at least there was a reasonable doubt that the accused’s conduct was a substantial cause of the death.

On Thursday 13th July, 1978, when this trial commenced and after the necessary preliminary formulations had been completed, I went on a view. The State Prosecutor had applied for such a view; the application had not been opposed by defence counsel; and I had granted the application upon the basis that such a view, if conducted, would assist me to understand the evidence that was to be given.

The witnesses who gave evidence on behalf of the State were Maria Gari Nembari, the girlfriend of the accused who had been a passenger in the accused’s car; Balusi Ben, a schoolgirl who is about 12 years of age and who was an eye-witness; Michael David Germer, the doctor who treated the deceased on her admission to hospital on the evening of the accident shortly before she died and who conducted a post-mortem examination; Noel Tita, a mechanic who examined the accused’s vehicle after the accident; Doben Tanja, a sergeant of police attached to the C.I.B. at Goroka, who conducted a record of interview with the accused; Lola Rumbarumba, a schoolboy who is about 12 years of age and who also was an eye-witness; and John Noibano, a Village Court clerk who gave evidence about the existence of certain road signs.

The documentary evidence tendered as part of the State’s case consisted of a post-mortem report prepared by Dr. Germer, an inspection report prepared by the mechanic, Pidgin and English versions of the record of interview, and the s. 103 statement made by the accused.

The defence called two witnesses, Nagadumo Herako, who described the deceased’s behaviour on the day of the accident and gave some evidence of local custom, and Norman Wilson, the provincial coordinator in Goroka who also gave some evidence of local custom.

One other witness, Lucy Belaga, was called during a voire dire examination conducted with a view to determining whether Mr. Wilson was qualified to give expert evidence. I ruled that he was so qualified.

Before making my findings of fact in this case, I should deal with the question of the credibility and reliability of the witnesses. I have approached my task in the same way as I did in The State v. Manasseh Voeto[cdlxix]¹.

N1>[His Honour then dealt with the question of credibility and continued:]

N1>The accused did not give evidence himself. It is his right to remain silent at his trial if he wishes, and I do not in any sense criticize him for adopting the course he did. There is, however, evidence (and unchallenged evidence too) that he made certain admissions both in his record of interview and his s. 103 statement. I accept that evidence as far as it goes. Indeed, having regard to my view of the other material witnesses, I give the accused the benefit of the doubt in all respects in which his version of what happened is in conflict with other testimony.

N1>I now turn to my findings of fact:

N1>On Friday 7th April, 1978 the accused, a married man from Yameiufa Village, picked up his girlfriend near Goroka and drove to Kerowagi with her and some other friends and relatives. The accused drove them in his white Holden Kingswood sedan, which was in all relevant respects in good condition. When they arrived at Kerowagi late in the night and made some visits, they discovered that they couldn’t stay the night, so they returned in the direction of Goroka.

In the early hours of the morning of Saturday 8th April they stopped at Kundiawa Police Station intending to sleep. After a couple of restless hours with little or no sleep they set off for Goroka.

They had some food and drink on the way and stopped several times, including a stop when the exhaust pipe fell off and needed fixing and another stop for rest.

Although there was evidence of the purchase and consumption of the accused of some bottles of beer and there was other evidence of his tiredness, it was not proved that the accused was drunk and it was not proved beyond reasonable doubt that the accused was so tired or so affected by alcohol as to have directly affected his manner of driving. It should also be remembered that the evidence relating to consumption of food and alcohol covered a large time span, i.e. nearly 24 hours.

The car approached Mando on the Highlands Highway between Daulo Pass and Asaro at about 3.30 p.m. and the accused, who was driving, started to speed. Realising that he might be seen in the company of his girlfriend by his villagers, he drove at a high speed and deliberately kept his eyes to the road; he consciously avoided looking to either side of the road for that reason. The accused said in his record of interview:

“... I didn’t look around, I only look straight to the road and I speed the car.” Elsewhere in his record of interview he said: “I pointed my eyes straight through the road, so I did not see her.” In his s. 103 statement the accused said: “As I drove I did not want my village people to see my face, so I was not watching the road sides. I had my face down on the road where I was driving.” He travelled at approximately 90 m.p.h. along that stretch of the road, a relatively straight downhill stretch of gravel and dirt road, with a banked but not steep corner shortly before the place where the impact subsequently occurred. The road there is cambered with a stony ditch on the left hand side for traffic going towards Goroka. Although his speedometer didn’t work and although his was only an estimate, the uncontradicted evidence as to the extent of his speeding was his answer to question 60 in the record of interview: “I can estimate about 90 m.p.h. I travelled.” Whilst I accept that his speed was no more than 90 m.p.h. I see no reason to reject that evidence or find that his actual speed was significantly less than his own estimate of “about 90 m.p.h.”. In his s. 103 statement the accused mentioned that the car “sped” and “was speeding”. The accused was aware of some men and women sitting beside the highway and houses on both sides of the highway. Visibility approaching the corner previously referred to was relatively poor. He ought to have been aware of a junction near the scene of the accident where a minor road (not very visible) connecting the highway with Yameiufa joins on the right hand side of the highway for Goroka-bound traffic. The accused’s car just past the said corner ran down a person who had run out in front of the car; that person was the accused’s wife, the deceased. The accused did not recognise the person as his wife because he was “speeding”. The deceased, either knowing or suspecting that her husband had been away with a girlfriend saw his car approaching and intended to confront her husband or force him to stop the car as it approached. She tried to pick up a stone either to throw at the car or to threaten to throw at the car, but there was no time with the car fast approaching the said corner. The impact occurred on the left hand side of the road (the correct side for the accused’s vehicle) near the approach to a 20 m.p.h. speed limit for vehicles travelling in the direction in which the accused was travelling. The deceased’s body was struck by the accused’s car in the region of the right mudguard. The accused ought to have been aware that there was a 20 m.p.h. speed limit sign as well as a school sign a little further along. It was fine at the time of the accident, but it rained shortly afterwards. The accused did not deviate before the impact or stop after the collision, but his reason for not stopping was his fear of payback in circumstances in which he realised that he had hit some person.

The victim, i.e. the accused’s wife, received serious external and internal injuries when she was run over. She subsequently died of her multiple injuries and, in particular, the haemorrhage from the fracture of her pelvis and a haematoma inside her abdomen.

Had the accused either been driving slower or looking to both sides of the road as he proceeded along, this accident might well, and almost certainly would, in my opinion, have been avoided; the accused might well have slowed or swerved to avoid the impact with the deceased or the deceased equipped with more time at her disposal might well have had time to jump out of the path of the oncoming vehicle.

The accident must have happened in a split second. That being so and the estimation of the two school children as to times and distances being necessarily inaccurate, I was not impressed by Miss Gillen’s argument to the effect that the deceased by her conduct gave the accused no chance to avoid the accident. The plain fact of the matter is that, save in the event of suicide (and I have held that this was not a case of suicide), the accident could almost certainly have been avoided by the accused exercising reasonable care in the management of his vehicle rather than driving, as he did, as if hell bent on leaving the vicinity of his village almost wilfully blind to the possible consequences and certainly ignorant of the risks that would be apparent to a reasonable driver.

In view of the findings of fact and my conclusions regarding the notion of criminal negligence, it is unnecessary for me to decide whether the accused may have been guilty of manslaughter in accordance with the doctrine of unlawful and dangerous act. Miss Gillen relied strongly on Joseph Maino v. The State[cdlxx]² as authority for the proposition that for the doctrine to apply the dangerous act relied upon by the prosecution and the unlawful purpose should be shown to be distinct. She contended that the course of negligent driving in this case which might be characterized as dangerous also involved breaches of the traffic laws (the one course of driving therefore constituted both the unlawful and the dangerous act), and that therefore there was no ground for a manslaughter conviction. Mr. Alpine referred me to the English authority of Director of Public Prosecutions v. Newbury and Jones[cdlxxi]³.

Criminal negligence is the very high degree of inadvertence to consequences which will ground a conviction for manslaughter. This is a jury question. In the present case I am in not the slightest doubt that the accused, in driving at approximately 90 m.p.h. along the road in question when he knew people were about and with his eyes “to the road” and face “down on the road”, i.e. deliberately not keeping a look-out to the sides of the road in order to avoid his face being seen by his villagers, was guilty of criminal negligence. I accept that he was not aware of the risk created by his manner of driving, but the risk of someone, whether an adult or a child, running out on to the road or crossing quickly in front of him would have been apparent to any reasonable man in his position. His negligence was of a type that has variously been described in the cases as “culpable”, “criminal”, “gross”, “wicked”, “clear” and “complete”. (See Andrews v. Director of Public Prosecutions[cdlxxii]⁴ and R. v. Bateman[cdlxxiii]⁵.)

N1>I do not answer the question of whether or not the accused was criminally negligent by reference to the consequences which brought him before the court. As was emphasized by the Privy Council in Akerele v. The King[cdlxxiv]⁶ the question has to be answered by reference only to the situation prevailing when the accused performed the actions in issue. As their Lordships stated (at p. 264):

“The negligence to be imputed depends on the probable, not the actual, result.”

When the accused decided to speed and also decided to avoid being seen by his villagers by keeping his head or face down, it was likely that a situation of risk was being created.

I therefore find that, subject only to the question of causation, the State has proved that the accused was guilty of criminal negligence and, on that ground, he should be found guilty of manslaughter.

It follows that it is not necessary for me to decide whether the degree of negligence to be proved in a case of dangerous driving causing death is the same as or something less than will suffice for manslaughter.

It was argued by Miss Gillen that the accused is excused by s. 23 of the Criminal Code Act, 1974. She contended that the death of the deceased was accidental. The event, i.e. the deceased being run over by the accused’s car was, albeit unintended and unforeseen by the accused, reasonably foreseeable, or a likely consequence of his fast driving with wilfully defective look-out. The presence of the deceased ought to have been known to the accused.

As I indicated earlier, I need to deal with the question of causation. I have already found that the accused was speeding and that he failed to keep a proper look-out. I have found that that amounted to criminal negligence. In the circumstances it is almost inevitable that I must reach the further conclusion (as I do) that the accused’s manner of driving was a substantial cause of the deceased’s death (R. v. Gould[cdlxxv]⁷) and something more than de minimis (R. v. James Hennigan[cdlxxvi]⁸). If that was all the negligence that had been shown to have occurred, the prosecution would clearly have established causation.

But, as Mr. Alpine for the prosecution so fairly conceded, the deceased, by running on to the highway in front of the approaching car was clearly guilty of negligence herself. She disregarded her own safety as she foolishly reacted to her husband’s approach accompanied, as he was, by his girlfriend. Her conduct, though foolish, was to some extent understandable having regard to her obvious state of agitation. I have little difficulty in reaching the conclusion that the deceased by her own conduct contributed to her own death.

There being two causes of the deceased’s death, it falls to me as judge of the facts to decide whether the accused’s mode of driving may be said to be so connected with the death of the deceased that it must be regarded as having a sufficiently substantial causal effect which subsisted up to the death without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event. I am satisfied beyond reasonable doubt that this is so. I am not persuaded that the accused’s manner of driving was nothing more than de minimis: see R. v. James Hennigan[cdlxxvii]⁹.

N1>For these reasons I find the accused guilty of manslaughter and he will be convicted of that crime.

N1>Verdict: Guilty of Manslaughter.

Solicitor for the accused: M. Kapi, Public Solicitor.

Solicitor for the State: K. B. Egan, Public Prosecutor.

[cdlxix][1978] P.N.G.L.R. 119.

[cdlxx][1977] P.N.G.L.R. 404.

[cdlxxi][1976] 2 All E.R. 365.

[cdlxxii] [1937] A.C. 576.

[cdlxxiii](1925) 19 Cr. App. R. 8.

[cdlxxiv][1943] A.C. 255.

[cdlxxv](1963) 47 Cr. App. R. 241.

[cdlxxvi](1971) 55 Cr. App. R. 262.

[cdlxxvii] (1971) 55 Cr. App. R. 262.