Police v Uolo [2003] WSSC 11 (3 July 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Informant

AND

SOSOLI UOLO
male of Letogo and Leone.
Defendant

Counsel: D Clarke for prosecution
J Brunt for accused

Judgment: 3 July 2003

JUDGMENT OF SAPOLU CJ

The accused is faced with two charges. The principal charge is manslaughter which has been brought by the prosecution under the provisions of the Crimes Ordinance 1961. An alternative charge of negligent driving causing death has been brought under the provisions of the Road Traffic Ordinance 1960. This case is one of the recent prosecutions brought by the Office of the Attorney-General on behalf of the police where, for the first time, an accused is charged with manslaughter by negligent driving causing death which is known in popular parlance in some of the other common law jurisdictions as ‘motor manslaughter’.

I have been aware for a number of years now that ‘motor manslaughter’ is a crime in the major common law jurisdictions like England, Australia and New Zealand but I have been in doubt whether it is a crime in Samoa under our Crimes Ordinance 1961. Thus when this case was called for mention on 24 March 2003, I asked both counsel for the prosecution and for the accused to present submissions on the question of whether ‘motor manslaughter’ is a crime in Samoa and therefore can be the subject of a criminal prosecution. At the hearing of submissions by both counsel, a second question was raised by counsel for the accused which required further submissions. The case was then further adjourned to another date to hear further submissions from counsel.

Counsel for the accused had further submitted that as manslaughter is a criminal offence which must be tried before assessors, it is not appropriate for the prosecution to also proceed on negligent driving causing death as an alternative charge because the elements of the two charges are the same and there is a real risk that the assessors may get confused. The submission was based on English and New Zealand authorities: R v Seymour [1983] 2 A11 ER 1058 per Lord Roskill at p1065; R v Powell (2002) (unreported judgment of Elias CJ delivered on 19 July 2002). Thus the issues which arose for a preliminary determination by the Court were: (a) whether the crime of ‘motor manslaughter’ as it is known in popular parlance in some of the other jurisdictions exists in Samoa and be the subject of a criminal charge, and (b) whether the charge of negligent driving causing death should be allowed to be tried together as an alternative charge to the charge of manslaughter before assessors. Both counsel made extensive citations of authorities which have assisted the Court in forming its decision in this matter.

To start with, the charge of manslaughter is brought under s.39A of the Road Traffic Ordinance 1960 and ss59,61(1), (2) and 67 of the Crimes Ordinance 1961. It is alleged that at Fugalei on the 17th day of June 2002 the accused by an unlawful act, namely, negligent driving of a van on Saleufi Road, caused the death of the deceased thereby committing the crime of manslaughter. Section 39A of the Road Traffic Ordinance 1960 provides:

"Every person commits an offence and shall be liable on conviction to imprisonment for a term not exceeding 5 years or to a fine not exceeding $2000 who recklessly or negligently drives or rides any vehicle and thereby causes bodily injury to or the death of any person".

Section 59 of the Crimes Ordinance 1961 defines what is homicide by providing:

"Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever".

Section 61 of the Crimes Ordinance 1961 then defines what is culpable homicide by providing as far as relevant for the purpose of the present proceedings:

"(1) Homicide may be either culpable or not culpable.

(2) Homicide is culpable when it consists in the killing of any person either:

(a) by an unlawful act; or

(b) by an omission without lawful excuse to perform or observe any legal duty; or

(c) ............

Section 67 of the Crimes Ordinance 1961 then provides that the maximum penalty for manslaughter is life imprisonment.

One would have thought from the wording of the charge of manslaughter which alleges that the accused by an unlawful act, namely, negligent driving of a van on Saleufi Road which caused the death of the deceased, that the prosecution is relying on s61(2)(a) alone which is the unlawful act part of the provision. However, s61(2) is cited generally as one of the charging provisions. Thus I will also have to consider s61(2)(b) which is the omission to perform a legal duty part of the provision. The important question then, and it is the crucial question in this case, is whether the present charge of manslaughter by negligent driving causing death can be brought under s61(2)(a) or (b) as they are the relevant parts of that provision. If that can be done then ‘motor manslaughter’ exists as a crime in Samoa; if not, then ‘motor manslaughter’ is not a crime in Samoa. But before a definite answer is given to that question, it is necessary to deal first with the major authorities cited by counsel in order to clear the path to the Court’s decision in this matter.

It is clear from Andrews v Director of Public Prosecutions [1937] 2 A11 ER 576; R v Lawrence [1981] 1 A11 ER 974; Jennings v United States Government [1982] 3 A11 ER 104; and R v Seymour [1983] 2 A11 ER 1058 which were all decisions of the House of Lords that at the time of those decisions motor manslaughter was a common law crime and not a statutory offence in England. The House of Lords in those cases was not faced with or required to deal with the kind of question this Court has to deal with in this case which is whether motor manslaughter is a crime under the provisions of the Crimes Ordinance 1961. Motor manslaughter had already existed as a common law crime in England and the House of Lords in the cases cited did not have to consider whether such a crime existed in England But that is the essential question in these proceedings, whether motor manslaughter is a crime in Samoa. Thus the English authorities cited by counsel are not related to the essential question for determination in the present proceedings.

Furthermore, just because motor manslaughter is a common law crime in England does not, ipso facto, mean that it is also a crime in Samoa. The reason is that Samoan law does not recognise common law offences. That is clear from s7 of the Crimes Ordinance 1961 which provides:

"No one should be convicted of any offence at common law, or of any offence against any Act of the Parliament of England or the Parliament of Great Britain or the Parliament of the United Kingdom."

The proviso to s7 then states that nothing in that provision shall limit or affect the power or authority of the Legislative Assembly or of any Court to punish for contempt.

As s7 of the Crimes Ordinance 1961 does not recognise any common law offence, it follows that every crime or offence in Samoa must be a creature of statute. Thus to determine whether motor manslaughter is a crime in Samoa, one has to look at the provisions of the Crimes Ordinance 1961 rather than at the common law. If after consideration of the provisions of the Ordinance one decides motor manslaughter is a crime then it is a crime in Samoa. But if not, then motor manslaughter is not a crime in Samoa even though it is a common law crime in England.

I am therefore not able to accept the submissions of both counsel that motor manslaughter is a crime in Samoa on the basis of the English authorities cited which show that motor manslaughter is a common law crime in England. One would have to decide whether motor manslaughter is a crime under the provisions of the Crimes Ordinance 1961 and that is a question of interpretation of our own Ordinance.

Counsel for the prosecution also cited Callaghan v The Queen (1952) 87 CLR 115. It appears from the report of that case that the accused was charged with manslaughter for dangerous driving causing death under the Criminal Code of Western Australia. It was therefore a case of motor manslaughter. One of the things that is important about that case for present purposes is that the charge was brought under a statute, not the common law. The relevant provision was s266 of the Criminal Code of Western Australia which was a legal duty provision. It provided:

"It is the duty of every person who has in his charge or under his control anything, 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 such danger, and he is held to have caused any consequences which result to the life or health of any person by omission to perform that duty".

The High Court of Australia stated in that case that an "omission to perform the duty to use reasonable care and take reasonable precautions" when driving a vehicle, with consequences which result to the life of another, would be manslaughter if the omission amounted to gross negligence. In that way, the High Court of Australia accepted the common law standard of gross negligence recognised in England and Canada for establishing a charge of manslaughter by dangerous or negligent driving causing death. However, the point that is really relevant for present purposes is that the provision under which the charge of manslaughter was brought in that case was a legal duty provision which made an omission to use reasonable care and take reasonable precautions manslaughter if the omission amounted to gross negligence.

There is no provision in our Crimes Ordinance 1961 that is similar to s266 of the Criminal Code of Western Australia. Section 61(2)(a) of our Ordinance speaks of an "unlawful act" and not of "an omission to perform a legal duty". It is section 61(2)(b) that speaks of an omission to perform a legal duty. But when one turns to the legal duty provisions of the Ordinance, there is no provision like s266 of the Western Australian Criminal Code. The only provisions of the Ordinance which deal with legal duties are s76 which relates to the duty to provide the necessaries of life and s77 which relates to the duty of a parent or guardian to provide necessaries of life for a child. So if Callaghan has any relevance to the question of whether the crime of motor manslaughter exists in Samoa, it is to show that the kind of legal duty provision which was relied upon for the charge of motor manslaughter in that case does not exist in Samoa. It also shows that in charging manslaughter in that case "an omission to perform a legal duty" provision was relied upon and not an "unlawful act" provision.

In respect of the New Zealand authorities cited by counsel for the prosecution which are relevant for present purposes, it will be sufficient to refer to only three of them. The first and the latest of those authorities is R v Powell (2002) (unreported judgment of Elias CJ delivered on 19 July 2002). In that case the High Court of New Zealand initially dealt with a charge of manslaughter by negligent driving causing death preferred by the Crown under s160(2)(a) of the Crimes Act 1961 (NZ) which provides that homicide is culpable when it consists in the killing of any person by "an unlawful act". Section 160(2)(a) is identical in terms to s61(2)(a) of our Crimes Ordinance 1961. Two unlawful acts were alleged by the Crown in that case. The first was driving a motor vehicle on a road at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person which is proscribed by s35(1)(b) of the Land Transport Act 1999 (NZ). The second was operating a vehicle on a road carelessly which is proscribed by s37(1) of the same Act. The accused was found guilty at his trial and he appealed. The New Zealand Court of Appeal allowed the appeal and ordered a retrial. The judgment of the Court of Appeal is unreported and was not available to this Court. But passages from the Court of Appeal’s judgment are cited in the judgment of Elias CJ who had to deal with that case on retrial in the High Court and a copy of the Chief Justice’s judgment was produced by Mr Clarke for the prosecution to this Court. It is important to note that at para [29] of its judgment the Court of Appeal said:

"There can be no doubt that s150A was intended to, and does, apply to motorists. They are under the legal duty in s156, when operating a motor vehicle, to avoid danger to human life and are criminally responsible where omission or neglect of that duty is a major departure from the standard of care expected of a reasonable person in the circumstances".

Then at para [35] of its judgment the Court of Appeal said:

"Accordingly, where the unlawful act relied upon involves negligence, the charge of manslaughter should be framed by reference to the sections of the Crimes Act to which s150A applies.... Any other approach would leave people vulnerable to conviction on a lesser degree of negligence depending upon how the prosecution choose to frame the charge".

I think it is clear from what the New Zealand Court of Appeal is saying here that in New Zealand, if the prosecution is to bring a charge of manslaughter which involves negligence, such a charge should be framed in terms of the legal duty provisions of the Crimes Act to which s150A applies and that includes the duty provisions of s156. Section 150A provides:

"(1) This section applies in respect of the legal duties specified in any of sections 151,152,153,155, 156 and 157.

(2) For the purposes of this Part, a person is criminally responsible for:-

(a) Omitting to discharge or perform a legal duty to which this section applies; or

(b) Neglecting a legal duty to which this section applies – only, if in the circumstances of the particular case, the omission or neglect is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances."

Section 156 which is relevant for the purpose of a charge of motor manslaughter provides:

"Every person who has in his charge or under his control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is under a legal duty to take reasonable precautions against and to use reasonable care to avoid such danger, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty".

Section 156 bears similarities to the duty provisions of s266 of the Criminal Code of Western Australia that was in issue in Callaghan v The Queen (1952) 87 CLR 115 already referred to in this judgment. However, we do not have a duty provision in our Crimes Ordinance 1961 that is similar to s156 of the New Zealand Act or s226 of the Western Australian Code. We also do not have any statutory provision that is similar to s150A of the New Zealand Act. This again raises the question of whether a charge of manslaughter which involves negligent driving causing death can be brought under the existing framework of our Crimes Ordinance 1961 given that we do not have a legal duty provision like that which exists in other jurisdictions.

Now after the Court of Appeal in Powell ordered a retrial and the case came before the High Court again with Elias CJ presiding this time, the Crown decided not to continue with its manslaughter charge under s160(2)(a) but to frame its manslaughter charge in terms of s160(2)(b) and s156 of the Crimes Act 1961. Section 156 of the New Zealand Act has already been set out. Section 160(2)(b) is manslaughter by omission to perform a legal duty and is identical in terms to s61(2)(b) of our Crimes Ordinance 1961. It is clear that the change made by the Crown in Powell to the way its manslaughter charge was framed was made due to what the Court of Appeal had said in its judgment.

The next New Zealand authority is R v Yogasakaran [1989] NZCA 374; [1990] 1 NZLR 399 which was also cited by counsel for the prosecution. That case was about a charge of manslaughter against an anaesthetist for negligence in administering anaesthesia to a patient who was undergoing a surgical operation and as a consequence the patient died in the course of the operation. Whilst the case was not concerned with the negligent driving of a vehicle on a road, the approach taken by the Crown in framing its charge of manslaughter in that case is to be noted. The Crown brought its charge of manslaughter under s160(2)(b) of the Crimes Act 1961 (NZ) which is manslaughter by omission to perform a legal duty and under s155 of the same Act which imposes a legal duty on every person who performs a dangerous act to use reasonable knowledge, skill, and care in doing such act.

Section 160(2)(b) of the New Zealand Act, as already pointed out, is identical in terms to s61(2)(b) of our Crimes Ordinance 1961. But we do not have a duty provision in our Ordinance that is similar to s155 of the New Zealand Act. Thus Yokasakaran was concerned with a legal duty provision which is quite different from any of the statutory provisions which are in issue in the present case.

The last New Zealand case that I need to refer to is R v Storey [1931] NZLR 417. That case involved a car collision on a road which resulted in the deaths of the driver of one of the cars and his wife who was a passenger. The accused who was the driver of the other car was charged with two counts: one of manslaughter under s71 of the then Crimes Act 1908 (NZ) and the other of negligent driving causing death under s27 of the then Motor Vehicles Act 1924 (NZ).

Section 171 of the Crimes Act 1908 was a legal duty provision and its terms are identical to s156 of the Crimes Act 1961 which is the successor to the 1908 Act. Section 175 (2)(a),(b) of the 1908 Act which defined culpable homicide is also identical in terms to s160(2) (a), (b) of the 1961 Act. It is clear from the judgments of Myers CJ (with whom Adams J concurred) and of Blair J that the charge of manslaughter in Storey should have been brought under s171 and s175 (2)(b) of the 1908 Act. At p467 of his judgment Blair J said:

"The crime of manslaughter as against a motorist is created by four sections of the Crimes Act 1908 – viz; s171 which provides for the standard of care, s173 which provides that homicide is the killing of a human being; s175 which provides that homicide is culpable when it consists in the killing of any person by an omission without lawful excuse to perform or observe any legal duty; and s186 which makes culpable homicide, not amounting to murder, manslaughter".

Relating that passage to the provisions of our Crimes Ordinance 1961, there is no provision in our Crimes Ordinance that corresponds to the legal duty provisions of s171 of the 1908 Act; s173 of the 1908 Act is identical in terms to s59 of our Crimes Ordinance; s175 of the 1908 Act as stated in Storey is identical to s61(2)(b) of our Crimes Ordinance; and s186 of the 1908 Act is the same as s65 of our Crimes Ordinance. Thus an important factor which makes the passage cited from the judgment of Blair J in Storey inapplicable to our Crimes Ordinance, so that a charge of manslaughter which involves negligence by a motorist driving a vehicle cannot be brought under our Ordinance, is the absence from our Ordinance of a legal duty provision like s171 of the 1908 Act which is the predecessor of s156 of the Crimes Act 1961 (NZ).

It is also pointed again that in Powell what the New Zealand Court of Appeal was saying was that if a charge of manslaughter which involves negligence is to be preferred, that is to be preferred under the legal duty provisions of the Crimes Act 1961 to which s150A of that Act applies. Those legal duty provisions include s156 but as I have said we do not have such a provision in our own Crimes Ordinance.

In my respectful view, the pronouncements made by the New Zealand Court of Appeal in both Storey and Powell should be accepted by this Court as highly persuasive and authoritative pronouncements because our Crimes Ordinance 1961 was based upon the New Zealand crimes legislation. In fact our Crimes Ordinance was drafted by New Zealand lawyers and enacted whilst New Zealand was still administering Samoa until Independence in 1962.

Coming back now to the essential question in this case of whether a charge of motor manslaughter or manslaughter by negligent driving causing death can be brought under the provisions of s61(2)(a) or (b) of the Crimes Ordinance 1961, I have come to the conclusion that it cannot be done unless there is a duty provision like s156 and perhaps s155 of the Crimes Act 1961 (NZ). But s61 is the actus reus provision for manslaughter and one cannot have a crime of manslaughter without an actus reus. I am therefore of the view that motor manslaughter or manslaughter by negligent driving causing death is not available under s61. The consequence of this is that motor manslaughter is not a crime under the existing provisions of the Crimes Ordinance. As our law also does not recognise common law manslaughter by reason of s7 of the Crimes Ordinance, I am therefore of the view that as Samoan criminal law presently stands, there is no crime of manslaughter by negligent driving causing death.

My further reasons for that conclusion are as follows. It is clear from the authorities that the purpose for the introduction in statutory form of the offence of negligent driving causing death with a lesser penalty than that for manslaughter was because of the reluctance of juries to convict on a charge of manslaughter by negligent driving causing death: Jennings v United States Government [1982] 3 A11 ER 104 per Lord Roskill at p114; Callaghan v The Queen (1952) 87 CLR 115 at p120; R v Yogasakaran [1989] NZCA 374; [1990] 1 NZLR 399 per Cooke P at p405. To use the statutory offence of negligent driving causing death now as the basis or actus reus for a charge of manslaughter would be contrary to the purpose for it was introduced which was to serve as an alternative to manslaughter and not as the basis for a charge of manslaughter. It would defeat the purpose for which the kind of offence like negligent driving causing death was enacted into the statute books if it is now to be used as forming the actus reus of a motor manslaughter charge. I do not think that s39A of our Road Traffic Ordinance 1960 was intended by the legislature to be used in that way.

As it is also well-known to lawyers, central to the concept of negligence is the notion of duty, that is, duty of care. Section 61(2)(a) of the Crimes Ordinance 1961 speaks of an "unlawful act" whereas s61(2)(a) speaks of an "omission to perform a legal duty". At first glance, it would appear that if a charge of manslaughter by negligent driving causing death is to be brought under s61, it would be more logical to bring it under the legal duty provision of s61(2)(b) rather than the unlawful act provision of s61(2)(a). That appears to be the view taken in Storey by Myers CJ (with whom Adams J concurred) and Blair J. It also appears to be the view that is consistent with what was said by the New Zealand Court of Appeal in Powell because of the passages quoted by Elias CJ from the judgment of the Court of Appeal in that case and because after the Court of Appeal ordered a retrial, the Crown sought to frame its manslaughter charge under s160(2)(b) which is the duty provision and not to continue under s160(2)(a) which is the unlawful act provision.

However, it is necessary when relying on s160(2)(b) to also refer to a legal duty provision which has been infringed. As the New Zealand authorities show, on a charge of manslaughter by negligent driving causing death, such a legal duty provision would be s156 or perhaps s155 whichever is appropriate. But we do not have in our Crimes Ordinance 1961 such a provision or anything that is close to s156 or s155. This suggests that motor manslaughter is not available as a crime under our Crimes Ordinance. If manslaughter by negligent driving causing death is to be made a crime in Samoa, an amendment to the Crimes Ordinance needs to be made.

It is also pointed out again that our Crimes Ordinance 1961 and Road Traffic Ordinance 1960 were drafted and prepared by New Zealand lawyers while the administration of Samoa was still in the hands of the New Zealand Government. At that time, there had already been existence s171 of the Crimes Act 1908 (NZ) which is identical in terms to s156 of the Crimes Act 1961 (NZ). Yet when our Crimes Ordinance was drafted and enacted in 1961 no such provision was included therein even though such a provision had existed under the New Zealand crimes legislation since 1908 and was in issue in Storey and the New Zealand lawyers who prepared the Crimes Ordinance 1961 must have been aware of it. This gives rise to the inference that there was no legislative intent when the Crimes Ordinance 1961 and the Road Traffic Ordinance 1960 were enacted to make negligent driving causing death a manslaughter offence in Samoa. Perhaps that was because we had very few vehicles in Samoa at the time and the conditions of the roads were hardly conducive to speedy driving even though there were still some reckless drivers.

For all the foregoing reasons, I conclude that manslaughter by negligent driving causing death is not a crime under the current provisions of the Crimes Ordinance 1961.

Under s18 of the Criminal Procedure Act 1972, the prosecution or the accused may move to amend or quash an information which does not disclose a crime. The information charging manslaughter in this case is not capable of being cured by any amendment as manslaughter by negligent driving causing death is not a crime here. It will be only a formality now for counsel for the accused to move to quash the present information. In the circumstances, it will be unnecessary to further adjourn this matter for counsel for the accused to make a formal application. He may make such an application now. Counsel for the accused applies to quash the manslaughter information. That information is accordingly quashed.

In view of that conclusion, there is no need to proceed to consider the second question raised in these proceedings, namely, whether the charge of negligent driving causing death should be allowed to be tried together with the manslaughter charge because the assessors may get confused as the two offences have the same elements.

Given that the alternative charge of negligent driving causing death is within the jurisdiction of the District Court, that charge is to be transferred under s30 of the Criminal Procedure Act 1972 to the District to deal with it. That charge is adjourned for mention before the District Court on Tuesday, 8 July 2003.

I conclude by thanking both counsel for their researches which have assisted the Court in forming its decision in this case. Even though the Court has not agreed with the submissions made by counsel for the prosecution, I am still grateful to him for his extensive citation of relevant authorities which has been helpful to the Court in reaching its decision in this matter.

CHIEF JUSTICE

Solicitors:
Attorney General’s Office for informant
Brunt Keli Law Firm for defendant