Regina v McGuire [1967] PGSC 52 (3 July 1967)

IN THE SUPREME COURT OF
THE TERRITORY OF PAPUA
AND NEW GUINEA

Coram: Mann, C.J.

REGINA v. ROBERT McNAMARA McGUIRE.

Hogan for the Crown.
Heath for the Defence.

Port Moresby
27^th, 28^th and 29^th June, and 3^rd July, 1967

JUDGMENT

The accused is charged on two counts arising out of incidents which occurred on the 22^nd December, 1966. At about 7 o'clock in the evening, the accused was driving a red utility vehicle, the property of the Electricity Commission, along Angau Drive, Boroko, when it collided in the intersection of Angau Drive and Lahara Avenue with a motor car driven by Allistair Campbell, who was driving along Lahara Avenue towards the Sir Hubert Murray Highway.

The vehicle driven by the accused was travelling in the direction from Tabari Place, towards Lahara Avenue, when he approached the intersection. The collision took place within the intersection, Campbell's car being, at the point of impact, in about the centre of the left-hand side of the roadway of Lahara Avenue, and the vehicle driven by the accused being in about the centre of the roadway of Angau Drive. From the point of impact both vehicles travelled along a curved path to the kerbing close to the corner which would have been on the right of the utility, and on the left of the motor car had they continued on their intended journeys.

The two vehicles came to rest fairly close together. The right-hand rear panels of the car were heavily damaged, as was the front of the utility. Included in this damage was a deep impression in the centre front of the utility apparently caused by a very forceful impact with a steel electric power pole near the street corner, which finally brought the utility to a stop.

Campbell was severely injured as a result of the collision and the accused is charged that he unlawfully did grievous bodily harm to Campbell. The second charge, arising by Sections 328 and 289 of the Code, is put in the alternative and will not call for separate consideration because there is no doubt in this case that the injuries inflicted constituted grievous bodily harm within the meaning of the Code.

The Crown alleges that in driving the utility the accused drove at such a speed and with such lack of caution as to constitute criminal negligence, so as to disentitle the accused from relying on a defence of accident under Section 23, leaving the accused in the position that his unlawful acts were the actual and direct cause of the grievous bodily harm inflicted on Campbell.

The Defence contended that any actions of the accused fall short of the degree which would constitute criminal negligence and that, therefore, the defence of accident was open.

There is no doubt that the car driven by Campbell entered the intersection first and had reached, and substantially passed, the centre of the intersection. According to his own account of what occurred, he was driving at a speed ranging from 15-25 m.p.h. as he passed the gateway of the football ground and still about 400 yards from the intersection at Angau Drive. At 100 yards from the intersection he saw a car pulling up on his left at the "Stop" sign in Angau Drive. The evidence does not explain what happened to this car, but it appears that at that distance it had plenty of time to cross the intersection before Campbell's car approached closely. At 20 yards from the intersection Campbell looked to his right, but there was no car visible. He was decreasing speed to 15-20 m.p.h. and started to cross the intersection within this speed range. Throughout there was no car in sight approaching the intersection from Campbell's right. He drove on to cross the intersection and when he was in about the middle of it his attention was attracted by moving lights on his right. He looked to the right and saw the vehicle driven by the accused approaching at a fast speed. Campbell made some attempt to accelerate and allow the other vehicle to pass behind him, but the collision occurred at that instant.

The force of the impact on the rear part of Campbell's car forced him under the steering wheel and at this point he lost consciousness. The impact apparently caused the driving side front door of his car to warp and the door sprang open and could not be closed when subsequently inspected. In consequence, when the car came to rest against the kerb Campbell fell out of the car in an unconscious condition and remained lying on the roadway alongside his car.

I do not hesitate to accept Campbell's evidence, strongly supported as it is by independent witnesses, who were walking on the footpath quite close to the point of impact. These witnesses put the speed of the utility driven by the accused at 30 m.p.h. at the least, and I have no hesitation in accepting this estimate. My impression is that this is certainly a very fair and conservative estimate.

As to the course taken by the vehicle driven by the accused, there is one circumstance which, for the purpose of the present trial, I must ignore. There was a suggestion that the accused made illegal use of this vehicle. This point was relied upon by the Crown as a means of identifying the driver of the vehicle, because there was evidence that the accused had, shortly before the accident, obtained delivery of the utility from an employee of the Electricity Commission at the Motor Transport Depot. Before this evidence was called, it became unnecessary for the Crown to call it, since no issue as to the identity of the driver was raised by the defence, and there was other evidence to cover the point. Therefore, I must proceed upon the footing that there was no evidence before me that the use by the accused of the car was anything but lawful. Since this question is not in issue before me in these proceedings, I make no finding or comment on the point.

The next point is that it appears from the evidence that the accused did not have a current driving licence at the time of the accident. It will be necessary for me to say something about this in a moment, but since this is not an element of the offence charged, but might well be a question of fact which would have an effect upon the rights and responsibilities of several people who are not parties to the present proceedings, I make no unnecessary comment, but will proceed upon the footing that the admissions of the accused-that he did not have a licence are in accordance with the facts.

In evidence Sub-Inspector McDonald identified the point of impact of the two vehicles and produced photographs of the intersection taken from various angles. These photographs clearly show the main features of the intersection as it stood at the time of the collision except that the "Stop" signs have been altered to comply with the Regulations. I do not rely on these photographs for precise measurements since the surface of the roadway would appear as an oblique projection and it would take much precision and calculation to determine distances accurately from the photographs. Nevertheless, as a general illustration the photographs are useful.

The accused did not give evidence on his own behalf and did not call witnesses: so that the account of his driving given by the other witnesses is uncontradicted. It appears that he was driving along Angau Drive in about the middle of the road at a high speed and failed to observe the "Stop" sign on the left. At 7 o'clock it was well after sunset and, in a latitude with little or no twilight, it was, for all practical purposes, quite dark.

The "Stop" sign on his left was in a position where the only light at the intersection would fall an the back of it, so that it would not be well illuminated and it may well be, that driving near the centre of the road, the headlights of the utility failed to illuminate the sign. Another probability is that the vehicle had only its parking lights on, for the lights were described as "not bright".

The accused did not slacken his speed and apparently did not notice that the car driven by Campbell had already entered the intersection whilst the utility had yet some distance to go before reaching it. By the time the accused noticed the other car he was too close to avoid running into it and there was no evidence that he made a manoeuvre to avoid the accident. It was a violent collision and both vehicles ran to the kerbway apparently out of control, and the utility driven by the accused collided violently with a heavy steel electric pole.

According to the statement made to Sub-Inspector McDonald on the following morning, the accused said: "I panicked and ran, for I had no licence and was afraid of the consequences. I did not know at the time anyone was injured as I thought that I had glanced off the car and ran into the powerline pole." This action on the part of the accused was supported by the evidence of the other witnesses who could see no sign of the driver of the utility a matter of a moment or two after the vehicles had come to rest.

There was some argument as to the effect of this statement and the weight and the inferences I should draw from the fact that the accused ran away. Unusual conduct of this kind is evidence of a sense of guilt, but it does not often specify the offence of which the accused might have been guilty. Since the question of a driving licence and the possibility of illegal use of the car are, so far as these proceedings are concerned, open, and since the Electricity Commission's vehicle had been very badly damaged, I think that any of these circumstances might have been adequate to give the accused a sense of guilt and fear. Accordingly, I do not attach weight to this part of the conduct of the accused as evidence of guilt of the particular charge with which I am now concerned.

The written statement was tendered, subject to objection on the ground it was not made voluntarily. During the conversation leading up to the making of the statement, Sub-Inspector McDonald told the accused that he was investigating the accident and said that he had reason to believe that the accused could assist him in his enquiries, and he warned the accused that he did not have to answer any questions. The accused immediately said that he was "at home last night".

The Sub-Inspector said that the accused could be identified as the person who took the car out of the compound and the accused said "It wasn't me". When Sub-Inspector McDonald gave some more information revealing that he knew a great deal about what had happened, the accused asked the somewhat oblique question "What is going to happen to this bloke when you catch him?" The Sub-Inspector said "He will be charged, probably with illegal use and negligent driving." The accused said: "Will he be locked up?" The Sub-Inspector said: "No, I will be proceeding by summons" and the accused said: "O.K. I will tell you all about it." He proceeded to do so, after Sub-Inspector McDonald had repeated the customary warning. After admitting that he had taken the car because his wife had arrived, and that he wanted to pick her up, Sub-Inspector McDonald asked the accused whether he would make a written statement, and handed him a printed form of statement and a ball-point pen. The accused himself wrote out his own statement.

I over ruled the objection that the statement was not voluntary. The circumstances give every indication that it was voluntary in every way, and that the accused was well aware of his position when he made his enquiry as to what would happen to the fictitious third party when he was caught. The point argued was that the statement was made in response to an inducement in that Sub-Inspector McDonald told the accused that the driver of the vehicle would not be locked up. It was suggested that such an inducement should not have been offered because it would mean, in effect, that the Court would not impose sentence of imprisonment for any offences which may have been committed.

It was the accused himself who asked the questions, and thereby chose the language used. The natural meaning that I would attach to the answer, and the only meaning that could properly have been intended, was that since the Sub-Inspector was proceeding by summons, anybody charged with the offences would not be arrested and held in custody pending the hearing.

At a later stage, having regard to the seriousness of the injuries suffered by Campbell, the accused was charged with the indictable offences appearing on the Indictment and the other charges for summary offences were suspended for the time being. The statement was admitted in evidence.

It was contended by the Defence that the "Stop" signs at the intersection had no validity because they did not comply with the Motor Traffic Ordinance and Regulations. Section 61(B)(i) of the Motor Traffic Ordinance, 1950-1967, defines a "Stop" sign as a circular red sign with the word "Stop" in white letters approximately 9" in height. Other authorised traffic signs are defined similarly but do not specify a particular size of lettering. The white lettering on the "Stop" signs in normal use has been, in fact, considerably larger than the lettering employed on other traffic signs, rendering them much more conspicuous.

Nevertheless, objection was raised that the signs in question at the time of the collision were in fact 81/16th" high, and it was argued that this does not satisfy the requirement that they be "Approximately 9" in height". It was argued that they must be more than 9" in height, because the clear intention of the Ordinance is to make them larger rather than smaller, and that they should be more rather than less than 9" in height, if they departed from that exact measurement.

I find this a highly artificial argument. Clearly the considerations contended for should be taken into account by the legislature in choosing the language in which to express its intention. It might reasonably have adopted the words "not less than", but this might produce the result that a sign would fail to be effective if it were as little as 1/64th" short of 9". In a community like this, and having regard to the available sign-writing services from time to time, it might well have occurred to the legislature that a margin of error of 1" might not have been a bad achievement. The legislature has decided in its own way and in its own words to specify the standard required and must be taken to have made whatever allowance it thought appropriate. I should not carry the considerations of legislative policy a further precautionary step forward in interpreting the words used so as to magnify rather than reduce the safety margin. This process may influence the choice of alternative interpretations in a case of ambiguity as to which meaning was more likely to have been intended. In the present case I do not see that such a question is involved.

The measurement given is "approximately 9". The meaning of "approximately" is that something approaches the specific measurement given. The derivative meaning implies the element of motion towards, and would logically reject a position which had gone beyond the precise point. In popular current use of the word is applied to static conditions, and in cases of measurement would be taken to leave a reasonable margin of error which could in most cases be represented by a circle drawn around the precise measurement, so as to allow a reasonable departure in any direction. The whole concept is comparative, and relative to the needs of the particular application. In precision engineering such a term would be little used, but might well be used to include a range of articles normally made over-size or under-size, within very small tolerances, which could be determine as reasonable by persons skilled in the art. In other instances a 50% margin of tolerance might be accepted as a matter of course.

The same question arose recently, in some other proceedings, as to whether these signs complied with the Ordinance. I understand that no decision was made, but the police were wise to have the signs re-painted so that no argument of this nature would arise in the future. I think that this is, however, not a circumstance which in any way confirms the argument that the signs in use at the time of the accident were not authorised.

The measurement specified is not capable of carrying a precise meaning, nor of indicating a precise limit to the margin of error that is intended. The need for a margin of error may vary from place to place according to the circumstances, including visibility, available lighting and the visual faculties of users of the roadway. I am not prepared to hold that the word "approximately" is of sufficient precision to reject a margin of less than 1" in 9". It is not necessary for me in determining this case to fix the limit to which I would go, because ex hypothesi, there is no precise limit. I hold, therefore, that the "Stop" sign was a sign which complied with the Ordinance and required the accused, under Section 61(D)(a), to stop his vehicle as near as safely practicable to, and before entering upon, the intersection.

It was also contended on behalf of the Defence that under Section 64(4) Campbell was required in the circumstances to reduce the speed of his vehicle and pass behind the utility truck, since the vehicles were on a collision course and the utility was on his right. I was referred to the decision of the Chief Justice of Victoria in Payne v. West (^[1]).

The Victorian Regulation is slightly different in terms because it applies to vehicles within, as well as those approaching, an intersection, but otherwise the requirements are much the same. Section 64(4) in terms-applies only to motor vehicles approaching the intersection, and it is clear on the facts that Campbell had already entered the intersection ahead of the accused and at a point of time when the car driven by the accused would be a considerable distance away, and probably not to be regarded as approaching the intersection for the purpose of the rule. At the point at which Campbell would be required to observe the other vehicle and make his decision, the utility must have been so far back as to be probably outside the line of vision available to Campbell. There was at least plenty of time for Campbell to cross the intersection without any risk of collision with the utility, had the utility been travelling at a reasonable speed in the circumstances, even if he were not required to observe the "Stop" sign. Campbell could not be expected to avoid a cannon-ball fired at him from the right if he could not know that it was coming.

In the circumstances of this case, I think that it is clear that if Campbell had tried to stop his car at the point at which it first became possible for him to observe the accused, he would have created a situation of greater danger. As it was, the utility entered the intersection at a point when Campbell's car had crossed over about half of it, so that if he had tried to stop when he in fact saw the other vehicle, there would have been no space for the utility to pass in front of him.

I am not really concerned to analyse Campbell's handling of the car beyond ascertaining whether any course that he took created a condition of emergency which the accused could not be expected to cope with. I think that there is nothing on Campbell's part which caused such a situation.

As for the handling of his car by the accused, his failure to observe the traffic sign by no means concludes the matter. In the situation involved, and in the circumstances prevailing, a person unfamiliar with the locality might well think that Angau Drive was the more important road. The fact of the matter is that both of these roads are main access roads and carry heavy traffic. The intersection is lit by only one fluorescent light and would undoubtedly be a good deal safer if it had better lighting and were in other respects better equipped. I think that the accused was needlessly careless in failing to observe the sign. I cannot on the evidence find that he deliberately ignored it, and I cannot, therefore, attach to his omission alone the required degree of criminal negligence.

The thing which was most dangerous on the part of the accused, was travelling at or about the middle of the road at such a high speed that his presence could not be observed by a vehicle crossing the intersection ahead of him in time to clear the intersection safely. Even taking the speed as the minimum figure of 30 m.p.h. (and there is much to indicate that this is the least possible speed), I find that in that particular situation the accused was creating a most reckless and dangerous risk. The streets of Port Moresby are far from adequate, and far from adequately equipped to carry the traffic involved, without a constant risk of error and accident, and much greater care is needed by users of the roads, especially at night time and in times when traffic is heavy. Some aspects may appropriately be dealt with by Regulation, by traffic prosecutions and by civil claims for damages in the case of injuries. I am not here concerned with any of these relatively minor matters, I am concerned only with that aspect of negligence which goes beyond this point and reaches a stage at which the management of a vehicle is so reckless of the foreseeable consequences, and so careless of the health and safety of other road users, that it becomes appropriate for the sanctions of the criminal law to be applied. I am satisfied that in the present case this degree has been exceeded and that, for the purposes of the present charge, the accused is not entitled to raise the defence of accident which would otherwise arise under Section 23.

I find, therefore, that by his actions, the accused has directly caused injuries from which Campbell suffered. These were substantial and involve permanent injuries, and on the medical evidence there is no doubt that they constitute grievous bodily harm. I, therefore, find the accused guilty on the first charge.

Since the second charge is put forward in the alternative, it would be appropriate for a nolle prosequi to be entered in relation to it.

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In passing sentence the Chief Justice said:

I think it is a tragedy that in an irresponsible moment you should have embarked on a course of conduct which has caused serious permanent injuries to the driver of the car and caused extensive damage to two vehicles Already your own family has suffered serious loss and the accident has brought financial ruin for yourself. This case does not represent the end of your troubles. There are other matters pending and you might well have very substantial financial responsibilities.

You have had every advantage. Sub-Inspector McDonald, who showed great ability in his investigation of the case, nevertheless extended to you every possible consideration and acted with the utmost fairness, as was, of course, his duty. You were provided with Defence Counsel, who has brought out and stressed everything that could be said in your favour. The facts are perfectly clear and you have committed a very serious offence for which the maximum sentence is seven years imprisonment.

You still have the advantage of being a first offender and I propose to treat you upon that footing to give you the utmost encouragement not to repeat this kind of offence. I must warn you that should you commit a similar offence again you will have to face the prospect of a heavy sentence.

I cannot accede to the application that you be released on a bond because I have a clear duty to the public to try to enable people to realise the danger and responsibilities involved in driving motor vehicles with gross recklessness. I have every sympathy with you in your present situation and I realise fully that you have lost very heavily. Imposing a fine would only make your financial position so much worse, and I have a duty to make it clear to people who have not yet offended in the same way, but who may be about to do so, that when the element of criminal negligence enters into the driving of a vehicle, there are very substantial penalties which may be imposed. The streets of Fort Moresby are dangerous enough, particularly at nigh time, without this degree of negligence.

Having regard to your good record and to the extent to which you and your family have suffered, and will suffer, I propose to impose what is, for such an offence, a very short term of imprisonment, with the warning that should you again appear in Court and be convicted of a similar offence, you will not be entitled to the same consideration, The sentence of the Court is that you be imprisoned, with hard labour, for a term of three months.

Solicitor for Crown: S. H. Johnson, Crown Solicitor.

Solicitor for Defence: W. A. Lalor, Public Solicitor.

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^[1] (1966) V.L.R. p.489.