N7817
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1105 of 2016

THE STATE

V

JOHN MOEH
Defendant

Kavieng:  Kangwia, J.
2019:  12 & 18 April

CRIMINAL LAW – Trial for Manslaughter – Death from boat collision – Defence of accident – No relevance where manslaughter by negligence is alleged  - Whether accused criminally negligent - Circumstances surrounding Collision relevant to determine negligence - Incident occurred in the dark - High speed - Ineffective lighting - Prior knowledge of route and travel by others - Negligence proved - Verdict of guilty returned. 

Cases Cited:

Java Johnson Beraro v The State [1988-1989] PNGLR 562;   
The State v Vincent Waluka (2011) N4414 

Counsel

S. Luben, for the State
M. Titus, for the Defence

18th April, 2019

1.	KANGWIA, J.:  This is a decision on verdict.  The accused pleaded not guilty to one count of Manslaughter pursuant to s 302 of the Criminal Code.

2.	The facts were that the prisoner skippered a 23-foot banana boat along a river in the vicinity of his village.  The boat travelled at high speed and into a canoe that was travelling in the opposite direction. The deceased who was travelling in the canoe was thrown overboard and was later found dead. 
3.	To prove its case the State tendered into evidence by consent the Record of Interview, Report to Coroner, Coroners direction to Doctor, Post Mortem Report of the Doctor and statements of the arresting officer and the corroborator. Two witnesses were called and they gave sworn evidence. 

4.	Their evidence in brief are as follows;

1.	MARNAH NAVAI. 

5.	The evidence of this witness was that at 2am she and the deceased paddled up a river towards the market. She heard a boat coming towards them. They tried to go towards the mangrove. The accused flashed his torch and saw the first canoe that was in front of them. He avoided that boat, swung right and hit their canoe. The accused did not see them. Their canoe overturned and the deceased drowned. She was saved by the accused. In cross-examination this witness stated that she knew the accused as a regular boat operator. She thought the accused had a solar powered torch which was not very bright and he was not travelling too fast. He did not slow down when he swerved from the first canoe. 

2.	HOLLIE VALIEN
 
6.	The evidence of the second State witness was that on 18 May 2016 she was with others who paddled towards the market. She was in the first canoe when she heard the boat approaching. They called out and the boat flashed a torch at them and swerved to avoid hitting them but drove into the canoe that was travelling at the back of them.
7.	When the accused stopped she told him that he had hit the two women in the other canoe. He apologized for the wrong and searched for the women. They saved one but the deceased could not be found. Her body was later found. In cross-examination the witness stated that the torch light was bright but the boat was travelling down at high speed and did not slow down when he swerved. The width of the river was 10 meters and deep. Both canoes did not have any torch. She knew the accused who usually took them to the market along the same route without any collisions.
8.	The accused did not give any evidence. Two witnesses gave evidence for the defence.

1ST DEFENCE WITNESS-EVENI TANI 

9.	This witness was the mother of the deceased. She gave evidence of the accused paying compensation through customary settlement and no more resentment existed.

2ND DEFENCE WITNESS-PASTOR JACK TAUMO

10.	He gave evidence of witnessing the accused doing a customary settlement where he gave cash and goods to the deceased relatives. The deceased relatives said that the deceased died out of a boat accident.

3RD DEFENCE WITNESS-JUNE SOKOT

11.	The evidence of this witness was that he followed the canoe which carried the deceased. He heard the noise of the boat and saw the torch light from it. He moved near to the side but the ladies in his front kept on paddling in the middle when they were hit. He did not hear any calls from anyone.
12.	For the accused Mr. Titus through a written submission submitted that the State had failed to establish that the accused had breached a duty imposed on him pursuant to s 287 of the Criminal Code and therefore he was not criminally responsible for the death. There was no disregard for human life which amounted to a crime against the State.
13.	He referred to the following facts and circumstances as supporting the submission. 
14.	The accused travelled at the request of the deceased to ferry her garden produce which the accused did. It was dark and the deceased canoe did not have a torch. He was not travelling fast and was caught by surprise when the collision occurred. The sound from the boat was loud and he could not hear any calls. He did not hear any calls before or at the point of collision. The other canoes were travelling on the side of the passage and were not involved in any collision unlike the deceased canoe which travelled in the middle.
15.	For the prosecution Ms Luben submitted that the State had proved its case beyond any reasonable doubt. The two State witnesses gave accurate account of what transpired that night. The lady in the front boat called out and the accused avoided them but drove into the deceased canoe which was still in the middle of the river. 
16.	The accused travelled at high speed when his attention was attracted by the occupants of the canoe in the front which made him avoid them but drove into the second boat in which the deceased was in. It was common for women to travel like that to the market and the accused should have known it. He was also involved in transporting the women to the market on the same passage and he was not new there. He had a torch from which he could see the first canoe but did not use it to see others on the river. 
17.	The Court was referred to the case of the State v Vincent Waluka (2011) N 4414 as appropriate authority where the accused was convicted of criminal negligence for not taking reasonable precaution as skipper of a fully loaded boat. It was therefore submitted that the evidence by the State was strong for a conviction on manslaughter.
18.	The present case involves a charge of manslaughter by criminal negligence. The main issue is whether the deceased died from an accident or the criminal negligence of the accused.
19.	The law under s 287 of the Criminal Code places a high degree of duty on every person in charge of dangerous things to take reasonable care or precaution to avoid danger. A breach of such duty would render that person criminally negligent. Section 287 is 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 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 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. 

20.	In the Supreme Court case of Java Johnson Beraro v the State [1988-89] PNGLR 569 his Honour Amet J (as he then was) described what was criminal negligence in the following manner:

“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.” 

21.	In the same case his Honour Bredmeyer J while agreeing with that statement said:

“In the same way on a charge of Dangerous Driving Causing Death the criminal negligence is the quality of driving in the prevailing circumstances and not by the consequences of the driving, for example by the number of people killed.”

22.	It therefore follows that in the present case if the death arose out of an accident it would not amount to criminal negligence and would not be guilty of manslaughter. 
23.	On the other hand, if the accused was criminally negligent in his skippering of the boat he would be guilty of manslaughter. 
24.	The first question is whether the death arose out of an accident.
25.	At the outset the authorities are clear that s 24 defence of accident has no relevance where manslaughter by negligence is alleged pursuant to s. 287 of the Criminal Code. (See Java Johnson Beraro v The State [1988-1989] PNGLR 562 and The State v Vincent Waluka (2011) N4414). 
26.	The facts are clear. There was no activity that occurred independently of the accused that would give rise to the presence of an accident. The accused travelled at high speed, swerved from the first canoe at high speed, and hit the second canoe at high speed. He only stopped after sensing the collision. It was dark and he could not see what or who his boat hit until after the impact. Since there were no intervening factors independently of the accused the defence of accident under s. 24 is not available to him.
27.	The next question is whether the accused was criminally negligent in his operation of the boat as the skipper. 
28.	In order to arrive at a finding as to whether the accused committed criminal negligence the facts need an assessment.

The facts are these;  

i.	The incident occurred along a river. The boat was travelling down while the canoes were being paddled up river. There is no doubt that it would require more manual effort on those rowing a canoe against the flow of the river. In such a situation it is safe to conclude that the canoe on which the deceased was in could not turn sideways quickly enough to avoid a collision with the speeding boat. 

ii.	The accused boat on the other hand travelled down river and with the aid of an engine it required no effort to travel fast apart from controlling the speed and the steering. It is also safe to conclude that the boat could not stop quickly due to its high speed and less friction on water as opposed to a car on a road. The collision was inevitable.

iii.	The incident occurred in the dark. The evidence shows that there was a torch light on the boat. There were no lights in the canoes. The evidence also shows that the light from the boat was shone on the first canoe only which caused the accused to avoid hitting it by swerving to the other side and collided into the canoe on which the deceased was on. No light was shone on the deceased boat. Had he flashed his torch around he could have seen the deceased boat and avoided it. 

iv.	There is evidence that the boat was travelling at high speed. Even though there is some evidence that the boat travelled slowly the impact on the canoe does not suggest that the boat was travelling slowly. I conclude that the boat operated by the accused travelled at high speed. Had he travelled at a lower speed there was every possibility that the collision could have been easily avoided. Had he slowed down after avoiding the collision with the first canoe there is also the bare possibility that the collision would have been avoided. That did not happen. The speed that he applied was in my view careless and to a large extent reckless.

v.	There is evidence that the passage was frequently used by villagers to travel to the market. 

vi.	The accused was on his way to pick up the ladies to carry their produce to the market when the collision occurred. It is apparent that not many people around the area owned boats. They normally travelled by canoe. 

vii.	Upon seeing the first canoe the accused could have slowed down and used his torch to do further search before speeding away. He failed to do that. There was no error of judgement by the accused.

viii.	The accused it seems was an experienced operator who knew very well the stretch of the passage and the use of it by others. He acted recklessly and failed to exercise his prior travel experience on the river passage. He disregarded the safety of other users of the river passage.

ix.	He was in charge of the boat. He had a high duty of care to the others who might use the river passage. In view of the high degree of care he owed to other users of the river he was bound to apply reasonable care and take reasonable precautions to avoid danger. He breached that duty and as a result a death was caused. 

29.	From the totality of the evidence his action to travel at high speed in darkness amounted to criminal negligence. He ought to have known that other people travelled along the river especially the market day. He therefore breached the duty imposed by s 287 and is guilty of manslaughter by criminal negligence pursuant to s 302 of the Criminal Code.

30.	A verdict of guilty is returned.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence