Gaiari-Ganereba v Giddings [1967] PGSC 16; [1967-68] PNGLR 346 (2 May 1968)

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CRIMINAL LAW - Manslaughter - Driving under influence - Double punishment - Ordinances Interpretation Ordinance 1949-1966, s. 21^*[cdli]1- The Criminal Code, ss. 16^*[cdlii]2*, 289, 291, 300, 303 - Motor Traffic Ordinance 1950-1966, s. 9.

The appellant was convicted in the Supreme Court of manslaughter upon evidence which established that he had driven a truck while in an intoxicated condition and in so doing caused the death of a passenger. When considering sentence the trial judge asked counsel whether he had any power to take away the appellant’s driving licence and he was advised and satisfied himself that he had no such power. Thereupon he sentenced the appellant to be imprisoned for twelve months. Later that day the appellant pleaded guilty in the District Court to a charge of driving under the influence of intoxicating liquor. This charge related to the same driving as had been proved in the Supreme Court trial. He was convicted and sentenced to two months’ imprisonment and the Court also ordered that his licence be cancelled and that he be ineligible for a new licence for a period of five years from the date of conviction. Upon appeal to the Supreme Court against both conviction and sentence,

N1>(1) Section 21 of the Ordinances Interpretation Ordinance 1949-1966 did not apply because the offence of driving under the influence of intoxicating liquor is not the same or substantially the same offence as manslaughter; it is not correct to read the last word of s. 21, “offence” as meaning “act”.

N1>(2) The intention of s. 16 of The Criminal Code is to direct consideration of the substance of an offence, i.e., of the ingredients that go to make up the act or omission which renders the doer of the act or the maker of the omission liable to punishment.

N1>(3) Section 16 should be read as a compendious expression of a prohibition against double punishment for the same act or omission no matter under what enactment or rule of law the punishment is imposed or is likely to be imposed.

N1>(4) The manslaughter for which the appellant was punished by the Supreme Court comprised the act of driving the vehicle under the influence of intoxicating liquor and its consequence, the death of the passenger.

N1>(5) It was a proper inference, therefore, that the trial judge imposed a punishment which took into account and bore a direct relation to the appellant’s driving while intoxicated.

N1>(6) It was also an inescapable conclusion from the discussion in the Supreme Court concerning possible cancellation of the appellant’s licence that the judge in imposing penalty took into account the fact that he was not able to deprive the appellant of his licence.

N1>(7) As under s. 9(2) of the Motor Traffic Ordinance 1950-1966 a conviction of driving under the influence automatically involves a disqualification from holding and obtaining a licence for at least three months such a conviction must be regarded as a punishment.

N1>(8) In convicting the appellant of driving under the influence the District Court had proceeded contrary to s. 16 of The Criminal Code.

MINOGUE J: This is an appeal against the conviction of the appellant by a resident magistrate at Port Moresby on 3rd March, 1967, for driving a motor vehicle whilst under the influence of intoxicating liquor on 27th August, 1966, and against the sentence thereon of two months’ imprisonment together with a cancellation of the appellant’s driving licence and a declaration that he be not eligible for a new licence for a period of five years from the date of conviction.

The circumstances which give rise to the appeal are, to say the least, peculiar. On 27th August, 1966, a motor truck licensed for the carriage of passengers and driven by the appellant overturned on the Sogeri Road near Kailakinumu Village. A passenger travelling in the rear of the vehicle was killed. The appellant was arrested by the respondent, brought to Port Moresby and on 29th August, 1966, charged both with manslaughter and with driving under the influence of intoxicating liquor. The latter charge was laid under s. 9(1)(a) of the Motor Traffic Ordinance 1950-1966. A series of remands and adjournments on this charge followed, the last one being on 4th January, 1967, when the matter was adjourned sine die.

After an intermediate remand on the charge of manslaughter the committal proceedings on this charge began on 29th September and concluded on 30th September, the appellant being committed for trial at the next sittings of the Supreme Court at Port Moresby. At none of his many appearances before the District Court was the appellant legally represented. The charge of manslaughter came on for hearing before my brother Clarkson on 22nd February, 1967, and after a hearing lasting some six days the appellant was found guilty on the morning of 3rd March and sentenced to twelve months’ imprisonment. At the trial in this Court the appellant was represented by Mr. Heath, a professional officer of the Public Solicitor’s staff. However, it appeared that neither Mr. Heath nor any other member of the Public Solicitor’s staff was at this stage aware of the charge of driving under the influence of intoxicating liquor which was still outstanding against the appellant. On the afternoon of 3rd March he was taken to the District Court on this adjourned charge to which he there pleaded guilty. He was not legally represented and I find some difficulty in understanding how this surreptitious procedure was allowed to be instituted or carried on. No witnesses were called and as far as I can see the only material before the resident magistrate who heard the charge was the plea of Guilty, a statement of facts prepared apparently for the police brief and such information as may have been given verbally by the Police Prosecutor from the bar table. The statement of facts is as follows:

“At about 6.00 p.m. on Saturday 27th August, 1966, a message was received at the Sogeri Police Station to the effect that a vehicle had overturned on the Sogeri Road near Kailakinumu Village.

As a result of this message S/I Giddings and Constable Wamo travelled to the scene. On arrival Giddings observed Isuzu Elf truck No. 28937 lying on its near side on the western side of the roadway.

Inquiries made at the scene of the accident revealed that the defendant was driving the vehicle.

Giddings observed that the defendant’s breath smelt strongly of intoxicating liquor, his eyes were bloodshot and watery, he was unsteady on his feet and his speech was slurred.

Upon questioning the defendant admitted that he had consumed one small bottle of beer and a 16 oz bottle of Gin shortly before the accident.

The defendant was arrested and conveyed to the Port Moresby Hospital where he was examined by Dr. Heaysman.

He was later charged and placed in the cells at the Port Moresby Police Station.

Clarkson J. in setting out the conclusions which he had reached from the evidence which led to his inference of the guilt of the appellant on what in fact was a charge of manslaughter by criminal negligence stated the Crown case to be that the accident in which the passenger in the truck was killed was due to the criminal negligence of the accused and that criminal negligence consisted primarily of his being intoxicated to such an extent that he was unable to manage his vehicle. He regarded the evidence that the accused was intoxicated as being overwhelming. Although he was unable to say for what distance the appellant had driven the vehicle in this intoxicated condition, it had been driven for sufficient time for one of the passengers to become alarmed, to call out, to appreciate that his call had had no effect on the driver and to call again. In his reasons for judgment the learned Judge concluded by saying that he (the appellant) was an experienced driver, he knew he was intoxicated and if he had stopped to think he must have known his ability to drive was seriously impaired. He chose in this condition to set out on a journey which involved driving a large vehicle on a narrow road. He was a danger to himself and to anyone in the vicinity and in the event he travelled less than a mile before his blameworthy conduct resulted in the death of the deceased. And as I understand his reasons it was the act of driving in this condition which caused the death of the passenger and so by a combination of ss. 293, 291, 300 and 303 of The Criminal Code (Queensland, adopted) made him guilty of the crime of manslaughter. After conviction and in the course of considering the sentence to be imposed on the appellant Clarkson J. asked both counsel appearing at the trial whether he had power to take away the appellant’s licence for an offence of this nature. He was advised and satisfied himself that he had no such power under the Queensland Code as adopted in Papua. Thereupon he sentenced the appellant to be imprisoned for twelve months.

In the subsequent proceedings later that day before the resident magistrate in the District Court, from the reasons for decision furnished by him as required under s. 230(1) of the District Courts Ordinance 1964-1965, it appears that the prosecutor informed him that the proceedings were being taken in that Court to remedy a defect revealed in The Criminal Code, viz., that the Supreme Court had considered a suspension of the appellant’s driver’s licence but decided that it had no power to do so. The prosecutor asked the resident magistrate to consider the issue of driving under the influence of alcohol and to impose any suspension that the Court considered fit. The resident magistrate also stated that in view of the defendant’s not being represented he directed his own mind towards the effects of ss. 16 and 602 of the Code and in so doing decided that a clear distinction was available between the charge under s. 9(1)(a) of the Motor Traffic Ordinance and that under s. 303 of The Criminal Code. He took the view that when the motor vehicle was started the driver being then under the influence of intoxicating liquor an offence was committed against s. 9(1)(a). He went on to state that when the driver because of excessive speed, negligence or the like caused the death of one of the passengers some time later then a further offence was committed under s. 303. And he concluded that the previous punishment, i.e. the punishment imposed by Clarkson J. was clearly for a different act and thus the Court could properly proceed to conviction and punishment on the charge before it.

N2>(1) that the magistrate erred in law in convicting the appellant when he had previously been punished for the same act;

N2>(2) that the sentence was excessive in that the appellant had been convicted of manslaughter in the Supreme Court and sentenced to imprisonment for one year, the learned trial Judge having taken into consideration on penalty that he could not disqualify the appellant from holding his driving licence.

Both grounds of appeal depend upon s. 16 of The Criminal Code and it was that section which Mr. Luke, for the appellant, submitted on its true interpretation entitled him to succeed and that the resident magistrate was in error because he had not given effect to the section. I understood him to be putting forward the proposition that s. 16 (in the circumstances of this case) operated to prevent the appellant from being convicted upon the charge of driving under the influence of intoxicating liquor as he had already been punished for that “act” when he was sentenced to imprisonment for manslaughter—his driving under the influence being the main if not the essential “act” which constituted the crime. He relied additionally on s. 21 of the Ordinances Interpretation Ordinance 1949-1966 which he submitted should lead to the same result. In my opinion this latter submission has no legal foundation and it is convenient to dispose of it at the outset. The section (which derived front and is in substance the same as s. 33 of the English Interpretation Act 1889) provides that:

“Where an act or omission constitutes an offence under two or more Ordinances, or both under an Ordinance and under another law of the Territory, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Ordinances, or either under that Ordinance or under that other law, but shall not be liable to be punished twice for the same offence.”

It will be observed at once that the section provides that a person shall not be punished twice not for the same act or omission but for the same offence. In R. v. Thomas[cdliii]³ Humphreys J. in delivering the judgment of the Court of Criminal Appeal had this to say about s. 33 of the English Act:

“That Act may be said to state, in the language dear to the persons who prepare and are responsible for the language of statutes, what the common law says in very much shorter and simpler language. Certainly it adds nothing and it detracts nothing from the common law. Mr. Paget has argued that we ought so to read the section that the last word ‘offence’ should be read as meaning ‘act’, and it was submitted that ‘act’, ‘cause’ and ‘offence’ all mean the same thing. In our view that is not correct.”

The common law to which Humphreys J. refers is shortly expressed in the maxim nemo debet bis puniri pro uno delicto. Clearly the offence of driving under the influence of intoxicating liquor is not the same or substantially the same offence as manslaughter and s. 21 can have no application.

I turn then to the consideration of s. 16 of The Criminal Code. It is in these terms:

“A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he had already been convicted of some other offence constituted by the act or omission.”

It is to be observed at once that the section does not say that a person shall not be twice punished for the same offence although of course a person cannot be punished either under the Code or under any other law until he has been found guilty of an offence. It seems to me however that the intention of s. 16 is to direct consideration of the substance of an offence, that is, of the ingredients that go to make up the act or omission which renders the doer of the act or the maker of the omission liable to punishment. As Barton J. observed in Connolly v. Meagher[cdliv]⁴: “Section 16 of the Code cuts away the common law technicalities of autrefois convict.”

There is an initial difficulty in the construction of the first part of the section. It could be interpreted as meaning that a person cannot be punished twice for the same act or omission under the provisions of The Criminal Code nor can he be twice punished under the provisions of any other law (which expression I would take to mean the whole body of law, statutory or otherwise not contained in the Code). If this were the proper construction the appellant in this case would fail in limine, because he had been punished under the Code and there was no question of his being punished again thereunder. The second punishment was imposed under the provisions of the Motor Traffic Ordinance. But in my view the section is dealing with broad general principles relating to the application of the criminal law. I think that it should be read as a compendious expression of a prohibition against double punishment for the same act or omission no matter under what enactment or rule of law the punishment has been imposed or is likely to be imposed. Were it otherwise some unjust and absurd results would follow, e.g. a person could be punished both under s. 25 of the Police Offences Ordinance 1912-66 and under s. 340 of the Code for precisely the same course of conduct.

The real question which I have to decide is whether the appellant has been punished twice for the same act or omission and if he has what action should be taken by this Court to vindicate the law contained in the section. I must first ask for what act or omission was the appellant punished when Clarkson J. sentenced him to twelve months’ imprisonment after a verdict of guilty on the charge of unlawfully killing Kisea-Mamana. It is easy enough to say that the punishment was for the “act” of unlawful killing but that act is a complex one involving a number of ingredients. Callaghan v. The Queen[cdlv]⁵ and Evgeniou v. The Queen[cdlvi]⁶ make clear that when a person is charged with manslaughter or in the words of s. 303 of the Code “unlawfully killing” brought about by his manner of driving a motor vehicle the question the Court has to determine is whether his omission to carry out or perform the duty imposed upon him by s. 289 is of such a character that he is deserving of criminal punishment. His act or omission must be looked at in this light and the content of that act or omission must be subjected to the test: is the conduct disclosed worthy of punishment. In other words the act or omission only renders the doer of the act or maker of the omission liable to punishment if the community in the person of the jury or the Judge regards the conduct in question as punishable by the State and one must look for some element or ingredient of that conduct which gives it its punishable character. A primary element in manslaughter is the causing of the death directly or indirectly of a human being, but in a charge involving s. 289 what renders the causing of that death punishable is the criminal negligence of the person charged and criminal negligence as I see it is negligent conduct with something added. That something is the element of gross negligence or recklessness referred to in the cases. In this case the only evidence that Clarkson J. had was that of erratic driving for a short time before the appellant’s vehicle overturned with fatal result and that of the appellant’s condition of intoxication when seen by the respondent soon after the overturning and his admission of the consumption of a large quantity of alcohol. The learned Judge came to the conclusion that it was the appellant’s driving under the influence of liquor and the consequent effect of that driving on the course of the vehicle that made his conduct criminally negligent and with great respect I would think that he could have come to no other conclusion. It was his criminal act of driving under the influence which directly caused the overturning of the vehicle and so caused the death of Kisea-Mamana.

In my view whilst the appellant was punished for the offence of manslaughter the act or omission constituting that offence consisted of the combination of an omission to carry out the duty imposed on him by s. 289 directly and it would seem solely brought about by the act of driving his vehicle under the influence of intoxicating liquor. Without evidence of this act there would have been no evidence of an act or omission sufficient to constitute the offence. It was for this act and its consequence that, as I see it, Clarkson J. imposed punishment. It seems to me a proper inference that the learned Judge was anxious to impose a punishment which would relate directly to the appellant’s manner of driving his vehicle and which would act as a deterrent against such driving in the future and when he found that he could not deprive him of his licence to drive it is I think proper to further infer that the punishment imposed took into account and bore a direct relation to his driving whilst intoxicated.

In my opinion the resident magistrate was wrong in concluding as he did that the punishment imposed by Clarkson J. was for a different act. There was nothing in the statement of facts (which in any event were not proved before him) to show that the appellant was under the influence of intoxicating liquor at any other time than that at which the overturning of the vehicle occurred. There was no evidence before him as to the prior course of the vehicle and no evidence as to the length of time which elapsed between the consumption of the liquor and the driving. The plea of guilty does not in my view amount to an admission of the truth of the Statement of Facts. The appellant admitted simply that he was guilty of the offence appearing in the charge and that was that on 27th August, 1966, at Sogeri he drove a motor vehicle whilst under the influence of intoxicating liquor. (See per Hawkins J. in The Queen v. Riley[cdlvii]⁷) And it seems to me that in view of the discussion and castigation of his driving that had taken place in this Court earlier in the day the appellant when he pleaded guilty could only have had in mind that very driving. There is nothing in either his reasons for decision nor in the record of the District Court proceedings to show that the appellant intended to plead guilty nor in fact that he pleaded guilty to any other act of driving. The resident magistrate was undoubtedly disturbed at the inability of the Supreme Court to impose what he regarded as a proper penalty, but he overlooked what in my judgment is the inescapable conclusion that the learned Judge in imposing penalty took into account the fact that he was not able to deprive the appellant of his driving licence and adjusted the sentence which he did impose accordingly. In my opinion the resident magistrate did what he was forbidden by s. 16 to do and twice punished the appellant for the same act. To adopt the words of Chubb J. in Connolly v. Meagher[cdlviii]⁸ when this case was before the Full Court of Queensland:

“I think it is quite clear that two offences were committed, but that there was only one transaction, and by the operation of s. 16 of The Criminal Code the defendant, having been punished for this one transaction by being convicted of one offence, was not liable to be punished for the other offence.”

It was argued before me by Mr. Gajewicz that the order that the appellant’s licence be cancelled and that he be not eligible for a new licence for five years was not a punishment, but I am clearly of the view that it was. Indeed the Motor Traffic Ordinance recognizes such to be the case when it provides in s. 21 that the court before whom a person is convicted of an offence against or contravention of any provision of the Ordinance may in addition to any other punishment (italics mine) to which he may be liable under the Ordinance or Regulations in respect of the offence or contravention suspend or cancel the person’s licence or declare him to be disqualified from obtaining a licence.

There remains the question what should this Court do when there has been a breach of s. 16; that is, should it quash the conviction or merely remove the punishment. The section itself seems to equate punishment with conviction when after stating the rule that a person cannot be twice punished for the same act or omission it goes on in the exception to allow conviction where there is subsequent death, and this notwithstanding that there has been a previous conviction. Punishment is not mentioned at all in the exception. The Judges of the Full Court of Queensland in Connolly v. Meagher[cdlix]⁹ preferred to reserve the question whether a conviction in all cases is to be regarded as a punishment although in the circumstances of the case before them they decided that it was. Similarly in this case I am of the opinion that conviction is a punishment because s. 9(2) of the Motor Traffic Ordinance is imperative in its terms that the court before whom a person is convicted of driving under the influence shall disqualify that person from holding and obtaining a licence for such period as the court thinks fit not being less in the case of a first offence under the section than three months. Punishment in such case is inseparable from conviction. Accordingly I propose to quash the conviction of driving under the influence and the sentence following thereon and I so order.

[cdli]* Section 21 of the Ordinances Interpretation Ordinance 1949-1966 provides as follows:

[cdlii]** Section 16 of The Criminal Code (Queensland, adopted) provides as follows:

[cdliii] (1949) 33 Cr. App. R. 200, at p. 204.

[cdliv][1906] HCA 20; (1906) 3 C.L.R. 682, at p. 684.

[cdlv](1952) 87 C.L.R. 115.

[cdlvi][1964] P. & N.G.L.R. 45; (1964) 37 A.L.J.R. 508.

[cdlvii][1896] UKLawRpKQB 367; [1896] 1 Q.B. 309, at p. 318.

[cdlviii] [1906] Q.S.R. 125, at p. 131.

[cdlix][1906] Q.S.R., at p. 131.

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Supreme Court of Papua New Guinea

Gaiari-Ganereba v Giddings [1967] PGSC 16; [1967-68] PNGLR 346 (2 May 1968)

Papua New Guinea Law Reports - 1967-68