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Republic v Gadeouwa [1986] NRSC 4; [1980-1989] NLR (10 June 1986)

[1980-1989] NLR
[Ed - No page no. in original]

IN THE SUPREME COURT OF NAURU

Criminal Case No. 2 OF 1985

THE REPUBLIC

v

ERNEST P. GADEOUWA

JUDGMENT

The accused is charged with two offences of the Criminal Code Act, 1899 Queensland (Adopted).

Dealing with the charges under the Criminal Code Act of Manslaughter and Negligent Act causing bodily harm, the law is well settled as to the degree of negligence to be established in order to sustain a finding of guilt. Liability for these offences must be established by reference to section 289 of the Criminal Code of Queensland. This section reads:

"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 of 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 reason of any omission to perform that duty."

Dealing with that section, the High Court of Australia in Evgeniou v The Queen (1964) 37 A.K.J.R. 508, the Court ruled that negligence sufficient to constitute a breach of Section 389 must be negligence according to the standard of the criminal law which "may be described shortly as recklessness involving grave moral guilt." This is in line with the House of Lords decision of Andrews v Director of Public Prosecution (1937) A.C. 576, wherein Lord Atkins at p. 583 said:

"The principle to be observed is that the 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 degree 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."

The act of recklessness is a subjective one. To establish it, the Court must be satisfied of two things first that the accused was driving his vehicle in such a manner as to create an obvious and serious risk of causing physical harm to some other person who might happen to be using the road either in his vehicle or otherwise or of doing substantial damage to property and second, that in driving in that manner, the accused did so without having given any thoughts to the possibility of there being such risk of having recognised that there was some risk involved had none the less gone on to take it. R v Lawrence (1981) 1 All E.R. 974 H.L. Thompson C.J. in this Court in The Republic v Robidok Detudamo (1980) Criminal Case 10, put it this way:

"Recklessness is the deliberate taking of an unreasonable risk of which one is aware, the test is subjective (The Republic v Tabai Tebetang (1979) Criminal Case No. 5). If, as is quite likely, Depoudu rode out suddenly onto the road and stayed on the seaward side of it, the accused was faced with a situation of emergency, he was unable to cope with it. If he had been driving at 30 m.p.h., he would have been able to do so. The reason why he was unable to do so was that he was driving too fast. But that does not necessarily mean that he was driving recklessly. That is a question of degree. Drivers of vehicles should drive in a manner which enables them to respond effectively to situations of emergency. They have a duty to other road users to do that. Breach of that duty constitutes negligence. But not every instance of such negligence amounts to recklessness. Accordingly, the accused is acquitted of manslaughter."

Turning now to the facts. There is no pattern of driving prior to the accident which would allow a conclusion that the accused's attitude was one of indifference to risk. I accept that his driving apart from those short lapses of speeding put on one occasion at about 40 m.p.h. by Miss Aliklik did not give rise to consent and there has not been established any pattern of recklessness in it. The corner has been proved to be no hazard to anyone driving a vehicle at the lawful speed limit of 30 m.p.h. and the fact that the vehicle did not safely manoeuvre it could be due to it being driven with excessive speed. There is no doubt in my mind that about 100 meters from the corner and I am satisfied that he did that. There is also the evidence of the other passenger, Willa Dagiaro, a prosecution witness. He did not consider there was excessive speed and he was concerned about the accused's driving. His attention may have been diverted by his drinking but I cannot be satisfied that he would have been indifferent to danger and I cannot disregard his evidence. In fact, I find the evidence of speed does not come convincingly from the mouths of the witnesses rather does the prosecution rely on tyre marks and the observation at the scene of the accident by the Police Officer. What does this evidence establish? Firstly, the tyre marks. The most significant feature relating to them is that they are almost solely those of the right wheels suggesting that only the brake on that wheel gripped. Certainly the vehicle travelled over 146 meters after first hitting the kerb. Just what that means is not certain. I was not given the actual evidence of stopping distances and their indication of speed after braking to an estimation of speed for such marks, even if they were normal is difficult. But there is the additional point established in evidence that a vehicle travelling at high speed would be expected to "take off" on hitting the kerb. In this case, the Snr Sgt conceded that the damage to the coconut palm was not greater than the height of the vehicle which, of course, is consistent with it travelling at that stage firmly on the ground. On the other hand, I am satisfied the foot brake was defective. I accept his explanation as to why he gave the written report stating it showed no defect. He had no knowledge of what the tyre marks revealed and it is natural that with the benefit now of that knowledge, he gives greater weight to the poor brake pressure that he did when first testing it. But, there is much more convincing evidence of this and that in the tyre marks which he says indicate the left wheel brakes were not working properly. The application of the brakes resulting in only the right grip is consistent with the view that the vehicle would swing to the right. I have no doubt that if that is correct, his attention would be diverted from his driving. I am mindful of Miss Aliklik's evidence. Firstly, that she did not see the accused being touched and secondly, that the deceased girl did not touch him, but, the condition of her eyes raises some doubt as to her ability to see what was going on. However, the accused was not effectively challenged in cross-examination on the point and I am not prepared to disbelieve what he said and I accept it.

After a consideration on these matters, I cannot be satisfied beyond reasonable doubt as I must be that excessive speed was the cause of the accident nor indeed that it has been proved. Rather, I am satisfied that the course taken by the vehicle in crossing to the incorrect side of the road, hitting the kerb and subsequently capsizing was the result of two acts. The first was that of the accused in braking back when he was touched by one of the passengers. This caused him to take his attention from his driving resulting in the vehicle changing course. The second act was the failure of the brakes to operate efficiently when applied by the accused due to their defective condition, thereby allowing the vehicle to continue on its course without correction or stopping. Does this finding amount to negligence on the part of the accused? I am satisfied it does. The standard of care expected of a reasonable man in driving a motor vehicle is to give his full attention to the handling of what is undoubtedly a lethal weapon. He must not divert his attention from that task and his duty is to stop his vehicle if he desires to take his attention off his driving. The accused should not have taken his attention away from his driving by looking back. Furthermore, the accused admits he knew that the brakes of his vehicle were not working properly. He was negligent in driving his vehicle in that condition. Mr. Bernicke leaves me in no doubt that the brakes of his vehicle were not working properly. Mr. Bernicke leaves me in no doubt that the brakes were defective. They did not have good pressure. The accused knew that. It is no answer to say other vehicles have similar faults. The accused's negligence is established in those respects.

Does this negligence, however, amount to recklessness amounting to grave moral guilt? I am satisfied that it does not. While he could have anticipated the possible consequences of driving with defective brakes, he could not have anticipated the act that caused him to divert his attention from driving. Consequently, I hold that the charges of Manslaughter and Negligent Act cannot be sustained and on these charges, he is acquitted.

However, I am satisfied his negligence is such that he is guilty of driving his motor vehicle negligently as charged under section 19(1) of the Motor Traffic Act 1937-1973. He is therefore found guilty on that charge. On the facts, I cannot find him guilty on the other charges to which he has pleaded not guilty.

CHIEF JUSTICE