N8284
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 71 OF 2018

THE STATE

V

RICHARD JASON MAGIAU NAMALIU

Waigani: Berrigan, J
2019: 25th, 26th, 27th, 30th September, 1st October, 5th, 11th November
2020: 18th March

CRIMINAL LAW – S. 302 of the Criminal Code - Manslaughter – S. 287 of the Criminal Code - Criminal Negligence – Duty of Care – Breach of Duty – Causation – Death of victim in course of escape.

The accused had been out all night and was under the influence of alcohol.  Sometime between 10 am and 11 am on 11 February 2017 the accused drove his vehicle to the deceased’s residence at 5th Street, Fort Banner, inside the gated residential area of the grounds of the University of Papua New Guinea. As he arrived at her residence he was driving at sufficient speed to draw attention to the vehicle and throw up dust from the road.  Very soon after picking up the deceased, the accused punched the deceased, who was sitting in the passenger seat at the front of the vehicle, in the head three times.  The accused drove at speed away from her house, causing a person standing on the road to jump back to avoid being hit. As the accused drove down from 5thStreet he continued to drive at a speed that was sufficient to attract the attention of bystanders. He was also driving erratically, swerving from side to side, with the blinkers of the vehicle on.  The accused punched the deceased a further two times to the head.  The accused continued to drive at speed towards the Fort Banner gate where the Uniforce Security guard stationed at the gate raised his hands to stop the vehicle.  At the time the deceased was also signalling to the guard to stop the vehicle.  The accused failed to stop.  The guard made a second attempt to stop the accused’s vehicle but the accused drove over the speed hump and over the red cone that was blocking the exit lane, taking the cone with the vehicle as he drove off, and failing to give way to an approaching vehicle as he did so.  The accused then elbowed the deceased in the mouth as they left the gate. He then drove on away from the deceased’s home at increasing speed until he slowed to take the sharp corner near the UPNG Rugby Field. At that point the deceased jumped from the vehicle to escape further assault from the accused. She suffered head injuries upon impact with the road. She was taken to the hospital but died later the same day from her injuries.

Held:

(1)	To establish the charge of manslaughter contrary to s. 302 of the Criminal Code the State must prove that the accused unlawfully killed another under such circumstances as not to constitute wilful murder, murder or infanticide. It is not necessary for the State to establish that the accused intended to kill the deceased or intended to do the deceased any particular harm; the prosecution need only prove that the accused unlawfully killed the deceased.  

(2)	Pursuant to s. 291 of the Criminal Code, any person who causes the death of another, directly or indirectly, by any means, is deemed to have killed that other person. 

(3)	The crime of manslaughter can be committed either by a voluntary act which causes death in circumstances which do not amount to wilful murder, murder or infanticide or by criminal negligence: Griffiths v R (1994) 69 ALJR 77; R v Stott and Van Embden[2002] 2 Qd R 313 applied.

(4)	Pursuant to s. 287 of the Criminal Code it is the duty of every person who has in his charge or under his control anything 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. Furthermore, a person is deemed to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.

(5)	Thus to establish manslaughter through criminal negligence the State must prove beyond reasonable doubt that the accused:  

a.	owed a duty of care to the deceased, such that he was in charge of a thing 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 might be endangered;
b.	breached that duty through criminal negligence (i.e. negligence to the criminal standard); and 
c.	thereby caused the death of the deceased.
(6)	Criminal negligence involves a very high degree of negligence.  There must be negligence which may be described as recklessness involving grave moral guilt, or in other words, negligence which shows such disregard for the life and safety of others as to amount to a crime against the State and deserving of punishment:  Beraro v The State [1988-89] PNGLR 562 applying Evgeniou v The Queen (1965) ALR 209. 

(7)	The test is an objective one and reflects community standards.  The accused’s conduct must be compared with the behaviour of a reasonable hypothetical person in the situation of the accused:  Beraro, Evgeniou (supra).  

(8)	Ultimately, what is or is not, criminal negligence is a question of degree to be decided on the facts of each particular case: Beraro (supra).  

(9)	Whether an act or omission is criminally negligent or not, must be decided by reference to the circumstances at the time the act or omission occurred and not by reference to the consequences thereof: Beraro per Amet J (as he then was). 

(10)	Whether or not there has been a breach of the duty will depend upon whether such danger was reasonably foreseeable: Evgeniou (supra); R v Hodgetts and Jackson [1990] 1 Qd R 456 applied.

(11)	A breach of the duty under s. 287 of the Criminal Code does not depend upon an intention to cause harm; the gravamen of the offence lies in the failure to use “reasonable care and take reasonable precautions to avoid” danger to life, safety and health: R v Clark (2007) 171 A Crim R 532 considered. 

(12)	An accused is deemed to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.  Thus there must be a causal connection between the criminal negligence and the death: Evgeniou, Beraro, Sharp (supra).

(13)	The State must prove that the criminal negligence on the part of the accused was a substantial and operating cause of the death of the deceased.   It need not be the sole or even the main cause of death, provided it contributed significantly to the victim’s death: The State v Subang [1976] PNGLR 179 applying R v Gould (1963) 47 Cr App R 241;  see also R v Cheshire [1991] 1 WLR 844 and Royall v The Queen (1991) 172 CLR 378.

(14)	Causation is not a philosophical or scientific question.  It is a question of fact to be determined by applying common sense to the facts as the Court finds them, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378 at 387, 425 and 441, adopting and applying Burt C.J. in Campbell v. The Queen (1981) WAR 286, at p 290; (1980) 2 A Crim R 157, at p 161.   See also Sharp (supra). 

(15)	The accused owed a duty of care to the deceased pursuant to s. 287 of the Criminal Code.  At the time of the alleged offence he was in charge of a motor vehicle, a thing of such a nature that, in the absence of care or precaution in its use or management, the life, safety or health of another person, in this case his passenger, might be endangered:  Evgeniou v The Queen (1965) ALR 209 applied.

(16)	The accused breached his duty to take reasonable care and precaution to avoid danger to the life and safety of his passenger, the deceased, in the use and management of his vehicle when he created the very real and foreseeable risk that the deceased would suffer serious harm in attempting to escape the moving vehicle when he first assaulted the deceased whilst in charge of that vehicle, and he continued to breach that duty by continuing to assault the deceased, and further, by failing to stop the vehicle in those circumstances.  The danger, or the risk of harm, was extreme and obvious.  This is particularly so given that jumping from the vehicle was the only means of escape available to the deceased.  

(17)	The negligence involved was “gross” or “complete”. The accused’s conduct greatly departed from the standard of care required, or from that which a reasonable member of the community would use in the same circumstances.By repeatedly assaulting the deceased whilst in charge of a moving motor vehicle and by continuing to drive the vehicle in those circumstances, at speed, over a period of time and for some distance, the accused’s conduct showed such disregard for the life and safety of his passenger as to amount to a crime against the State and deserving of punishment.   

(18)	The accused’s criminal negligence was a substantial and operating cause of the deceased’s death.  The deceased died as a result of basal skull fracture, subarachnoid haemorrhage, and right subdural haemorrhage due to blunt force trauma.  Those injuries were suffered when the deceased hit the road after jumping from the accused’s moving vehicle as a consequence of the accused’s criminal negligence. 

(19)	The decision of the deceased to jump from the vehicle did not constitute a novus actus interveniens. Her fear was well-founded and her act of escape was a natural or reasonably foreseeable consequence of the accused’s conduct: Royall (supra) applied.  

(20)	None of the statutory defences applied in this case. Where death is alleged to have resulted from a failure to use reasonable care or take reasonable precautions required under s. 287, liability is to be determined without reference to the defence of accident under s 24(1) of the Criminal Code: Beraro (supra).  

(21)	The State excluded any rational inference that the jumping of the deceased from the vehicle was a sudden or extraordinary emergency pursuant to s. 26 of the Criminal Code.  It was a danger created by the accused.  The accused acted unreasonably in creating the danger and then by failing to stop the vehicle having done so.

(22)	There was no honest and reasonable mistake of fact for the purposes of s. 25 of the Criminal Code. Any reasonable person in the position of the accused would have realised that there was a very real risk that the deceased would jump in the circumstances created by him.

(23) The accused is guilty of the manslaughter of the deceased, Ruby Anne Laufa, through or by criminal negligence, contrary to s. 302 of the Criminal Code.

(24) The evidence also established that the accused is guilty of the manslaughter of Ruby Anne Laufa, contrary to s. 302 of the Criminal Code without recourse to s. 287 of the Criminal Code. The accused caused the death of the deceased by his voluntary acts, i.e. the deliberate and repeated use of violence by the accused against the deceased, in which death in attempting to flee his assault, whilst not intended, was not an accident pursuant to s. 24(1)(b) of the Criminal Code.

Cases Cited:
Papua New Guinea Cases

Beraro v The State [1988-89] PNGLR 562
Denden Tom &Ors v The State (2008) SC967
John Jaminan v The State (No 2) [1983] PNGLR 318
Kristoff v R [1967-68] PNGLR 415  
Pasi, Tangole and Bola v The State [1991] PNGLR 254
Raphael Tomai v The State (2019) SC1865
R v Wilson Otto Nuna (1962) N246 
R v Elly (1965) No 357
The State v John Koe [1976] PNGLR 562
The State v Subang [1976] PNGLR 179
The State v Subang [1976] PNGLR 179 
The State v Andrew Amoy [1978] PNGLR 266 
The State v Joseph Ampi [1988] PNGLR 116
The State v Jeffery Bijuma (1989) N765)
The State v Ngasele(2003) SC731
The State v Laore (2007) N5026
TheState v Waluka (2011) N4414
The State v Yangi (2012) N4573
The State v Sharp (2017) N6813 
The State v Dilu(2019) N7778

Overseas Cases

Campbell v The Queen (1980) 2 A Crim R 157
Evgeniou v The Queen (1965) ALR 209
Kaporonovski v R (1973) 133 CLR 209
R v Cheshire [1991] 1 WLR 844
Royall v The Queen (1991) 172 CLR 378.
R v Morgan [1999] QCA 348 
R v Stott and Van Embden[2002] 2 Qd R 313
R v Clark (2007) 171 A Crim R 532
R v Hodgetts and Jackson [1990] 1 Qd R 456
R v Roberts [1971] 56 Cr App R 95
R v Gould (1963) 47 Cr App R 241
R v Beech (1912) 7 Cr App R 197

References Cited

Sections 24, 25, 287, 291, 300, 302, 574 of the Criminal Code (Ch. 262) (the Criminal Code).

Counsel

Mr. D. Kuvi, for the State
Mr F. Kirriwom, for the Accused

DECISION ON VERDICT
18th March, 2020

1.	BERRIGAN J: The accused is charged with the manslaughter of the deceased, Ruby Anne Laufa, on 11 February 2017, contrary to s. 302 of the Criminal Code (Ch. 262) (the Criminal Code).

2.	It is the State’s case that at the time of the offence the deceased and the accused were in an intimate relationship which was marred by instances of violence.  Between 10 am and 11 am on 11 February 2017 the accused picked up the deceased in his vehicle from her residence at Fort Banner at the University of Papua New Guinea (UPNG).  The State allege that he was driving above the allowable speed limit and in a dangerous manner as he travelled to the deceased’s home.  At the time the accused was under the influence of alcohol having been out drinking all night.  An argument ensued as they drove out towards the Fort Banner gate.  The accused was again travelling above the speed limit and in a dangerous manner.  A resident tried to stop the car but the accused continued past.  It is further alleged that the accused assaulted the deceased on two different occasions as they travelled towards the Fort Banner gate, that he was driving above the speed limit and in a dangerous manner, that the deceased signalled to a guard to stop the vehicle but the accused drove at the guard, who jumped out of the way.  The accused failed to stop at the gate but sped on until he reached a corner in the road, about two hundred metres from the gate, where the deceased jumped from the vehicle to escape further assault.  As a resultthe deceased suffered injuries to her skull which led to her death.

3.	The State says that at the time the accused was in charge of a dangerous object, namely a motor vehicle, and failed to observe due care and precaution in the circumstances described, resulting in the death of the deceased. The State alleges that pursuant to s. 287(1) and (2) the accused is liable for the unlawful death of the deceased under s. 302 of the Criminal Code. 

STATE’s CASE

4.	The State calledsevenwitnesses and tendered the following documents, which were admitted by consent at the beginning of the trial:

Exhibit A: Record of Interview conducted with accused on 25 July 2017 (English original).
Exhibit B:Statement of Pias Ripason dated 6 November 2018 (corroborator).
Exhibit C: Statement of Gabriel Kake dated 6 November 2018 (investigating officer).
Exhibit D: Confessional Statement of the accused dated 25 July 2017.
Exhibit E: Statement of Kobua Dabada dated 21 June 2018 (photographer).
Exhibit F1 to F45: Bundle of photographs taken by Kobua Dabada.
Exhibit G: Record of Death of Ruby Laufa11 February 2017.
Exhibit H: Medical Certificate of Death for Ruby Anne Laufadated 13 February 2017.

5.	At the relevant time, 29 year old, Scotty Benson, from East New Britain/Morobe, had lived for 20 years at the University of Papua New Guinea.  At about 10 am on 11 February 2017 he finished washing a vehicle at his stepfather’s house and brought it up to and parked it at the road when a vehicle, a grey, tinted, Honda CRV went speeding past.  He was angry because he had just washed the vehicle and dust got on it.  He saw the vehicle speed to the house of the deceased, Ruby Anne Laufa.  After five or six minutes it drove back towards him.  He stood on the road in front of the house to stop the vehicle and ask the driver why he was speeding.  As he stood there he could see inside the vehicle to where the driver was punching the offside passenger. At the time the vehicle was between 10 and 14 metres away from him. The driver was holding the wheel with one hand and punching with his other hand (which he demonstrated). He saw the driver punch the passenger three times.   

6.	At first he could not see her face but as the vehicle came closer he could see that the passenger was the deceased.  He has known the deceased since they were children.  Her house was 2 houses away from his.  

7.	At the time he was standing on the left hand side of the road, closest to the passenger side of the vehicle.  The road is about 6 metres wide. He waved for the vehicle to stop but it did not stop and because it was speeding, it nearly hit him, so he jumped back, and the vehicle drove on and that is all he saw. At the time it was a bright, sunny day.

8.	Benson is a security escort driver.  He has been driving since he was 14 or 15 years old.  He estimated that at the time the vehicle was travelling 40 to 50 kilometres per hour. The speed within the university is 20 kmh. 

9.	Under cross-examination he agreed that there were raintrees at the point he saw the vehicle.  He confirmed that it was a sunny day and that when the vehicle was in the shade he could see inside it. The glass at the top of the front windshield was tinted as well as the side and back windows. He saw the passenger try to block the punches with her hand.  He agreed that he had not told police that he saw the driver punch the passenger three times. He did not agree with the suggestion that what he saw was in fact the passenger throwing punches at the driver.  

10.	Alexander Aihi, 21 years old, from Central, student at Mapex Training Institute, has lived his entire life at Fort Banner.  At about 10 am on Saturday, 11 February, 2017 he was with two friends walking towards 5th Street to get a hair trimmer from a friend’s (Bobby) house when a vehicle passed them.  They went to Bobby’s house for about two minutes and picked up the trimmer.  As they were walking back from Bobby’s house he heard the loud sound of an engine and turned around to see a grey, Honda CRV, coming down the road, swerving from side to side, at high speed, with its blinkers on.  At the time he was walking on the left hand side of the road, travelling in the same direction as the vehicle. Through the windscreen he saw the driver punching the offside passenger. The vehicle was between 10 to 12 metres away when he saw the accused hitting the deceased inside the vehicle.  At the time the accused was holding the steering wheel with one hand and hitting her with the other.  He saw two punches.  As the vehicle drove past him he heard the deceased shout out in the vehicle.  He does not know what she was saying but heard her calling out in pain. 

11.	He did not know the deceased very well but he saw her around where she lived and was sure it was her he saw in the vehicle.  He identified the accused in court as the driver of the vehicle. He did not know him at the time of the alleged offence.  He identified the vehicle shown in Exhibits F23 and F24 as the vehicle he saw that day.  He and his friends could not do anything because the vehicle was speeding.  It was speeding in a residential area and that drew his attention. It was a fine, sunny day. 

12.	Under cross-examination he clarified that when he said “high speed”, he meant the vehicle was driving at a speed slightly faster than the limit of the residential area, which was 20 to 30 kilometres per hour. He saw the accused punch the deceased twice on the side of her head.  The deceased’s face was twisted in pain. He maintained that he saw very clearly the accused assault the deceased.  He strongly disagreed with the suggestion that he saw the deceased punch the accused.  Or that what he heard was in fact the raised voice of the deceased arguing with the accused.

13.	Piskaut Cyphus, 24 years old, from Kavieng, psychology student at UPNG has been a resident at Fort Banner for 23 years.  At about 10 am on Saturday, 11 February 2017 he was with Bobby and Alex going to Bobby’s house on 5th Street to get a hair trimmer when a grey vehicle sped passed them.  They went to Bobby’s house and were there about one minute to get the trimmer before walking back down again.  As they were walking down the same vehicle came back with its blinkers on.  Through the windscreen he saw the driver punching the passenger. The driver had one hand on the steering wheel and one hand punching the passenger (which he demonstrated). The vehicle was about 13 to 14 metres away when he saw this.  As the vehicle went passed he heard a woman screaming inside.  He could see the figure of a woman but did not know who it was at that time.  The vehicle was travelling fast; 40 to 50 kmh maybe 60 kmh.  The speed limit in the residential area was 20 to 30 kmh. The sun was up but it did not affect his ability to see that morning.

14.	Under cross-examination he said he knew that the speed limit was 20 to 30 kmh because there were signboards but that they had been removed a long time ago. On entering the grounds at Gate 5 there was a sign that states the limit of 20 kmh. He did not agree with the suggestion that in fact it was not the driver who assaulted the passenger but the passenger who kicked and punched at the driver. 

15.	Wenge Nelson, 45 year old from Kimbe, has been an employee of Uniforce Security, UPNG’s security force, for about 10 years.  On 11 February 2017 he was stationed as a guard at University Housing Estate, Gate 2, at the entrance to Fort Banner.  At 1049 am he heard an engine revving at high speed from the direction of the housing estate towards the gate at which he was standing.  He turned towards the estate and saw a grey CRV, BER 689, dark glass coming towards him at high speed.  He raised his hand to stop it but it did not stop and came all the way to the speed hump at the gate.  At the time he was facing the driver.  Inside the vehicle he saw a woman struggling and signalling, raising her arm up and down three times (which he demonstrated) and moving her lips to say “stopim, stopim”, although he could not hear her. At the time he saw the woman inside the vehicle signalling him the vehicle was between 6 and 10metres away.  

16.	He made a second attempt to stop the vehicle but it drove over the hump and the red cone that was blocking one of two lanes, the exit lane, which was closed and took the cone with it.  When he saw that he radioed security base to tell the guards at the next stop to stop the vehicle.  At the time there were two other vehicles on the road, a Nissan Navara and a Mini-Bus. 

17.	As the vehicle approached the hump it did not slow down.  At the time there was a green taxi, a sedan about 15 to 16 metres away coming towards the entrance which had right of way.  The CRV did not stop but sped past him and the other vehicle.   He identified the vehicle in Exhibits F23 and F24 as the one he saw that day. 

18.	The speed limit within the whole of the university is 30 kmh.  The vehicle was travelling at “high speed”.  He estimated that from the boom gate to what he described as the “sharp corner”, where the vehicle stopped the distance is about 150 to 170 metres.  

19.	After radioing he saw a Uniforce vehicle, Landcruiser, ZSU188, which was parked at the field carpark, respond.  As the CRV689 reached the corner he saw its brake lights come on.  It then turned around to face back towards him at the gate.  The Landcruiser pulled in near the CRV. A short time later he heard the officer from the Landcruiser report over the radio that a girl had been injured. 

20.	Under cross-examination he confirmed that he maintained eye contact with the vehicle as it drove to the sharp corner where he saw the break-lights come on, and then the vehicle turned around, faced him and stopped.  He did not see anyone jump out of the vehicle. He saw a Landcruiser come behind the CRV and then both vehicles drove off, with the Landcruiser following behind. He did not see anyone put into the car from the side of the road as his view was obstructed by some trees.  He could see the vehicle but not see any people.  He maintained that 30 kph was the speed limit inside the entire university. 

21.	As the vehicle approached him at the gate it drove straight.  He strongly disagreed that he saw the passenger fight with the driver or that she was wrestling with the steering wheel.  He saw the woman struggling, moving one arm up and down.  He could not hear her but saw her saying with her lips “stopim, stopim”. He disagreed that the car ran off the road.  The driver came speeding and jumped over the hump and landed a little bit to the side. After that it took off and followed the road travelling at high speed, all the way to the corner. 

22.	Rex Mbalupa, 45 years old, has been employed by Uniforce Security, for the past 24 years and as Security Manager for the past 9 years.  At 1049 am on 11 February 2017 he was parked in his security vehicle at the UPNG Rugby Field Oval having an early lunch when he heard the guard at the residential gate call to say a suspicious vehicle was heading towards the main gate.  He saw two other vehicles, a Nissan Navara double cab, and a minibus van come ahead.  He then saw a grey Honda CRV with dark glass, travelling at high speed, not a normal speed so it looked suspicious, at about 60 kmh or upwards.   When it turned the corner opposite the PNG IPA it slowed down.  Mbalupa then drove onto the road. Soon after he did that the CRV turned back around and drove back about 10 metres before stopping.  Mbalupa drove to the vehicle and stopped at the front of the vehicle.   Mbalupa then saw a girl lying on the road.  She was bleeding on her face.  The driver of the CRV asked if he could help him and take the girl to the hospital.  Mbalupa told him to take her himself.  Mbalupa insisted and helped the driver, whom he identified in Court as the accused, put her into the back seat of the CRV.  Mbalupa then called Security Operations and identified the vehicle as BER 689. He followed the vehicle but the driver pulled out at high speed.  He went to Police Traffic at Four Mile and reported the incident.  Another guard found the vehicle at 2K Clinic.  He saw the accused at the clinic and again at the hospital. With police support they transferred the deceased to Port Moresby General Hospital.

23.	 Exhibit I was admitted through Mbalupa without objection.  It is a Google map showing the following locations, or points:

a)	A: Where Mbalupa was sitting at UPNG Rugby Field carpark at the relevant time;
b)	B: The deceased’s house;
c)	C: Where the deceased was found on the road;
d)	D: The gate to residential area. 

24.	He identified the accused in Court as the driver of the grey Honda CRV who asked him to take the injured girl to hospital.  At the time the accused appeared drunk.  His eyes were red and bloodshot and he smelt of beer.  The normal speed limit within the university premises is 30 kmh. There are sign boards and the UPNG residents know. At the time he saw the vehicle travelling between point D and C it was travelling between 60 and 80 kmh.  He has been a driver for 22 years.

25.	Under cross-examination he agreed that there were no road signs between Points B and D, and D to C in February 2017. He maintained, however, that all drivers know the rules of driving, although he agreed that he could not be sure that a driver would know that the limit was 30kmh at the time.

26.	At the checkpoint at Point D, there is a gate and a hump to slow down vehicles. There is a hump between Point D and B, and a third hump at Point D. 

27.	Maurice Laufa, lawyer and academic is the father of the deceased.  In 2017 he was living at 5th Street, Fort Banner, UPNG. On 11 February 2017 he woke up late at about 9 am.  After getting ready he went to the kitchen at about 9:40 am where he saw the deceased in the lounge room watching television.  He said good morning and went to make coffee.  He noticed that she had the washing machine on and was doing her laundry.  He picked up his laptop and left the house at about 10:05 am.  His second daughter, Sheridan, had not yet come out of her room when he left. 

28.	At the time he saw the deceased she appeared healthy and normal.  She suffered asthma sometimes but it was nothing to be concerned about. He had spoken to her on Friday, 10th, the day before, and told her to reconfirm her re-enrolment to complete studies, and she said “yes”. There was nothing physically wrong with her and she was generally in good spirit. She was looking forward to completing her studies at the Legal Training Institute (LTI). At about 11.40 he received a phone call from his daughter Sheridan to say that there had been a terrible accident.  He rushed to the hospital where he saw the deceased lying on a table.  Her face was covered in blood. At 3pm the neurosurgeon advised him that she had died. 

29.	Dr Seth Fose, has been a medical practitioner for 20 years, and a specialised pathologist for 10 years.  He has a Bachelors in Medicine and Surgery, a Master’s Degree in Medicine specialising in pathology.  He also has a Degree in Law and postgraduate qualifications from the LTI.  He was admitted as a lawyer in 2012.  He is employed by the National Department of Health as the Chief or State Pathologist for PNG and based in the Department of Pathology at Port Moresby General Hospital.   He is responsible as the administrator of pathology services in the country and clinically conducts autopsies and blood tests.

30.	On 13 February 2017 he conducted an autopsy on the deceased. His autopsy report was admitted without objection as Exhibit J.  He identified the cause of death as basal skull fracture, acute subarachnoid haemorrhage and right-sided subdural haemorrhage, which was consistent with falling from a moving vehicle.  The other injuries sustained, including the bruising of the deceased’s eyes, and the bruising to her lips, could be due to blunt force trauma or the basal skull fracture, or the face hitting the bitumen. With respect to the latter it was difficult to say which was more likely.  If it was a result of being repeatedly punched on the mouth, the deceased could have injuries inside and outside the mouth.  Exhibit J, page 7, shows that she did.

31.	He expressed the opinion that it is more common for someone to sustain basal skull fracture from a vehicle travelling at high speed than someone falling off a vehicle.   However, a person falling from a vehicle travelling between 30 to 40 kmh could also sustain a basal skull fracture.   

DEFENCE CASE  

32.	The accused gave evidence in his own defence.  He is 28 years old from East New Britain, and a small business owner.  He met the deceased in late September 2015 and a relationship started in about December that year.   She was looking after a friend’s apartment and invited him to stay and they spent most of their time up until New Year’s Day at the apartment.  He described the relationship as like any other, with its up and downs but one where they loved and cared for each other immensely.  

33.	On New Years’ Day in 2016 they went out drinking.  At about 4 am that morning the deceased experienced a lot of pain.  He gave her some Panadol and the pain stopped before it worsened and he rushed her to the Emergency Room at PIH.  She had a large file at the hospital.  He asked her if there was something she was not telling him and she told him she would tell him later.  He called her sister, Shea, to tell her the deceased was at the hospital and Shea said that the deceased goes to the hospital all the time. After she was discharged the deceased told him that her previous partner had no time for her and this caused her to go out clubbing, drink excessively and take drugs, as a result of which she failed at the LTI.  

34.	At about 8 am on Friday, 10 February 2017 at the deceased’s request he went to pick her up to take her to the LTI to see if she got re-admitted.  Her father was yelling, calling her an embarrassment and a failure and threatening that if she did not go and check LTI and get admitted he’d kick her out of the house. They went to the LTI at 9 am.  She refused to go for lunch.  She was told Mrs Mogish was still busy.  She was frustrated and started kicking the car.  He calmed her down and she agreed to go and get something to eat.  He told her to keep her spirits high but she refused to eat.  They returned to the LTI at about 3pm and the deceased was able to see Mrs Mogish.  After about 10 minutes the deceased stormed out crying and ran to the vehicle.  She was frustrated and angry.  Mrs Mogish had told her to try again in July.  He told her that it was not the end of the world.  She did not want to go home.  They went to his house and sat on the lawn.  He tried to encourage her but she wasn’t paying attention.  His cousin arrived and he asked the deceased if she wanted to follow them in to play video games and she told him to go.  He was playing when he received a text message from the deceased in which she swore at him for leaving her on the lawn alone.  She wanted to go home.  He tried talking to her but she did not respond.  At her Dad’s house she got out of the vehicle without speaking.  He called for her to come back.  He hugged her and told her that he loved her and that everything was going to be okay.  She just nodded her head and went into the house.

35.	After dropping her off he went home and took a nap.  At about 8 pm he received a message from the deceased saying that she couldn’t deal with anything anymore, and that she had had enough.  He asked her where her sister was.  She told him she was in the next room and he asked her why she didn’t talk to her. The deceased said they didn’t talk like that so he asked if she wanted to see him.  She did and he went over that night.  

36.	Between 9 am and 10 am the following morning he was waiting at his cousin’s house when he got a text from the deceased asking him to pick her up to take her to the hair salon.  He dropped his cousin off first. He drove to UPNG and into her yard.  The deceased’s sister was having a cigarette.  He acknowledged her and waited for the deceased to come down the steps and she got into the vehicle and they drove out.  As they were making their way towards the gate there was an awkward silence; she was on her phone.  They went over the first hump.  As they were heading towards the second hump she looked towards him and pulled out his Facebook profile and asked him: “When did you go back to Facebook?”.  He told her that he needed to be on Facebook for work.  He said that he: “was not on Facebook to fuck around like some people”.  She “flipped out” and got mad and said: “Are you calling me a slut?”.  He said: “If the shoe fits”.  She “blew up” and started slapping him, all the while he was trying to prevent the slaps.  She unbuckled herself.  Whilst heading towards the gate, she tried to take control of the wheel, kicking at the windscreen wiper and punching him.  He said that the windscreen wiper handle in Exhibit F30 was broken as a result of the deceased punching and kicking as they drove towards the gate. As they were passing the gate, the deceased reached over and grabbed the wheel and tried to turn the vehicle into the gate.  He regained control, whilst taking one of the cones.  He got angry and struck her with his elbow in the mouth.  He elbowed her just once (which he demonstrated).  After that she fell back into the seat.  She stopped being violent so he decided to talk to her calmly.  As they came towards the bend, she told him that she’s had enough and wanted it all to end. She said: “I am going to jump”.  She tried to jump out of the car.  He locked all the doors manually. Whilst negotiating the bend, she unlocked the car and jumped out.  

37.	In response to the question as to how long it was after she said she was going to jump that she did, he said it was “instantaneous”. 

38.	As soon as she jumped, he looked over, the door was wide open, he applied full breaks.  He was in shock looking in the rear viewmirror.  Simultaneously, the UPNG security guard parked beside the accused’s window. He was swearing at the accused.  The accused told him to please go and check her, he would turn around.  He reached over and closed the door and turned the vehicle around.  He parked next to her.  There was a pool of blood.  He was talking to her and asked her, if she could hear him, if she was okay.  Whilst checking on her the security guard came up and continued to abuse him and questioned if he was drunk.  The accused asked him to help him put the deceased into the car and follow him to the hospital.  The guard said “No, you do it yourself”.  So, the accused lifted the deceased up and put her in the back seat of his vehicle, buckled her in, before telling the security guard to follow him to the hospital.  He drove to Boroko 2K Medical.  

39.	Once there he ran into the emergency ward and screamed for help.  Nurses assisted, put her on a bed and attended to her.  He called Mr Laufa twice but there was no answer so he rang the deceased’s sister and told her that the deceased jumped out of the car and asked her and her father to come to 2K Medical.  He called his father, then his brother but there was no answer, so then his sister, by which time a doctor came to him and told him to talk to the deceased so that she does not lose consciousness.  He stayed with her for at least 2 hours.  The police and the Uniforce Security guard came to the emergency ward and insisted on taking him away.  He asked them to wait until one of the deceased’s family members or his own had come.  They waited around and then the doctor pulled him aside and said that there was nothing much he could do.  They didn’t have the equipment there, so he proposed that the accused take the deceased to Port Moresby General Hospital.  The accused asked the doctor why he didn’t tell him this before and the doctor said she was okay when she came in but deteriorated later.  The accused asked the doctor to organise an ambulance and the deceased was taken to the hospital.  The accused followed, with the police behind. 

40.	The deceased was taken into the intensive care unit at PMGH.  Mr Laufa arrived and charged at him.  The police restrained Mr Laufa and took the accused away.

41.	At the time the deceased jumped, he was negotiating the bend and both his hands were on the steering wheel.

42.	Under cross-examination the accused said that after receiving a phone call on the 10th, he spent at least four hours with the deceased between 9 pm and 1 or 1:30 am.  He agreed that after that he met up with his cousins and went to the Cosmopolitan for a concert but said that before that he was attending to two flat tyres for one or two hours on top of the freeway.  A security car came.  His spare was flat so they “rolled down” to Hohola where they got the tyres fixed.  They made their way over to the Cosmopolitan at around 3 or 3:30am. They shared a tower of beer between about eight people.  After Cosmopolitan closed they went to KMC and had something to eat before going to another mate’s house at Five Mile where he had just one glass of whiskey.  He did not agree that he had two glasses of whiskey at Five Mile as stated in his Confessional Statement, Exhibit D.  When he said in his Confessional Statement that he had two glasses of whisky he was referring to one glass of whiskey he had at the club and one he had at Five Mile.  

43.	He disagreed that he had no sleep before picking up the deceased the following day. He had a four hour nap after dropping her back at her house and before going back at about 9 pm. He was not exhausted.  The alcohol did not affect him because he was not drinking that much.  As to the security guard’s observation that he was under the influence of alcohol at the time of the incident, he was distressed because of what had happened.  He did not deny that he had some alcohol in his system but he was “not sure two glasses constitute being drunk”. 

44.	He was going out with the deceased for just under two years.  He did not frequent the Fort Banner residence.  The whole of 2016 she wasn’t at UPNG, she was staying with different relatives.  But during their relationship he did take her to Fort Banner.  He did not know there was a certain speed limit there but he agreed that it was a housing estate and so you have to drive at a reasonable speed for those circumstances. He was driving at the same speed that anyone else would drive there.  He denied that he was speeding on the morning of the incident.  He denied that he was speeding on 5th Street because the street has potholes and it would have damaged his car.  It is not true that he was intoxicated and that he did not care.

45.	The argument about Facebook did not start until they were approaching the gate.  The whole time from her house to the main stretch of road they were silent.

46.	He denied that he started assaulting the deceased just after she got into the vehicle and they drove out, just under a raintree past her house.  He denied that he assaulted her again on the road leading down to the main access.  His car is 80% tinted, with the darkest tint available.  The only thing that can be seen of the people inside the vehicle are the hands of the driver on the steering wheel.  He disagreed the tint only covered the top 20% of the windscreen. He maintained, upon being shown Exhibit F23, that the tint covered half of the windscreen.  

47.	Having reference to Exhibit I, the argument started between where it says 800 m and 600 metres. As they approached the gate, the deceased unbuckled herself and tried to turn the car, and was kicking at the steering wheel.  He had to move past the cone, after that the deceased tried to turn the vehicle into the gate.  He got angry and elbowed her and she settled down.  He didn’t stop the car.  She wasn’t too violent. 

48.	As for why he did not stop the vehicle when she was interfering with his driving, he said that it all happened after the check point. 

49.	He said that he did tell police that the deceased threatened to jump out just as they were approaching the bend, and it should be in his confessional statement. He didn’t stop the car then because he was negotiating the bend, and instantaneously when he locked the door, she opened the switch and jumped out. He didn’t have time to react. 

50.	He disagreed that he assaulted the deceased on the road near her house; again on the road leading to the gate; or that the vehicle’s blinkers were on; that he was speeding; or that he was drunk.  He did not agree that he nearly ran over the security guard at the check point; he did not see him because the deceased was hitting him and trying to get control of the wheel. The deceased was not trying to get the guard to stop the vehicle, she was trying to drive the vehicle into the gate. He did not speed through the gate.  He only assaulted her once at the gate.  She settled down. From the gate to where she jumped happened so fast he didn’t have time to react.  From the gate to where she jumped, everything happened in a matter of seconds. He was not speeding but he might have been going between 40 and 60 kmh but that is the normal speed that everyone drives there. 

ASSESSMENT OF WITNESSES

51.	I have assessed the credibility of the witnesses, that is, their honesty and reliability based upon a consideration of their evidence in the context of the evidence as a whole, their demeanour when giving evidence, and bearing in mind that I may choose to accept or reject, in whole or in part, the evidence of any witness.

52.	I was impressed by each of the State witnesses and accept them as honest and reliable.  Each gave evidence in a direct and straight forward manner, the effect of which was not shaken under cross-examination. The evidence of the State witnesses made sense in the context of, and was consistent with, the evidence as a whole.  I will return to particular aspects of the evidence below.

53.	Having heard and observed the accused I am unable to accept him as a witness of truth. This is based on a combination of my assessment of his demeanour when giving evidence together with the content of that evidence. 

54.	At times he was argumentative in his evidence.  In his record of interview he said he drove along the stretch of road on which the incident occurred “everyday”, whilst in his evidence he “did not frequent” Fort Banner as the deceased had not stayed there during 2016, although he later agreed that he was familiar with it.  Despite photographic evidence to the contrary in Exhibit F23, he maintained that 50% of his windscreen was tinted.

55.	There were a number of inconsistencies between his testimony and his confessional statement and/or record of interview.  In his record of interviewhe said that he and the deceased conversed after he picked her up, whilst the effect of his testimony was that there was “an awkward silence” as they drove towards the gate until the Facebook argument took place. 

56.	His evidence that the deceased was kicking and punching him, broke the windscreen wiper switch and deliberately tried to run the vehicle off the road, is inconsistent with his evidence that he did not need to stop the vehicle because the deceased “was not too violent”. 

57.	In his record of interview he said that the deceased told him that she would jump and opened the door in her “first attempt” to do so“ just after the cones at the Security Gate after elbow (sic) her”: Exhibit A, Q&A 77. In his Confessional Statement, Exhibit D, p 3 he said:

“That made me angry and I landed my left elbow on her face and told her to calm down but that too could not stop her, she told me that she would open the door and jump off the car, hearing that I told her not to do that but she made the first attempt which I quickly lock (sic) the central locker on my side.  As we approached the 1st corner some distance away she opened her side door and jump off the car just at the corner”.

58.	In his testimony the accused did not mention a first attempt.  He said that the deceased told him that she intended to jump out as he slowed to take the corner, he locked the doors, she opened them and jumped out. The time between the deceased’s statement that she would jump and her jumping was “instantaneous”.  

59.	The accused’s testimony is also at odds in many key respects with the evidence of each of the State’s witnesses which I accept for the reasons stated above and which I will return to below. 

60.	I make it clear that, I take account of these matters in relation to the accused’s credibility and the reliability of his evidence only and for no other purpose.  The accused gave evidence although he was not obliged to do so. By entering the witness box and giving evidence he did not take upon himself any obligation to prove anything in this trial.

61.	Similarly, whilst I accept Mr Mbalupa’s account of what the accused did immediately after the deceased jumped from the vehicle, and words spoken by him shortly thereafter, I have not taken it into account for inferring any consciousness of guilt on the part of the accused.

RELATIONSHIP EVIDENCE 

62.	The State was allowed to call Hanley Logoso to give evidence about the nature of the relationship between the accused and the deceased: see The State v Richard Namaliu(2019) N8080.  

63.	He gave evidence in relation to two incidents, the first in February 2016 and the second in or about November of the same year.  Whilst the defence did not object at the time, the deceased’s description of the second incident was hearsay, and I exclude it from my consideration.  The statement that the deceased intended to obtain a restraining order against the accused, however, was direct evidence of her state of mind in late 2016.  I also take into account, however, that the deceased told the witness a few days later that she did not wish to proceed with the restraining order. The evidence of the event in early 2016 was, as led, somewhat unclear and without greater context is of limited weight. 

64.	Whilst the State indicated at the time of calling Mr Logoso that there would be a number of witnesses to give evidence as to the relationship between the accused and the deceased, he was the only witness called on the matter.  

65.	No evidence was led from the deceased’s father and he was not cross-examined on the subject. The accused’s evidence, below, is that they were in a relationship at the time, and that they loved one another very much, albeit that the relationship had its ups and downs.

66.	In the circumstances, it is not possible to say with any degree of certainty what the state of the relationship was at the time of the alleged offence.  Whilst I am able to find that they had been in an intimate relationship prior to the incident, whether it was still on foot at that time, I cannot say. Nor can I find that it was one marred by instances of violence. 

VIEW OF THE CRIME SCENE 

67.	At the close of the evidence and prior to submission, the State applied for the Court to view the alleged crime scene.  Pursuant to s. 574 of the Criminal Code, “the Court may in any case view any place or thing that it thinks desirable that it should see”.

68.	The defence had no objection to the application.  Scenes are visited in appropriate cases to enable the Court to get a better understanding and appreciation of the evidence already before it, particularly in relation to the physical setting of the place at which an alleged offence may have been committed: Denden Tom &Ors v The State (2008) SC967.  In this case the evidence concerned events said to have occurred along a 1.2km stretch of road between the deceased’s house and the bend where she fell from the vehicle.  I formed the opinion that a view would assist me understand the evidence given. 

69.	Before conducting the view, I recalled the parties to clarify the procedures to be followed.  Both parties agreed that the scene, or the conditions at the scene remain largely unchanged since the date of the alleged offence in February 2017.

70.	I made it clear that I was conducting a view only.  It was not a demonstration or a reconstruction and it was not necessary for any of the witnesses to attend. I reminded the parties then, and remind myself again now, that the view can be used by the Court to assist its understanding of the evidence heard but it is not of itself evidence: R v Elly (1965) No 357; Kristoff v R [1967-68] PNGLR 415.

71.	It was agreed with both counsel that it would assist for the State Prosecutor to point out the following locations, and take the following measurements, the results of which are indicated:

a)	The deceased’s house, marked B on Exhibit I;
b)	The security checkpoint or gate, marked D on Exhibit I;
c)	The corner or location marked C on Exhibit I;
d)	The UPNG Rugby Field marked A on Exhibit I;
e)	The distance from:

i.	Point B to Point A: 1.35 kilometres;
ii.	Point B to Point C: 1.21 kilometres;
iii.	Point B to D: 937.54 metres; and
iv.	Point D to C: 275.40 metres.

72.	The view was conducted on 1 October 2019.  The State Prosecutor, the accused and his lawyer were present, amongst others. We walked from the deceased’s house, point B to point A, on Exhibit I. As directed, the parties and I returned to Court immediately afterwards to confirm what happened during the view, including the above measurements. Counsel also advised me that two large sculptures close to the rugby ground were not there at the time of the alleged offence.

MANSLAUGHTER THROUGH CRIMINAL NEGLIGENCE

73.	To establish the charge of manslaughter contrary to s. 302 of the Criminal Code the State must prove that the accused unlawfully killed another under such circumstances as not to constitute wilful murder, murder or infanticide.

74.	It is not necessary for the State to establish that the accused intended to kill the deceased or intended to do the deceased any particular harm; the prosecution need only prove that the accused unlawfully killed the deceased.

75.	Pursuant to s. 291 of the Criminal Code, any person who causes the death of another, directly or indirectly, by any means, is deemed to have killed that other person.

76.	Here the State invokes or relies on s. 287 of the Criminal Code to prove that the accused caused the death of the deceased through criminal negligence. S. 287 provides (emphasis added): 

“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.”

77.	Thus itis the duty of every person who has in his charge or under his control anything 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. Furthermore, a person is deemed to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.

78.	It follows that to establish manslaughter through criminal negligence the State must prove beyond reasonable doubt that the accused:  

d.	owed a duty of care to the deceased, such that he was in charge of a thing 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 might be endangered;
e.	breached that duty through criminal negligence (i.e. negligence to the criminal standard); and 
f.	thereby caused the death of the deceased.

See The State v Dilu (2019) N7778. 

79.	It is well established that criminal negligence involves a very high degree of negligence:  Beraro v The State [1988-89] PNGLR 562(emphasis mine):

“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.

The words used there to use reasonable care and take reasonable precautions sound like words describing civil liability for negligence. Nevertheless, it has been well established that these words describe a much higher degree of negligence, namely criminal negligence. This matter was decided in Australia by the High Court in Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115, an appeal from a section in the Western Australian Criminal Code equivalent to our s 287. The High Court in a unanimous decision (at 124) held that, because those 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 gave rise to civil liability. The High Court considered that those words describe the common law criminal standard of negligence. That view was followed by the High Court on an appeal from the pre-Independence Supreme Court of Papua New Guinea in Evgeniou v Reginam [1964] P&NGLR 45 at 46. That has been followed by numerous judges in Papua New Guinea. An example, involving a charge of manslaughter by shooting, is R v Peck (Williams J, SC No 650 of 19 October 1971, unreported).
The classic statement of criminal negligence at common law is found in the judgment of Lord Hewart CJ reading the unanimous judgment of the Court of Criminal Appeal in R v Bateman (1925) 28 Cox’s Crim Cas 33 at 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 epithet 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 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.” 
That decision was affirmed by the House of Lords in Andrews v Director of Public Prosecutions [1937] AC 576, where at 583, Lord Atkin said:
“[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 shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction.”

80.	In summary, there must be negligence, which may be described as recklessness involving grave moral guilt, or in other words, negligence which shows such disregard for the life and safety of others as to amount to a crime against the State and deserving of punishment: Beraro applying Evgeniou v The Queen (1965) ALR 209 and Bateman(1925) 28 Cox’s Crim Cas 33. 

81.	The test is an objective one and reflects community standards.  The accused’s conduct must be compared with the behaviour of a reasonable hypothetical person in the situation of the accused:  Beraro, Evgeniou (supra).  

82.	Ultimately, what is or is not, criminal negligence is a question of degree to be decided on the facts of each particular case: Beraro.  Furthermore, whether an act or omission is criminally negligent or not, must be decided by reference to the circumstances at the time the act or omission occurred and not by reference to the consequences thereof: Beraro per Amet J (as he then was).

83.	A number of authorities have considered the application of s. 287 in cases involving the use of a motor vehicle. In Evgeniou, discussed above, the High Court of Australia upheld a conviction of manslaughter through criminal negligence in circumstances where the accused killed a pedestrian by driving a car at reckless speed and with insufficient attention to dangers on the road.

84.	In The State v John Koe[1976] PNGLR 562 Prentice DCJ found that where the accused who had consumed a large amount of alcohol drove a dangerously defective vehicle, into a section of a busy market, “fishtailing” at least twice from one side to the other, taking most of the road space and crossing double centre lines in the process, colliding with a stationary vehicle on his wrong side of the road, nearly colliding with another vehicle on its correct side of the road, accelerating, jumping a concrete kerb and proceeding to knock down some 11 people killing two of them, proceeding without any visible lessening of speed through the market, across a road and into a fence; that the accused’s driving exhibited for an appreciable time and over a significant distance a very high degree of negligence, such as could well be described as “reckless” and a complete disregard for the lives and safety of others.

85.	Similarly, in The State v Andrew Amoy [1978] PNGLR 266 the accused was convicted of manslaughter on evidence which disclosed that he drove his motor vehicle at a speed of approximately 90 miles per hour along a familiar highway whilst aware of the presence of people in the vicinity, and deliberately not keeping a look out to the sides of the road in order to avoid his face being seen by his villagers (he being accompanied by his girlfriend) and that he ran down a person (being in fact his wife) who had run out in front of the car and who subsequently died from the injuries received.

86.	In The State v Subang [1976] PNGLR 179, however, Saldanha J ruled that there was no case to answer on a charge of manslaughter in circumstances where the accused whilst driving at speed attempted to overtake another vehicle and failed to notice an oncoming motor cycle.  In attempting to bring his vehicle to a stop, a vehicle he was aware had defective brakes, he lost control and blocked the path of the motor cycle inevitably causing a collision.  

87.	In The State v Dilu (supra) I found the accused not guilty of manslaughter but guilty of dangerous driving causing death when, whilst travelling at about 40 kmh in the inner lane of two lanes bound in one direction, he failed to observe the deceased and her sister,and struck the deceased when she stepped out from behind a vehicle stopped in the outer lane at the pedestrian crossing.  

88.	The above cases have involved harm caused to other road users, including pedestrians.  In R v Wilson Otto Nuna (1962) N 246 the accused was driving a tip-truck carrying a number of passengers to a local church.  Near the church, all alighted except the deceased who was having difficulty getting down whilst holding her baby.  The accused, assuming all had alighted, began to drive off and the deceased was flung off the truck receiving injuries which resulted in her death.  The Court in describing the case as “border-line” found that the accused should have taken the precaution of checking that all passengers had alighted before starting up the truck.  Failure to do so amounted to criminal negligence. 

89.	 In The State v Waluka (2011) N4414 the accused was a skipper of a dinghy which capsized and sank in rough seas. In addition to loading the dinghy with building materials, the accused allowed 18 passengers on board on top of those materials.  Just before embarking, the accused drank four bottles of beer. It was dark and raining with gale force winds, a fast tide and running current. Waves swelled up from 1.2 to 1.5 meters in height. The accused carried no form of lighting.  The Court was satisfied that the boat was ‘grossly overloaded’ when it set out facing obviously adverse weather conditions, and that his conduct was grossly negligent. 

90.	In The State v Sharp (2017) N6813 Higgins J found that there was no case to answer for the death of 140 passengers who died following the capsizing of the Rabaul Queen after it was hit by three “rogue” or unexpectedly large waves.  The State alleged that the accused in that case failed to take all reasonable steps to safeguard the life and safety of all on board in anticipation of such an unforeseen event.  Whilst the Court accepted that there was prima facie evidence against the captain of the ship of an absence of any muster of passengers, of emergency signal recognition instruction, of life raft embarkation areas and of effective life-jacket usage or access he found that there was a tenuous causal connection between those failures and the death of any passengers. At [136] he said:

“There was but 20 seconds, during which the ship was unexpectedly and significantly pitched to starboard, not once, but twice before the 3rd wave struck capsizing the vessel. To assume that musters or emergency assemblies or distribution of life-jackets, or, even, access if not impeded could have led to the donning of life-jackets is to my mind, fanciful.”

91.	Returning to the present case, the State submits that the accused was grossly negligent because he was drunk and exhausted, he was travelling above the speed limit and in a dangerous manner, and he assaulted the deceased.

92.	The defence says that there was nothing in the accused’s use of the vehicle that caused the deceased to jump from it.  Further, that the deceased’s jumping from the vehicle was not foreseeable and that no reasonable person could have been expected to prevent the deceased from doing what she did.
Findings of Fact

93.	The evidence establishes and I find that the accused was tired having been out all night on the evening of 10 February 2017 and into the morning of 11 February 2017.  On the evidence of Mbalupa the accused “appeared drunk”, his eyes were bloodshot and he smelt of alcohol.  On that evidence and by his own admission in his confessional statement, record of interview and oral testimony, I find that the accused was under the influence of alcohol.  Both those factors may have contributed to his conduct but they were no excuse and nor on the evidence did either deprive him of any capacity to understand what he was doing, or not doing, or to control his actions.

94.	Sometime between 10 am and 11 am on 11 February 2017, the accused drove his vehicle, a grey Honda CRV, registration number BER 689, to the deceased’s residence at Fort Banner, located on 5th Street inside the gated residential area of the grounds of the University of Papua New Guinea.   As he arrived at her residence he was driving at sufficient speed to draw attention to the vehicle and throw up dust from the road.  

95.	Very soon after picking up the deceased, Ruby Anne Laufa, and leaving her house, the accused punched the deceased, who was sitting in the passenger seat at the front of the vehicle, in the head three times.  The deceased was trying to block the punches with her hand.  I accept Benson’s evidence that it was a sunny day and that he could see through the windscreen when the vehicle was in the shade under the rain trees as it drove towards him whilst he was standing on the road. I also accept his evidence that he saw the accused punch the deceased three times to the head.  Further, that despite the fact that he was standing on the road, Benson had to jump back to avoid being hit by the accused’s vehicle which drove at speed and did not stop.  

96.	As the accused drove down from 5thStreet he continued to drive at a speed that was sufficient to attract the attention of both Alexander Aihi and Cyphus Piskaut.  He was also driving erratically, swerving from side to side, with the blinkers of the vehicle on.  Both Aihi and Cyphus turned around to face the vehicle upon hearing the loud sound of the engine.  I accept their evidence that they were able to see into the vehicle through its windscreen when they turned to face it.  On that evidence I find that the accused punched the deceased a further two times to the head.  The deceased’s head was twisted in the appearance of pain and she was heard to call or scream out in pain.  

97.	The accused continued to drive towards the Fort Banner gate where the revving of his engine also attracted the attention of Wenge Nelson, the Uniforce Security guard stationed at the gate, who turned to see the vehicle coming towards him at a speed that was not appropriate for a residential area.  He raised his hands to stop the vehicle but the accused did not stop.  Again I accept the witness’ evidence that he could see inside the vehicle, where the deceased was struggling and moving one arm up and down, signalling him to stop the vehicle.  I also accept his evidence that she appeared to be mouthing the words “stopim stopim”.  He made a second attempt to stop the vehicle but it drove over the speed hump and over the red cone that was blocking the exit lane, taking the cone with it as it drove off.  At the time there was another vehicle, a green minicab, approaching the gate which had right of way.  By the accused’s own admission he elbowed the deceased in the mouth as they left the gate and travelled towards the corner. 

98.	The accused did not stop but drove at increasing speed until he approached the sharp corner near the UPNG Rugby Field where he slowed down to take the corner.  

99.	At that point the deceased jumped from the vehicle.  The State has not sought to establish that the deceased deliberately pushed the deceased from the vehicle.  Nor does the evidence support that conclusion given on both the State and the defence cases that the vehicle was travelling at speed towards the corner, then decelerated to take it and yet managed to remain on the road.  I am not an expert but I don’t see how the accused could take the corner, and reach over, open the door and push the deceased out all at the same time.  For similar reasons the evidence does not establish that the deceased fell from the vehicle because the car door was sprung open by one of them whilst he was in the immediate process of assaulting her.  

100.	The deceased was found on the side of the road near the point where she jumped. She was taken to 2K Hospital by the accused and subsequently to Port Moresby General Hospital but died later that day from her injuries.

101.	It is not in dispute that the distance from the gate to the corner is about 270 metres.  

102.	Further findings of fact are set out below as required. 

Duty of Care

103.	The accused does not dispute that he owed a duty of care.  Rather, he submits that there was no breach of the duty, alternatively, if there was a breach of the duty, it did not cause the death of the deceased.  He also seeks to raise the defence of extraordinary emergency.

104.	I am satisfied beyond reasonable doubt that the accused owed a duty of care to the deceased pursuant to s. 287 of the Criminal Code.  At the time of the alleged offence he was in charge of a motor vehicle, a thing of such a nature that, in the absence of care or precaution in its use or management, the life, safety or health of another person, in this case his passenger, might been endangered:  Evgeniou v The Queen (1965) ALR 209 applied.

Breach of Duty 

105.	As above, the duty of a person under s. 287 of the Criminal Code is to “use reasonable care and take reasonable precautions” in the “use or management” of a thing that might otherwise cause danger to the life, safety and health of others. 

106.	It follows that whether or not there has been a breach of the duty will depend upon whether such danger was reasonably foreseeable. As Thomas J of the Queensland Court of Criminal Appeal said in R v Hodgetts and Jackson [1990] 1 Qd R 456 in considering the equivalent provision of s. 287in its Criminal Code, upon which ours is modelled, and which I find persuasive (emphasis mine):

“Section 289 imposes no duty to guard against dangers that are not reasonably foreseeable. (Evgeniou, per Taylor J. at 511–512 and Owen J. at 515).  It is of course not necessary that the precise result be foreseen or foreseeable. But in the context of the present charge an accused could not be found criminally4negligent unless at least some serious harm was reasonably foreseeable by him.”

107.	Furthermore, it is clear that a breach of the duty under s. 287 does not depend upon an intention to cause harm; the gravamen of the offence lies in the failure to use “reasonable care and take reasonable precautions to avoid” danger to life, safety and health.  Per Keane JA in R v Clark (2007) 171 A Crim R 532 at [22] to [23], dealing again with s 289 of the Queensland Criminal Code:

“[T]he duty, breach of which is a crime against the state deserving of punishment, is a duty to use "reasonable care and take reasonable precautions to avoid" danger to life, safety and health. Of course, whether or not a person has failed to use "reasonable care and take reasonable precautions" is a classic jury question. For present purposes, however, the point is that a contravention of the duty imposed by s 289 does not depend upon an intention to cause harm: the gravamen of the contravention lies in the failure to use "reasonable care and take reasonable precautions to avoid" danger to life, safety and health. Whether there has been a failure in this sense on the part of an accused person does not depend upon an intention to cause harm but upon a failure to take reasonable steps to avoid danger. What is reasonable in this context inevitably depends upon the nature of the danger and the extent of the opportunity of the accused person to ensure that the danger does not lead to injury to life, safety or health. In some cases, the danger will be extreme and obvious; in such cases, deliberate and active diligence will be required to discharge the duty of reasonable care imposed by the section. In other cases, the danger may be relatively slight or remote; in such cases, it may be that only conscious disregard of the danger will amount to a failure to exercise reasonable care worthy of punishment as a crime.

108.	The defence submits that other than evidence that he ran over the traffic cone at the exit gate, there was nothing in the accused’s use and management of the vehicle that breached his duty.  I don’t agree.  

109.	I am satisfied beyond reasonable doubt that the accused breached his duty to take reasonable care and precaution to avoid danger to the life and safety of his passenger, the deceased, in the use and management of his vehicle.  He breached the duty when he created the very real and foreseeable risk that the deceased would suffer serious harm in attempting to escape the moving vehicle when he first assaulted the deceased whilst in charge of that vehicle, and he continued to breach that duty by continuing to assault the deceased, and further, by failing to stop the vehicle in those circumstances. The danger, or the risk of harm, was extreme and obvious.  This is particularly so given that jumping from the vehicle was the only means of escape available to the deceased.  

110.	The negligence involved was “gross” or “complete”. It involved the deliberate, and repeated, use of physical violence, by the accused to the head of the deceased. The evidence shows that the accused repeatedly assaulted the deceased soon after picking her up at 5th Street, as he travelled down towards the gate, and again, on his own admission, soon after they exited the gate. There is a very strong inference that he continued to assault her between the time that Scotty Benson saw him on 5th Street and when he was seen by Aihi and Cyphus, and again as he continued on past them in the process of assaulting the deceased.  But in any event the evidence clearly shows that he punched the head of the deceased at least five times, and elbowed her in the mouth once, soon after leaving the gate. 

111.	In addition, not only did the accused fail to stop the vehicle in those circumstances but he deliberately refused to stop.  He failed to stop at 5th Street, when he drove past Scotty Benson, and again at the exit gate, when he was both directed by the security guard to stop on two occasions, and in circumstances where the deceased made it very clear she wanted the vehicle to stop. 

112.	Instead, he deliberately drove through the exit, almost collided with another vehicle on the road, and on, at increasing speed, away from the accused’s home and out towards the main road. 

113.	It is not possible on the evidence to make any definite determination about the speed the accused was travelling at different times inside the residential area at Fort Banner. Nevertheless, it was sufficient to throw up dust, cause his engine to roar, and arouse attention.  The evidence of the witnesses establishes that as a matter of common sense he was driving too fast for a residential area.  Furthermore, his speed increased as he travelled out from the gate of the residential area at Point D, towards the corner, at Point C on Exhibit I.  Mr Mbalupa says he was travelling between 60 to 80 kmh as he approached the corner.  Whilst he is an experienced officer, he is not an expert. By the accused’s own admission, however, he was driving between 40 and 60 kmh.  On the evidence I find that the accused accelerated away as he exited the gate and travelled towards the corner.  Whether or not he was driving above the legal limit, or above the limit for the university grounds is beside the point.  The continued driving of the vehicle would have in itself added to the deceased’s fear.  Most importantly, however, by continuing to drive he was driving too fast for the circumstances given the dangerous risk he had created that the deceased would suffer serious harm jumping from the vehicle. It is not in dispute on Dr Bose’s evidence that in general terms the faster a vehicle is travelling the greater the likelihood that a person jumping from it will suffer serious injuries.

114.	Furthermore, the breach extended over a period of time, and a distance of about K1.3 kms, from very soon after he picked up the deceased at her home and up until the time she jumped. 

115.	The accused’s conduct greatly departed from the standard of care required, or from that which a reasonable member of the community would use in the same circumstances.

116.	In summary, by repeatedly assaulting the deceased whilst in charge of a moving motor vehicle and by continuing to drive the vehicle in those circumstances, at speed, over a period of time and for some distance, the accused’s conduct showed such disregard for the life and safety of his passenger as to amount to a crime against the State and deserving of punishment.   
Causation 

117.	Pursuant to s. 287, where an accused breaches his duty he is deemed to have “caused any consequences which result to the life or health of any person by reason of any omission to perform that duty”.  Thus, in a case of alleged manslaughter there must be a causal connection between the criminal negligence and the death:  Evgeniou, Beraro, Sharp (supra).

118.	As explained by Thomas AJ in R v Morgan [1999] QCA 348 at [13] (Criminal Code references inserted in place of provision numbers and chapters as they appear in the Queensland Criminal Code, emphasis added)s 287 provides its own statement on causation:

“There are two separate streams of law which may lead to a conviction of manslaughter under the Criminal Code. One is under Division 3 (homicide - suicide - concealment of birth); the other is under Division 2 (duties relating to the preservation of human life). The distinction extends to a different approach on the issue of causation(Evgeniou; R v Hodgetts& Jackson) … Section 287, which deals with the duty of persons in charge of dangerous things, provides its own statement on causation. It firstly imposes a duty upon persons who have any dangerous thing in their control to take reasonable precautions to avoid danger, and then provides that the person having control of such a thing "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". This presents a wider base of activity upon which a conviction may be based than the act or omission that causes death in homicides under Division 3. Fighting another man while holding a knife might be the gravamen of a charge of manslaughter by criminal negligence, just as continuing to drive a car knowing it to be defective might be the gravamen of a motor car case based on criminal negligence. An accused may be found criminally liable for the reasonably foreseeable consequences of fighting with a knife even if his final act was unwilled or even if the victim injures himself on the knife. By contrast criminal liability for homicide under Division 3 is based upon the particular act or acts of the accused person which cause the death.”

119.	Here the accused may be found criminally liable for the reasonably foreseeable consequences of assaulting his passenger whilst driving a vehicle, and continuing to drive his vehicle having done so. 

120.	The State must prove that the criminal negligence on the part of the accused was a substantial and operating cause of the death of the deceased.   It need not be the sole or even the main cause of death, provided it contributed significantly to the victim’s death: The State v Subang [1976] PNGLR 179 applying R v Gould (1963) 47 Cr App R 241; see also R v Cheshire[1991] 1 WLR 844 and Royall v The Queen (1991) 172 CLR 378.

121.	Causation is not a philosophical or scientific question.  It is a question of fact to be determined by applying common sense to the facts as the Court finds them, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378 at 387, 425 and 441, adopting and applying Burt C.J. in Campbell v. The Queen (1981) WAR 286, at p 290; (1980) 2 A Crim R 157, at p 161.   See also Sharp (supra). 

122.	The defence submits that the deceased’s voluntary act of jumping from the vehicle was a novus actus interveniens breaking the chain of causation. 

123.	The State’s evidence has excluded any suggestion that the deceased’s injuries were sustained as a result of a decision to commit suicide.  The evidence of Mr Laufa shows that the deceased had been in good spirts in the days immediately preceding the incident.  When her father spoke to her the evening before she appeared to be in a positive frame of mind.  When he said goodbye to her that morning, she seemed fine and was performing the routine task of doing her laundry.  Mr Laufa was not challenged about these or other matters in the lead up to the incident, nor was the accused’s claim that Mr Laufa yelled at the deceased the night before and told her she was a failure and he would throw her out of the house if she did not get back into LTI put to him in cross-examination.  Evidence as to whether or not she got back into LTI was hearsay.

124.	As to the accused’s statements about the deceased’s undisclosed medical issues, past drug taking and alcohol use, there is no evidence before me to support those suggestions and, in any event, they were not shown to be relevant.  A needle mark was observed on the deceased’s wrist as evidence of “recent medical intervention” but the autopsy report is otherwise “unremarkable”.  Ultimately, the evidence of what happened that day speaks for itself.  The statements by the accused were in my view a poor attempt to paint the deceased as neurotic and unstable and likely to throw herself from a moving vehicle on a suicidal impulse.  On the evidence, the only person under the influence of any substance that morning was the accused. 

125.	Moreover, I do not accept the accused’s version of events, in particular, that they travelled in silence for a short time before it was the deceased who started an argument between about 600 and 800 metres from her house, and close to the gate at Point D on Exhibit I.  In contrast, the clear evidence of the State witnesses, which I do accept, is that the accused was already assaulting the deceased very soon after leaving her house and again not long after leaving 5th Street and well before where the accused says any argument started.  Nor do I accept his evidence that he hit her in response to her attempt to run the car off the road at the gate, when again, the clear evidence of the State witness is that she was signalling to the guard to stop the vehicle.  The evidence of Security Guard Wenge Nelson was simple yet compelling.  The deceased’s conduct was not that of someone who wanted to die but someone who was in fear for her life.

126.	The defence further submits that there is no evidence that the accused repeatedly assaulted the deceased to justify her jumping.  As above, the evidence establishes otherwise.  I note, however, that I do not accept the submission that the accused needed to repeatedly assault the deceased before it became foreseeable that she would seek to escape.  Whilst every case must be considered on its facts, in general terms that risk would arise immediately, and in my view was present from the time he first assaulted the deceased at 5th Street. 

127.	The defence also submits that there is no evidence that the deceased continued to assault the deceased after he hit her a short time after passing the gate, nor immediately prior to the time she jumped from the vehicle.  That is beside the point.  The evidence establishes that he repeatedly assaulted her as he drove down to the gate, and he admits he hit her again once after they left the gate. The situation inside the vehicle was objectively very frightening.  There was a further distance of at least 200 to 250 metres during which the accused could have stopped the vehicle and avoided the very real risk that the deceased would try to escape by jumping from the moving vehicle.  He did not.  Instead he drove at increasing speed towards the corner.  In his own words: 

“From the gate to where she jumped happened so fast I didn’t have time to react. From the gate to where she jumped, everything happened in a matter of seconds”.   

128.	The time required to travel that distance was short but only because the accused continued to drive, and at speed.  By his own admission he was travelling between 40 and 60 km per hour.  His duty to the deceased must be seen in the context of the risk he created. 

129.	The defence relies on the following passage from Brennan J in Royall (supra), at [3], which I have reproduced in full:

“The basic proposition relating to causation in homicide is that an accused's conduct, whether by act or omission, must contribute significantly to the death of the victim: Pagett (1983) 76 Cr AppR 279, at p 288. It need not be the sole, direct or immediate cause of the death. However, when the death is not caused directly by the conduct of the accused but by something done by the victim or by a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken. If the response is a reflex or automatic reaction to the conduct of the accused, the chain of causation is not broken. It is also well established that the death may be held to have been caused by an accused's conduct though the direct or immediate cause of death is a final fatal step taken by the victim where that step is taken in an attempt to preserve himself or herself from physical harm which unlawful conduct on the part of the accused has induced the victim to fear, provided the victim's attempt at self-preservation is reasonable having regard to the nature of the accused's conduct and the fear it was likely to have induced (or, as I would prefer, provided the attempt is proportionate to that conduct and the fear it was likely to have induced): Reg. v. Pitts (1842) Car and M 284 (174 ER 509); Reg. v. Grimes and Lee (1894) 15 NSWR 209; Curley (1909) 2 Cr AppR 96; (1909) 2 Cr AppR 109; Director of Public Prosecutions v. Daley (1980) AC 237, at pp 245-246. In such a case, the taking of the final fatal step is not a novus actus interveniens breaking the chain of causation: Pagett, per Robert Goff LJ. at pp 288-289. On the other hand, where the victim's attempt at self-preservation is not reasonable (or proportionate), the chain of causation is broken and the victim's death is not treated as having been caused by the accused's conduct. Subject to a qualification presently to be mentioned, the question whether the chain of causation is broken by the victim's taking of the final fatal step is a question of fact to be answered by reference to the objective circumstances. Nevertheless, an accused cannot be held criminally responsible for a death that has been caused in fact by his conduct if the final fatal step taken by the victim was neither foreseen nor reasonably foreseeable. Foresight or reasonable foreseeability marks the limit of the consequences of conduct for which an accused may be held criminally responsible. In Roberts (1971) 56 Cr App R 95, at p 102, Stephenson L.J. said (in a case of an assault occasioning bodily harm):
"The test is: Was it the natural result of what the alleged
assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so 'daft,' in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury."
The question whether an accused whose conduct has led to a death is criminally responsible for the death when the death has been caused by a final fatal step taken by the victim thus depends on the reasonableness (or proportionality) of the victim's attempt at self-preservation and the accused's foresight, or the reasonable foreseeability, of the possibility that a final fatal step might be taken by the victim in response to the accused's conduct.

130.	The defence submits that I should distinguish this case from Royall. In that case the deceased fell to her death from the window of a 6th floor apartment building after a violent altercation with her former boyfriend.  There was evidence of a struggle in the bathroom, including hair, blood splatters, a chipped ashtray, and gouge marks on the wall, suggesting that he had swung the ashtray at her.  The prosecution case was that the accused murdered the deceased in one of three ways:  by pushing her out of the window; or that she fell in the course of avoiding an assault; or that she deliberately jumped from the window. Royall maintained that she had drug use problems and that she committed suicide.  He was convicted and ultimately appealed to the High Court, which dismissed his appeal.  

131.	Members of the High Court differed in their expression of the test but in summary held that where a victim is injured or killed in the course of attempting to escape, the accused will be responsible for causing the result if the victim’s response was a “natural consequence” of the accused’s conduct (per Mason CJ, Deane and Dawson JJ).  The victim’s action will be a natural consequence of the accused’s conduct if the accused induced in them a well-founded and reasonable apprehension of physical harm, and the victim’s response to the threat was “reasonable” in all the circumstances (per Brennan, Deane, Dawson, Toohey and Gaudron JJ). 

132.	It is useful to have regard to the following English cases considered by the High Court in reaching its conclusion. In R v Beech (1912) 7 Cr App R 197, the accused was convicted of inflicting grievous bodily harm after the complainant had jumped out of a window to escape his threatened attack and injured herself. The Court of Criminal Appeal upheld the conviction and said (at p 200) that no one could say "that if she jumped through the window it was not the natural consequence of the prisoner's conduct. It was a very likely thing for a woman to do as the result of the threats of a man who was conducting himself as this man indisputably was."

133.	In R v Roberts [1971] 56 Cr App R 95 the accused made unwanted sexual advances to a young woman in his car.  When he tried to take her coat off, it was “the last straw” and she was injured when she jumped out of the car which was travelling at speed, namely 30 miles per hour. The accused’s appeal against conviction of assault occasioning actual bodily harm was dismissed by the Court, the decision given by Stephenson LJ who said at p.102:

"The test is: Was [the victim's reaction] the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequences of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so 'daft,' in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury."

134.	Royall is clearly persuasive.  I note, however, that the High Court preferred to speak in terms of “natural consequences” rather than foreseeability to avoid confusing a jury.  Whilst it is helpful I don’t think it is necessary to restrict consideration to that terminology in this jurisdiction.  

135.	The deceased is not here to speak for herself.  I am satisfied beyond reasonable doubt, however, that the deceased jumped from the vehicle in fear for her own life and safety.  The evidence excludes any other rational inference.  I have no doubt that she was very frightened. When the accused slowed the vehicle to take the corner, the deceased chose in the “agony of the moment” to take the only means of escape available to her.  In other words, I have no doubt that the deceased jumped from the vehicle in a desperate act of self-preservation.  

136.	Furthermore, as outlined above, the deceased’s fear was well-founded and her act of escape was a natural or reasonably foreseeable consequence of the accused’s conduct.  Her jumping did not constitute a novus actus interveniens. 

137.	I am satisfied beyond reasonable doubt that the accused’s criminal negligence was a substantial and operating cause of the deceased’s death.  The medical evidence establishes that the deceased died as a result of basal skull fracture, subarachnoid haemorrhage, and right subdural haemorrhage due to blunt force trauma.  Those injuries were suffered when the deceased hit the road after jumping from the accused’s moving vehicle as a consequence of the accused’s criminal negligence.  

138.	For completeness I note that the medical evidence excludes any suggestion that the deceased may have died as a result of inadequate facilities at the 2K Medical Clinic.  The accused’s evidence in that regard is hearsay and is not consistent with the evidence of, nor was it put to, Dr Bose.  There is no evidence of medical negligence here and in any event, even if there were, the question would remain whether the injuries suffered as a result of the accused’s criminal negligence were an operating and significant cause of death, or whether the negligence was so potent in itself as to make his conduct insignificant:  see R v Cheshire [1991] 93 Cr. App. R. 251 at 258 per Beldam LJ.

Defences

139.	None of the statutory defences apply in this case. The State has excluded them beyond reasonable doubt as part of establishing the principal facts. 

140.	As above, it is well established that in a case where death is alleged to have resulted from a failure to use reasonable care or take reasonable precautions required under s. 287, liability is to be determined without reference to the defence of accident under s 24(1)(b) of the Criminal Code: Beraro.  In this case the deceased’s death was a foreseeable consequence of the accused’s use and management of the vehicle.

141.	The accused relies on the defence of extraordinary emergency pursuant to s.26 of the Criminal Code which provides:

“Subject to the express provisions of this Code relating to acts done on compulsion or provocation, or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”

142.	The elements of the defence are that:

a.	the accused does an act or makes an omission under circumstances of sudden or extraordinary emergency; and
b.	an ordinary person possessing ordinary power of self-control could not reasonably be expected to have acted otherwise than the accused did in those circumstances: The State v Joseph Ampi [1988] PNGLR 116; The State v Jeffery Bijuma (1989) N765); The State v Yangi (2012) N4573; The State v Laore (2007) N5026.

143.	The defence of extraordinary emergency is an excusatory defence. If the defence is raised on the evidence, the State bears the onus of disproving it. It is not for the accused to prove that there was an extraordinary emergency. It is the duty of the State to prove that there was not. Because it is a type of excusatory defence the State must disprove (exclude) the defence beyond reasonable doubt (John Jaminan v The State (No 2) [1983] PNGLR 318);

144.	I have already found that it was foreseeable on the facts that the deceased would jump. The State has excluded any rational inference that it was a sudden or extraordinary emergency.  It was instead a danger created by the accused. The accused acted unreasonably both in creating the danger and then failing to stop the vehicle having done so. The defence does not apply.

145.	For similar reasons, there was no honest and reasonable mistake of fact for the purposes of s. 25 of the Criminal Code. It is unclear what is meant by the accused’s statement in his confessional statement that he “thought she would not jump off the car” but as above, any reasonable person would have realised that there was a very real risk that she would in the circumstances. 

146.	In conclusion, I am satisfied beyond reasonable doubt that the accused is guilty of the manslaughter of the deceased, Ruby Anne Laufa, through or by criminal negligence, contrary to s. 302 of the Criminal Code.

MANSLAUGHTER WITHOUT RECOURSE TO S.287

147.	In my view it was not necessary for the State to proceed against the accused by invoking s. 287 of the Criminal Code, or at least it was not necessary to confine itself to s 287. 

148.	I would have thought that in most cases the intention of an accused in a homicide case was a classic question for the finder of fact.  Nevertheless, the State decided in this case not to charge the accused with murder and that, of course, is entirely a matter for it: The State v Ngasele(2003) SC731.

149.	In this regard the State submits that there was no “malice” on the part of the accused.  I am not sure what the State means by that.  The term “malice” has no place in the jurisprudence of this country.  Sir Samuel Griffith in drafting the Criminal Code of Queensland upon which ours is based deliberately avoided the use of terms “malice” and “maliciously”:  see Carter’s Criminal Law of Queensland, 20th Edition, 2015 at [s. 23.1]. 

150.	In any event, this was never a case of negligence or nothing.  This was a case involving the deliberate use of violence against the deceased by the accused.

151.	I had indicated earlier in the proceedings that putting aside s. 287 of the Criminal Code, the question remained whether the accused’s conduct, without lawful justification or excuse, directly or indirectly caused the death of the deceased for the purposes of s. 302 of the Criminal Code.  

152.	Prior to hearing submissions on verdict I asked both parties to address me on whether or not I could consider whether manslaughter had been established without recourse to s. 287 of the Criminal Code, and if so what different considerations would apply.

153.	The defence submitted that I may not. The State agreed with the defence but did not advance any reasons for its submission. 

154.	The defence referred to Raphael Tomai v The State (2019) SC1865.  I agree that case has no application here.  It concerns s. 547(1) of the Criminal Code where a person might be found guilty of a different indictable offence of a similar nature.  It provides that (emphasis mine):

“If on the trial of a person charged with an indictable offence the evidence establishes that he is guilty of another indictable offence of such a nature that on an indictment charging him with it he might have been convicted of the offence with which he is actually charged, he may be convicted of the offence with which he is so charged.”

155.	Here we are dealing with the one indictable offence of manslaughter.

156.	The defence relies on Pasi, Tangole and Bola v The State [1991] PNGLR 254 in which the Supreme Court ruled that an alternative finding of murder under s. 300(1)(a) (the offender intended to do grievous bodily harm) of the Criminal Code was not available where the State had prosecuted at the National Court on the basis of s. 300(1)(b) (death was caused by means of an unlawful act done in the prosecution of an unlawful purpose).  

157.	The Court by majority (Kapi DCJ, Salika J, Los J (dissenting) stated that (emphasis mine):

“The Public Prosecutor has submitted that, even though he concedes that the trial judge was wrong in applying s 300(1)(b) of the Code, it was open to the National Court and is therefore open to the Supreme Court to support the conviction under s 300(1)(a) of the Code. It would have been open to discuss the application of s 300(1)(a) of the Code if, at the trial, the prosecutor proceeded on the murder charge under two alternative bases, that is to say, under s 300(1)(b) or alternatively under s 300(1)(a) of the Code: see The State v Joseph Maino. However, it is clear, and this appears from the judgment of the trial judge, that Mr Miviri, who prosecuted this case, did indicate that the State was relying only on the provisions of s 300(1)(b) of the Code. In the circumstances, therefore, it is not open to consider the application of s 300(1)(a) of the Code.

On a charge of murder, the accused person may be convicted of an alternative verdict of manslaughter: s 539(2) of the Code. Clearly s 547 of the Code is not applicable. There is no doubt that the deceased died of a ruptured spleen and there is ample evidence to show that this injury was received from the assaults committed by the three appellants and on the basis of the trial judge’s finding, Hubert Bola delivered the fatal injury and the other two persons were aiding in the fight. I find them guilty of manslaughter.”

158.	In my view Pasi is also distinguishable.   It concerned an allegation of murder, which in the circumstances of the appeal would have required the Supreme Court to make its own finding of intention on the part of the accused to cause death or grievous bodily harm.  Only Los J, dissenting, was willing to do that.  The majority had no hesitation, however, in finding the accused guilty of manslaughter.  

159.	In this regard it must be borne in mind that manslaughter is what is sometimes described as the “residual category” of homicide.  All that is required to establish it is that a person has killed another without lawful justification or excuse, “under such circumstances as not to constitute wilful murder, murder or infanticide”: s 302.  The offence reflects the value that the community places on human life.

160.	It is also important to make clear that s. 287 does not create a separate offence of manslaughter.  Nor indeed is s. 287 limited to cases involving death, A person may be responsible for causing “any consequences that result to the life or health” of another from criminal negligence, including for example grievous bodily harm. 

161.	Rather, s. 287 feeds into s. 291 (any person who causes the death of another, directly or indirectly and by any means whatever, is deemed to have killed that other person) and then into s. 302 (a person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter) by virtue of the deeming provision under s. 287(2) of the Criminal Code.  

162.	Per Atkinson J in R v Stott and Van Embden[2002] 2 Qd R 313 at [34] to [35]:

“ The crime of manslaughter may, however, as I have said, be proved by the prosecution in more than one way. As the High Court held in Griffiths v. R(1994) 69 A.L.J.R. 77: 
“The crime of manslaughter can be committed either by a voluntary act which causes death in circumstances which do not amount to murder … or by criminal negligence.”
Accordingly, it was open to the Crown to prove in this case that the appellants killed the deceased by a voluntary act — i.e. by supplying a strong dose of heroin in circumstances in which the death, while not intended, was not an accident. Thus, it was appropriate for the learned trial judge to instruct the jury as he did. In addition, it would have been open to the prosecution to prove that the appellants killed the deceased by criminal negligence. If the jury is satisfied of the latter ground of liability, the defence of accident is not open as it is in the former.” 

163.	As above, it was open to the State to prove that the accused caused the death of the deceased by criminal negligence.  It was also open to the State in this case in my view, to prove that the accused killed the deceased by his voluntary acts, ie physically assaulting her, in which death in attempting to flee his assault, whilst not intended, was not an accident pursuant to s. 24(1)(b) of the Criminal Code.  

164.	Section 24 (Intention, Motive) provides that (emphasis mine):

(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.

165.	There can be no doubt that the repeated assault of the deceased was willed and intentional.  It did not involve acts which occurred independently of the exercise of the accused’s will.  Thus s 24(1)(a) did not apply.  

166.	Nor for the reasons outlined above could it be said that s. 24(1)(b) applied. As above, the deceased’s fear was well-founded and her act of escape was a natural or reasonably foreseeable consequence of the accused’s conduct.

167.	Per Gibbs in Kaporonovski v R (1973) 133 CLR 209:

“It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person: see Vallance v The Queen, Mamote-Kulang v The Queen, Timbu-Kolian v The Queen, and Reg v Tralka … (notes omitted)”.

168.	Nor would the defence of provocation under s. 267 of the Criminal Code apply.  There was no argument or insult on the part of the deceased to deprive an ordinary person of the power of self-control.  The evidence establishes that it was the accused who started assaulting the deceased very soon after leaving her house, and long before he says any argument started.  The first time the accused and the deceased were seen, by Benson, the accused was already assaulting the deceased and the deceased’s position was defensive.  The next time they were seen, the accused was again assaulting the deceased.  It is the case that Nelson says that at the gate he saw the deceased struggling but the overwhelming effect of his evidence is that she was signalling for the vehicle to be stopped.  There is no suggestion on the evidence that she was assaulting the accused. At most her actions were defensive. His evidence also establishes that the vehicle landed slightly to the side of the road as a result of travelling directly over the hump at speed following the accused’s refusal to stop, rather than any action on the part of the deceased.

169.	Furthermore, the accused’s evidence that he continued to drive in circumstances where he was repeatedly slapped and kicked, and even after they almost ran into the gate is just implausible.  What was the hurry? On his evidence, he was taking her to the hair salon.  

170.	In the circumstances, whilst it is not necessary given my finding on criminal negligence, I am also satisfied beyond reasonable doubt that the accused is guilty of manslaughter without recourse to s. 287.  

171.	In my view there is no prejudice to the accused in making this finding.  If the State had proceeded with a charge of murder against the accused, there would be no debate that it would be open to the Court to find the accused guilty of manslaughter in the alternative provided that it was established that he unlawfully killed the deceased.

172.	Furthermore, the accused has been on notice of the State’s allegations at least from the time the facts were alleged on arraignment.  It is often the case in other jurisdictions, like Australia for example, that the need for directions to the finder of fact on the question of criminal negligence arises only after the evidence has closed. See for example, Morgan (supra).

173.	Both counsel have been given the opportunity to address the matter in this case.  Defence counsel had considered it in preparing his submissions even prior to my request and was given and did take the opportunity to address it as he saw fit in his final submissions.  Here I commend him for his detailed submissions. 

CONCLUSION

174.	Verdict:  The accused is guilty of the manslaughter of Ruby Anne Laufa. 
________________________________________________________________Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused