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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA NO 27 OF 2020
RICHARD JASON MAGIAU NAMALIU
Appellant
V
THE STATE
Respondent
On The Papers: Cannings J, Hartshorn J, Makail J
2021: 27th May, 1st July
CRIMINAL LAW – appeal against conviction for manslaughter, Criminal Code, s 302 – application of principles of criminal negligence, Criminal Code, s 287 – duty of care – breach of duty – causation.
CRIMINAL DEFENCES – accident, Criminal Code, s 24(1)(b) – mistake of fact, Criminal Code, s 25(1) – extraordinary emergency, Criminal Code, s 26.
This was an appeal against conviction for manslaughter under s 302 of the Criminal Code. The trial judge accepted the State’s case that the appellant assaulted the deceased, who was the front-seat passenger in a vehicle he was driving at high speed in a residential area, and that the deceased jumped from the vehicle in fear of her life and safety and hit her head on the road and that the injuries she sustained caused her death. The State had invoked s 287 of the Criminal Code to prove that the appellant killed the deceased. The trial judge held that the elements of that provision were established in that the appellant owed a duty of care to the deceased, that he breached his duty of care through an act of criminal negligence and that that breach of duty caused the death of the deceased. The trial judge held that the State proved the two elements of manslaughter, viz that the appellant killed the deceased (by invocation of s 287) and that he did so unlawfully. In finding the element of unlawfulness proven, the trial judge rejected the defences, raised by the appellant, that there was an honest and reasonable mistake of fact on the part of the appellant (for the purposes of s 25(1) of the Criminal Code) and that the death occurred in circumstances of sudden or extraordinary emergency (for the purposes of s 26 of the Criminal Code). The trial judge, having convicted the appellant of manslaughter by recourse to s 287 of the Criminal Code, expressed the view that it was not necessary for the State to have confined itself to that provision and that, on the evidence, the appellant would have been convicted of manslaughter without recourse to s 287 as it was proven that he killed the deceased by the willed and intentional act of assaulting her in the moving vehicle, causing her, in fear of her life and safety, to jump from the vehicle, and that her death was not an accident (for the purposes of s 24(1)(b) of the Criminal Code) and that the killing of the deceased was not excused or justified by law. Twelve grounds of appeal were argued, categorised as: (1) errors in findings of fact; (2) errors of law in rejection of appellant’s evidence, finding a breach of duty for purposes of s 287 and finding that the breach of duty resulted in deceased’s death; (3) errors of law in rejecting defences of mistake of fact and extraordinary emergency; and (4) error of law in finding the appellant guilty without recourse to s 287.
Held:
(1) The trial judge assessed the evidence of four State witnesses who saw the appellant assault the deceased in the moving vehicle and/or drive the vehicle erratically and regarded them as reliable witnesses and was not satisfied that the appellant, who was the only defence witness, was a witness of truth. All grounds of appeal alleging errors of fact were dismissed.
(2) There was no error of law in the trial judge’s rejection of the appellant’s evidence, reasons for which were provided, or in finding that the appellant breached the duty of care owed to the deceased or in finding that the appellant’s negligent use of the vehicle was a substantial and operating cause of the death of the deceased.
(3) No errors of law attended the trial judge’s rejection of the defences of mistake of fact and extraordinary emergency.
(4) The trial judge’s statements regarding the State’s invocation of s 287 to prove that the appellant killed the deceased are properly regarded as obiter dicta, expressed with ample justification as it was unnecessary for the State to rely on that provision as there was sufficient evidence on which the Court could have found that the deliberate and wilful actions of the appellant in assaulting the deceased in the moving vehicle caused her death. There was no break in the chain of causation, beginning with the assault and ending with the death, as it was reasonably foreseeable that a person in the position of the deceased, faced with the ongoing threat of assault would retreat from that position of danger and jump from the vehicle.
(5) All grounds of appeal dismissed. Appeal dismissed. Conviction affirmed.
Cases Cited
The following cases are cited in the judgment:
Bean v Bean [1980] PNGLR 307
John Beng v The State [1977] PNGLR 115
Lewis v The State [1980] PNGLR 219
R v Roberts [1971] 56 Cr App R 95
The State v Mathias Yangi (2012) N4573
The State v Richard Jason Magiau Namaliu (2020) N8284
The State v Samuel Roth (2018) N7591
APPEAL
This was an appeal against conviction for manslaughter.
Counsel
F N Kirriwom, for the Appellant
D Kuvi, for the Respondent
1st July, 2021
1. BY THE COURT: Richard Jason Magiau Namaliu was convicted by the National Court of one count of manslaughter under s 302 of the Criminal Code and sentenced to 15 years imprisonment. He appeals against his conviction. His application for leave to appeal against sentence has been withdrawn.
2. The trial judge accepted the State’s case that the appellant assaulted the deceased, Ruby Anne Laufa, who was the front-seat passenger in a vehicle he was driving at high speed in the residential area, Fort Banner, at the University of Papua New Guinea, Waigani, on the morning of Saturday 11 February 2017 and that the deceased jumped from the vehicle in fear of her life and safety and hit her head on the road and that the injuries she sustained caused her death (The State v Richard Jason Magiau Namaliu (2020) N8284).
3. The State had invoked s 287 (duty of persons in charge of dangerous things) of the Criminal Code to prove that the appellant killed the deceased. Section 287 states:
(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.
4. The trial judge held that the elements of that provision were established in that the appellant owed a duty of care to the deceased, that he breached his duty of care through an act of criminal negligence and that that breach of duty caused the death of the deceased.
5. Her Honour held that the State proved the two elements of manslaughter (that the accused killed the deceased and did so unlawfully) under s 302 of the Criminal Code, which states:
A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.
Penalty: Subject to Section 19, imprisonment for life.
6. In finding the element of unlawfulness proven, her Honour rejected the defences, raised by the appellant, that there was an honest and reasonable mistake of fact on the part of the appellant (for the purposes of s 25(1) of the Criminal Code) and that the death occurred in circumstances of sudden or extraordinary emergency (for the purposes of s 26 of the Criminal Code).
7. Having convicted the appellant of manslaughter by recourse to s 287 of the Criminal Code, her Honour expressed the view that it was not necessary for the State to have confined itself to that provision. On the evidence, the appellant would have been convicted of manslaughter without recourse to s 287 as it was proven that he killed the deceased by the willed and intentional act of assaulting her in the moving vehicle, causing her, in fear of her life and safety, to jump from the vehicle. Her Honour also held that the death was not an accident (for the purposes of s 24(1)(b) of the Criminal Code) and that the killing of the deceased was not excused or justified by law.
GROUNDS OF APPEAL
8. Twelve grounds of appeal are raised, which are set out in paragraphs 3(a) to (l) of the notice of appeal. They can be categorised as follows:
APPROACH TO APPEALS AGAINST CONVICTION
9. To succeed on an appeal against conviction an appellant must establish that:
10. In addition, the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115). These requirements arise from ss 23(1) and 23(2) of the Supreme Court Act, which state:
(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—
(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or
(b) the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) there was a material irregularity in the course of the trial,
and in any other case shall dismiss the appeal.
(2) Notwithstanding that the Supreme Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred.
11. In this case the grounds of appeal are arguments that the verdict is unsafe and unsatisfactory. They fall under s 23(1)(a) of the Supreme Court Act.
GROUND (a): ERROR OF FACT RE APPELLANT ASSAULTING DECEASED
12. This ground states:
The trial judge erred in finding that the appellant had repeatedly assaulted the deceased, up to the moment that the deceased jumped from the vehicle as this was against the evidence.
13. This is not a proper ground of appeal in view of Order 7, Rule 10 of the Supreme Court Rules, which states:
Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.
14. Furthermore, the ground is based on the flawed premise that the trial judge made a finding of fact that the appellant repeatedly assaulted the deceased up to the moment that the deceased jumped from the vehicle. Her Honour did not make such a finding.
15. Her Honour found, based on the evidence of four eyewitnesses, that the appellant, after picking up the deceased at her house in Fifth Street, drove erratically at high speed, and in the 1.21-kilometre journey from the deceased’s house to the corner of the road where she jumped from the vehicle, the appellant punched the deceased in the head on five occasions and elbowed her once in the mouth. There was no finding that the assaults continued up to the moment that the deceased jumped. Ground (a) is dismissed.
GROUND (b): ERROR OF FACT RE DECEASED JUMPING FROM VEHICLE AS MEANS OF SELF-PRESERVATION
16. This ground states:
The trial judge erred in finding that the deceased had jumped from the vehicle as an only means of self-preservation from repeated assault as there was no evidence that the deceased was being assaulted at moment she jumped from the vehicle.
17. The trial judge made a finding that the deceased jumped from the vehicle in fear of her own life and safety in the following terms:
135. The deceased is not here to speak for herself. I am satisfied beyond reasonable doubt, however, that the deceased jumped from the vehicle in fear for her own life and safety. The evidence excludes any other rational inference. I have no doubt that she was very frightened. When the accused slowed the vehicle to take the corner, the deceased chose in the "agony of the moment" to take the only means of escape available to her. In other words, I have no doubt that the deceased jumped from the vehicle in a desperate act of self-preservation.
18. The argument that that was not a proper finding to make due to the lack of evidence that the deceased was being assaulted at the moment she jumped from the vehicle was evidently put to the trial judge, which her Honour dealt with as follows:
127. The defence also submits that there is no evidence that the deceased continued to assault the deceased after he hit her a short time after passing the gate, nor immediately prior to the time she jumped from the vehicle [emphasis added]. That is beside the point. The evidence establishes that he repeatedly assaulted her as he drove down to the gate, and he admits he hit her again once after they left the gate. The situation inside the vehicle was objectively very frightening. There was a further distance of at least 200 to 250 metres during which the accused could have stopped the vehicle and avoided the very real risk that the deceased would try to escape by jumping from the moving vehicle. He did not. Instead he drove at increasing speed towards the corner.
19. We agree with the trial judge that it is beside the point to highlight the lack of evidence that the appellant was assaulting the deceased immediately before she jumped from the vehicle. The evidence demonstrated adequately that the appellant had created a frightening situation inside the vehicle and that the only means of escape was for the deceased to jump. Ground (b) is dismissed.
GROUND (c): ERROR OF FACT RE FINDING THAT THE ACT WAS PREMEDITATED
20. This ground states:
The trial judge erred in finding that the act was premeditated as this was against the weight of the evidence.
21. This ground is based on the flawed premise that the trial judge made a finding that the appellant’s actions were “premeditated”. We cannot find the word “premeditated” in her Honour’s written judgment. The written submission of counsel for the appellant, Mr Kirriwom, does not point to any part of the judgment where this word appears. We cannot see how her Honour expressed any other form of words to the effect that the appellant’s actions were premediated. It was unnecessary for there to be such a finding of fact or law, and we find that her Honour did not make such a finding. Ground (c) is dismissed.
GROUND (d): ERROR OF FACT RE FINDING IN FAVOUR OF A STATE WITNESS WHO OBSERVED DECEASED MOUTHING WORDS
22. This ground states:
The trial judge erred in fact, in finding in favour of the evidence of witness Wenge Nelson that he had observed the deceased to be mouthing something that appeared to be the word “stopim...stopim” as this was an assumption by the witness.
23. Wenge Nelson is a Uniforce security guard who was stationed as a guard at University Housing Estate, Gate 2, at the entrance to Fort Banner. The part of his evidence in which he said that he saw the deceased moving her lips to say “stopim, stopim” was summarised by the trial judge in the following terms:
15. Wenge Nelson, 45 year old from Kimbe, has been an employee of Uniforce Security, UPNG's security force, for about 10 years. On 11 February 2017 he was stationed as a guard at University Housing Estate, Gate 2, at the entrance to Fort Banner. At 1049 am he heard an engine revving at high speed from the direction of the housing estate towards the gate at which he was standing. He turned towards the estate and saw a grey CRV, BER 689, dark glass coming towards him at high speed. He raised his hand to stop it but it did not stop and came all the way to the speed hump at the gate. At the time he was facing the driver. Inside the vehicle he saw a woman struggling and signalling, raising her arm up and down three times (which he demonstrated) and moving her lips to say "stopim, stopim", although he could not hear her. At the time he saw the woman inside the vehicle signalling him the vehicle was between 6 and 10 metres away.
16. He made a second attempt to stop the vehicle but it drove over the hump and the red cone that was blocking one of two lanes, the exit lane, which was closed and took the cone with it. When he saw that he radioed security base to tell the guards at the next stop to stop the vehicle. At the time there were two other vehicles on the road, a Nissan Navara and a Mini-Bus.
17. As the vehicle approached the hump it did not slow down. At the time there was a green taxi, a sedan about 15 to 16 metres away coming towards the entrance which had right of way. The CRV did not stop but sped past him and the other vehicle. He identified the vehicle in Exhibits F23 and F24 as the one he saw that day. ...
20. Under cross-examination he confirmed that he maintained eye contact with the vehicle as it drove to the sharp corner where he saw the break-lights come on, and then the vehicle turned around, faced him and stopped. He did not see anyone jump out of the vehicle. He saw a Landcruiser come behind the CRV and then both vehicles drove off, with the Landcruiser following behind. He did not see anyone put into the car from the side of the road as his view was obstructed by some trees. He could see the vehicle but not see any people. He maintained that 30 kph was the speed limit inside the entire university.
21. As the vehicle approached him at the gate it drove straight. He strongly disagreed that he saw the passenger fight with the driver or that she was wrestling with the steering wheel. He saw the woman struggling, moving one arm up and down. He could not hear her but saw her saying with her lips "stopim, stopim". He disagreed that the car ran off the road. The driver came speeding and jumped over the hump and landed a little bit to the side. After that it took off and followed the road travelling at high speed, all the way to the corner.
24. The trial judge was impressed by the witness Nelson and accepted him as honest and reliable. His evidence that the deceased was saying “stopim, stopim” was based on what he saw, in the context of him attempting to stop the vehicle, as it was going too fast. This evidence was direct, and not based on assumption. The trial judge made no error in accepting this evidence. Ground (d) is dismissed.
GROUND (e): ERROR OF LAW BY FAILING TO CONSIDER APPELLANT’S EVIDENCE, WITHOUT REASONS
25. This ground states:
Furthermore, the trial judge erred in law in failing to take into consideration the evidence of the appellant and moreover failed to give reasons for rejecting the appellants’ version of facts.
26. It is not correct to say that the trial judge failed to consider the appellant’s evidence or failed to give reasons for rejecting it. Her Honour’s assessment of the witnesses is addressed in the following passage of the judgment under the heading “Assessment of Witnesses”:
51. I have assessed the credibility of the witnesses, that is, their honesty and reliability based upon a consideration of their evidence in the context of the evidence as a whole, their demeanour when giving evidence, and bearing in mind that I may choose to accept or reject, in whole or in part, the evidence of any witness.
52. I was impressed by each of the State witnesses and accept them as honest and reliable. Each gave evidence in a direct and straight forward manner, the effect of which was not shaken under cross-examination. The evidence of the State witnesses made sense in the context of, and was consistent with, the evidence as a whole. I will return to particular aspects of the evidence below.
53. Having heard and observed the accused I am unable to accept him as a witness of truth. This is based on a combination of my assessment of his demeanour when giving evidence together with the content of that evidence.
54. At times he was argumentative in his evidence. In his record of interview he said he drove along the stretch of road on which the incident occurred "everyday", whilst in his evidence he "did not frequent" Fort Banner as the deceased had not stayed there during 2016, although he later agreed that he was familiar with it. Despite photographic evidence to the contrary in Exhibit F23, he maintained that 50% of his windscreen was tinted.
55. There were a number of inconsistencies between his testimony and his confessional statement and/or record of interview. In his record of interview he said that he and the deceased conversed after he picked her up, whilst the effect of his testimony was that there was "an awkward silence" as they drove towards the gate until the Facebook argument took place.
56. His evidence that the deceased was kicking and punching him, broke the windscreen wiper switch and deliberately tried to run the vehicle off the road, is inconsistent with his evidence that he did not need to stop the vehicle because the deceased "was not too violent".
57. In his record of interview he said that the deceased told him that she would jump and opened the door in her "first attempt" to do so" just after the cones at the Security Gate after elbow (sic) her": Exhibit A, Q & A 77. In his Confessional Statement, Exhibit D, p 3 he said:
"That made me angry and I landed my left elbow on her face and told her to calm down but that too could not stop her, she told me that she would open the door and jump off the car, hearing that I told her not to do that but she made the first attempt which I quickly lock (sic) the central locker on my side. As we approached the 1st corner some distance away she opened her side door and jump off the car just at the corner".
58. In his testimony the accused did not mention a first attempt. He said that the deceased told him that she intended to jump out as he slowed to take the corner, he locked the doors, she opened them and jumped out. The time between the deceased's statement that she would jump and her jumping was "instantaneous".
59. The accused's testimony is also at odds in many key respects with the evidence of each of the State's witnesses which I accept for the reasons stated above and which I will return to below.
60. I make it clear that, I take account of these matters in relation to the accused's credibility and the reliability of his evidence only and for no other purpose. The accused gave evidence although he was not obliged to do so. By entering the witness box and giving evidence he did not take upon himself any obligation to prove anything in this trial.
61. Similarly, whilst I accept Mr Mbalupa's account of what the accused did immediately after the deceased jumped from the vehicle, and words spoken by him shortly thereafter, I have not taken it into account for inferring any consciousness of guilt on the part of the accused.
27. After stating that she was impressed by each of the State witnesses and accepting them as honest and reliable, and giving reasons for making that assessment, her Honour stated that she was unable to accept the appellant as a witness of truth based on:
28. Far from failing to consider the appellant’s evidence, her Honour summarised it in more detail than the summary of the State witnesses’ evidence. Her Honour gave clear, coherent and concise reasons for rejecting the appellant’s evidence. The appellant’s counsel has not explained how her Honour erred in rejecting the appellant’s evidence. Her Honour has considered the issue of the credit of the witnesses’ evidence in accordance with the conventional criteria: their testimony in the context of the evidence as a whole and their demeanour.
29. Here there were four State witnesses who gave consistent evidence of the appellant driving his vehicle fast and recklessly and three of those witnesses saw either the appellant assaulting the deceased and/or the deceased being frightened and wanting the vehicle stopped. They were impressive witnesses who gave evidence in a direct and straightforward manner and their evidence was not shaken under cross-examination. It must also be noted that the appellant was the sole witness for the defence. His evidence, as well as implausible, was uncorroborated.
30. The Supreme Court must acknowledge and respect the superior position of the trial judge in the assessment of credibility of witnesses (Lewis v The State [1980] PNGLR 219, Bean v Bean [1980] PNGLR 307). We do so and find that no good reason has been given why the trial judge’s assessment of credibility ought to be questioned. Ground (e) is dismissed.
GROUND (f): ERROR OF FACT AND LAW RE FINDING THAT APPELLANT BREACHED DUTY OF CARE UNDER SECTION 287
31. This ground states:
The trial judge erred in both fact and law in finding the appellant had breached the duty of care owed to the deceased as prescribed under s 287 of the Criminal Code, given that the evidence established:
(i) The appellant’s use and management of the vehicle was not a direct or indirect cause of the deceased’s death;
(ii) The evidence disclosed that the deceased died as a result of severe head injuries which [were] sustained as a result of her jumping out from the moving vehicle.
32. The central argument in this ground is that the trial judge erred in finding that the appellant breached the duty of care owed to the deceased. That argument is based on two assertions. First that the evidence established that the appellant’s use and management of the vehicle was not a cause of the deceased’s death. Secondly that the evidence established that the deceased died as a result of severe head injuries sustained as a result of her jumping from the moving vehicle.
33. The first of those assertions is false. We endorse the trial judge’s statement of the test to be applied in determining whether the appellant’s breach of duty was a cause of her death, at paragraph 120:
120. The State must prove that the criminal negligence on the part of the accused was a substantial and operating cause of the death of the deceased. It need not be the sole or even the main cause of death, provided it contributed significantly to the victim's death: The State v Subang [1976] PNGLR 179 applying R v Gould (1963) 47 Cr App R 241; see also R v Cheshire [1991] 1 WLR 844 and Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.
34. Her Honour had laid the platform for application of that test by finding, earlier in the judgment, that the appellant had breached his duty to the deceased, in the following terms:
109. I am satisfied beyond reasonable doubt that the accused breached his duty to take reasonable care and precaution to avoid danger to the life and safety of his passenger, the deceased, in the use and management of his vehicle. He breached the duty when he created the very real and foreseeable risk that the deceased would suffer serious harm in attempting to escape the moving vehicle when he first assaulted the deceased whilst in charge of that vehicle, and he continued to breach that duty by continuing to assault the deceased, and further, by failing to stop the vehicle in those circumstances. The danger, or the risk of harm, was extreme and obvious. This is particularly so given that jumping from the vehicle was the only means of escape available to the deceased.
35. Her Honour then addressed the question of whether the State had proven that that breach of duty contributed significantly to the deceased’s death, in the following way:
136. Furthermore, as outlined above, the deceased's fear was well-founded and her act of escape was a natural or reasonably foreseeable consequence of the accused's conduct. Her jumping did not constitute a novus actus interveniens [break in the chain of causation].
137. I am satisfied beyond reasonable doubt that the accused's criminal negligence was a substantial and operating cause of the deceased's death. The medical evidence establishes that the deceased died as a result of basal skull fracture, subarachnoid haemorrhage, and right subdural haemorrhage due to blunt force trauma. Those injuries were suffered when the deceased hit the road after jumping from the accused's moving vehicle as a consequence of the accused's criminal negligence.
36. We detect no error in the trial judge’s process of reasoning. The appellant’s breach of duty was a significant and operating cause of the death of the deceased. The breach of duty caused the deceased to fear for her life and safety, which caused her to escape from that situation by jumping from the moving vehicle, which caused her head to hit the road, which caused her to suffer serious head injuries, which caused her death. In our view the evidence established clearly that the appellant’s breach of duty was the direct cause of the deceased’s death.
37. The second assertion underpinning this ground of appeal – that the evidence established that the deceased died as a result of severe head injuries sustained as a result of her jumping from the moving vehicle – is correct.
38. However, even though the first of the two assertions on which the primary argument is based is false, there is a logical flaw in the argument, which exposes a failure to appreciate the application of s 287 of the Criminal Code in a manslaughter trial.
39. Section 287 is invoked by the State as a means of proving that the accused killed the deceased, which is one of two elements of the offence of manslaughter; the second being that the killing of the deceased was unlawful (The State v Samuel Roth (2018) N7591). It is invoked in criminal negligence cases where, as in this case, the accused is in charge of a dangerous thing, in this case, a moving vehicle. We endorse as correct the trial judge’s analysis of the application of s 287 in a manslaughter trial:
77. Thus it is the duty of every person who has in his charge or under his control anything 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. Furthermore, a person is deemed to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.
78. It follows that to establish manslaughter through criminal negligence the State must prove beyond reasonable doubt that the accused:
(a) owed a duty of care to the deceased, such that he was in charge of a thing 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 might be endangered;
(b) breached that duty through criminal negligence (i.e. negligence to the criminal standard); and
(c) thereby caused the death of the deceased.
40. Section 287 requires the trial judge to address and determine three questions:
41. All questions must be set out in that order and answered yes, for it to be proven that the accused killed the deceased. In this case the trial judge set out those questions in the manner required and concluded that the prosecution had proven that each one was answered yes. Therefore it was proven that the appellant killed the deceased.
42. The logical flaw in the primary argument in this ground of appeal is that the appellant argues that because of alleged errors in the trial judge’s findings on the causation issue, her Honour erred in finding that appellant had breached the duty of care owed to the deceased. That cannot be so. The breach of duty issue must be determined separately from the causation issue, and it must be determined before the causation issue. If there is no breach of duty, there is no need to consider the causation issue. Her Honour’s process of reasoning was exactly as required by s 287.
43. We reiterate that, as well as being based on the incorrect assertion that the evidence established that the appellant’s use and management of the vehicle was not a direct or indirect cause of the deceased’s death, the process of reasoning involved in the primary argument in this ground of appeal is fundamentally flawed. Ground (f) is dismissed.
GROUND (g): ERROR OF LAW IN FINDING APPELLANT NEGLIGENT IN USE AND MANAGEMENT OF VEHICLE
44. This ground states:
The trial judge erred in law in finding that the appellant was negligent in his use and management of the vehicle which resulted in the deceased’s death, as the deceased’s act of opening the door and jumping out from the vehicle was unexpected and therefore not reasonably foreseeable.
45. This ground correctly asserts that the trial judge found that the appellant was negligent in his use and management of the vehicle and that that negligent conduct (ie the appellant’s breach of his duty to the deceased) resulted in the deceased’s death (which means that he killed her). The alleged error is in her Honour’s finding that the deceased’s act of opening the door and jumping from the vehicle was reasonably foreseeable.
46. We note that no issue is taken with her Honour’s statement that the test of causation is whether what the deceased did – jumping from the moving vehicle – was a reasonably foreseeable consequence of the appellant’s breach of duty. We agree with the parties that that is indeed the correct test.
47. As to how the test applies in a case of this nature, her Honour’s citation of the decision of the United Kingdom Court of Appeal in R v Roberts [1971] 56 Cr App R 95, was pertinent:
133. In R v Roberts [1971] 56 Cr App R 95 the accused made unwanted sexual advances to a young woman in his car. When he tried to take her coat off, it was "the last straw" and she was injured when she jumped out of the car which was travelling at speed, namely 30 miles per hour. The accused's appeal against conviction of assault occasioning actual bodily harm was dismissed by the Court, the decision given by Stephenson LJ who said at p 102:
"The test is: Was [the victim's reaction] the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequences of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so 'daft,' in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury."
48. The test is: was the deceased’s reaction – jumping from the vehicle – the natural result of the appellant’s breach of duty to her? Was it reasonably foreseeable? The test is not whether the appellant saw it as a natural consequence, but whether a reasonable person in the appellant’s position would have foreseen that the deceased would jump from the vehicle.
49. Whichever way the test is stated, her Honour was satisfied that it was proven, in that her Honour found that:
50. On the evidence at the trial, it cannot be said that the deceased’s act of opening the door and jumping from the vehicle was unexpected or that it was not reasonably foreseeable. No error of law, in the manner contended for, was made by the trial judge. Ground (g) is dismissed.
GROUND (h): ERROR OF LAW IN REJECTING EVIDENCE OF MISTAKE OF FACT
51. This ground states:
The trial judge erred in rejecting the defence of mistake of fact under s 25 of the Criminal Code ... on basis of reasonable foreseeability; although the appellant has stated in his confessional statement that he “thought she would not jump off the car”, which suggested that the appellant held a reasonable, but mistaken belief.
52. At the trial the appellant raised the defence of mistake of fact under s 25 of the Criminal Code, which states:
(1) Subject to Subsection (2), a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any 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.
(2) The operation of Subsection (1) may be excluded by the express or implied provisions of the law relating to the subject.
53. The trial judge addressed this defence towards the end of the judgment, after the finding, made for the purposes of assessing whether the appellant’s breach of duty had resulted in the death of the deceased, that the deceased’s act of jumping from the vehicle was a reasonably foreseeable consequence. Her Honour stated:
145. For similar reasons, there was no honest and reasonable mistake of fact for the purposes of s 25 of the Criminal Code. It is unclear what is meant by the accused's statement in his confessional statement that he "thought she would not jump off the car" but as above, any reasonable person would have realised that there was a very real risk that she would in the circumstances.
54. To appreciate why her Honour gave the defence of mistake of fact such a brief treatment we refer to the explanation of the defence by Cannings J in The State v Mathias Yangi (2012) N4573. That was a wilful murder trial but the defence works in the same way whatever the charge. It was stated:
The elements of the defence are that:
Mistake of fact is labelled an excusatory defence as it entails an admission by an accused that he has done certain acts combined with a claim that he ought to be excused from criminal responsibility. In other words he has an excuse for what he did. Excusatory defences (others are, eg, extraordinary emergency, self-defence, provocation, prevention of repetition of insult) are to be distinguished from, eg, the defence of alibi, which involves an outright denial of involvement (John Jaminan v The State (No 2) [1983] PNGLR 318; Migi Barton v The State (1981) SC213(M)). As mistake of fact is an excusatory defence, once an accused adduces evidence in support of it – as the accused has done in this case by giving sworn evidence – the onus is on the prosecution to exclude the defence. It does that by proving beyond reasonable doubt that one or more elements of the defence does not exist (Anide v Denehy [1973] PNGLR 215, R v Ulel [1973] PNGLR 254, The State v Peter Eddie (2009) N3782).
55. The appellant’s defence, as we apprehend it, was that the mistaken belief he held was that the deceased would not jump from the car; that that belief, though mistaken (as it turned out) was a reasonable belief, and that if the real state of things had been such as the appellant believed to exist – ie that the deceased would not jump from the vehicle – he would not be criminally responsible for that act, and the consequent death that occurred.
56. We can see that the appellant gave evidence in support of the mistaken belief that the deceased would not jump, and it follows that the State bore the onus therefore of disproving, beyond reasonable doubt, one of the elements of the defence. We agree with the trial judge that the State discharged that onus by proving that the mistaken belief of the appellant was not a reasonable one. As the trial judge said: “there was no honest and reasonable mistake of fact”. It was not a reasonable mistake as it was foreseeable, to a reasonable person placed in the appellant’s position, that the deceased would, faced with the frightening situation she was in, jump from the moving vehicle.
57. Given the trial judge’s finding that the deceased jumping from the vehicle was a reasonably foreseeable consequence of the appellant’s conduct in assaulting her and driving recklessly and creating a violent and frightening environment within the moving vehicle and putting the deceased in fear of her safety and life, it was inevitable that the defence of mistake of fact would not succeed. That is what her Honour meant by saying:
139. None of the statutory defences apply in this case. The State has excluded them beyond reasonable doubt as part of establishing the principal facts.
58. We find that the trial judge did not err in rejecting the defence of mistake of fact on the basis of the principle of reasonable foreseeability. Ground (h) is dismissed.
GROUND (i): ERROR OF LAW IN REJECTING EVIDENCE OF EXTRAORDINARY EMERGENCY
59. This ground states:
The trial judge erred in law in rejecting the appellant’s defence of extraordinary emergency under s 26 of the Criminal Code in that ... the facts as available on the evidence were consistent with an act or omission by the appellant which occurred under circumstances of sudden or extraordinary emergency; whereby an ordinary person in the position the appellant was at the time, could not reasonably be expected to act otherwise.
60. At the trial the appellant raised, in addition to the defence of mistake of fact, the defence of extraordinary emergency under s 26 of the Criminal Code, which states:
Subject to the express provisions of this Code relating to acts done on compulsion or provocation, or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.
61. The trial judge addressed this defence towards the end of the judgment, before addressing the defence of mistake of fact and, more significantly, after the finding, made for the purposes of assessing whether the appellant’s breach of duty had resulted in the death of the deceased, that the deceased’s act of jumping from the vehicle was a reasonably foreseeable consequence. Her Honour stated:
142. The elements of the defence are that:
143. The defence of extraordinary emergency is an excusatory defence. If the defence is raised on the evidence, the State bears the onus of disproving it. It is not for the accused to prove that there was an extraordinary emergency. It is the duty of the State to prove that there was not. Because it is a type of excusatory defence the State must disprove (exclude) the defence beyond reasonable doubt (John Jaminan v The State (No 2) [1983] PNGLR 318);
144. I have already found that it was foreseeable on the facts that the deceased would jump. The State has excluded any rational inference that it was a sudden or extraordinary emergency. It was instead a danger created by the accused. The accused acted unreasonably both in creating the danger and then failing to stop the vehicle having done so. The defence does not apply.
62. We see that the appellant gave evidence in support of the contention that the deceased’s jumping from the moving vehicle was a sudden or extraordinary emergency, and it follows that the State bore the onus therefore of disproving, beyond reasonable doubt, one of the elements of the defence. We agree with the trial judge that the State discharged that onus by excluding any rational inference that the deceased’s jumping from the vehicle was a sudden or extraordinary emergency. As the trial judge said: “It was instead a danger created by the accused. The accused acted unreasonably both in creating the danger and then failing to stop the vehicle having done so”.
63. We find that the trial judge did not err in rejecting the defence of sudden or extraordinary emergency on the basis of the principle of reasonable foreseeability. Ground (i) is dismissed.
GROUND (j): ERROR OF LAW IN REJECTING DEFENCES ON BASIS THAT DECEASED’S ACTION WAS FORESEEABLE
64. This ground states:
The trial judge erred in law in rejecting both excusatory defences of mistake of fact (s 25, Criminal Code) and extraordinary emergency (s 26, Criminal Code) on basis that the deceased’s action was foreseeable.
65. This ground of appeal is repetitious of the previous two grounds, both of which turn on application of the principles of reasonable foreseeability. Her Honour found – correctly in our view, it being a plausible and rational finding on the available evidence – that the deceased’s action in jumping from the moving vehicle was reasonably foreseeable. It followed, logically and inevitably, that the defences of mistake of fact and extraordinary emergency would be rejected. Ground (j) is dismissed.
GROUND (k): ERROR OF LAW IN REJECTING DEFENCES CONTRARY TO EVIDENCE THAT DISCLOSED APPELLANT HELD REASONABLE BUT MISTAKEN BELIEF
66. This ground states:
The trial judge erred in her application of s 25 and s 26 of the Criminal Code, where the evidence had disclosed that the appellant held a reasonable but mistaken belief, and therefore could not have reasonably foreseen an act done in sudden or extraordinary circumstances.
67. This ground is a rehash of ground (j). Ground (k) is dismissed.
GROUND (l): ERROR OF LAW IN FINDING APPELLANT GUILTY OF MANSLAUGHTER WITHOUT RECOURSE TO CRIMINAL CODE, S 287
68. This ground states:
The trial judge further erred in law in finding that the appellant was guilty of manslaughter without recourse to s 287 of the Criminal Code.
(i) This finding was not available to the trial judge to make in view of the fact that the State had prosecuted the appellant for manslaughter under s 302, and thus invoked s 287 of the Criminal Code.
(ii) The appellant was deprived of the opportunity to raise the defence under s 24 of the Criminal Code, which would have otherwise been available had the State proceeded on the indictment without invoking s 287, Criminal Code.
(iii) The deceased’s act of jumping out from the vehicle, constituted a novus actus interveniens, thereby broke the chain of causation.
69. This ground of appeal relates to the passage of the judgment on verdict, which comes after her Honour concluded, at paragraph 146:
146. In conclusion, I am satisfied beyond reasonable doubt that the accused is guilty of the manslaughter of the deceased, Ruby Anne Laufa, through or by criminal negligence, contrary to s 302 of the Criminal Code.
70. Immediately after that conclusion, which is a verdict of guilty, as charged, is the passage of the judgment that starts with paragraph 147 and ends with paragraph 173, under the heading “MANSLAUGHTER WITHOUT RECOURSE TO S 287”. Only one paragraph, 174, follows and in it the trial judge makes this brief statement:
174. Verdict: The accused is guilty of the manslaughter of Ruby Anne Laufa.
71. It is important to appreciate that this passage of the judgment, paragraphs 147 to 173, was in legal terms an unnecessary addendum. It is properly regarded as obiter dicta. Though it was unnecessary, it was an instructive and educative addendum as it gave the trial judge the opportunity to point out to the parties what now appears to us, from the vantage point of an appeal court, to be clear and obvious: the State ran a manslaughter trial, in which the theory of the case was that the accused had engaged in deliberate and wilful acts (assaulting the deceased in a fast moving vehicle, creating a frightening situation that led to her fearing for her life and safety), but complicated the trial by invoking s 287 of the Criminal Code, a provision that is confined usually to cases in which the allegation is that the accused has engaged in negligent, not deliberate and wilful, acts that are alleged to have caused a death.
72. That is the point we apprehend the trial judge to be making through the following dicta:
147. In my view it was not necessary for the State to proceed against the accused by invoking s 287 of the Criminal Code, or at least it was not necessary to confine itself to s 287.
148. I would have thought that in most cases the intention of an accused in a homicide case was a classic question for the finder of fact. Nevertheless, the State decided in this case not to charge the accused with murder and that, of course, is entirely a matter for it: The State v Ngasele (2003) SC731.
149. In this regard the State submits that there was no "malice" on the part of the accused. I am not sure what the State means by that. The term "malice" has no place in the jurisprudence of this country. Sir Samuel Griffith in drafting the Criminal Code of Queensland upon which ours is based deliberately avoided the use of terms "malice" and "maliciously": see Carter's Criminal Law of Queensland, 20th Edition, 2015 at [s 23.1].
150. In any event, this was never a case of negligence or nothing. This was a case involving the deliberate use of violence against the deceased by the accused.
151. I had indicated earlier in the proceedings that putting aside s. 287 of the Criminal Code, the question remained whether the accused's conduct, without lawful justification or excuse, directly or indirectly caused the death of the deceased for the purposes of s 302 of the Criminal Code.
73. We endorse the trial judge’s point that s 287 does not create a separate offence of manslaughter. Section 287 is simply a means by which the State is able to prove the first element of the offence: that the accused killed the deceased. Her Honour stated:
159. In this regard it must be borne in mind that manslaughter is what is sometimes described as the "residual category" of homicide. All that is required to establish it is that a person has killed another without lawful justification or excuse, "under such circumstances as not to constitute wilful murder, murder or infanticide": s 302. The offence reflects the value that the community places on human life.
160. It is also important to make clear that s. 287 does not create a separate offence of manslaughter. Nor indeed is s. 287 limited to cases involving death, A person may be responsible for causing "any consequences that result to the life or health" of another from criminal negligence, including for example grievous bodily harm.
161. Rather, s 287 feeds into s 291 (any person who causes the death of another, directly or indirectly and by any means whatever, is deemed to have killed that other person) and then into s 302 (a person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter) by virtue of the deeming provision under s 287(2) of the Criminal Code.
74. Her Honour proceeded, after addressing and rejecting the defence of accident that had been raised by the appellant, to give her view that, if the State had not invoked s 287, the appellant would still have been convicted of manslaughter:
170. In the circumstances, whilst it is not necessary given my finding on criminal negligence, I am also satisfied beyond reasonable doubt that the accused is guilty of manslaughter without recourse to s 287.
75. We now address the three sub-grounds of ground of appeal (l).
(i) This finding [ that the appellant was guilty of manslaughter without recourse to s 287] was not available to the trial judge to make in view of the fact that the State had prosecuted the appellant for manslaughter under s 302, and thus invoked s 287 of the Criminal Code.
76. We reject the proposition that the finding that the appellant would have been guilty of manslaughter without recourse to s 287 was “not available” to the trial judge. We reiterate that the trial judge’s statements regarding the lack of necessity in the State’s invocation of s 287 to prove that the appellant killed the deceased are best regarded as obiter dicta. Her Honour’s comments were made properly and with ample justification.
77. It is apparent that the invocation of that provision by the State was unnecessary as there was sufficient evidence on which the Court could have found that the deliberate and wilful actions of the appellant in assaulting the deceased in the moving vehicle caused her death. Ground (l)(i) is dismissed.
(ii) The appellant was deprived of the opportunity to raise the defence under s 24 of the Criminal Code, which would have otherwise been available had the State proceeded on the indictment without invoking s 287, Criminal Code.
78. It is difficult to fathom what this argument is about. It sems to be an attempt, we think, to argue that the appellant was deprived of the opportunity to raise the defence of accident because of the State’s decision to invoke s 287.
79. In a sense, this is correct. The appellant was deprived, by the decision of the State to invoke s 287, of the opportunity to raise the defence of accident. This was due to the operation of the provision of the Criminal Code, s 24 (intention, motive), that creates the defence of accident. It states:
(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for-
(a) an act or omission that occurs independently of the exercise of his will; or
(b) an event that occurs by accident.
(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
(3) Unless otherwise expressly declared, the motive by which a person is induced-
(a) to do or omit to do an act; or
(b) to form an intention,
is immaterial so far as regards criminal responsibility.
80. It will be observed that there are actually two defences created by s 24(1). A person is not criminally responsible for:
(a) an act or omission that occurs independently of the exercise of his will; or
(b) an event that occurs by accident.
81. Both defences are qualified by the opening words of s 24(1): “Subject to the express provisions of this Code relating to negligent acts and omissions ...” One such express provision relating to negligent acts and omissions is s 287. That means that neither of the s 24(1) defences applies in cases in which s 287 is invoked. That is the law, which was applied by the trial judge in the core of the judgment, under the heading “Defences”, where her Honour stated:
140. As above, it is well established that in a case where death is alleged to have resulted from a failure to use reasonable care or take reasonable precautions required under s 287, liability is to be determined without reference to the defence of accident under s 24(1)(b) of the Criminal Code: Beraro v The State [1988-89] PNGLR 562.
82. Her Honour was simply stating the law, and correctly so. It can hardly amount to an error of law for a judge to state and apply the law. That is why we are still none the wiser as to what point the appellant is making in sub-ground (l)(ii).
83. Returning to the passage of the judgment headed “MANSLAUGHTER WITHOUT RECOURSE TO S 287”, we note that the trial judge indicated that if the State had run the case without invoking s 287 it would have been able to prove, on the evidence, that the accused killed the deceased by voluntary acts and that the defence of accident was excluded. Her Honour stated:
163. As above, it was open to the State to prove that the accused caused the death of the deceased by criminal negligence. It was also open to the State in this case in my view, to prove that the accused killed the deceased by his voluntary acts, ie physically assaulting her, in which death in attempting to flee his assault, whilst not intended, was not an accident pursuant to s 24(1)(b) of the Criminal Code.
164. Section 24 (intention, motive) provides that (emphasis mine):
(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for-
(a) an act or omission that occurs independently of the exercise of his will; or
(b) an event that occurs by accident.
165. There can be no doubt that the repeated assault of the deceased was willed and intentional. It did not involve acts which occurred independently of the exercise of the accused's will. Thus s 24(1)(a) did not apply.
166. Nor for the reasons outlined above could it be said that s 24(1)(b) applied. As above, the deceased's fear was well-founded and her act of escape was a natural or reasonably foreseeable consequence of the accused's conduct. ...
170. In the circumstances, whilst it is not necessary given my finding on criminal negligence, I am also satisfied beyond reasonable doubt that the accused is guilty of manslaughter without recourse to s 287.
84. We reiterate that the trial judge reasoned properly and transparently as to what the result of the case would have been if the State had prosecuted it, not as a case of negligent manslaughter under s 287 but as a case of ‘deliberate’ manslaughter without recourse to s 287. The result would have been the same: guilty of manslaughter under s 302.
85. Frankly, however, we can make little sense of sub-ground (l)(ii). It is dismissed.
(iii) The deceased’s act of jumping out from the vehicle, constituted a novus actus interveniens, thereby broke the chain of causation.
86. As we have determined earlier, agreeing with the trial judge, there was no break in the chain of causation, beginning with the assault and ending with the death. This is a rehash of arguments put under grounds (f)(i), (g), (h) and (i). It was reasonably foreseeable that a person in the position of the deceased, faced with the ongoing threat of assault would retreat from that position of danger and jump from the vehicle. Sub-ground (l)(iii) is dismissed. The whole of ground of appeal (l) is therefore dismissed.
CONCLUSION
87. All grounds of appeal fail. We consider, for the purposes of s 23(1)(a) of the Supreme Court Act, that the verdict of guilty of manslaughter is neither unsafe nor unsatisfactory, and pursuant to s 23(2) of the Supreme Court Act, that no miscarriage of justice has occurred. The appeal must be dismissed.
ORDER
_________________________________________________________________
Public Solicitor: Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent
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