State v Subang [1976] PGNC 3; N38 (28 April 1976)

Unreported National Court Decisions

N38

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
ELIAS SUBANG OTHERWISE KNOWN AS SALIA WANGI OF RABAUL

Waigani

Saldanha J
14 April 1976
21-23 April 1976
26-28 April 1976

CRIMINAL LAW - manslaughter - no case to answer - standard of care required of persons in control of motor vehicles - s.289 Criminal Code (Queensland, adopted) - standard of care same as standard required by English Common Law - high degree of negligence necessary to constitute manslaughter - no case to answer on a charge of manslaughter - there is a case to answer on a charge of dangerous driving causing death.

INTERLOCUTORY JUDGMENT

SALDANHA J: At nd of the prosecution cion case counsel for the defence submitted that there was no case to answer on the following grounds. He says that a very high degree of negligence must be proved in order to establish manslaughter, that the evidence in this case does not reach the standard whereby a reasonable jury properly directed could convict, this being the test on a submission of no case. Alternatively, he maintains, relying upon Regina v. DoddN38.html#_edn938" title="">[cmxxxviii]¹, that even if a prima facie case has been made out by the State the evidence is such that a reasonable jury ought not to convict.

Counsel for the State contends that there is a prima facie case. He relies particularly on the case of Regina v. DruettN38.html#_edn939" title="">[cmxxxix]².

Now, a person commits the offence of manslaughter if he contravenes the provisions of s.289 of the Criminal Code (Queensland, adopted) that being the Code in operation at the material time. S.289 provides as follows:

“289. DUTY OF PERIN CHARGE OF DAOF DANGEROUS THINGS. - It is the duty of every person who has in his charge or under his control anything, whether living or inanimate and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger: and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.”

The standard of care required of persons in control of motor vehicles by our law is the same as that required by English Common Law in cases when death is caused by the negligent driving of a motor vehicle.

In Andrews v. Director of Public ProsecutionsN38.html#_edn940" title="">[cmxl]³ the following pa appears inrs in the opinion given by Lord Atkin at p.47:

“The principle to be observed is that cases of manslaughter in driving motorcars are but instances of a general rule apple to all charges of homicidmicide by negligence. Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established. Probably of the epithets that can be applied ‘reckless’ most nearly covers the case. It is difficult to visualise a case of death caused by ‘reckless’ driving in the connotation of that term in ordinary speech which would not justify a conviction of manslaughter. But it is probably not all-embracing, for ‘reckless’ suggests an indifference to risk, whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction. If the principle of Bateman (supra) ((1925) 19 Cr. App. R. 8) is observed, it will appear that the law of manslaughter has not changed by the introduction of motor vehicles on the road. Death caused by their negligent driving, though unhappily much more frequent, is to be treated in law as death caused by any other form of negligence, and juries should be directed accordingly.”

Lord Atkin referred to Percy BatemanN38.html#_edn941" title="">[cmxli]⁴. In this case the standard of care was defined by Lord Hewart, C.J. in the following terms:

“In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable,’ ‘criminal,’ ‘gross,’ ‘wicked,’ ‘clear,’ ‘complete.’ But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”

Archbold, 38th edition, at paragraph 2817a states:

“This offence is not intended to be used as an alternative and second charge to manslaughter, but is intended to be used as a substitute for it. Charges of manslaughter arising from the driving of a motor vehicle should now be preferred only in the most serious cases where the offence approximates to murder, e.g. where a policeman is knocked down by reckless driving of a stolen car or there is a very high degree of negligence...”

A passage which is almost identical, except that the words “or there is a very high degree of negligence” are missing, appears in the 37th edition of Archbold at paragraph 2818 and this passage was cited with approval in R. v. WoolerN38.html#_edn942" title="">[cmxlii]⁵.

From the above-mentioned authorities it is clear that a very high degree of negligence must be established before an accused person can be convicted of manslaughter where death has been caused by the negligent driving of a motor vehicle.

In Regina v. DruettN38.html#_edn943" title="">[cmxliii]⁶ (s the facts - and I quote uote from the headnote - were as follows:

“The accused drove a motor vehicle while intoxic On approaching a curve at a moderate speed, the accused slowed down but drove on in a stra straight line and so ran off the road down a steep embankment. The accused was unhurt but his passenger was killed. The accused was charged with manslaughter.”

The accused was convicted of manslaughter and counsel for the State contends that the test as to the degree of negligence required by the law in this country to constitute the offence of manslaughter where death has been caused by the negligent driving of a motor vehicle is laid down in the following passage at p.400:

“From all the evidence and the probabilities arising from it, in all the circumstances calling for my consideration, it would not be unreasonable to conclude that the accused applied his brakes when he did because he had suddenly realized or been told that he was on the wrong road. So, too, for the course that he took over the top of the embankment, after travelling along the gravel verge, I can see only these possible explanations: that he failed to observe this obvious feature or how close his vehicle was to it, or, that he deliberately drove over it in an attempt to reach the lower road. His unexplained failure to observe the embankment or its proximity, in my view, undoubtedly would be culpable negligence within the meaning of the authorities I have cited. An intentional driving from the road over the embankment would be an act of criminal folly.

So far I have not mentioned the accused’s condition at the time he was driving and the findings I have made are those that I would make even if he had been sober at the time.”

It is not in dispute that the accused was negotiating a righthand bend and that he went over the embankment on his near side. Had he been travelling at speed it could have been said that he failed to negotiate the bend because of his speed, and, if speed had been the only element which caused the accident I would not have thought that the accused could have been convicted of manslaughter.

But what happened here was different. In the words of the learned trial judge at page 399:

“The evidence led for the Crown has not been disputed and I have no hesitation in accepting it. It shows that when the accused’s vehicle was still some little distance from the curve of the road to the right, ... and travelling at about thirty-five miles per hour, he successfully applied his brakes and, instead of attempting to take the curve, he drove his vehicle in a straight line taking it, after some forty feet, from the bitumen on to the twelve feet wide gravel verge that lies between the left edge of the bitumen and the top of the embankment.

The vehicle travelled along this verge, getting nearer to the top of the embankment because of the curve to the right of the road and of the embankment skirting it. The vehicle was then turned slightly to the right but its left wheels went over the top of the embankment some fifty-three feet from where they had left the bitumen and the right wheels, after travelling around the verge, followed over the top some distance further along the gravel verge. When the vehicle went over the top of the embankment it was travelling at a speed that ‘could not have been more than ten miles an hour’ and ‘probably was nearer five’.”

With great respect to the learned judge I do not agree with the view expressed by him in the passage relied upon by counsel for the State. I do so, I may add, with great hesitation having regard to his reputation as a judge. No man who was sober and in his proper senses would attempt to drive over the embankment to get to the lower road. To attempt to do so would be the act of a man who was insane. So we can forget about its being an act of criminal folly. The embankment was well lit, and, to quote the words of the trial judge, “if anything, more obvious at night-time in the light from the vehicle’s head-lamps and the fluorescent lights on poles beside the lower road.” If the accused had been sober he could not possibly have failed to notice the embankment. I doubt that he would have “applied his brakes when he did because he had suddenly realized or been told that he was on the wrong road.” If he did apply his brakes, having regard to his speed, I would have thought that he would have been able to bring his vehicle to a halt without mishap. One must look at the evidence as a whole, and, the evidence as a whole, I would have thought, showed that the accused acted the way he did because he was drunk.

I think, with respect, that the learned judge is on firmer ground in the passage which follows the passage cited by counsel for the State. This passage reads as follows:

“In fact he was drunk and there is overwhelming evidence that leads me to, what I consider to be, the inescapable conclusion that he was in such a state of intoxication from the liquor he had consumed at the party that he was incapable of driving properly. He must have known this and he chose to take, and expose his passengers to the risk. Doubtless his condition materially contributed to, if it were not the main cause of his fatal driving.”

Once the element of alcohol is introduced the picture changes, particularly when an experienced driver commits a negligent act resulting in death, which act can be attributed to no factor other than drink or mainly to drink; because, a man who causes a fatal accident owing to the fact that he is unable to exercise proper control of a motor vehicle or exercise proper care and skill in driving the motor vehicle owing to his being adversely affected by drink is guilty of a very high degree of negligence. Hence the decision in The Queen v. Gaiari-GanereraN38.html#_edn944" title="">[cmxliv]⁷.

In that case the accused was an experienced driver, the truck he was driving was road worthy, there was nothing unusual about the road or the weather conditions. He followed an erratic course for some distance, went off the road on his incorrect side and overturned killing one of the passengers. There was evidence that the accused was intoxicated to such an extent that his ability to manage and control the truck was seriously impaired. Clarkson, J. held that the cause of the accident was no other than drink, that the accused knew he was intoxicated, that if he had stopped to think he would have known that his ability to drive was seriously impaired, and, therefore, his driving of a motor vehicle in these circumstances showed a very high degree of negligence justifying a conviction for manslaughter.

I have devoted a good deal of time and space to the discussion of Regina v. DruettN38.html#_edn945" title="">[cmxlv]⁸ (), because, from the submisubmissions made by counsel for the State, I thought for a moment that the degree of negligence to sustain a charge of manslaughter according to our law was lower than that required by the English Common Law. I am not persuaded that it is.

In the case of Regina v. DruettN38.html#_edn946" title="">[cmxlvi]⁹ (supra) upon which el for tfor the State so strongly relies, Ollerenshaw, J., states:

“The standard of care required of persons in control of motor vehicles is the same as that required by the commo where negligence causing ding death is alleged to amount to manslaughter.”

For the standard of care he relies upon the passages from Percy BatemanN38.html#_edn947" title="">[cmxlvii]¹⁰ () and Andrews v. Directirector of Public ProsecutionsN38.html#_edn948" title="">[cmxlvia>¹¹ (supra) which I cited aboveabove.

As I understand counsel for tfor the State he invites me to say that in this country a high degree of negligence ought not to be required in cases of manslaughter by negligent driving. I cannot see how I can fly in the face of established authority, and, I see no reason why the law here should differ from the law in England or in Australia.

In the case before me I have ruled that there is no evidence of drink. There is evidence of speed and evidence that the accused either attempted to overtake when it was dangerous to do so or that he failed to keep a proper look-out or both.

In my view the degree of negligence is not so high that a reasonable jury properly directed could convict of manslaughter, and, I accordingly rule that there is no case for the accused to answer on a charge of manslaughter. There is a case, however, for dangerous driving causing death.

Solicitor for the State: L.W. Roberts-Smith, Public Prosecutor

Counsel for the State: K.B. Egan

Solicitor for the Accused: N.H. Pratt, A/Public Solicitor

Counsel for the Accused: C.F. Wall

<38">N38.html#_ednref938" title="">[cmxxxviii] ^{(1971-1972) P. & N.G.L.R. 255}

N38.html#_ednref939" title="">[cmxxxix]^{(1965-66) P. & N.G.L.R. 395}

N38.html#_ednref940" title="">[cmxl] ^{26 Cr. App. R. 34}

N38.html#_ednref941" title="">[cmxli] ^{19 Cr. App. R. 8}

N38.html#_ednref942" title="">[cmxlii] ^{(1971) Q.W.N. 10}

N38.html#_ednref943" title="">[cmxliii]^{(1965-66) P. & N.G.L.R. 395}

N38.html#_ednref944" title="">[cmxliv]^{(Unreported) Judgment of Clarkson, J. No. 455, Feb/Mar., 67}

N38.html#_ednref945" title="">[cmxlv]^{(1965-66) P.&N.G.L.R. 395}

N38.html#_ednref946" title="">[cmxlvi]^{(1965-66) P.&N.G.L.R. 395}

N38.html#_ednref947" title="">[cmxlvii] ^{19 Cr. App. R. 8}

N38.html#_ednref948" title="">[cmxlviii] ^{26 Cr. App. R. 34}