Gamoga v The State [1981] PGLawRp 604; [1981] PNGLR 443 (27 October 1981)

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CRIMINAL LAW - Particular offences - Dangerous driving causing death - Test to be applied - Test objective - Finding of fault required - What constitutes fault - Criminal Code, s. 336.

CRIMINAL LAW - Particular offences - Dangerous driving causing death - Sentence - Within discretion of court - Need for deterrence - Need to distinguish between heedlessness and recklessness - Criminal Code, s. 336.

CRIMINAL LAW - Appeal against conviction and sentence - Powers of appellate court - Distinction between inferences of fact and matters of credit.

In relation to the offence of dangerous driving causing death contrary to s. 336(1) of the Criminal Code the test to be applied is an objective one which apart from the question whether the driving constituted a danger must include a finding of fault on the part of the driver causing the situation: such fault to involve a failure, or falling below the care and skill of a competent and experienced driver in relation to the manner of driving and to the relevant circumstances of the case.

In sentencing for the offence of dangerous driving causing death, whilst the need for public deterrence prevails over other factors, the sentence itself remains within the discretion of the court which ought to distinguish for the purposes thereof between cases of heedlessness or recklessness; i.e. between cases of incompetence and error of judgment on the one hand and cases involving circumstances of aggravation on the other.

The Public Prosecutor v. Sima Kone [1979] P.N.G.L.R. 294, discussed and explained.

Principles upon which Supreme Court will set aside findings of fact of court at first instance and distinction between inferences and matters of fact discussed.

This was an appeal against conviction and sentence on a charge of dangerous driving causing death contrary to s. 336(1) of the Criminal Code.

The tests expounded here were applied in Migi Barton v. The State Unreported Supreme Court judgment S.C. 213(M) of 24th November, 1981, in which an appeal against conviction and sentence on a charge of dangerous driving causing death was upheld and where the principles relating to the finding of fault were applied to a defence of sudden emergency where there was a finding that the passenger had grabbed the steering wheel and caused the dangerous driving.

ANDREW J: In this matter I have had the advantage of reading the reasons for judgment of Pratt J. I agree with his reasons and with his conclusions and I wish to add only the following on my own behalf.

‘drives a motor vehicle on a road or in a public place dangerously’ includes the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and use of the road or public place and the amount of traffic which is on the road or in the public place at the time, or which might reasonably be expected to be on the road or in the public place;”

In the determination of the question of whether the driving constitutes a danger it is well established that the test is an objective one: R. v. Coventry[dcxcvii]¹; McBride v. The Queen[dcxcviii]² per Barwick C.J. at pp. 49, 50:

“The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all the circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place...

“A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.

“This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others.”

The test of objectivity does not exclude as irrelevant an issue of fault or culpability. See R. v. Warner[dcxcix]³. The statement of the court of appeal in R. v. Gosney[dcc]⁴ is of assistance:

“It is not an absolute offence. In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation.”

This statement is to be read in the light of the provisions of Ch. V of the Criminal Code (“the excusatory provisions”). See R. v. Warner (supra), R. v. Pius Piane[dcci]⁵ and Smith v. The Queen[dccii]⁶.

In R. v. Coventry[dcciii]⁷, the judgments emphasize that the question was not whether a person was indifferent to the consequences of his driving (which might be considered as recklessness) but whether the acts of the driver constituted a danger, real or potential, to the public, and that the standard was an objective one “impersonal and universal, fixed in relation to the safety of other users of the highway”, citing McCrone v. Riding[dcciv]⁸. The High Court added that casual behaviour and momentary lapses of attention, if they result in danger to the public are not outside the prohibition of the provision. See per Jackson C.J. in Smith v. R. (supra) at p. 104.

N1>The appeal against conviction in this case alleges no error of principle or fact on the part of the learned trial judge. It is said that the proven facts should not or could not have constituted the offence of dangerous driving. But an appellant who argues that in the absence of error the inference of guilt is not reasonably open, has a hard row to hoe. This is particularly so in a case of dangerous driving causing death where so much rests on assessment of matters such as the movement of vehicles on the road and of human judgment, often in conditions of stress and a finding made based on “the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road or public place and the amount of traffic which is on the road or in the public place at the time, or which might reasonably be expected to be on the road or in the public place”.

N1>The appellant proceeded across a busy intersection. He had three lanes of traffic to negotiate and his vehicle with eight persons and he had to proceed uphill. The learned trial judge found that the appellant saw a vehicle coming on his left (an ambulance) which he failed to pay any further attention as he proceeded across the intersection. He found that there was a failure sufficiently to observe the speed of the oncoming vehicle, a failure to make a reasonably accurate estimate of its speed in terms of the ability of the accused’s own vehicle to get across safely and in allowing an insufficient safety margin.

N1>Bearing in mind all of those circumstances including the amount of traffic on the road, I am of the opinion that the inference that the manner of driving was potentially dangerous to the public was one which was reasonably open to the trial judge.

N1>I think therefore, that the appeal against conviction fails. I turn to the appeal against sentence.

N1>This charge is one where the punitive and deterrent aspects of punishment may well prevail over the reformative and where it may well be not inappropriate to sentence even a first offender of unimpeachable character to imprisonment for example’s sake: See R. v. Thompson[dccv]⁹. Or as it was expressed in R. v. Harstorff; Ex parte Attorney-General[dccvi]¹⁰:

“In most instances in a case of the offence of dangerous driving causing death, the sentence must be gauged to act as a deterrent more so than to the extent that it must be gauged as punishment: its main function must be the deterrence of others.”

The principle that the need for public deterrence in cases of dangerous driving causing death, prevails over other factors has been well established in this Court. In The Public Prosecutor v. Willy Moke Soki[dccvii]¹¹, the court in its unanimous judgment, after making reference to the caution necessary when dealing with cases from overseas jurisdictions, had this to say at p. 167:

“In many areas of this country and with some of its inhabitants, sentences of detention appear to us to be the only really effective personal and public deterrent available. Sentences of detention appear to be in tune with what public conscience and community feeling would demand in most cases of dangerous driving causing death.”

In a similar way the court in The Public Prosecutor v. Sima Kone[dccviii]¹² concluded as follows:

“The court considers that only in the most exceptional of cases may the necessity for public deterrence against this offence be overridden by the circumstances of a particular case, to the extent that the offender be not gaoled.”

N1>These principles are therefore well established but nevertheless they do not remove the judicial discretion in relation to sentence to the extent that a sentence of imprisonment is mandatory in every case of dangerous driving causing death. Neither the decision in Willy Moke Soki[dccx]¹⁴ nor in Sima Kone (supra) attempts to outline or define the exceptional case which might call for a lesser punishment than imprisonment and this is obviously good sense as the circumstances involved in cases of dangerous driving causing death may be infinite.

N1>However, despite this and despite the strictures in Willy Moke Soki (supra) of the usefulness to be made of cases and decisions in other societies, I think that there is a distinction between cases of heedlessness and recklessness or, expressed in another way, between cases of incompetence and error of judgment on the one hand and cases involving circumstances of aggravation, regrettably familiar, which so often characterize the more serious breaches of the section—high speed, intoxication, overtaking in the face of oncoming traffic, cutting corners, and other such examples of recklessness involved in deliberately taking unjustifiable risks: See per Jacobs J. in R. v. Hill [dccxi]¹⁵. Another serious breach may be the person who drives a vehicle which he knows to be unroadworthy or in a dangerous condition.

N1>It is established since the decision of the High Court in R. v. Coventry[dccxii]¹⁶ that it is not an essential element of the crime created by s. 336 of the Criminal Code that the accused should have adverted to the possible consequences of his manner of driving and been indifferent to them. In short, recklessness is not necessary; inadvertent negligence if sufficiently serious is enough. Though this is so with regard to the question of guilt or innocence, the distinction between heedlessness and recklessness is obviously highly relevant to the question of penalty. Normally speaking, and other things being equal, one would expect the man who realizes that his manner of driving may endanger the public and nevertheless proceeds with it, to receive a heavier penalty than the man who carelessly fails to advert to the possibility of danger at all: See per Bray C.J. in R. v. Thompson[dccxiii]¹⁷ and in R. v. Hill[dccxiv]¹⁸.

N1>In England the distinction in the context of causing death by dangerous driving between cases of momentary negligence, for which a fine is normally the appropriate sentence, and those involving deliberate risk-taking, which will normally lead to a custodial sentence, is now well established: See R. v. Guilfoyle[dccxv]¹⁹; R. v. Dutton[dccxvi]²⁰; R. v. Lyons[dccxvii]²¹; R. v. Jolliffe[dccxviii]²².

N1>In my opinion this distinction conjoins common sense and fairness and is equally applicable in Papua New Guinea.

N1>I think that this case resembles those already mentioned and I think, with respect, that insufficient attention was given to the distinction between heedlessness and recklessness. As in R. v. Hill (supra) it was no more than a case of inadvertence or heedlessness or error of judgment sufficiently serious to constitute a danger to the public, but it was not a case of recklessness. It did not exhibit any circumstances of aggravation. The appellant was of unimpeachable character and there was no history of any previous driving convictions. I think that in these circumstances a sentence of twelve months’ imprisonment was a very severe punishment and I am satisfied that it was manifestly excessive.

N1>I think the appellant should have been fined or given a suspended sentence or ordered to enter into a recognizance to keep the peace and be of good behaviour. He has in fact served over two months’ imprisonment. In these circumstances I would reduce the sentence to the period already served.

N1>I would dismiss the appeal against conviction but allow the appeal against sentence. I would vary the sentence to the period of imprisonment already served by the appellant when released on bail by this Court at the conclusion of argument.

N1>PRATT J: The appellant was convicted by the National Court on 21st April last of dangerous driving causing death. His sentence was twelve months I.H.L. The facts as found by the learned trial judge are set out in full in his Honour’s judgment. The main thrust of the appellant’s case is that his Honour was in error in drawing certain inferences from those facts and the findings of primary facts do not appear to be under any contest.

“At approximately 4 p.m. on Wednesday 19th November the accused was driving a (Datsun) motor utility truck along Nita Street, adjacent to the Boroko Shopping Center, in the direction of the Hubert Murray Highway, with the intention of crossing the highway and driving into Stores Road which joins the highway opposite to where Nita Street joins it. The traffic generally at that time was heavy. The weather was fine.

Before entering upon Hubert Murray Highway the accused stopped at a traffic ‘Stop’ sign, This ‘Stop’ sign is set back from the general inbound alignment of the highway and it is uphill from the ‘Stop’ sign to the highway, and then uphill again from the highway into Stores Road. The utility driven by the accused had two adults in the cabin as well as the accused, and five adults in the back, a total loading of eight persons.

The highway right at the junction had two outbound lanes and one inbound lane. Nita Street is a minor road, inconspicuous from the highway, and the highway of course is a heavily trafficked arterial road from old Port Moresby town to the airport.

The accused, after stopping at the ‘Stop’ sign for some minutes awaiting an opportunity to cross, looked to his left and saw an ambulance vehicle at a distance of approximately 110 metres from the junction, travelling outbound in the outside lane. Neither its warning light nor its siren was on. Because of the distance of the ambulance the accused thought he had time to safely cross and he paid no further attention to the ambulance but started across. His speed crossing was 5-10 kph.

The ambulance driver had been an ambulance driver for nine years. The speed of the ambulance was approximately 60 kph. This is not an unusual or inherently dangerous speed on the highway at that time and in those circumstances. I accept this speed on my impression of the honesty and, on this point, the reliability of the driver of the ambulance and more especially of the witness Vaita Samuel, whom I consider reliable generally. In addition, such speed is confirmed by being reasonably consistent arithmetically with the ambulance having been, as the accused says, approximately 110 metres from the intersection just before the accused started across, with the accused’s statement of his speed as he crossed, namely 5 to 10 kph, and with the police evidence to the effect that the accused’s vehicle would have travelled about 18 metres before impact.

After the accused’s vehicle had travelled about 18 metres and was commencing to enter Stores Road it was struck in the vicinity of the nearside wheel by the nearside of the ambulance vehicle. It was thus pushed a considerable distance to the right, the deceased and others were thrown out of the back and the deceased received injuries from which he died. It should be mentioned that there was no vehicle ahead of the accused’s, waiting at the ‘Stop’ sign.”

“It is a fact, and is generally understood, that the purpose of a ‘Stop’ sign at the entrance from a minor road onto a main highway is to enable an uninterrupted flow of traffic on the main highway, and to ensure that vehicles entering from the minor road do so with safety to themselves and to others. The drivers of such vehicles should, and it is the general understanding and expectation of other drivers that they will, wait until they can cross safely before they do set off across.”

When his Honour says that “drivers ... should ... wait until they can cross safely”, I do not understand his Honour to be laying down a strict interpretation of the Motor Traffic Regulations. A “stop” sign must be distinguished from a “give way” sign. Having come to a full stop in compliance with the “stop” sign, and having then ascertained that he may proceed with safety from his right hand direction, the driver has complied with the requirements of the regulations. This does not mean to say however that he can barge across a line of traffic or into the direct path of a vehicle approaching from his left in such a way that a near collision is inevitable. Nevertheless the existence of a “stop” sign does not relieve traffic approaching from the left of their obligation to give way to vehicles to their right. What his Honour was directing his mind to is the general misconception in parts of Papua New Guinea that certain rights flow from whether a vehicle is on a major or a minor road, and that for any driver to proceed across the intersection in the traffic conditions prevailing at the time without ensuring he could do so with complete safety, would be to engage in a very hazardous enterprise indeed. Technically the appellant had right of way, but that certainly does not end the matter. He admitted to the popular misconception that he thought the ambulance had right of way “if it had been closer”, because he himself was facing a “stop” sign. What his Honour is therefore saying relates to a belief in the mind not only of the appellant himself but of much of the public in general.

“I am satisfied that the accused failed to pay any attention to the ambulance vehicle after he saw it, or last saw it, at a distance of about 110 metres. I am also satisfied that he was guilty of (1) failing to sufficiently observe the speed of the oncoming vehicle, (2) failing to make a reasonably accurate estimate of its speed (not necessarily in kilometres per hour but in terms of the ability of his own vehicle to get across safely) and (3) allowing an insufficient safety margin.”

Each of the matters referred to in this paragraph amounts to an inference drawn from primary facts found on the evidence before the learned trial judge. His Honour then made reference to the “relevant authorities” as a result of which he found the accused guilty beyond reasonable doubt.

The trial judge in this instance has been dealing with dangerous driving cases for quite some time. I do not consider it essential for a court to list the particular authorities in mind, though it does have the advantage that should the case proceed to appeal, there can be no room for doubt. It would certainly be a counsel of prudence under the newly acquired District Court jurisdiction. The authorities are well known. They make it quite clear that the question is not one of guilty intent. Indeed the question of whether a person intended to drive dangerously or not is irrelevant to the charge. It is in fact the manner of driving which is of concern to the tribunal. If the manner is dangerous, it matters not “whether the driver was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best” (Frankis Tilney Evans[dccxix]²³). In 1961 the Court of Criminal Appeal in England had a number of pertinent remarks to make in relation to dangerous driving in the case of R. v. McBride[dccxx]²⁴. Ashworth L.J. at p. 9 points out that the test is an objective one, although there may be occasions in which a bystander would not be aware of all the existing factors:

“For example, he would be unaware of the condition of the driver in regard to sleepiness or the effect of drink.”

His Lordship goes on to point out that the mere fact the driver has imbibed alcoholic liquor is not of itself relevant. In order to render “evidence as to the drink taken by the driver admissible, such evidence must tend to show that the amount of drink taken was such as would adversely affect a driver or, alternatively, that the driver was in fact adversely affected”. This factor of course may well not be known to an objective observer but when taken in conjunction with what that observer has seen, would indicate to the tribunal sifting all the evidence that in fact the action of the driver at the time was indeed dangerous.

I am also of the view that the statement of the law by the High Court of Australia in R. v. Coventry[dccxxi]²⁵ is appropriate to the circumstances of Papua New Guinea and is certainly not at odds with anything stated by the court of appeal in England. I particularly draw attention, for example, to the words of the joint judgment of Latham C.J., Rich, Dixon and McTiernan JJ. at pp. 637 to 638:

“The driver may have honestly believed that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public... The standard is an objective standard, ‘impersonal and universal, fixed in relation to the safety of other users of the highway’... The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles.”

“But casual behaviour on the roads and momentary lapses of attention, if they result in danger to the public, are not outside the prohibition of that provision merely because they are casual or momentary. Further, ‘manner of driving’ includes, in our opinion, all matters connected with the management and control of a car by a driver when it is being driven. It includes starting and stopping, signalling or failing to signal, and sounding a warning or failing to sound a warning, as well as other matters affecting the speed at which and the course in which the car is driven.”

“Advertence to the danger on the part of the driver is not essential; all that is essential is proof that the acts of the driver constitute danger, real or potential, to the public.”

All of these statements of the law have been relied upon by various National Court judges both before and after Independence and I take them to accurately represent the law in Papua New Guinea. (See also R. v. Hain[dccxxii]²⁶).

N1>I consider that these principles forming part of the law in Papua New Guinea must be applied in conjunction with the overall statement of the Court of Criminal Appeal in R. v. Gosney[dccxxiii]²⁷. At p. 680 of the report appears the following paragraph, which in my view states accurately the general framework applicable to offences under this section as much in Papua New Guinea as the United Kingdom:

“In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. ‘Fault’ certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a naturally poor driver, while straining every nerve to do the right thing, falls below the standard of a competent and careful driver. Fault involves a failure, a falling below the care or skill of a competent experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case. A fault in that sense, even though it be slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient. The fault need not be the sole cause of the dangerous situation. It is enough if it is, looked at sensibly, a cause. Such a fault will often be sufficiently proved as an inference from the very facts of the situation. But if the driver seeks to avoid that inference by proving some special fact, relevant to the question of fault in this sense, he may not be precluded from seeking so to do.”

These principles I take to have been to the fore of his Honour’s mind when he was deciding the course he should take in the trial. I do not propose to examine in detail each of the matters upon which his Honour felt satisfied. It is clear from the accused’s own evidence that he did not pay any further attention to the ambulance after he noted it some 110 metres away. I consider that his failure to “observe the speed” and make “a reasonable estimate of such speed” are perhaps much the same thing. If he had done so, then obviously no accident would have occurred. For like reason the effect of the heavy load on his own vehicle combined with the fact that he was moving up an incline must have contributed to a failure to allow a sufficient margin of safety. I note of course that the accused claims he had taken these matters into account but the learned trial judge formed the view that such was not the case. I am not sure exactly why his Honour came to this conclusion but it is the only pertinent area where an inference has been drawn which may have something to do with his Honour’s assessment of the credibility of a witness or witnesses appearing before him. Certainly the inference that the appellant failed to take these matters adequately into account is clearly open on the evidence and is not an unreasonable one. I shall have more to say on this aspect a little later on.

The question of what inferences may be drawn by a court of appeal and the duties of such court have received comment by the Supreme Court in recent decisions and were the subject of specific submissions before this Court. In Kerr v. Motor Vehicles Insurance (P.N.G.) Trust[dccxxiv]²⁸, Andrew J. adopted the Australian High Court approach as expressed in Warren v. Coombes[dccxxv]²⁹, which as Miles J. points out in Brian John Lewis v. The Independent State of Papua New Guinea[dccxxvi]³⁰, is a somewhat delayed “conversion” by that court to the English approach expounded in Mersey Docks and Harbour Board v. Procter[dccxxvii]³¹ and Powell and Wife v. Streatham Manor Nursing Home[dccxxviii]³² and Benmax v. Austin Motor Co. Ld.[dccxxix]³³.

N1>One of the initial matters which is of some significance in this jurisdiction are the remarks by the various courts on the necessity to distinguish most carefully between those cases where there is an appeal from a jury on a question of fact and those in which a magistrate or judge is the sole tribunal. For example, at p. 373 of Benmax (supra) Viscount Simonds cites the following extract by Lord Chancellor Cave in the Mersey Docks case (supra) with approval:

“The procedure on an appeal from a judge sitting without a jury is not governed by the rules applicable to a motion for a new trial after a verdict of a jury.”

This approach is also adopted by Lord Somerville where his Lordship says at p. 377:

“I would... respectfully differ from those who have suggested that an appeal on fact from a judge sitting alone is the same as, or should be assimilated to, an appeal from a jury. Apart from the fact that in the former case the appeal is a rehearing, juries do not, and judges in varying degrees do, give reasons for their conclusions.”

I also agree with the joint judgment of Gibbs A.C.J., Jacobs and Murphy JJ. at p. 301 of Warren v. Coombes (supra) where the court is dealing with an earlier dissenting judgment of Windeyer J.:

“... we need say no more about it than that the traditional and practical reasons for the reluctance of an appellate court to interfere with the verdict of a jury do not exist where the judgment is that of a judge sitting alone; for one thing, the judge gives reasons, whereas the verdict of the jury is, as Lord Denning M.R. has said, ‘as inscrutable as the sphinx’: Ward v. James [1966] 1 Q.B. 273 at p. 301.”

The legislation governing the operation and functions of a court of appeal in Papua New Guinea (s. 7 of the Supreme Court Act 1975), the United Kingdom (O. 59, r. 10) and New South Wales (s. 75a of the Supreme Court Act as amended in 1972) are, although differently worded, essentially the same in their result. Section 7 of the Supreme Court Act, 1975, says:

(1) An appeal to the Supreme Court shall be by way of rehearing upon the evidence given in the court the decision of which is appealed against, subject to the right of the Supreme Court—

(a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and

Perhaps the most succinct summary of the proper approach to be adopted by a court of appeal occurs in the judgment of Lord Reid at p. 376 of the Benmax case[dccxxx]³⁴:

“But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion.”

Thus it is important to bear in mind not only the distinction between those cases which are appeals from the decision of a jury and those of a judge sitting as a judge of law and fact combined, but to avoid the confusion referred to by Viscount Simons at p. 373 of Benmax (supra) where his Lordship says:

“But I cannot help thinking that some confusion may have arisen from failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts. An example of this distinction may be seen in any case in which a plaintiff alleges negligence on the part of the defendant. Here it must first be determined what the defendant in fact did and, secondly, whether what he did amounted in the circumstances (which must also so far as relevant be found as specific facts) to negligence. A jury finds that the defendant has been negligent, and that is an end of the matter unless its verdict can be upset according to well established rules. A judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from them the inference of fact whether or not the defendant has been negligent. This is a simple illustration of a process in which it may often be difficult to say what is simple fact and what is inference from fact, or, to repeat what I have said, what is perception, what evaluation.”

Similar views were expressed by the High Court in Warren v. Coombes[dccxxxi]³⁵ where their Honours say:

“Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.”

“The duty of the appellate court is to decide the case, the facts as well as the law, for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that he was wrong, they must discharge their duty and give effect to their own judgment.”

The principles enunciated so far do not of course concern the exercise of the trial judge’s discretion. That is an entirely different area. With the exception of the present trial judge’s dismissal of the appellant’s claim that he had taken a number of factors into account before he decided to move off across the intersection, this further principle of law does not really fall for application in the present appeal. The most recent example of the difficulties an appeal court faces when being called upon to examine the exercise of the trial judge’s discretion and the different principles which apply in such circumstances, is found in the High Court of Australia decision, Gronow v. Gronow[dccxxxii]³⁶, particularly in the judgments of Mason and Wilson JJ. at p. 138, the judgment of Murphy J. at p. 143 and Aicken J. at p. 149.

N1>In the recent House of Lords’ decision, Whitehouse v. Jordan and Another[dccxxxiii]³⁷, their Lordships reaffirmed the long established principles applicable where a discretionary judgment is appealed against. At p. 276 Lord Justice Edmund-Davies says:

“It has long been settled law that, when the decision of a trial judge is based substantially on his assessment of the quality and credibility of witnesses, an appellate court ‘must, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong’.... And that is so irrespective of whether or not the trial judge made any observation with regard to credibility.”

I do not consider that the grounds of this appeal call into question a discretionary judgment. The facts were undisputed and the inference from those facts may be drawn just as easily by the appeal court as by the learned trial judge.

Perhaps the only additional factor of importance which must be borne in mind when dealing with an appeal from a criminal case, stems from the basic presumption of innocence given under the common law and vested by the Constitution with the concomitant principle that where on the evidence two opposing inferences may be drawn, one in favour and one adverse to the accused, it is a duty of the trial judge to select that which is the more favourable. In such circumstances it would clearly be an error on the part of the trial judge to select the adverse inference and in accordance with the principles already mentioned, there would be no difficulty in the way of the court of appeal substituting the inference most advantageous to the accused in place of that which was adopted by the trial judge. Once again however, I do not consider that the facts of this case, or the inferences drawn, fall into such a category.

On the facts his Honour inferred that an act of dangerous driving had occurred. Even accepting the appellant’s evidence that prior to moving off he took into account the various factors mentioned earlier, there remains the one irrefutable fact that having ascertained the existence of the oncoming vehicle and then having put his own vehicle into motion, he did not again check the progress of the other vehicle, and this despite the fact that he was proceeding across a main highway which carried two lanes of traffic on its western side and at some stage or other had his vision blocked by at least one other vehicle for part of the time. Even apart from the “respect and weight” which an appeal court should always give to the conclusion of a trial judge, it is quite obvious to me that the appellant failed to carry out a necessary precaution in the process of executing his potentially dangerous manoeuvre. I see no reason therefore for interfering with the conclusions of the learned trial judge.

This leads me then to the final ground of appeal, namely severity of sentence. Once again this is a discretionary matter, and no doubt the learned trial judge had very much in mind the strong words earlier promulgated by the Supreme Court on the matter of sentence in such cases. Indeed his Honour was one of the members of the bench in the case of The Public Prosecutor v. Sima Kone[dccxxxiv]³⁸. At p. 297 the court says:

“The Court considers that only in the most exceptional of cases may the necessity for public deterrence against this offence be overridden by the circumstances of a particular case, to the extent that the offender be not gaoled.”

It is my appreciation of the law that courts of appeal when dealing with matters of judicial discretion do not purport to direct how such discretion will be exercised but merely give guidelines. In evaluating the import of the words quoted above, the crucial question of course is the interpretation to be given to the phrase “the most exceptional of cases”. In pursuing such an exercise one must bear in mind not only the principle that guidance only is given by the court of appeal, but the general circumstances which prevail in Papua New Guinea as evidenced a little earlier in the judgment at p. 295:

“The offence of by dangerous driving causing death, has reached staggering proportions in P.N.G. over recent years.”

“To our mind, the problem here with a multitude of defective vehicles being driven, frequently in drunken condition, by people with minimal driving abilities and little social responsibility in the matter of driving, is critical to the very existence of a stable society.”

Now when one takes these observations in conjunction with the specific facts surrounding Sima Kone[dccxxxv]³⁹, facts which disclosed both speed and inebriation, the Supreme Court seems to be saying that the not uncommon or usual features encountered in dangerous driving cases involve excessive speed, or unroadworthy vehicles, or reckless disregard for others falling just short of criminal negligence, or driving whilst under the influence of intoxicating liquor, or perhaps a combination of any number of these elements. It seems to me therefore that certainly where no such factors are present, then that is an exception to the general rule. Indeed bearing in mind the facts of the case before the Supreme Court in Sima Kone (supra) and the facts of the cases cited therein, namely The Public Prosecutor v. Willy Moke Soki[dccxxxvi]⁴⁰ and The State v. Alphonse Naulo Raphael[dccxxxvii]⁴¹, it is not surprising the Supreme Court spoke in such declamatory terms. However “most exceptional circumstances” is not the same thing as circumstances uncommonly encountered. There is such a variety and combination of circumstances involved in facts giving rise to the particular charge which makes it most undesirable for any court of appeal to lay down guidelines other than in the broadest sense. The factors mentioned in Sima Kone (supra), especially when conjoined with the ever present possibility of payback killing and tribal fighting resulting from a road accident death in many areas, carry with them the consequence that an offender could normally expect to receive a custodial sentence. Nevertheless there are individual instances where such a course is not warranted. These it would be most undesirable to stipulate other than to say in general terms that such persons would appear at the bottom end of the sentence scale. In the instant case there was obviously not only a misjudgment on the part of the appellant when he decided that it was safe for him to move off, having observed the approaching vehicle, but in addition a failure to implement what any reasonable and prudent driver would do in the circumstances, namely check on his earlier judgment as he continued its execution. There is no evidence which indicates that he was under any pressure from vehicles approaching on his right-hand side. His failure fell short of the “care or skill of a competent experienced driver” and was “inconsistent with proper standards of driving” (R. v. Gosney[dccxxxviii]⁴²). On the other hand, the tragic consequences resulted from nothing more than human error, a misjudgment compounded by a certain degree of inexperience, understandable in the circumstances, and which almost turned out no error at all. None of the more reprehensible features normally associated with dangerous driving cases was present. I am of the view that a gaol sentence in the circumstances of this case is inappropriate and consequently the two months already served by the appellant is more than sufficient punishment. As this is not the type of case which is likely to repeat itself or where any other worthwhile objective would be achieved, I consider that a suspension of licence would not serve any useful purpose. It is not the case of an unskilled driver or an immature or unintelligent one, or one who has been shown prone to speeding or drink driving.

In reducing the sentence I do not wish to be taken as departing from the basic principles applicable to courts of appeal in such circumstances. Indeed I would reaffirm that a court of criminal appeal will not interfere with a sentence merely because its members may themselves have inflicted a different sentence more or less severe; nor would such interference be made unless the sentence is manifestly excessive or inadequate (Skinner v. The King[dccxxxix]⁴³). As with interference in any other act of judicial discretion, it must first be shown that there has been application of a wrong standard or a wrong principle (Cornelius O’Connell[dccxl]⁴⁴). If the principle upon which the trial judge passes his sentence is correct, then the court of appeal will not inquire whether the sentence is one which the members themselves would have thought appropriate to pass (Jane Elizabeth Maurice[dccxli]⁴⁵). The sentence must disclose either in the reasons given that a wrong principle has been acted upon or is such that of itself it is clearly “manifestly wrong” (Victor Wolff[dccxlii]⁴⁶ and Kenneth John Ball[dccxliii]⁴⁷). These authorities also illustrate in my view the fact that the task of the court of criminal appeal is to deal in matters of principle only, to afford a guide to inferior jurisdictions, but not to create inflexible boundaries which would interfere in any way with the original court’s right and duty to impose a penalty in accordance with the circumstances brought before it.

N1>I would therefore dismiss the appeal against conviction but uphold the appeal against sentence. The sentence of the learned trial judge should be varied to one of imprisonment already served by the appellant when released on bail by this Court at the conclusion of argument.

N1>MILES J: I have read the judgment of Pratt J. and the additional remarks of Andrew J. and agree with what their Honours have to say.

[dcxcvii](1938) 59 C.L.R. 633.

[dcxcviii](1966) 115 C.L.R. 44.

[dcxcix][1980] Qd. R. 207.

[dcc] [1971] 2 Q.B. 674 at p. 680.

[dcci][1975] P.N.G.L.R. 52.

[dccii][1976] W.A.R. 97.

[dcciii](1938) 59 C.L.R. 633.

[dcciv][1938] 1 All E.R. 157.

[dccv](1975) 11 S.A.S.R. 217.

[dccvi][1980] Qd. R. 597.

[dccvii][1977] P.N.G.L.R. 165.

[dccviii][1979] P.N.G.L.R. 294 at p. 297.

[dccix][1979] P.N.G.L.R. 47.

[dccx][1977] P.N.G.L.R. 165.

[dccxi] (1976) 14 S.A.S.R. 507 at p. 512.

[dccxii](1938) 59 C.L.R. 633.

[dccxiii] (1975) 11 S.A.S.R. 217 at p. 220

[dccxiv](1976) 14 S.A.S.R. 507.

[dccxv][1973] 2 All E.R. 844.

[dccxvi] [1972] Crim. L.R. 321.

[dccxvii][1971] Crim. L.R. 493.

[dccxviii][1970] Crim. L.R. 50.

[dccxix](1962) 47 Cr. App. R. 62 at p. 65.

[dccxx][1961] 3 All E.R. 6.

[dccxxi](1938) 59 C.L.R. 633; 12 A.L.J. 67.

[dccxxii][1966] 2 N.S.W.R. 142.

[dccxxiii][1971] 2 Q.B. 674.

[dccxxiv][1979] P.N.G.L.R. 251 at p. 275.

[dccxxv](1979) 53 A.L.J.R. 293.

[dccxxvi][1980] P.N.G.L.R. 219 at p. 233.

[dccxxvii][1923] A.C. 253.

[dccxxviii][1935] A.C. 243.

[dccxxix] [1955] A.C. 370.

[dccxxx][1955] A.C. 370.

[dccxxxi][1979] HCA 9; (1979) 53 A.L.J.R. 293 at pp. 300-301.

[dccxxxii](1979) 29 A.L.R. 129.

[dccxxxiii][1981] 1 All E.R. 267.

[dccxxxiv][1979] P.N.G.L.R. 294.

[dccxxxv][1979] P.N.G.L.R. 294.

[dccxxxvi][1977] P.N.G.L.R. 165.

[dccxxxvii][1979] P.N.G.L.R. 47.

[dccxxxviii][1971] 2 Q.B. 674.

[dccxxxix](1913) 16 C.L.R. 336.

[dccxl](1909) 2 Cr. App. R. 11.

[dccxli](1908) 1 Cr. App. R. 176.

[dccxlii](1914) 10 Cr. App. R. 107.

[dccxliii] (1951) 35 Cr. App. R. 164.

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Papua New Guinea Law Reports

Gamoga v The State [1981] PGLawRp 604; [1981] PNGLR 443 (27 October 1981)

Papua New Guinea Law Reports - 1981