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Republic v Adam [1975] NRSC 11; [1969-1982] NLR (C) 18 (23 May 1975)

[1969-1982] NLR (C) 18

IN THE SUPREME COURT OF NAURU

Criminal Case No. 4 of 1975

THE REPUBLIC

v

IVY TAGABOUT ADAM

23rd May, 1975.

Manslaughter - road accident - gross negligence amounting to reckless conduct.

The accused was charged with manslaughter. She had got into the driving seat of a landrover in which a number of other young persons and children were sitting and was driving away in it without permission from the person having charge of it. After driving for some distance she allowed a boy sitting on the bodywork of the vehicle, to the right of the driving seat, to control the steering wheel while she kept her hands in her lap and worked the accelerator, footbrake and clutch with her feet. The vehicle driven in that manner ran off the road and collided with some limestone pinnacles. As a result the accused’s young brother, who was a passenger in the vehicle, was killed.

Held: Where death has resulted from the manner in which a motor vehicle has been driven, it is manslaughter only if the driving was so grossly negligent as to amount to reckless conduct.

Accused convicted.

J.H. Berriman for the Republic
R. Kun for the accused

Thompson C.J.:

The accused, a girl aged nineteen years, is charged with the offence of manslaughter allegedly committed by driving, managing and controlling a motor vehicle on a public highway in Nauru so negligently, carelessly and unskilfully that it ran off the road and crashed into some limestone pinnacles with the result that one of the passengers in it was killed.

The facts in this case are generally not in dispute. On 22nd December, 1974, a small motor vehicle known as a Mini Moke came to the home of the accused. There were a considerable number of young persons in the vehicle. The driver left it and went into the house. The accused, without the driver’s permission, got into the driver’s seat and began to drive the vehicle. She decided to drive round the island. One of the passengers, the eighth prosecution witness, Andonia Joram, was sitting or the bodywork of the vehicle alongside the driver’s seat on the right-hand side of the accused. He is a schoolboy aged fifteen. He pestered the accused to allow him to steer the vehicle. At first she refused to allow him to do so. Subsequently she became tired of his continual pestering and agreed to his request. She herself in her evidence has admitted these facts.

From then on the vehicle continued on its way along the road with the accused sitting in the driver’s seat working the accelerator, the brakes, the clutch and the gear lever, but with her hands in her lap, while Andonia, still sitting on the bodywork of the vehicle, manipulated the steering wheel with his left hand. The accused has given evidence that at one stage the vehicle began to leave the road and she put her hands back onto the steering wheel and resumed control of the steering briefly so as to get the vehicle back onto its proper course. Having done so, however, she then once again let go of the steering wheel altogether and permitted Andonia to continue to steer the vehicle with his left hand while she continued to operate the accelerator, the brakes, the clutch pedal and the gear lever.

After the vehicle had proceeded some distance further in this manner, it passed a number of boys who were standing by the side of the road holding bicycles. Evidence has been given by a number of prosecution witnesses, including Andonia, that some of those in the vehicle turned round to greet and smile at the boys at the side of the road and that Andonia was one of those who did so. Simultaneously with that occurring, the vehicle, which according to all the evidence was travelling at a normal speed, suddenly veered sharply to the left, ran off the road down a steep embankment and crashed into the limestone pinnacles.

No witness was able to state why the vehicle suddenly veered to the left. Andonia was unable to say whether he was still holding the steering wheel at the time. The accused gave evidence that she also was unable to say whether any person was holding the steering wheel at that time. She admitted, however, in her evidence, that she herself was not doing so.

Immediately after the accident a number of people came to the scene and found one of the passengers, Welwyn Digger Pantolean Adam, the younger brother of the accused, lying next to a limestone pinnacle apparently seriously injured. The prosecution witnesses have established, and the accused has admitted, that he had been a passenger in the motor vehicle immediately before it crashed off the road. He was taken immediately to the Nauru General Hospital but died of his injuries. The post mortem examination was carried out on 24th December, 1974. The evidence of the doctor who carried out that post mortem examination establishes that death was due to serious injury to the spine and the spinal cord caused by the deceased striking his neck on something hard, presumably the limestone pinnacle. It is abundantly clear that he obtained that injury when he was flung out of the vehicle by the force of the impact when it crashed.

Evidence was given by one of the police officers who was a witness in these proceedings that vehicles damaged in road accidents are usually examined on behalf of the police by a mechanic or mechanical engineer from the works Department. That was not done in this case. Evidence has been given, however, that the whole of the front of the motor vehicle was smashed in; it is unlikely, therefore, that if a mechanical examination of the vehicle had been carried out, it would have been possible to determine by it whether or not any of the mechanical parts at the front of the vehicle were in a satisfactory condition or defective before the crash occurred.

The accused has given evidence that the front tyre of the motor vehicle was defective and that the left front wheel was out of alignment. She apparently observed this in the course of driving the motor vehicle before the accident occurred. In the absence of evidence to the contrary I accept that it is reasonably possible that these defects did exist. Mr. Kun, representing the accused, has drawn attention to the onus which rests on the prosecution to prove affirmatively that the reason why the vehicle veered off the road and crashed was the accused’s failure to exercise proper control of it and was not due to any mechanical failure or to any other factor such as a pot-hole in the road. In this regard he has drawn attention to the evidence about the defective front left tyre and the fact that the front left wheel was out of alignment.

There is certainly an onus on the prosecution to prove affirmatively that the cause of the vehicle crashing was the reckless negligence of the accused and not some other possible cause instead. There is no direct evidence of precisely why the vehicle veered suddenly to the left, i.e. whether someone turned the steering wheel or there was a failure to correct a turn caused, for instance, by a slope in the surface of the road. However, it is abundantly clear that the accused had irresponsibly abdicated the control over the steering of the vehicle which she had a duty to exercise; and that that lack of control was, if not the sole cause of the vehicle leaving the road and crashing, at least a major factor causing it to do so. The fact that, as admitted by the accused, she continued to drive, or to participate in driving, the vehicle when she knew that a tyre was defective and a wheel was out of alignment, far from exculpating her, aggravated her reckless negligence. To allow Andonia to control the steering as she did would have been irresponsible and created a dangerous situation even if the vehicle had been in perfect condition. To surrender control of the steering when she knew of the defective tyre and the poor alignment of the wheel was the height of irresponsibility.

The attention of Court has been drawn by both Mr. Berriman and Mr. Kun to section 289 of the Criminal Code of Queensland (which is applied in Nauru). That section imposes upon any person who has in his charge or under his control anything of such a nature that in the absence of care or caution in its use or management the life or safety of any person may be endangered, a duty to use reasonable care and take reasonable precautions to avoid that danger. Mr. Kun, however, has submitted that, because the accused had surrendered control of the steering of the motor vehicle to Andonia, her duty no longer extended to the steering of the vehicle. He referred to the case of Marsh v Moores (1949) 2 All E.R. 27 in which it was held that more than two persons may simultaneously drive a motor vehicle. In that case, however, it was held that both were in fact controlling and managing the motor vehicle. In this case similarly the fact that the accused surrendered control of the steering of the vehicle to Andonia did not affect her overall responsibility to control the vehicle either by herself or jointly with him.

The undisputed facts of this case make it quite clear that the accused was in charge of the motor vehicle. She had taken charge when she got into the driver’s seat uninvited and began to drive the vehicle. She remained in the driver’s seat throughout and, up to the time when she permitted Andonia to operate the steering wheel, she was totally controlling the vehicle. She continued to be in charge of the vehicle. She could at any time have stopped it and either made Andonia desist from taking part in steering it or have refused to continue to drive it. There can be no doubt, therefore, that she did have a duty under section 289 of the Criminal Code to use reasonable care and take reasonable precautions to avoid danger to other road users and to the persons who were being carried as passengers in the vehicle.

Mr. Kun has very properly pointed out that, for negligence to give rise to the criminal liability which is an ingredient of the offence of manslaughter, the degree of negligence must be very high indeed in R v Bateman (1925) 19 Cr. App. R. 8 Hewart L.C.J. stated the law as follows:-

“In order to establish criminal liability the facts must be such that... the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”

Bateman’s case was concerned with alleged negligence by a medical practitioner. The principle enunciated there, however, was adopted by the House of Lords in respect of motor vehicle cases in Andrews v Director of Public Prosecutions (1937) A.C. 576. At page 583 Lord Atkin stated:

“The principle to be observed is that cases of manslaughter in driving motor cars are but instances of the general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough: for the purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before felony is established. Probably of all the epithets that can be applied, “reckless” most nearly covers the case... but it is probably not all-embracing, for “reckless” suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction.”

I find as fact in this case that the cause of the death of Welwyn Adam was the grossly negligent manner in which the accused failed to exercise proper control over the motor vehicle of which she was in charge and in which he was travelling as a passenger. That gross negligence resulted in the motor vehicle leaving the road and crashing down the embankment into the limestone pinnacles. I am absolutely satisfied that that negligence was of such a gross nature, and that it amounted to such reckless conduct on the part of the accused, that it constituted criminal negligence of the nature and degree which is a necessary ingredient of the offence of manslaughter. Accordingly I find the accused guilty of the offence of manslaughter as charged.