State v Kalau [2025] PGNC 202; N11329 (13 June 2025)

N11329

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 1673 OF 2024

THE STATE

V

KONE KALAU

WAIGANI: MANUHU J
4, 5,13 JUNE 2025

CRIMINAL LAW – Manslaughter – 5-year-old killed by a loaded 10-seater Toyota Landcruiser on a village gravel road – Whether driver was criminally negligent – ss. 302 and 287 of the Criminal Code – Alternative verdict – Dangerous driving causing death – s. 328 (2)(5) of the Criminal Code.

Cases cited
The State v Kimbiri Dilu [2019] N7778
Beraro v The State [1988-89] PNGLR 562

Counsel
V. Ningakun for the State
A. Waira for the Accused

1. MANUHU, J.: The accused, Kone Kalau, was indicted on one count of manslaughter. The State alleged that on March 29th, 2024, around 3:00-4:00 pm, the accused drove a 10-seater Toyota Landcruiser at a high speed along Waira Vanua village road and ran over a 5-year-old Chris Grant, smashing his skull, killing him instantly. The charge was brought under s. 302 in conjunction with s. 287 of the Criminal Code.
   

Section 287 provides:

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 any thing, 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.

2. On a charge of manslaughter in conjunction with s. 287, the prosecution bears the burden of proving that the accused was criminally negligent. As to what constitutes criminal negligence in the context of s. 287, the Supreme Court, in Beraro v The State [1988-89] PNGLR 562, said:
   

For the purposes of s 287 of the Criminal Code, 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.

3. Bredmeyer, J. also referred to the statement of Lord Hewart CJ on criminal negligence, thus:
   

The classic statement of criminal negligence at common law is found in the judgment of Lord Hewart CJ reading the unanimous judgment of the Court of Criminal Appeal in R v Bateman (1925) 28 Cox’s Crim Cas 33 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.

4. The Supreme Court decision was relied on by Berrigan, J. in The State v Kimbiri Dilu [2019] N7778 where a charge of manslaughter was reduced to dangerous driving causing death in circumstances where a policeman defendant, driving a police vehicle at 40 kph, failed to observe and, as a result, hit a 15-year-old female student (deceased) and her sister walking on the school crossing.
   
5. In this case, there is no dispute that the child was run over by the Landcruiser. There is no dispute that a Dyna PMV truck was parked at the right side of the road. There is no evidence of any obstruction that would have hindered the view of the accused. It isn’t disputed that the Landcruiser was loaded with bags of live crabs. The accused had a valid driver’s licence and was sober. In the Landcruiser were 3 other persons.
   
6. The issues of fact are firstly whether the child ran onto the road and into the oncoming Landcruiser; and secondly, whether the accused was driving at a high speed.
   
7. There is no evidence that the child ran onto the oncoming Landcruiser as submitted by the defence. State witnesses say the child came onto the road and went to the left side of the truck. His father was sitting in the offside seat of the truck. I find that the child was already at the left side of the truck before he was run over.
   
8. In relation to the second issue, the state witnesses testified that the accused was driving at a high speed. The accused and his witnesses gave evidence that the speed of the Landcruiser was 40-50 kph. According to the Sketch of the Crime Scene, after the child was hit, he was dragged 3 metres along the gravel road. The Landcruiser slowed down at 6.5 metres from where the child was hit. The Landcruiser eventually stopped 12.5 metres from where the child was hit.
   
9. In my assessment, if the accused was driving at 40-50 kph, he would have been able to stop the Landcruiser at a shorter distance than 12.5 metres. In any event, at 3:00 – 4:00pm, he should have seen the child on the road. With a speed of 40-50 kph, he could have applied the brakes in time to avoid hitting the child. The accused said he didn’t see the child on the road. Accepting that to be the case, the only plausible explanation is that he was not paying attention to the road. He should have been more careful particularly when he was within a residential area in a village, and a truck was parked on the right side of the road. There was a real possibility of adults and children walking or standing on the road, thereby, increasing the risk of an accident.
   
10. In the circumstances, I find that the accused was not driving at 40-50 kph. He was driving faster than that. It would have been 60-70 kph. In a village, 60-70 kph is a speed that is high. This finding is consistent with State witness Vui Murray’s evidence that at 60-70 metres before the accident, he swore at the Landcruiser for speeding. It was an impulsive expression of disapproval of the speed. My finding is also consistent with State witness Berry Grant’s evidence that due to the speed of the Landcruiser, the father’s attempt to save his son was seconds too late.
    
11. Even if he was driving at 40-50 kph, by his own admission, the accused was not paying attention to the road and, as a result, did not see the child. He was thus driving without due care and attention.
    
12. However, the child should not have been on the road. There is evidence that he was standing one metre away from the truck. That would have placed him in the way of the oncoming Landcruiser. There were 3 adults in the truck. They did nothing to take the child away from harm’s way. They bear some responsibility for the death of the child. The accused drove the Landcruiser without due care and attention, but the three adults also failed their duty of care towards the child.
    
13. I am of the view therefore that the prosecution has failed to establish the required degree of negligence to safely sustain a conviction for manslaughter, a serious offence which carries a maximum penalty of life imprisonment. Accordingly, I find the accused not guilty of manslaughter.
    
14. However, it is open to the court to consider an alternative charge of dangerous driving causing death. On the evidence, the accused drove the Landcruiser without due care and attention. On a village road, that is dangerous. The child should not have been on the road but that does not completely extinguish criminal liability for failing to drive without due care and attention. The accident (and death) would not have occurred if the accused was more careful.
    
15. Accordingly, I find the accused guilty of dangerous driving causing death under ss. 328 (2) and (5) of the Criminal Code.

Verdict: Not guilty of manslaughter but guilty of dangerous driving causing death.

Lawyer for the State: Helen Roalakona, Acting Public Prosecutor
Lawyers for the accused: Waira Lawyers