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Republic v Namaduk [1978] NRSC 14; [1969-1982] NLR (C) 56 (19 September 1978)

[1969-1982] NLR (C) 56

IN THE SUPREME COURT OF NAURU

Criminal Application No. 1 of 1978

THE REPUBLIC

v

PETER NAMADUK

19th September, 1978.

Manslaughter by neglect - what must be proved.

Application by the Director of Public Prosecutions for leave to bring criminal proceedings in the Supreme Court after refusal by the District Court to commit for trial. The respondent was charged with manslaughter by neglect.

Held: In order to prove manslaughter by neglect the prosecution must establish:

(1) that there was a legal duty on the part of the accused to provide necessaries for the deceased person, that duty having arisen from the fact that the accused undertook the charge of the deceased person and the deceased person was in a state of helplessness and unable to withdraw himself from the accused's care;

(2) that the accused, with reckless disregard for the life of the deceased person, failed to discharge that duty;

(3) that death resulted from that failure.

The depositions did not disclose that.

Application dismissed.

R.J. Hooker for the applicant
L.D. Keke for the respondent

Thompson C.J.:

The respondent was charged in the District Court with the manslaughter of Eigabwedia Detenamo. A preliminary inquiry was held. The respondent's wife, who was charged jointly with him, was committed for trial. The respondent was discharged. This is an application by the Director of Public Prosecutions under section 172 of the Criminal Procedure Act 1972 far an order that the respondent should also stand trial.

At the end of the lengthy preliminary inquiry proceedings the learned magistrate who conducted it stated the elements of the offence which must be established prima facie by the evidence as -

(1) a legal duty on the part of the respondent to provide necessaries for the deceased;

(2) failure by the respondent to discharge that duty with a reckless disregard for the life and welfare of the deceased; and

(3) death resulting from such failure.

Mr. Hooker, representing the Director of Public Prosecutions, has accepted that statement as correct and it has not been challenged by Mr. Dowiyogo. Except for the reference to the welfare of the deceased I also would endorse the statement. However, I would amplify the statement of the first element to read -

a legal duty on the part of the accused to provide necessaries for the deceased, such duty having arisen from the fact that the deceased was in a state of helplessness and unable to withdraw herself from the accused's care and that the accused undertook the charge of her.

The onus is on the prosecution to prove all the elements of the offence. Mr. Hooker has submitted that the evidence adduced at the preliminary inquiry does so. In particular he has submitted that the evidence establishes that the deceased was helpless when she went to live with the accused and his wife and that he accepted charge of her then; and that it was his duty to ascertain from day to day whether she was eating the food he provided and whether she needed medical treatment.

It is apparent from page 51 of the typed transcript of the proceedings at the preliminary inquiry that while the deceased was in the home of Eidubwa Kepae immediately before going to live with the respondent, she was walking about and going swimming and was capable of making drinks for herself. She had an abrasion on her foot when she went to the respondent's house and had to be assisted from the car. She was suffering from some mental problem. But there is no evidence that she was unable, because of her physical or her mental condition, to withdraw from the charge of the respondent until she became incapacitated by the gangrenous wounds. It is not established by the evidence, therefore, that the respondent's duty towards her arose until quite late on in her stay at his home. Indeed it is doubtful whether there is evidence sufficient to show that he ever became aware of her helplessness.

The period during which helplessness has been established is about a week. In order to prove the offence of manslaughter reckless disregard for the life of the deceased during that period must be shown. There is insufficient evidence to show more than mere inadvertence as to what the needs of the deceased were.

Accordingly the application for an order that the respondent should stand trial for manslaughter is dismissed.