Papua New Guinea Law Reports - 1975
[1975] PNGLR 9
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V
TAPERARA
Kieta
Lalor J
12-13 December 1974
CRIMINAL LAW - Manslaughter - Unlawful killing - Using a dangerous thing - Criminal responsibility to be determined solely by s. 289 of the Criminal Code (Queensland adopted) - Accused aged fourteen years - Test to be applied - Degree of negligence necessary - Criminal Code (Queensland adopted), ss. 291[iii]1, 289[iv]2.
The accused, a fourteen year old boy, was playing cards with a group of boys in a house some four feet from the ground with gaps between the plank floor. Another group of boys was intent upon annoying them by poking sticks at them through the floor of the house and then running away. The accused in an endeavour to frighten them away, jabbed a fish spear about four feet long and made of quarter inch iron, through the floor, and on the third occasion penetrated the chest of one of the boys who subsequently died.
On a charge of unlawful killing,
Held
(1)      The criminal responsibility of the accused should be determined solely by the provisions of s. 289 of the Criminal Code (Queensland adopted).
Evgeniou v. The Queen, (1964) 37 A.L.J.R. 508 followed.
(2)      In deciding whether, within the terms of s. 289 of the Code, the accused used reasonable care and took reasonable precautions to avoid danger, the test was whether it had been shown beyond reasonable doubt that the actions of the accused fell so far short of what would be expected of a normal boy of his age and in his circumstances as to amount to the degree of criminal negligence variously described by the courts as “gross”, “wicked”, “clear”, “complete”, etc.
R. v. Bateman (1925) 19 Cr. App. R. 8 applied; R. v. Callaghan (1952) 87 C.L.R. 115 referred to.
(3)      In the circumstances the prosecution had not proved criminal negligence such as to bring the accused within s. 289 of the Code and he should be acquitted.
Trial
The accused, a boy of fourteen years of age, was charged with the unlawful killing of another boy arising from circumstances set out in the reasons for judgment hereunder.
Counsel
J. A. Ross, for the Crown.
W. J. Andrew, for the accused.
Cur. adv. vult.
13 December 1974
LALOR J: The accused a boy of fourteen years is charged with the unlawful killing of another boy John Kaisu on 30th August, 1974.
The evidence led by the prosecution falls within a narrow compass due no doubt to the view taken as to the accused’s criminal liability under the Code.
The facts I find on this evidence may be shortly stated. About the middle of the day on the 30th August, 1974, four boys were playing cards in a house in Koadose village. The accused aged fourteen was one of the card players. Another group of boys, some five in number, were intent upon annoying them by poking sticks at them through the floor of the house. The house was on piles some four feet above the ground and had a black palm floor with gaps between the planks. One of this second group gave evidence that he was thirteen years of age but there was no evidence as to the age of the deceased or other members of the group.
The accused told the boys under the house to stop annoying the card players but they ignored this. After it had continued for some time, he then took a fish spear made of quarter inch iron and about four feet long and endeavoured to frighten them away by jabbing it through the floor from a sitting position. He said both in his statement to the police and from the dock that he did this after the boys under the house had poked the card players with sticks and run away, thinking that the spear would not hit anyone.
It seems clear that the pattern of events was that the group under the house would come beneath the card players, poke them with sticks and then run away. It is also clear that they were not impressed by the threat of the spear and continued to return and annoy the card players. On the third occasion on which the accused jabbed the spear through the floor it penetrated the chest of the deceased John Kaisu. He was taken to the village aid post where he died from this wound.
The prosecution case was based on the proposition that under s. 291 of the Code it is unlawful to kill any person unless such killing is authorised or justified or excused by law. And since the accused’s act was a direct willed act and the death was not an event occurring by accident he was not excused of criminal responsibility under s. 23 and was therefore guilty of the unlawful killing of John Kaisu.
This proposition is a mis-statement of the law as set out in the Code. In this case we have the accused using a dangerous thing, namely the fish spear. His criminal responsibility is specifically provided for in s. 289 of the Code and it is within the terms of this section that his actions must be brought if he is to be found guilty of manslaughter.
The relationship between s. 291, s. 23 and s. 289 have been authoritatively determined by the High Court Evgeniou v. The Queen[v]3. In the judgment of McTiernan and Menzies JJ. the following statement of the law is found:
“With respect, we are satisfied that it was wrong to have dealt with the case independently of s. 289. It is true that the Code provides that any killing not authorised, justified or excused by law is unlawful (s. 291); ... There are, however, strong indications that it is only an omission to observe or perform a duty that is to be regarded as giving rise to criminal responsibility: see ss. 285-290 and 299. These indications we accept.”
and later:
“The Code, as we construe its relevant provisions in the light of authority, does mean that a motor car driver whose omission to use reasonable care in its management amounting to criminal negligence results in the death of another is guilty of manslaughter; it does not mean that a motor car driver whose omission to use reasonable care in its management not amounting to criminal negligence results in the death of another can be found guilty of manslaughter unless excused under s. 23” (p. 510).
And see also Taylor J. generally at p. 511 and specifically:
“I should add that the decision in Scarth [1945] Q.S.R. 38 which was a decision under the Queensland Code, is quite inconsistent with the notion that s. 23 has any relevance to a case where the offence charged rests upon the omission of a duty of the character specified in s. 289. The decisions are clear authority for the proposition that s. 23 finds no place in cases of this character.”
Accordingly I hold that in this case the criminal responsibility of the accused must be determined solely by the provisions of s. 289 of the Code.
The question that I must decide then is whether as required by that section the accused used reasonable care and took reasonable precautions to avoid danger in the use of the fish spear. Or putting it another way, has the prosecution established that the accused was criminally negligent in the use of the fish spear. (Callaghan v. The Queen)[vi]4.
I turn now to direct myself on the question of criminal negligence in the present case. As has been noted we are concerned with the actions of a fourteen year old boy.
Firstly I note the context of s. 289. As the Full High Court said in Callaghan’s case[vii]5 “It is in a criminal code dealing with major crimes, involving grave moral guilt”.
Secondly, I must ask myself whether the standard of care to be applied in this case is affected by the age of the accused.
The classic definition of criminal negligence is said to be that contained in Bateman’s case[viii]6 where it was said:
“To support an indictment for manslaughter the prosecution must prove the matters necessary to establish civil liability (except pecuniary loss), and, in addition, must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”
To establish the civil liability of a boy of fourteen for negligence it must be shown that he acted without the degree of foresight and prudence normal for his age and experience. (McHale v. Watson)[ix]7. As Kitto J. said in that case:
“In regard to the things which pertain to foresight and prudence — experience, understanding of causes and effects, balance of judgment, thoughtfulness — it is absurd, indeed it is a misuse of language, to speak of normality in relation to persons of all ages taken together. In those things normality is, for children, something different from what normality is for adults; the very concept of normality is a concept of rising levels until ‘years of discretion’ are attained. The law does not arbitrarily fix upon any particular age for this purpose, and tribunals of fact may well give effect to different views as to the age at which normal adult foresight and prudence are reasonably to be expected in relation to particular sets of circumstances. But up to that stage the normal capacity to exercise those two qualities necessarily means the capacity which is normal for a child of the relevant age.” (p. 464).
Finally I remind myself that as was said by the Lord Chief Justice delivering the judgment of the Court in Bateman’s case[x]8 that whereas, in a civil case, once negligence is established the degree of negligence is irrelevant: “In a criminal court, on the contrary, the amount and degree of negligence are the determining question”.
The degree of negligence required before it becomes criminal has been variously described by the Courts: “gross” “wicked” “clear” “complete” and so on.
In the final result I must ask myself has the prosecution shown beyond reasonable doubt that the actions of the accused fell so far short of what would be expected of a normal boy of his age and in his circumstances as to justify such epithets.
There was evidence that his companions with whom he was playing cards, told him to put the spear down. No evidence was given as to their age nor their reasons for saying this. It may have been through some apprehension of danger or it may merely have been advice to ignore the interruptions. Certainly, none of them regarded his actions seriously enough to interfere and prevent him continuing them.
The one witness called from the group of boys who were underneath the house, was aged thirteen. There was no evidence of the age of the others. Their actions in returning to continue poking sticks at the card players does not suggest that they regarded the accused’s thrusting the spear through the floor as being dangerous to any degree.
On the whole of the evidence, I am unable to find that the prosecution has proven criminal negligence to bring the accused within the provisions of s. 289 of the Code and he must be acquitted.
Verdict of not guilty.
Solicitor for the Crown: P. J. Clay, Crown Solicitor.
Solicitor for the accused: G. R. Keenan, Acting Public Solicitor.

[iii]Section 291 of the Criminal Code (Queensland adopted) provides that it is unlawful to kill any person unless such killing is authorized or justified or excused by law.
[iv]Section 289 of the Criminal Code (Queensland adopted) provides: 
Duty of persons in charge of dangerous things — 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 reason of any omission to perform that duty.
[v](1964) 37 A.L.J.R. 508, at p. 509.
[vi](1952) 87 C.L.R. 115.
[vii](1952) 87 C.L.R. 115.
[viii](1925) 19 Cr. App. R. 8, at p. 13.
[ix](1966) 39 A.L.J.R. 459.
[x](1925) 19 Cr. App. R. 8.