Piane, Regina v [1975] PGSC 26; [1975] PNGLR 52 (13 February 1975)

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CRIMINAL LAW - Particular offences - Dangerous driving causing death - Applicability of excusatory “defences” - Standard of driving, objective - Onus of proof - Criminal Code (Queensland adopted) s. 328a[liii]1, and ss. 23[liv]², 24[lv]³, 25[lvi]⁴.

In establishing the offence of dangerous driving causing death under s. 328a of the Criminal Code (Queensland adopted):— (1) the excusatory defences in Chapter 5 of the Code apply; (2) the standard of driving remains an objective one and not subjective to the driver, The King v. Coventry [1938] HCA 31; (1937-38), 59 C.L.R. 633 at pp. 637, 638 referred to; and (3) the onus lies on the prosecution to exclude beyond reasonable doubt every “defence” fairly raised by the evidence. Himson Mulas v. The Queen, [1969-70] P. & N.G.L.R. 82 at pp. 97-99 referred to.

On a charge of dangerous driving causing death under s. 328a of the Criminal Code (Queensland adopted), in circumstances where a driver was startled as a result of loud banging on the roof of the cabin of a utility he was driving and turned his head in an involuntary act, thus taking his attention from the road for a momentary period, to ascertain the cause of the commotion which he believed to be a serious accident; held in so acting the driver acted only as ordinary person possessing ordinary powers of self-control would have acted, the prosecution had not therefore excluded the “defence” under s. 25 of the Criminal Code (Queensland adopted), and the driver was not guilty of the offence.

This was the trial of an accused on a charge under s. 328a of the Criminal Code (Queensland adopted) that on the 16th December, 1974 he drove a motor vehicle dangerously on a road and thereby caused the death of Mapa Noiya. The relevant facts are fully reported in the reasons for judgment hereunder.

LALOR J: The accused was charged that on the 16th December, 1974 he drove a motor vehicle dangerously on a road and thereby caused the death of Mapa Noiya.

The undisputed facts of the case were that the accused on the day in question was the driver of a passenger vehicle, a heavy duty utility truck, which was travelling on the Highlands Highway between Mount Hagen and Ialibu, when it left the road and overturned some six or seven minutes drive from Mount Hagen. There were passengers in the back of the truck and one of them was killed.

It was sought to be established, by evidence, that the relevant facts were, that the accused was driving at an excessive speed, with defective brakes, and worn tyres, and that in attempting to overtake another vehicle he overturned the car and killed a passenger. In the event that these facts were not established beyond reasonable doubt the Crown sought to rely on the accused’s own story, apparently given in the lower court. Namely that the accident was caused by a passenger in the back of the vehicle banging on the roof of the cab of the vehicle with great force and shouting at the same time, so that the accused turned his head to find out what was going on, and in his momentarily taking his eyes off the road, ran into a ditch; and when he endeavoured to extricate himself from this the vehicle overturned. On this alternative, the Crown case was, that momentary inattention is sufficient to constitute dangerous driving in the circumstances of a particular case and that in the circumstances of this case, the momentary turning of his head in fact constituted dangerous driving within the terms of the section.

As to the first alternative, it suffices to say since the facts may be tried in another jurisdiction of the court with a different onus of proof, that the Crown could not establish beyond reasonable doubt that the accident had been caused by the excessive speed, etcetera, alleged by them. It thus remains to consider whether the accused was guilty of dangerous driving causing death on the facts as set up by him and the evidence called by him at the trial.

The offence of dangerous driving causing death is set out in s. 328a of the Criminal Code. Accordingly, criminal responsibility must be established within the terms of Ch. 5 of the Code. The immediate effect of this is that there can be no suggestion of strict responsibility applying to this offence. What have been termed the “excusatory defences under Ch. 5” apply to this offence. (see Hunt v. Maloney)[lvii]⁵. In this the position under the Code does not differ from that at common law in Australia. In The King v. Coventry[lviii]⁶ the court said:

“No doubt the language of the section does not exclude a defence of mistake of fact on reasonable grounds or of involuntariness (for example, interference by another person with the driving of the car), and perhaps there may be other exceptional excuses, based on special facts, to which a state of mind may not be immaterial.”

“Sudden, even though mistaken, action in a critical situation may not, in all the circumstances of a case, constitute driving to the danger of the public.”

Nevertheless the standard of driving set out in the section is an objective one and not subjective to the driver. As the High Court said in The King v. Coventry[lix]⁷:

“The standard is an objective standard, ‘impersonal and universal, fixed in relation to the safety of other users of the highway’ (per Hewart L.C.J in McCrone v. Riding; and see Kingman v. Seager). The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles”.

In this case as in all other cases except insanity, unless specifically provided by statute the onus is on the Crown to exclude every “defence”, fairly raised by the evidence, beyond reasonable doubt. (see Himson Mulas v. The Queen[lx]⁸). It is not sufficient then, for the Crown to produce evidence which merely shows that the driving of the accused objectively was dangerous. If the evidence raises any “defence” coming within Ch. 5 of the Code then the onus is upon the Crown to negative that defence beyond reasonable doubt.

The relevant facts as they appear from the evidence and upon which the issue of guilt or otherwise must be judged, are as follows. The accused was driving at a point on the road where the road turned and went slightly down hill in a series of bends. At one of these bends, there was suddenly a loud beating on the roof of the cabin of the truck accompanied by strong shouting. He was startled by this and turned his head. (The interpreter used the word “upset” but I have no doubt that the true meaning was startled). He thought that some serious mishap had occurred on the back of the truck, such as a man falling off, or the pigs which he was carrying getting loose and falling off. He turned his head momentarily, since from the evidence the point at which he turned his head was only some ninety feet from where he went into the ditch at the side of the road and finally turned over. The time element involved was thus a matter of some two seconds since the vehicle was travelling at thirty miles per hour. He stated, that when he turned back he found that the front right wheel was already in the drain at the side of the road, and, in endeavouring to steer out of the drain, the vehicle turned on its side and slid down the hill but did not completely overturn. In cross-examination he stated that the beating on the top of the truck and the shouting was not a normal method of stopping the truck. It was something quite abnormal. The substance of this evidence was confirmed by a fellow passenger of the deceased in the back of the truck.

Section 23 of the Criminal Code states “subject to the express provisions of this Code relating to negligent acts and omissions a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will”.

I have then to consider whether there is evidence which would squarely raise the question of whether or not the accused was acting independently of his will.

Ordinary experience shows that a person has a reflex action to sudden stimulation of the various sensory organs and that this reflex action is in fact an involuntary response not a voluntary act. Thus a man suddenly blinded by a searchlight might wince, might shut his eyes and drive erratically; or caught in an uncontrollable spasm of sneezing or coughing as a result of a noxious substance, might again lose control of his driving or if startled by an explosion might start suddenly to drive erratically. All of these examples appear to me to be cases of reflex actions caused by external stimuli and as reflex actions they are by definition quite involuntary.

In the present case the evidence was that the driver was startled and turned his head as a result of this loud banging and shouting. It is a matter of common experience that drivers of vehicles do in fact tend to react to sudden noises, hence notices in public vehicles “Do not speak to driver etc.”. On the facts of the case, I hold that there is evidence to go to a jury as to whether the sudden shouting and knocking, a most unusual occurrence, was such as to cause the driver, startled as he was, to turn his head in a reflex action and involuntarily take his eyes off the road for a momentary period.

Section 24 provides — “a person who does or omits to do any act under an honest and reasonable, but mistaken, belief in the existence of the state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist”.

Section 25 states — “Subject to the express provisions of this Code ... a person is not criminally responsible for an act or omission done or made under such circumstances of sudden ... emergency that an ordinary person possessing ordinary power of control could not reasonably be expected to act otherwise”.

“this section gives effect to the principle that no man is expected, (for the purposes of the criminal law at all events) to be wiser or better than all mankind. It is conceived that it is a rule of common law, as it undoubtedly is a rule upon which any jury would desire to act.”

The only evidence of a sudden emergency was the unexplained banging on the roof and the shouting by the deceased. No explanation was given for this; but, whether there was in fact a state of emergency or not, the situation was such that the driver could quite honestly and reasonably believe that there was an emergency in the back of the truck. There is thus evidence that a jury should find that the driver should be judged as if there were a sudden emergency in the back of the vehicle.

This then leads up to s. 25 and the question whether there was evidence that a jury could find that, having instinctively or in a reflex action looked backwards, he should for a matter of less than two seconds endeavour to find out the cause of the commotion which he believed to have been a serious accident. Objectively of course, and with hindsight, it is easy to say that he should have applied his brakes, stopped the vehicle and then looked round. But this is merely being wise after the event. Nor is it the true test of liability either at common law or under the Code. As the High Court said in Coventry’s case[lxi]⁹:

“Sudden, even though mistaken, action in a critical situation may not, in all the circumstances of a case, constitute driving to the danger of the public”.

The question to be decided, as a question of fact, is whether the driver in acting as he did, acted only as an ordinary person possessing ordinary power of self-control would have acted. As I said in the beginning, the onus is upon the Crown to exclude all “defences” except insanity under the Code. It appears to me that what happened was in fact that the driver startled by the sudden banging and shouting behind, turned his head in an involuntary act. He then thought that some accident had occurred and perhaps kept his head there for a second or a fraction of a second. I am unable to be satisfied beyond reasonable doubt that such a reaction was outside the normal reaction of an ordinary person possessing ordinary self-control, and accordingly find the accused not guilty.

[~~Section 328a of the Criminal Code (Queensland adopted) provides: “(1) Any person who drives a motor vehicle in a public place dangerously is guilty of a misdemeanour ...~~

N2>(2) If the offence causes the death of or grievous bodily harm to another person he is liable upon conviction upon indictment to imprisonment with hard labour for five years.

[liv]Infra p. 55.

[lv]Infra p. 56.

[lvi]Infra p. 56.

[lvii][1959] Q.S.R. 164.

[lviii][1938] HCA 31; (1937-38) 59 C.L.R. 633, at p. 638.

[lix][1938] HCA 31; (1937-38) 59 C.L.R. 633, at pp. 637, 638.

[lx][1969-70] P. & N.G.L.R. 82, at pp. 97-99.

[lxi][1938] HCA 31; (1937-38) 59 C.L.R. 633, at p. 638.

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Supreme Court of Papua New Guinea

Piane, Regina v [1975] PGSC 26; [1975] PNGLR 52 (13 February 1975)

Papua New Guinea Law Reports - 1975