State v Dilu [2019] PGNC 79; N7777 (7 February 2019)

N7777

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1301 OF 2015

THE STATE

V

KIMBIRI DILU

Waigani: Berrigan, J
2019: 7 February

CRIMINAL LAW – PRACTICE AND PROCEDURE – on an allegation of manslaughter, or other homicide, the date of death is the date of the offence.

Cases Cited:
Papua New Guinea Cases

Nil

Overseas Cases

R v Dyson [1908] UKLawRpKQB 96; [1908] 2 KB 454
R v McKeown [1940] St R Qd 202
R v Darren Paul Gould [2007] VSC 420

References cited

Section 297 of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms E. Kave, for the State
Mr E. Sasingian, for the Accused

RULING ON NO CASE SUBMISSION

7 February, 2019

1. BERRIGAN J: The accused pleaded not guilty to one count of manslaughter through criminal negligence contrary to s. 302 of the Criminal Code (Ch. 262) (the Criminal Code).
   
2. It is alleged that sometime after 4pm on the afternoon of 1 April 2015 the accused was driving his police-issued vehicle when he struck the deceased, 15 year old Serrah Kirio, whilst she was using the pedestrian crossing on Wards Road outside the Ted Diro Primary School in Port Moresby. The force of the impact threw the deceased several metres onto the ground. She was taken to hospital but died two days later from her injuries.
   
3. At the close of the State case defence counsel made an application to have the accused acquitted on the basis that there was no case to answer. The defence relies on the first limb of Paul Kundi Rape [1976] PNGLR 96. It is well established, for the purposes of current argument, that where in a criminal proceeding at the close of the case for the prosecution there is a no case submission, the issue to be determined is whether the evidence supports the essential elements of the offence, that is whether on the evidence as it stands the accused could be lawfully convicted.
   
4. Prior to opening its case the State sought and was granted leave, unopposed, to amend the date on the indictment from 1 April to 3 April 2015 to reflect that an element of the offence, namely death, did not take place until the 3^rd April.
   
5. The defence now argues that the charge against the accused is fundamentally defective as to the date of the offence. In particular, the defence submits that the offence did not occur on the 3^rd April when the deceased died but instead on the date of the accused’s conduct, two days earlier. It relies on The State v Saka Ben Wia, unreported, 18 October 2018. That case has no application here for various reasons, however, not least of which is that it concerned an allegation of grievous bodily harm.
   
6. Nevertheless, the defence raises an interesting point as to the date of a homicide offence. It has always been my understanding that the date of death is the date of the offence.
7. At the time of allowing the amendment I expressed the view that the date in a manslaughter charge is not an essential element of the offence. In general terms that is correct, however, it is clear that it may become an essential element if subject to the limitation provided under s. 297 of the Criminal Code. That section provides that “a person shall be deemed not to have killed another if the death of the person does not take place within a year and a day of the cause of death”. Certainly, death is an essential element.
   
8. I have in the limited time available been unable to find an authority directly on point from this jurisdiction nor is the matter discussed in The Criminal Law and Practice of Papua New Guinea, 3^rd Edition, 2001. The Eighth Edition of Carter’s Criminal Law of Queensland, 1992, which concerns the Queensland Criminal Code, on which the Papua New Guinea Criminal Code is modelled, however, in considering the equivalent of s. 297 “Limitation as to time of death” states: “Where the death is caused by an unlawful assault, the date of the offence is the date of the death, not the date of the assault”: R v McKeown [1940] St R Qd 202. It also refers to an old English case R v Dyson [1908] UKLawRpKQB 96; [1908] 2 KB 454. Those cases are not immediately to hand given their age.
   
9. A similar issue arose in R v Darren Paul Gould [2007] VSC 420 in which it was alleged that the victim died from a stabbing which took place five days earlier. Per Coghlan J of the Supreme Court of Victoria (emphasis added):
   

“As I indicated in my earlier ruling and in argument, in my view, since the crime of murder can only be committed if death is caused, the date of death will be the date of the offence. That is the date on which an essential element of the offence occurred and the crime could not have been committed without it...

In my involvement in the law it has always been “a given” that the date of murder was the date of death.

There is not much authority on the subject. Dr Ian Freckelton, in the 4th Edition of Indictable Offences in Victoria, says at [89.490] p.367: “If the victim is injured on one day and dies on another, the latter is the date of the offence.” He makes reference to Archbold (1997) para 19-22. That reference is to the year and a day rule which was abolished in this State in 1991. The Archbold reference in turn mentions R v. Dyson [1908] UKLawRpKQB 96; [1908] 2 KB 454. (The paragraph in Archbold has, except for reference to the abolition of the rule, remained the same since at least 1966). That case does not take the matter further.

In my view, it follows that the existence of the year and a day rule was an indication that the homicide crimes are committed when death occurs. That is the most logical conclusion. In a case where death occurred at a date significantly after the “actus reus”, there is little logic in describing that offence as having been committed between dates when listing two quite distinct events.” (emphasis added)

10. In that case the indictment alleged that the offence of murder occurred between dates. There had been some amendment to applicable legislation which came into effect during that period, and which meant that the law of self-defence available to the accused would have been different depending on the date of the offence.
    
11. I had expressed the tentative view that I could not see why a prosecutor in this jurisdiction would be precluded from charging between dates in certain circumstances. On reflection, I agree with Coghlan J’s closing words in general terms, although I remain of the view that it would be permissible to allege that the offence occurred between dates when the precise date of death is uncertain. It is also permissible, in my view, to allege that the offence occurred “on or about” a particular date.
    
12. In any event, having regard to the above, death is an essential element of the offence of manslaughter. Without it, there is no offence. It follows, that on an allegation of manslaughter, or other homicide offence, the date of death is the date of the offence. In this case, the indictment correctly states the date of death and thus the date of the offence.
    
13. In the circumstances, it is not necessary to consider the application of either ss. 534 or 535 of the Criminal Code.
    
14. The accused has a case to answer.

_________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner