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Republic v Namaduk [1978] NRSC 15; [1969-1982] NLR (C) 48 (26 September 1978)

[1969-1982] NLR (C) 48

IN THE SUPREME COURT OF NAURU

Criminal Case No. 5 of 1978

BETWEEN:

THE REPUBLIC

AND:

EIBARUKEN NAMADUK

R.J. Hooker for the Republic.
L.D. Keke for the accused.

Date of Hearing: 22nd and 26th September, 1978.

Manslaughter - death by neglect - foresight of likelihood or possibility of death or serious injury must be proved.

Negligent omission causing harm - section 328 of the Criminal Code of Queensland (adopted) - conscious or reckless omission must be proved.

Minor and cognate offences - section 129 of the Criminal Procedure Act 1972 - whether causing harm by a negligent omission is cognate to manslaughter by neglect.

The accused undertook the care of an elderly female relative. She provided her with accommodation and food. The elderly relative was at first able to walk about but latterly was confined to bed and unable to withdraw herself from the accused's care. The accused washed her and generally cared for her but, although she must have seen large bed sores developing and eventually smelled them when they had become gangrenous, she failed to seek medical attention for her until just before the moment of her death. The gangrene had developed at least 48 hours before death. There was no evidence that the accused, a woman of no great education and without medical knowledge or experience, realised. the seriousness of the woman's condition until very shortly before death; but she could not have failed to realise that her condition was deteriorating and that medical attention was needed to arrest that and remedy it.

Held: (1) In a case of manslaughter by neglect the prosecution must prove not only that the deceased was in the care of the accused, was unable to withdraw himself from that care and died as the result of the accused's neglect to provide him with the necessaries of life, but also that the accused foresaw the likelihood or possibility of death or serious injury resulting from that neglect.

(2) Where an offence against section 328 of the Criminal Code of Queensland (adopted) is alleged to be constituted by an unlawful omission, it must be proved that that omission was made consciously or recklessly.

(3) For the purposes of section 129 of the Criminal Procedure Act 1972 an offence against section 328 of the Criminal Code of Queensland (adopted) constituted by an omission is minor and cognate to an offence of manslaughter by neglect.

Accused acquitted of manslaughter but convicted of causing harm by an unlawful omission.

Thompson C.J:

The accused, a married Nauruan lady of middle age, is charged with manslaughter by neglect. The deceased, Eigabwedia Detenamo, was her half - sister. After a short period in hospital late in 1976 Eigabwedia’s husband had taken her to one of her relatives to look after. In accordance with the traditions of Nauruan society the relative took her in and looked after her. After some months she passed her over to another relative, Eidubwa Kepae, to look after. After a few more months, Eidubwa passed her over to the accused. Eidubwa has given undisputed evidence that, before doing so, she sought the agreement of both the accused and Eigabwedia, and that both agreed. She and her husband have also given undisputed evidence that at the time when Eigabwedia moved to the accused's house, about one month before her death, she was somewhat lame but able to walk unaided and to go swimming, and, although she suffered from some mental instability apparently constituted principally by introspection and mental withdrawal from her surroundings, she was capable of deciding for herself where she wished to stay. Eidubwa's husband gave evidence that there were many relatives with whom she could have gone to live if she had wanted not to go to live with the accused.

It is apparent, therefore, that at the, time when Eigabwedia first went to live with the accused, the accused, in undertaking to look after her, was not undertaking to look after a helpless person or one who was unable to withdraw from her charge. However, by the day of her death one month later she was certainly helpless and unable to withdraw from the accused's charge. There is no direct evidence of her condition at any time during the intervening period. However, Dr. Malhotra gave evidence that the extensive bed - sores from which she was suffering were the result of immobility and that they must have started at least a week before death. In a statement made to Sub - Inspector Gioura, of which the voluntary nature and accuracy were not challenged, the accused admitted that the sores started about two weeks after Eigabwedia had come to live with her. Further, she admitted that Eigabwedia was weak and needed to be supported. That must clearly have been before she took to her bed and became immobile. I find, therefore, that it has been established beyond all reasonable doubt that Eigabwedia was helpless and unable through infirmity to withdraw from the accused's charge for at least a week before her death.

In her statement to Sub - Inspector Gioura the accused gave an account of seeing the bed - sores start, of their smelling, of Eigabwedia defecating in her room and of the accused moving her out of the house into a lean - to shelter in which a bed and pillow had been placed for her and where the accused provided her with her meals regularly. She admitted also in the statement that she and her daughter washed Eigabwedia regularly. I find it proved, therefore, beyond all, reasonable doubt that although Eigabwedia was not helpless or unable to withdraw from the accused's charge when the accused first undertook to look after her, she continued to look after her, and had charge of after she became helpless and unable to withdraw, and that accordingly the accused was during that latter period of not less than one week under a legal duty to provide her with food and medical treatment necessary for the preservation of her life and health.

Medical evidence of the condition of Eigabwedia at the time of her death has been given by two doctors, Dr Bill who examined her superficially at the Nauru General Hospital immediately after her death, and Dr. Malhotra, who conducted a thorough post-mortem examination of her body next day. In his report of the examination he recorded the cause of death as difficult to ascertain but probably ageing process and malnutrition. In his evidence to this Court he stated that toxaemia resulting from the gangrenous condition of the bed-sores had entered the blood and caused shock resulting in death. Dr. Bill gave evidence that the wounds and some malnourishment would have contributed to Eigabwedia's death because of septicaemia from the wounds. Both doctors gave evidence of three very bad bed-sore wounds. One was 10 inches by 10 inches and almost bone deep. Another was 5 inches by 2 1/2 inches and muscle deep. The third was 3 inches by 2 inches and bone deep The first two had become gangrenous and contained putrifying matter. The evidence given to the Court by the doctors as to the part played by the bed - sore wounds in causing Eigabwedia's death was not challenged by the defence. I find it proved, therefore, that one of the causes of death was toxaemia resulting from the gangrenous condition of the wounds.

Another contributing cause of death according to both the doctors was malnourishment. They stated that Eigabwedia was not malnourished to the extent of emaciation but that it had resulted in her skin becoming loose. I find as fact that undernourishment was a contributing cause of death.

Dr. Malhotra has given undisputed evidence that, if Eigabwedia had received proper medical treatment in good time, she would probably not have died. Toxaemia can be cured. I find it proved beyond all reasonable doubt, therefore, that the failure to provide adequate medical treatment was a cause of Eigabwedia's death. In her statement to Sub - Inspector Gioura the accused stated that she was given some tablets by Dr. Bill to give to Eigabwedia. She referred to them first as aspro and then as sleeping tablets; she said that she did not give them to Eigabwebia because she had seen similar ones given to her in hospital and, as they had had, no apparent effect then, she considered them useless. It appears from that statement that the accused was, by inference, saying that she consulted Dr. Bill about the deceased.

Dr. Bill gave evidence that the accused or her husband might have spoken to him about Eigabwedia but that, if either of them did so, it was not at the hospital but at some other place such as the shops. He said, in effect, that, if he had been told that her condition was serious, he would have visited her but that, if he was told of some minor condition, he would have given some appropriate medicine without visiting her. The accused has not given evidence or made a statement to this Court; and no witnesses were called by the defence. Nevertheless, the issue having been raised in the cross - examination of Dr. Bill, of whether the accused or her husband took proper steps to obtain medical assistance for Eigabwedia, the onus is on the prosecution to prove beyond all reasonable doubt that they did not. In determining the issue I regard as most significant the fact that Dr. Bill did not visit Eigawedia and that he prescribed sleeping tablets. I find it proved beyond all reasonable doubt that, if the accused or her husband consulted Dr. Bill, they did not inform him of the bed-sores or the smell coming from them.

The accused admitted in her statement to Sub-Inspector Gioura that the wounds were smelling unpleasantly. There is evidence from several witnesses that on the day of Eigabwedia’s death the smell was discernible from a distance of several yards. Further, the wounds having started small, grew to be of very large size. The accused was, according to her statement, washing regularly and must have been aware of the serious deterioration of the wounds and, by at least the day before her death, of her general condition. It must have been apparent to her, even as a person without medical knowledge, that something was seriously wrong and that medical treatment was required for the wounds. Mr Malhotra has given evidence, which I accept as sound expert opinion, that for the last few days before Eigawebia died, she would have appeared very ill; so that, although someone without medical training might not have realised that she would die, such a person must have realised that she was so ill that a reasonable person would obtain medical treatment for her. I cannot regard the accused’s failure to obtain medical treatment for her as mere inadvertence. However, in order to prove the offence of manslaughter, the prosecution must prove foresight of the likelihood or possibility of death or serious injury resulting from neglect to provide medical treatment; and Dr. Malhotra’s evidence indicates that it is reasonably possible that the accused may not have had such foresight.

Accordingly, it has not been proved that the accused is guilty of manslaughter. However, as the failure to provide medical treatment caused the wounds to deteriorate and eventually caused death, an offence against section 328 of the Criminal Code of Queensland (adopted) has been proved beyond all reasonable doubt in section 129 (2) of the Criminal Procedure Act 1972 empowers a court, where a person is not proved guilty of the offence with which he is charge but is proved guilty of the offence with which he is charge but is proved guilty of an offence which is minor and cognate to it, to convict him of that minor and cognate offence. The offence against section 328 appears to be minor and cognate to the offence of manslaughter by neglect as charge in this case. But, before I decide whether or not to convict the accused of an offence against that section, I wish to hear counsel on the question whether such conviction is possible under section 129(2).

The Court has now heard counsel on whether the accused can properly be convicted in these proceedings of an offence against section 328 of the Criminal Code of Queensland (adopted). Mr Keke has submitted that the facts found by this Court do not constitute such an offence. In particular he has submitted at that the necessary intent has not been proved. In the first part of this judgment I made findings of fact. I found that, for the last few days before she died, Eigabwedia appeared very ill and that a person without any medical training seeing her condition would have realised that a reasonable person would have obtained medical treatment for her.

Where intention to achieve particular result has to be proved as an element of an offence, that intention cannot be inferred from the actions of the accused person simply because a reasonable person doing those actions would have foreseen that that particular result would follow. It can be inferred only if it established that the accused person himself must have foreseen. that it would do so. The several cases cited by Mr. Klye, in particular Parker v R [1963] HCA 14; (1963) 111 CLR 610, being, decisions of the High Court of Australia, should be followed where intention to cause a particular result is an element of the offence charged.

But an intention to cause a particular result is not an element of the offence created by section 328 of the Criminal Code. Where an omission to do an act is alleged, that omission must be proved to have been a conscious or reckless omission. It must be established that the accused person knew that the act omitted needed to be done. In the present case there is ample evidence of enormous gangrenous, foul - smelling wounds of which the accused must have been aware; from that evidence no conclusion can be drawn other than that the accused must have known of Eigabwedia’s need for medical treatment. Once that was established all that remained further to be proved was that the omission resulted in Eigabwedia suffering actual bodily harm.

That is not in any doubt. The accused is, therefore, guilty of an offence against section 328.

There remains the question whether the accused can be convicted in these proceedings. Section 129 of the Criminal Procedure Act 1972 provides as follows:-

“12) Where a re a person is charged with an offence consisting of several particulars, one or a combination of some only of which constitutes another complete offend that one particular, or such combination, is proved but but the remaining particulars are not proved, he may be convicted of that other offence although he is not charged with it.

(2) Where a person is charged with an offence and facts are proved which reduce it to a minor and cognate offence, he may be convicted of the minor offence although he is not charged with it.

(3) In this subsection, a minor offence one for which, upon conviction, a lesser maximum sentence is provided by law.”

That section substantially re-enacts, and possibly broadens, similar provisions of the common law. An offence against section 328 of the Criminal Code is certainly minor in relation to an offence against section 303. I have no doubt that it is also cognate to an offence against that section where the offence is one of manslaughter by neglect. I am fortified in that opinion by the views expressed in obiter dicta by the Count of Criminal Appeal in the case of Large (1939) 27 Cr. App. Rep. 65. The offence referred to is that case, against section 1(1) of the Children and Young Persons Act 1933 (of England), although not identical with an offence against section 328 of the Criminal Code, was very similar to fit. Accordingly I hold that by virtue of section 129 of the Criminal Procedure Act 1972, the accused can be convicted in these proceedings of an offence against section 328 and I so convict her.

Thompson C.J.