State v Gware [2018] PGNC 340; N7449 (12 September 2018)

N7449

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 821 of 2015

THE STATE

V

DARONG GWARE

Lae: Kaumi AJ
2018: 7, 8, 12, 18 & 20 June, 19 & 24 July, 10 & 17 August

CRIMINAL LAW – Manslaughter by criminal negligence-Defence of accident not available- Criminal Code Act 1974, sections 302, 24 and 287.

CRIMINAL LAW – Standard of negligence required-Varying standards of criminal negligence discussed-Question of degree-Standard of Proof required of persons in control of motor vehicles-Criminal standard of proof beyond reasonable doubt applicable-Prevailing circumstances at time of act or omission relevant in answering-Consequences not relevant.

CRIMINAL LAW – PRACTISE AND PROCEDURE –Failure of accused to testify- Accused’s absence from the witness box is not to be equated with guilt-Two ways a Judge may comment on the accused’s failure to testify are discussed.

The accused pleaded not guilty to manslaughter arising out of the driving of a motor vehicle and a trial conducted.

Held:

[1] The law in this jurisdiction is well settled on this matter that where manslaughter by negligence is alleged under section 287 the section 24 defence of accident has no relevance: Java Johnson Beraro v The State [1988-89] PNGLR 562 SC 379 Bredmeyer, Amet and Sheehan JJ

[2] Whether the appellant was criminally negligent or not must be decided by reference only to the situation prevailing when the accused performed the actions in issue and not by reference to the consequences which brought him before the Court: Java Johnson Beraro v The State [1988-89] PNGLR 562 SC 379 Amet J

[3] Where a person is charged with manslaughter proof of criminal negligence is required: The State v Andrew Amoy [1978] PNGLR 266 N164 Wilson. J

[4] Criminal negligence is the very high degree of inadvertence to consequences variously described as “culpable”, “criminal”, “gross”, “wicked”, “clear” and “complete”: The State v Andrew Amoy [1978] PNGLR 266 N164 Wilson. J Andrews v. Director of Public Prosecutions [1937] A.C. 576 and R. v. Bateman (1925) 19 Cr. App. R. 8 referred to.

[5]. The silence of the defendant or put simply his absence from the witness box does not in any way equate with his guilt: R v Sparrow (1973) 57 Cr App R 352

[6]. The accused is not bound to give evidence, he is entitled to sit back and see if the prosecution has proved its case and I must not assume the accused is guilty because he has not gone into the witness box. Secondly, that as the decider of facts, I will only say this much that the prosecution case is strong and points to the guilt of the accused and that the accused has chosen not to lead any evidence which might create a reasonable doubt in my mind. R v Sparrow (1973) 57 Cr App R 352 & Biwa Geta v The State SC 367 [1988-89] PNGLR 153 (Kidu CJ Bredmeyer J Los J)

Cases Cited:

Biwa Geta v The State SC 367 [1988-89] PNGLR 153 (Kidu CJ Bredmeyer J Los J)
Evgeniou v Reginam [1964] P&NGLR
Java Johnson Beraro v The State [1988-89] PNGLR 562 SC 379
Timbu-Kolian v The Queen [1967-68] P & NGLR 320
The State v John Koe [1976] PNGLR 562 N74
The State v Andrew Amoy [1978] N164

Overseas Cases Cited

Andrews v Director of Public Prosecutions [1937] AC 576 at 583
Callaghan v The Queen (1952) 87 CLR 115 at 121
R v Bateman (1925) 28 Cox’s Crim Cas 33 at 36
R v Sparrow (1973) 57 Cr App R 352

Legislation Cited:

Criminal Code Act 1974

Counsel

Ms. Comfort Langtry, for the State
Mr. Isaac Tsipet, for the offender

VERDICT

12^th September, 2018

1. KAUMI AJ: INTRODUCTION: The accused stands charged that he between the 29^th day of June, 2014 and the 13^th of July 2014 at Lae, unlawfully killed one, Wanga Arnold.

FACTS

2. The brief facts giving rise to the charge is that between 5pm and 6pm on the 29^th day of June 2014, the deceased Wanga Arnold, who was pregnant at the time, walked across Busu Bridge on her way to Busu Mountain. The accused drove a vehicle, a Mazda BT50 Utility bearing the registration number LBL 230, over the bridge and passed the deceased on the bridge.
   
3. When the accused reached the end of the bridge he thought that an unknown man wanted to rob him. In panic, the accused reversed the vehicle over the bridge, bumped and ran over the deceased. The deceased was admitted to the hospital that day and she died on the 13^th July 2014.
   
4. The State alleged that the accused drove his vehicle without due regard for the safety of the deceased and in doing so ran over the deceased and unlawfully caused the death of the deceased and contravened section 302 of The Criminal Code Act.
   
5. The main facts giving rise to the charge are not in dispute. This is a case in which both parties agree about the facts but disagree on how the law should apply to these facts.
   
6. The accused argues that the defence of accident provided by section 24 of the Criminal Code excuses him from any wrongdoing.
   
7. The accused pleaded not guilty and the trial started on the 7th June, 2018. The prosecution tendered by consent two (2) exhibits and called two (2) witnesses who gave sworn testimonies and it closed its case on the same day and the accused elected to remain silent.
   
8. The law on the election by the witness to remain silent in this jurisdiction is that the accused is not bound to give evidence, he is entitled to sit back and see if the prosecution has proved its case and I must not assume the accused is guilty because he has not gone into the witness box. Secondly, that as the decider of facts, I will only say this much that the prosecution case is strong and points to the guilt of the accused and that the accused has chosen not to lead any evidence which might create a reasonable doubt in my mind. R v Sparrow (1973) 57 Cr App R 352 & Biwa Geta v The State SC 367 (1988-89) PNGLR 153 (Kidu CJ Bredmeyer J Los J) Further The silence of the accused or put simply his absence from the witness box does not in any way equate with his guilt. R v Sparrow (1973) 57 Cr App R 352
   

PRELIMINARY ISSUE

9. Mr Tjipet of counsel for the accused argued on the defence of accident under section 24 of the Criminal Code.
   
10. Does the defence of accident as provided for by section 24 of the Criminal Code apply in a case where negligence is alleged under section 287?
    

24. INTENTION: MOTIVE.

(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for–

(a) an act or omission that occurs independently of the exercise of his will; or

(b) an event that occurs by accident.

(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
(3) Unless otherwise expressly declared, the motive by which a person is induced–

(a) to do or omit to do an act; or

(b) to form an intention,

is immaterial so far as regards criminal responsibility.

11. The law in this jurisdiction is well settled on this matter that where manslaughter by negligence is alleged under section 287 the section 24 defence of accident has no relevance. The Supreme Court comprising Bredmeyer, Amet and Sheeha JJ in the case of Java Johnson Beraro v The State [1988-89] PNGLR 562 SC 379 held that the defence provided by section 24 is made “subject to the express provisions of this Code relating to negligent acts and omissions”, so that, in a charge of manslaughter where death is alleged to have resulted from a failure to use reasonable care or take reasonable precautions as required by section 287, liability is determined without resort to section 24.
    
12. In the pre-independence case of Evgeniou v Reginam [1964] P&NGLR 45 the High Court dealt with the application of section 24 or more precisely its misapplication and held that when the charge is that of negligent acts or omissions under section 287, causing death, section 24 has no application.
    
13. In another pre-independence case of R v Peck (1971) No 650 in which the accused was charged with unlawful killing by a point 22 rifle in criminally negligent circumstances Williams J in Madang on 19 October 1971 ruled that s 23 (the forerunner to s 24) did not apply, by adopting the principles in Bateman’s case, Callaghan’s case and Evgeniou v Reginam(supra.
    
14. The motor vehicle is clearly a dangerous thing within the meaning of section 287 so the section 24 defence therefore does not arise for consideration in the instant case.
    

ISSUE

15. The issue for determination therefore is whether the actions or omissions of the accused were of such a nature as to amount to criminal negligence. I highlight this issue by posing this question:

“Is the accused was so criminally negligent in his management and use of the motor vehicle; if the answer to this question is in the affirmative then he would be guilty of manslaughter; if the answer is in the negative because his use or management of the motor vehicle then his action did not amount to criminal negligence, then he would not be guilty of manslaughter”.

16. This is an issue of law resolved by referring to the relevant facts established beyond doubt as existing at the time the accused reversed the car.
    

LAW

302. MANSLAUGHTER.

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life. The elements of the offence are-

(a) a person

(b) unlawfully

(c) causes the death of another.

287. DUTY OF PERSONS IN CHARGE OF DANGEROUS THINGS.

(1) 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 that danger.

(2) A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty.

17. The Supreme Court in Java Johnson Beraro v The State [1988-89] PNGLR 562 SC 379 at footnote 5 held that for the purposes of s 287 of the Criminal Code (Chapter No 262), which prescribes the duty of care, breach of which will give rise to criminal liability as “a duty to use reasonable care and take reasonable precautions to avoid” danger, what is or is not, criminal negligence is a question of degree to be decided on the facts; whether an act or omission is criminally negligent or not, must be decided by reference to the circumstances at the time the act or omission occurred and not by reference to the consequences thereof.

APPLICATION

18. For a successful conviction on a charge of manslaughter where criminal negligence is alleged it must be proven that the accused did not exercise “reasonable care and reasonable precautions” such that his actions amounted to criminal negligence.
    
19. Now how does the law define the expressions “reasonable care and reasonable precautions” in this context, for assistance I extrapolate Amet. J’s (as he then was) discourse on these epithets in the case of Java Johnson Beraro v The State (supra) which I found to be of invaluable assistance:

“The classic definition of criminal negligence is said to be contained in Bateman’s case (1925) 28 Cox’s Crim Cas 33 where the Lord Chief Justice Hewart said, at 36:

“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.”

20. In a later case of Andrews v Director of Public Prosecutions [1937] AC 576, in the House of Lords, Lord Atkin, referring to Bateman’s case and approving of the general principles therein, proceeds, at 583:

“Here again I think with respect that the expressions used are not, indeed they probably were not intended to be, a precise definition of the crime. I do not myself find the connotations of mens rea helpful in distinguishing between degrees of negligence, nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case the degree of negligence shown is a crime and deserves punishment. But the substance of the judgment is most valuable, and in my opinion is correct ... 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 all the epithets that can be applied ‘reckless’ most nearly covers the case.” (My emphasis.)

21. The question then arises, what is the degree of negligence required by s 287? The High Court of Australia in Callaghan v The Queen (1952) 87 CLR 115 posed a similar question (at 121) in relation to the equivalent provision of the Western Australian Criminal Code, s 291a, and proceeds:

“The words ‘use reasonable care and take reasonable precautions’ smack very much of the civil standard of negligence; yet, particularly of late, defaults involving no moral blame at all are treated as exposing the party to civil liability for negligence in respect of any damage which results.”

22. The High Court proceeded then to refer to Sir James Fitzjames Stephen’s Digest of the Criminal Law in which he defines this form of unlawful homicide as occurring when death is caused by an omission, amounting to culpable negligence, to discharge a duty tending to the preservation of life, and the terms in which he summed up to a jury the neglect which may make a man guilty:

“Manslaughter by negligence occurs when a person is doing anything dangerous in itself or has charge of anything dangerous in itself and conducts himself in regard to it in such a careless manner that the jury feel that he is guilty of culpable negligence and ought to be punished. As to what act of negligence is culpable, you, gentlemen, have a discretion, and you ought to exercise it as well as you can.”

23. Amet. J in consideration of what the High Court had said with respect to “reasonable care and reasonable precautions” said that in applying all of these epithets to whether the appellant was criminally negligent or not, it must be decided by reference only to the situation prevailing when the accused performed the actions in issue and not by reference to the consequences which brought him before the Court.
    
24. This is the correct position in law with respect to what amounts to criminal negligence and as such I apply it in my determination of the issue in this matter which is whether the actions or omissions of the accused were of such a nature as to amount to criminal negligence.
    
25. The determination of whether the action of the accused in reversing the car across the bridge was done with reasonable care and reasonable precautions taken to avoid any danger when he did so and thus whether he was criminally negligent or not, entails a reference to the relevant facts established beyond doubt as prevailing at the time.
    
26. The main facts agreed to by the parties and which I accept as being established beyond doubt are that:
    • (a) The deceased died after she was bumped and run over on the right side of her body by the vehicle, a Mazda BT50 Utility bearing the registration number LBL 230 driven by the accused between 5pm and 6pm on the 29th day of June 2014.
    • (b) The deceased was admitted to the hospital that day and she died on the 13th July 2014.
    • (c) The accused drove past the deceased and other people who were also walking in the direction of Busu Mountain and then stopped and reversed back in panic from the end of the bridge.
    • (d) At this time the people on the bridge were also fleeing back over the bridge away from the scene of the robbery of the accused’s vehicle.
    • (e) The bridge was a single lane and long. Further that it was narrow and 5 meters wide and there was only room enough for two people to walk on either side if a vehicle was travelling over the bridge.
    • (f) The bridge was the only way to get across the river so both people and vehicles normally used the bridge at the same time.
    • (g) It was afternoon at around 5.30pm and there were plenty of people walking on the bridge when the accused drove past. State witness Bumara was walking ahead with others while the deceased was far behind. She said she saw people trying to hold the vehicle up with a gun and was scared and other people were also scared and they all ran back across the bridge towards Bumayong. Further that the deceased also ran back and in the process slipped and fell down onto the road and the accused’s vehicle ran over her.
    • (h) The accused told police in his Record of Interview at answer 53 that an unknown gunman pointed a pistol at him and ran towards him along the bridge so he reversed in panic and bumped into the deceased who was also running away with other people on the bridge towards Bumayong.
    • (i) I accept the evidence of the two State witnesses that the accused reversed his car at high speed and not at 15 kilometers per hour as he said as the witness Rasta Yara was standing away from the bridge and not on it and as a result was able to clearly see how fast the accused’s vehicle was travelling at. State witness Bumara confirmed what Rasta told the court regarding the speed of the car.
    • (j) I note that the accused did not use the horn of the car to warn the pedestrians on the bridge at that time of his reversing approach.
    • (k) I also accept that the medical evidence as to the nature and location of the injuries on the body of the deceased are supportive of and consistent with the deceased being run over by a vehicle.
      
27. These in essence were the pertinent facts prevailing at the time the accused reversed the car, bumped and ran over the deceased causing her death.
    
28. With my acceptance of these facts as prevailing at the material time I pose the question, was the action or omission of the accused of such a nature as to amount to criminal negligence.
    
29. What does the law say about actions or omissions by an accused being culpable, or criminal, or grossly negligent such as to amount to criminal negligence, for assistance I refer to two cases on point:
    
    • (a) Firstly in The State v John Koe [1976] PNGLR 562 N74 the accused was charged on two counts of manslaughter in respect of the deaths of two people, who died as the result of being hit by a motor vehicle driven through the market at Gordon by the accused. the accused who had consumed a large amount of alcohol drove a dangerously defective vehicle, into a section of a busy market, “fishtailing” at least twice from one side to the other, taking most of the road space and crossing double centre lines in the process, colliding with a stationary vehicle on his wrong side of the road, nearly colliding with another vehicle on its correct side of the road, accelerating, jumping a concrete kerb and proceeding to knock down some 11 people killing two of them, proceeding without any visible lessening of speed through the market, across a road and into a fence. The court held that the accused’s driving exhibited for an appreciable time and over a significant distance a very high degree of negligence, such as could well be described as “reckless”, and a complete disregard for the lives and safety of others. That there should be a verdict of guilty of manslaughter.
      • (b) Secondly in The State v Andrew Amoy [1978] N164 involved a trial of an accused on a charge of manslaughter arising out of the driving of a motor vehicle. 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. Wilson J held inter alia that 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.
30. 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 rather I answer this question by referring to the prevailing circumstances at the material time which are:
    • (a) The concrete and steel bridge and was single laned and long. Further at 5 meters wide it was so narrow to the extent that there was only room enough for two people to walk on either side if a vehicle was travelling over the bridge.
    • (b) The bridge was the only way to get across the river so both people and vehicles normally used the bridge cross over. In other words there wasn’t a separate footpath on the bridge specifically made for pedestrians walking over the bridge so that when both motor vehicles and pedestrians used the bridge at the same time both had to carefully maneuver the 5 meter width of the bridge when passing each other to avoid accidents.
    • (c) At the material time it was afternoon at around 5.30pm and there were plenty of people walking on the bridge either to go home or to go to town and the accused drove past them on his way across the bridge towards Busu Mountain;
    • (d) State witness Bumara was walking ahead with others while the deceased was far behind. She said she saw people trying to hold the vehicle up with a gun and was scared and other people were also scared and they all ran back across the bridge towards Bumayong. The deceased was amongst these people and also ran back and whilst in the process of running back slipped and fell down onto the road and the accused’s vehicle ran over her.
31. If there were not plenty of people on the bridge at that time who were fleeing in panic from the scene of the robbery, secondly the bridge was not as narrow (5 meters wide) as it was, thirdly, the accused not reversing in panic as well, and lastly if he had used the vehicle’s horn to warn the pedestrians on the bridge at that time of his reversing approach I would not hesitate in concluding that the accused’s action being not criminally negligent. But as I have accepted that the bridge was a single lane bridge made of steel and concrete and its width being 5 meters and that if a vehicle was driving over it there would only be enough space for two persons to walk on either side of the passing vehicle can the accused’s action in reversing the car in high speed have been criminally negligent? Can it be safely said beyond a reasonable doubt that the action of the accused was culpable, or criminal, or grossly negligent such as to amount to criminal negligence. Or did his actions amount to something less than the criminal negligence? Did the accused use reasonable care and reasonable precautions to avoid running over the deceased on the bridge?
    
32. It is my respectful opinion that looking at the action of the accused from the standpoint of the ordinary reasonable man, the actions of the accused in driving his car in the circumstances I have alluded to was reckless and fraught with risk and danger of a very high degree and had a complete disregard for the lives of others and as a result that the accused was in breach of the duty imposed on him by s 287 of the Criminal Code.
    
33. It is my view in light of the prevailing circumstances at the time that the accused should have taken reasonable care or reasonable precautions to avoid hitting the deceased or the other people fleeing on a bridge so narrow. In all of these circumstances it can be safely said beyond a reasonable doubt that the action of the accused was culpable, or criminal, or grossly negligent such as to amount to criminal negligence.
    
34. I find that the accused did not exercise “reasonable care and reasonable precautions” such that his actions amounted to criminal negligence.

DETERMINATION OF THE CHARGE

35. I am satisfied therefore that the prosecution has proven beyond that the actions of the accused was culpable, or criminal, or grossly negligent such as to amount to criminal negligence when he reversed his car in the prevailing circumstances at the time.
    

VERDICT

36. I return a verdict of guilty of manslaughter against the accused Darong Gware.
    

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused