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State v Waluka [2011] PGNC 155; N4414 (30 September 2011)

N4414

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 109 OF 1999

THE STATE

V

VINCENT WALUKA

Kimbe : Kawi J
2011 : August 23rd, 24th and 30th September

CRIMINAL LAW - Section 287, Duty placed upon the skipper of a boat to take all reasonable care and precaution so as not to place the life and safety of the passengers and the boat at grave risk and danger. Accused drank four (4) bottles of beer before going out to sea - boat grossly overloaded with building materials and passengers - Accused failed to carry a torch –was not able to see properly in dark conditions - Accused tried his very best to ride waves at night – Could not clearly see 1.2-1.5 meters high waves – Accused could not see clearly at night – lack of proper lighting affecting the judgment of the accused – Conduct of accused described as gross disregard for the life and safety of passengers – Accused guilty of manslaughter by Criminal negligence – Defence of accident under Section 24 is not available to the accused – Accused is guilty of manslaughter by criminal negligence.

The accused was indicted with one count of manslaughter pursuant to section 302 of the Criminal Code. The charge of manslaughter arose out of the failure of the accused to use reasonable care and take reasonable precautions as skipper of a dingy carrying building materials and people which capsized and sank in rough seas, resulting in the death of a passenger, such negligence rising pursuant to section 287 of the Criminal Code.

At the relevant time, the accused was the skipper of a boat which was travelling from Garu beach in the Talasea District to Silovuti in the South Coast of West New Britain Province. His boat was fully loaded with 36, 16 foot galvanished roofing iron and 7. 7 foot fibro sheets. On top of these building materials, the accused also allowed 18 people to board. While waiting at Garu beach the accused drank 4 bottles of sp beer. The boat was already overloaded when they left Garu beach for Silovuti. On the way they ran into a heavy storm and by then it was already very dark and raining with the sea being very rough. The wind was blowing at gale force winds. The tide and current was very fast. The waves had swelled up to 1.2 to 1.5 meters high. Neither the accused as skipper nor any of his passengers had a torch or flash light to provide some form of lighting. Visibility was very poor and navigating very rough and turbulent seas in such conditions was very difficult. The boat sank when one of the 1.2 to 1.5 meter high waves crashed right into it. In those circumstances:

HELD: (1) The accused as the skipper of the boat had a very high duty of care placed upon him by section 24 of the Criminal Code. This duty of care entailed that the accused was to use reasonable care and take reasonable precautions so as not to put the lives, safety and the welfare of his passengers and the boat, at grave risks and danger.

(2) By overloading his boat with building materials as well as 18 passengers and travelling in very bad weather, in conditions of darkness with no form of lighting at all resulting in the waves capsizing and sinking the boat, the accused breach the duty of care placed upon him by section 287. The accused had a complete and gross disregard for the life, safety and health of his passengers and cargoes, when he allowed the company boat he was skippering to be overloaded. Such overloading can be described as gross and complete.

(3) By so overloading the boat with building materials and 18 passengers, and the accused consuming four bottles of beer and then travelling in very dark conditions through rough and very bad weather, the accused placed the life and safety of his passengers, and cargoes at peril and at grave danger. He did nothing to take reasonable precautions and use reasonable care and skill to avoid the grave dangers that lie ahead of him.

(3) Criminal liability under section 287, will be determined without recourse to the defence of accident provided by section 24

Cases cited:

Papua New Guinea cases

Evgeniou–v- Reginam [1964] PNGLR 45 at page 46
Java Johnson Beraro –v- The State [1988-1989] PNGLR 562 at page 566
R –v- Tsagaroan Kagobo [1965-1966] PNGLR 122 @ page 130
R –v- Peck, SC NO: 659 of 19 October 1971.

Overseas cases

Callaghan –v- The Queen [1952] 87 CLR 115
R –v- Bateman [1925] 28, Cox's Crim Cas 33
Andrews –v- Director of Public Prosecutions [1937] AC 576; at page 583
R –v- Scarta [1945] ASR 38
Mamote Kulang of Tamagot –v- The Queen [1964] 111 CLR 162

Counsel:

Mr A Kupmain, for the State
Mr T Potoura, for the Accused

DECISION ON VERDICT

30th September, 2011

1. KAWI, J: The accused pleaded not guilty on arraignment to an indictment charging him with one count of unlawful killing contrary to Section 302 of the Criminal Code. He raised the statutory defence of accident pursuant to section 24 when he was arraigned.
The State alleges that on the 31st July 1997, the accused was an operator of a 40 horse power, 23 foot dingy at the relevant time.

2. At about 5:00 pm on that day, the accused was at Garu Beach in the Talasea District. He loaded his boat with building materials, namely 36 sheets of 16 feet galvanized roofing iron and 7, 7 feet sheets of fibro wall materials. The accused then allowed a number of people to jump in the boat. There were 18 passengers in all, comprising 14 adults and 4 children. The accused then was preparing to leave Garu and travel to Silovuti, a three hour boat trip to the South Coast of the Province.

3. All these passengers were not employees of the timber company. Rather they were either related to the company employees or were dependents of the employees. The Supervisor of the Timber Company, Mr Mark Tickler saw the accused over loading the company boat. He went across to the boat and ordered all the passengers to get out of the boat, which they all did.

4. At 5:30 pm, the accused and his boat took out to sea. Seeing that Mark Tickler was not around, the accused turned his boat around and headed straight back to Garu beach, where he picked up the passengers who had been ordered off by Mr Tickler earlier in the afternoon. These passengers then all got onto the boat. A particular passenger who got onto the boat at Garu was a Theresa Manjor Aka.

5. While loading the building materials onto the boat at Garu beach, the accused was given four bottles of SP beer which he consumed. The State further alleges that the accused did not travel straight to Silovuti, but rather he re-routed to his village of Kandoka where he spent about 10 minutes in the village with his mother.

6. Around 6:30 pm they then left Kandoka for Silovuti. As soon as they travelled out off Kandoka, the sea was beginning to get rough. The sea swelled and waves were getting to a height of about 1.2 to 1.5 meters. The wind speed was gaining momentum and increasing in its speed almost by the minute. By then it was already very dark, and the waves were very rough. The waves kept pounding and rocking this overloaded dinghy from side to side. It also started to rain. There were no torches available to provide some form of lighting for the skipper to see and guide and direct the boat to navigate through the rough seas. When they reached point Gavutu in Talasea, the waves crashed into the boat capsizing it there and then.

7. The State alleges that the deceased Theresa Manjor Aka, a passenger on the boat that evening did not get off the boat at Kandoka, nor did she stay behind at Garu. While all the other passengers managed to struggle and swim to the shore, Theresa Manjor Aka did not. The State says that after 101 days, Theresa Manjor Aka is presumed dead. The State alleges that she died as a result of drowning. The State therefore invokes Section 287 of the Criminal Code which places a "Duty upon Persons in charge of Dangerous things to use reasonable care and take reasonable precautions to avoid the dangers" and says that the accused acted carelessly and negligently and failed to take reasonable care and take reasonable precautions which resulted in the death of Theresa Manjor Aka.

The State then called only one witness to sustain and verify these allegations before closing its case.

STATE EVIDENCE – WITNESS NO: 1- BERNDETTE MALALA

8. The State called witness Bernadette Malala who gave sworn evidence. Her evidence was that she was at Garu Beach when she was picked up by the accused on a dingy powered by a 40 horse power outboard motor engine. While they were at Garu awaiting to go to Silovuti, a company vehicle came and dropped off some building materials for the boat to carry to Silovuti. She and other women assisted by carrying the building materials and loading them onto the boat. They then departed Garu at about 5:30 pm for Silovuti.

9. Instead of heading straight for Silovuti, they re-routed into Kandoka, the home village of the accused. The accused spent about 10 minutes in his village before they got into the boat and headed off again for Silovuti.

10. Some 5-10 minutes into their boat ride to Silovuti, they encountered bad weather. According to Bernadette, the sea was very rough and the sea waves were swelling to about 1.2 to 1.5 meter high waves.

11. The wind speed had picked up and was gaining momentum by the minute and it was blowing at gale force high speed. Neither the accused as the skipper nor any of his passengers had a torch with them to flash and provide some lighting to navigate through the rough seas and the storm. Without a flash light providing light, navigating the rough high waves through the darkness made it even more difficult. The waves kept pounding onto the boat which by then was really struggling to navigate and ride the waves and as the boat was rocking through from side to side. One of the 1.2 – 1.5 meter high waves crashed right into the boat when it was just off point Gavutu in Talasea. The boat than immediately capsized and sank.

12. The passengers all swam to the nearest shore which was some four (4) kilometers away, all except one female passenger, one Theresa Manjor Aka. All the others called out her name but there was no response from her. When all the other passengers swam ashore, they lit a huge fire. Some hours later another company boat came all the way from Silovuti, looking for them to rescue them. That boat came and rescued them and before departing, they took out to sea to the location where they sank some hours earlier. They called out the name of the missing passenger but to no avail. They abandoned their search and went to Silovuti, without Theresa Manjor Aka.

THE DEFENCE CASE

DEFENCE WITNESS No. 1 VINCENT WALUKA

13. The defence called only one witness, namely the accused who gave evidence in his own defence. He gave evidence that he was at Garu when he got a call from Kimbe to wait for a company vehicle to come and drop of some building materials which he was to take to Silovuti. By the time the vehicle came and dropped off the building materials, which were then loaded onto a company boat skippered by the accused, it was well after 5.00pm. The building materials consisted of 36, 16 foot galvanized roofing iron and seven, seven foot fibro sheets to be used for walls. While the building materials were being loaded onto the boat, a cousin brother of him gave him four (4) bottles of SP beer, which he drank.

14. As the materials were being loaded onto his boat, many of the Silovuti bound passengers jumped onto the boat. When Mark Tickler, a company supervisor saw this he chased all of them out of this boat and then left for Silovuti accompanied by his wife.

15. After all the building materials were loaded onto the boat, the accused then took out to sea. He pretended to sail out and as soon as he saw Mark Tickler sail out, he turned the boat around and headed straight back to Garu beach where he collected all the stranded passengers who had earlier been chased out off the boat by Mark Tickler. He collected a total of 18 passengers, which included 14 adults and 4 children.

16. They then left for Silovuti. From Garu to Silovuti was a three hours boat trip. But they did not go direct to Silovuti. Instead of going direct they re-routed into Kandoka, the home village of the accused. He spent about ten (10) minutes in his village, where he went and visited his mother. He then returned to the boat and then sailed out. After they departed Kandoka, it was already dark. They encountered bad weather. The seas were very rough, huge waves measuring some 1.2 to 1.5 high meters were pounding the boat and rocking it from side to side. It was also raining and the place was already very dark.

17. The sea was so rough that navigating through the waves and riding the waves was very difficult. Added to this difficulty was the fact that the skipper, the accused, confirmed that neither himself nor any of his passengers had any torches or flashlights with them which they could use to provide lighting to the boat to navigate in this rough turbulent waters.

18. One of this big 1.2- 1.5 high meter waves crashed right into the boat and sank it off point Gavutu in Talasea. All the passengers including men, women and children swam to shore, except one Theresa Manjor Aka, who went missing. The State allege that she drowned in the rough choppy seas. When they all swam ashore, they lit a huge bon-fire on the beach to attract attention. About an hour later, a company boat from Silovuti arrived and rescued them. They went to the spot where the boat sank. They searched for Theresa Manjor Aka, by calling out her name but to no avail. They then abandoned their search and sailed to Silovuti arriving there at 1:00 am.

19. In cross-examination, the accused maintained that the company does not provide torches, nor life vests for employees travelling on boats. He gave further evidence that it was quite normal for him to load building materials as well as passengers and then travel from Garu to Silovuti even during rough and stormy weather.

20. In his experience as a skipper he had encountered many situations where he had loaded building materials and passengers and then travelled in very rough and choppy seas. He had reached his destinations without problems on these occasions. He gave evidence that he had encountered many times, bad weather, but he had survived these rough turbulent seas and bad weather.
He re-counted that this was the very first time in his six years working as a boat operator that he had a boating accident in rough seas out in the open ocean where his boat capsized and a passenger lost her life.

21. In my view the accused did not really appreciate the risks and dangers that lay ahead of him. Even if the accused appreciated the risks and dangers that lay ahead of him he did nothing to avoid those risks and dangers. Furthermore he did absolutely nothing to lessen the injurious consequences of those risks and dangers that lay ahead of him opting instead to rely on his experience which in the end deceived him and proved fatal.

CRIMINAL NEGLIGENCE - THE DUTY OF CARE UNDER SECTION 287

22. It was in these circumstances that the State invoked Section 287 to have the accused indicted with one count of manslaughter arising from criminal negligence. Section 287 of the Criminal Code is stated in these terms:

s.287 – "Duty of Persons in charge of Dangerous things."

(1) It is the duty of every person who has in his charge or under his control any thing, 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 that danger.

(2) A person on whom a duty is imposed by subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty."

23. The words used here, viz, "to use reasonable care and take reasonable precautions", sound like words describing civil liability for negligence. But in my view this words imposes a very high duty of care upon persons in charge of dangerous things. Here the accused as the skipper of the boat had a very high duty of care to his passengers and the company boat. It was his duty to ensure that as the skipper he was to take all reasonable care and take reasonable precaution so as to avoid dangers that lie ahead of him and not to unnecessarily place the life and safety of passengers in danger or compromise the life and safety of his passengers and the company boat all of whom were under his care and responsibility. A breach of this duty of care will entail serious criminal sanctions.

24. The Court's have endeavored to define what the expressions "reasonable care and take reasonable precautions to avoid that danger" mean in terms of what amounts to criminal negligence in order for a charge of manslaughter to be sustained. The classic definition of criminal negligence is said to be contained in the case of R-v- Bateman [1925] 28 Cox's Crim Cases 33 where the Lord Chief Justice Hewart said at page 36:

"In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets such as 'culpable,' criminal,' 'gross,' 'wicked' 'clear,' 'complete,'. But whatever epithets be used, and whether an epithet be used or not, in order to establish criminal liability the facts must be such that in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between the 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."

25. In the latter case of Andrews –v- Director of Public Prosecutions [1937] AC 576,the House of Lords, Lord Atkins referring to Bateman's case and approving the general principles laid down in that case, proceeds, at page 583.

"Here again I think with respect, that the expressions used are not, indeed they probably were not intended to be, a precise definition of the crime. I do not myself find the connotations of mens rea helpful in distinguishing between the degrees of negligence, nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case the degree of negligence shown is a crime and deserves a punishment. But the substance of judgement is most valuable, and in my opinion is correct".

26. Indeed it is now well settled that these words describe a much higher degree of negligence, namely criminal negligence. This was so decided in Australia by the High Court in the case of Callaghan –v- The Queen [1952] 87 CLR 115, an appeal from a Section in the West Australia Criminal Code equivalent to Section 287 of the PNG Criminal Code. The Australian High Court in an unanimous decision (at page 124) held that because these words appear in a Criminal Code dealing with major crimes involving grave moral guilt, they were not intended to punish as manslaughter, the degree of negligence, which gives rise to civil liability. The High Court stated that those words describe the common law criminal standard of negligence.

27. That view was followed by the High Court on an appeal from the pre-independence P&NG Supreme Court decision in Evgeniou –v- Reginam [1964] P&NGLR 45 at page 46. Since then many judges here in Papua New Guinea have followed that judgement. An example is R –v- Peck, SC NO: 659 of 19 October 1971. More recently the Supreme Court adopted that statement of law in the case of Java Johnson Beraro –v- The State [1988-1989] PNGLR 562 at page 566.

28. The classic statement of criminal negligence at common law is found in the judgement of Lord Hewart CJ reading the unanimous judgement of the court of criminal appeal in R –v- Bateman [1925] 28, Cox's Crim Cas 33, where this view was expressed:

"In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as "culpable," "criminal" "gross" "wicked," "clear," "compete." But, whatever epithet be used and whether an epithet be used or not, in order to established criminal liability, the facts must be such that, in the opinion of the jury, the negligence of the accused, went beyond a mere matter of compensation between the 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."

29. This decision was affirmed by the House of Lords in the case of Andrews –v- Director of Public Prosecutions [1937] AC 576; at page 583 Lord Atkins made the following comment which is directly relevant. He said:

"Simple lack of care such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the 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 such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction."

30. Amet, J (as then was) in the case of Java Johnson Beraro stated that ultimately what is or is not, criminal negligence is a question of degree to be decided on the facts of each particular case. Whether an action or omission is criminally negligent or not, must be decided by reference to the circumstances at the time and not by the consequences of his conduct, which brought him before the court. In that regard His Honour relied on the Privy Council Decision in the Nigerian case of Akerele –v- the King [1943] AC 255. In that case, the appellant was a medical practitioner who was convicted of manslaughter of a patient contrary to similar provisions of the Nigerian criminal code. The Privy Council held that the common law distinction between civil and criminal negligence was applicable in considering whether the appellant was rightly convicted of manslaughter under that code. The Privy Council then referred to the trial judge's reference to Bateman's case and in particular and the following passage in Halsbury's Laws of England (2nd edition volume 9 page 444:

" What amount of negligence is to be regarded as gross is a question of degree for the jury, depending on the circumstances of each particular case".

31. The Privy Council made it clear that the degree of negligence required is that it must be gross and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence or giving it similar descriptions.

CIRCUMSTANCES SURROUNDING THE BOATING MISHAP

32. Is the accused guilty of criminal negligence? Can his conduct be described as "gross or wicked?" What were the circumstances leading to the boat capsizing? The following tactual circumstances, which in my view are relevant in answering the questions posed above, are taken from both the evidence of the State and the defence.

(a) The accused drank four (4) bottles of beer at Garu, while waiting for the building materials to be loaded onto his boat.

(b) The building materials consisted of 36, 16 inch galvanized roofing iron and 7, 7 inch thick fibro sheets to be used for walls. On top of this, the accused allowed passengers to board as well. There were 18 passengers, 14 adults and 4 children. Counting in the accused, there were a total of 19 people on board a 23 footer dinghy which was powered on by a 40 horse power outboard motor engine.

(c) The 18 people were passengers who had initially boarded the boat, but they had to be chased out off the boat by Mark Tickler, who realized that the boat was being grossly overloaded.

(d) When the boat was loaded, the accused pretended to take out to sea. But he watched and waited, until Mark Tickler had well and truly departed, then he made his way back to the beach to pick up all those 18 people who were initially chased away by Mark Tickler.

(e) The accused in cross-examination stated that when the building materials were loaded onto the boat, the sea level which rose to the edge of the dinghy was 40 cm. When the boat is not loaded, the water level is 70 cm from the edge of the dinghy. It is not unreasonable to draw an inference that when people are loaded on top of the building materials, the water level may have risen somewhere from 20-30 cm making it very easy for water to easily flow into the boat.

(f) The boat ride from Garu beach straight to Silovuti is some 3 hours away. Here the dinghy skippered by the accused did not head straight to Silovuti. Instead the dinghy with all its load and passengers diverted and re-routed into Kandoka, where the accused spent about 10 minutes before they left Kandoka again.

(g) The boat left Garu at 5:30 pm and arrived at Kandoka well after 6:00 pm. They stayed there for some 10 minutes. It was 6:30 pm when they departed Kandoka.

(h) As soon as they skippered out to sea, they were greeted by gale force strong winds. The sea was getting very rough and very turbulent. The sea waves were rising to some 1.2 and 1.5 meter high waves. It started to rain and the place had gotten very dark quickly. The waves were pounding on the boat and rocking it from side to side. The tide was also very strong.

(i) The accused tried his very best to ride and navigate the rough seas. Visibility was very poor indeed. Neither him nor any one of his passengers had a torch that they can use to flash and provide some lighting to the boat to guide it to navigate and ride the rough seas. And one of these 1.2 to 1.5 meters high waves crashed right into the boat and capsizing it as a result.

Just before the boat capsized, the nose and the front of the boat was pointed into the waters, but the back end including the skipper and the engine were carried high up by the swelling of the waves, making it a very easy target for the next wave to crash into and sink it, which is exactly what happened here. The boat, its engine and all the building materials sank to the bottom of the sea, never to be recovered again.

33. Having made these findings, I again ask, what degree of negligence can I attribute to the conduct of the accused in the circumstances of this case? In other words, what is the degree of negligence required by Section 287 of the Criminal Code?

34. The High Court of Australia in the case of R –v- Scarta [1945] ASR 38 made a very helpful comment on the approach to take when confronted by similar question. It made this statement (at page 121):

"The question obviously is one of difficulty but in the end it appears to depend upon a choice between two cases. One is to treat the omission to perform the duty to use reasonable care and take reasonable precautions as a description of negligent conduct to be applied according to a single and unvarying standard no matter what the purpose for which the description is employed. The other is to recognize that it may have different applications when it is a description of fault so blameworthy as to be punishable as a crime and when it is used to describe a basis of civil responsibility for them that is occasioned by the omission."

35. And Lord Chief Justice Hewart in Bateman's case described the degree of negligence as:

"It is desirable that, as far as possible, the explanation of criminal negligence to a jury should not be a mere question of degree, and it is for the jury to draw the line, but there is a difference in kind between the negligence which gives a right to compensation and negligence which is a crime."

36. In his submissions learned counsel for the State, Mr Kupmain, boldly submitted that the accused acted with reckless disregard for the life and safety of others as to make his conduct deserving of punishment. He submitted that the boat was overloaded with the building materials comprising 36 sheets of 16 feet galvanized roofing iron and 7, 7 feet fibro sheets to be used for walls. On top of these there were 19 people on board which included the accused as skipper of the boat. In rough weather with very poor visibility conditions, the skipper's sense of judgement was clouded by the four (4) bottles of beer that he consumed at Garu beach. Thus he submitted that, the epithet that could best describe the conduct of the accused is gross and wicked and not really appreciating the risks and dangers thereby putting the life and the safety of his passengers at grave risk and unavoidable danger. The conduct of the accused that evening was such that he grossly compromised the passengers' life and safety and that of the company dingy such that his conduct is sufficient to amount to a crime against the State.

37. Learned counsel for defence, Mr Potoura submitted in response that the accused was not affected in his judgement by the beer he drank. He argued that for the accused it was quite normal to travel with people and cargoes in this kind of circumstances. He submitted that the boat was not grossly overloaded. He stated that the accused did his very best to skipper the boat in these rough conditions. And the boat capsized independently of the will of the accused. He submitted that the rough seas and in particular the high 1.2 to 1.5 meter waves were an intervening factor which occurred independently of the will of the accused. Hence the capsizing of the boat was an accident within the meaning of Section 24(1) of the Criminal Code.

DEFENCE OF ACCIDENT – SECTION 24

38. Section 24 of the Criminal Code provides for this defence. In so far as is relevant it is stated in the following terms:

s.24 – Intention: Motive

(1) Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for:

(a) an act or omission that occurs independently of the exercise of his will; or

(b) an event that occurs by accident.

(c) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(d) Unless, otherwise expressly declared, the motive by which a person is induced –

(a) to do or omit to do an act; or

(b) to form an intention,

is immaterial, so far as regards criminal responsibility.

39. It has been said that Section 24 is intended to make it clear that, subject to the express provisions of the Code relating to negligent acts and omissions, where a person is charged with the commission of a crime, criminal liability shall not attach where the alleged acts or omissions which are said to amount to the commission of the crime charged have occurred independently of the will of the accused, or where, in association with some act or omission of the accused, there have occurred some accidental event, which has substantially brought about the final result, see Mamote Kulang of Tamagot –v- The Queen [1964] 111 CLR 162.

It has been further stated that the defence provided under Section 24 has no application on the trial of a person charged for manslaughter based upon a breach of duty imposed by Section 287. See R –v- Tsagaroan Kagobo [1965-1966] PNGLR 122 @ page 130.

40. Similarly the Supreme Court in the case of Java Johnson Beraro –v- The State [1988-1989] PNGLR 562 stated that the Section 24 defence is made "subject to the express provisions of this code relating to negligent acts and omission," so that in the final analysis, on a charge of manslaughter where death is alleged to have resulted from a failure to use reasonable care or take reasonable precautions as required by Section 287, criminal liability is determined without resort to the Section 24 defence.

41. Amet J in the Java Johnson Beraro case made it clear that "where manslaughter by negligence is alleged under section 287, the authorities are clear that the section 24 defence of accident has no relevance. The s.24 defence is made " subject to the express provisions relating to negligent acts or omissions" so that on a charge of manslaughter where death is alleged to have resulted from a failure to use reasonable care or take reasonable precautions as required by section 287, liability is determined without resort to section 24".

42. The High Court of Australia dealing with the pre- independence PNG case of Evgeniou-v- Reginam [1964] P&NGLR 45 dealt with this misapplication of section 24 definitively. When the charge is that of negligent acts or omissions, under s.287, causing death, s.24 has no application.

43. Following on from these authorities, I find and make a ruling that the defence provided by Section 24 has no application to this case. Criminal negligence will be determined without reference to Section 24. The section 24 defence will be dismissed.

44. In the present case, the circumstances described above shows that this case cannot simply be described as "as mere matter of compensation." In my view, the specific facts giving rise to criminal liability are:

(a) drinking four (4) bottles of beer.

(b) grossly overloading the boat with building materials and passengers.

(c) failing to carry a torch or flash light.

Let me now examine these evidence carefully.

(1) Drinking four (4) bottles of beer.

45. The accused admitted drinking four (4) bottles of beer, when the building materials were being loaded onto the boat. He stated that he was not drunk by the consumption of four (4) bottles of beer.

46. Whilst this maybe so, in my view the drinking of beer, may have had an effect on the judgment and ability of the accused in his control and management of the boat, especially as it was struggling to navigate the 1.2 to the 1.5 meter high waves in rough seas and at dark conditions without any form of lighting to assist and guide him.

(2) Grossly Overloading the boat.

47. The building materials loaded onto the boat comprised of 36 pieces of 16 foot galvanized roofing iron and 7 pieces of 7 foot fibro sheets. These materials were placed on the base of the boat.

48. Then the 18 passengers comprising 14 adults and 4 children jumped onto the boat. Initially, these passengers were chased away by Mark Tickler when they jumped onto the boat. The accused claimed that Mark Tickler had a dislike for his people, so he chased them out of the boat.

49. Another piece of equipment which added a lot to the weight of the boat was of course the weight of the 40 horse power outboard motor itself. Considering all the weight the 23 foot dingy was carry that evening in my respectful view the boat was grossly overloaded when it set out for Silovuti

50. In my view, Mark Tickler did what he did out of genuine concerns and fear for the safety and life of the people on board and not so much a racist or dislike for non-employees or Papua New Guineans as the accused alleges. The accused initially pretended to head out for the sea. But when he saw that Mark Tickler had sailed out to sea, he turned the boat around and headed straight back for Garu where he picked up those people whom he referred as "stranded passengers."

51. This over loading of building materials and people resulted in the sea level to the edge of the boat being estimated at 40 cm. When the boat capsized it sank to the bottom of the sea together with the 40 horse power outboard motor engine as well as the 36, 16 foot galvanized roofing iron and the 7, 7 foot fibro sheets.

52. In my view this shows that the boat was "grossly overloaded" with building materials and people. When the boat was so overloaded, the accused in his capacity as the skipper of the boat, should have stopped more people from boarding. He could have gone straight to Silovuti instead of re-routing into Kandoka. And when it was getting dark at Kandoka, the accused instead of risking the life and safety of the passengers as well as the boat, should have over-nighted at Kandoka instead of taking out to sea at night and without a light.

53. In my view, the accused simply did not care about the life and safety of the passengers as well as the company boat. He did absolutely nothing to take precautions against the terrible weather when he sailed out to sea. Moreover, upon encountering big 1.2 to 1.5 meter high waves and when it began to rain and the current and tide was quite strong, with the place becoming very dark, the accused should have turned around and headed straight back to Kandoka to overnight there and then travel to Silovuti in the morning of the next day.

54. Instead of doing this, the accused took the risk and compromising the lives and safety of the passengers and the boat, the accused skippered ahead only to have the boat capsize and sink in the waves.

55. In my view, the accused showed such a complete and reckless disregard for the lives and safety of the passengers as well as the boat by taking the boat out to sea in such terrible weather conditions.

56. Although the accused is experienced and knows this stretch of water very well, and have transported people and cargo in very bad weather in these seas, in my view such experiences and local knowledge have deceived him to a point where he grossly disregarded and compromised the lives and safety of his passengers and the boat.

(3) Failing to carry a torch or any flash lights

57. The evidence is that neither the skipper (accused) nor any of his passengers carried a torch or flashlight to use and guide the boat to ride the waves in terrible weather conditions. The place had become very dark all of a sudden. Unaided by a torch or flashlight, visibility was very poor indeed. The accused was using his own experience and local knowledge of this area, to manage, control and ride the waves. But without the benefit of a torch, the accused could not even tell as to the direction of those high rolling waves. The accused stated that it was not a company policy to provide torches or lights to boat skippers. Neither is it a company policy to provide life vests on boats for passengers and travelers.

58. Be that as it may, it does not hurt for a person such as the accused who has had a lot of experience in these waters to carry a torch with him every time he travels at night. This is logic and common sense and is not entirely dependent on the company to acquire torch lights for its boat skippers and crew even if it is not a company policy to provide life vests and torches. Indeed his experience of travelling in these waters should have been sufficient to warn him of the dangers and grave risks that lie ahead. Instead as the accused says, he relied on his own local knowledge of these waters and experiences to guide him to navigate these waters. The accused had the opportunity to grab a torch at Kandoka when he travelled there on his way to Silovuti.

59. By choosing not to carry a torch or a flashlight with him, and instead relying always on his own local knowledge and experience of these waters, the accused showed a complete and reckless disregard for the life, safety and the welfare of his passengers. He disregarded the warning given to him by Mark Tickler when he (ie Mark) chased all the passengers out off the boat. Had he taken on board Mark's action as a warning the accused, in all probabilities would not be in the position he is now in. Instead he simply disregarded such warnings.

VERDICT

60. I find and conclude that the boat was so overly and grossly overloaded that its weight directly contributed to its sinking. And the accused as the skipper is directly responsible for all this.

61. Taking all these facts together, I would venture to describe the conduct of the accused in the circumstances prevailing at that time as "gross and wicked". At the relevant time, the accused had a complete and gross and blatant disregard for the life and safety of his passengers and the company boat that his conduct is quite sufficient to attract criminal sanctions. It is a conduct blameworthy of criminal negligence. The factual circumstances described above shows that the accused cared little for the life of his passengers and their safety. The epithet which best describes the conduct of the accused is that he had a gross and careless disregard for the life and safety of his passengers and the boat. He never took reasonable care and reasonable precautions to avoid the dangers that lay ahead of him. He grossly compromised his local knowledge of the seas and his experience as a boat operator with the life and safety of his passengers.

62. By doing this, his conduct can be described as criminally culpable or grossly culpable.

63. In these circumstances the accused who owed a very high duty of care to his passengers did breach that duty of care imposed by Section 287 of the Criminal Code.

64. The accused is by the application of Section 287, found guilty and convicted of the manslaughter of Theresa Manjor Aka pursuant to Section 302 of the Criminal Code.

65. The accused was indicted with one count of manslaughter pursuant to Section 302 of the Criminal Code. The manslaughter arises out of criminal negligence pursuant to Section 287 of the Criminal Code.

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Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused