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[1965-66] PNGLR 395 - Regina v Druett
[1965-66] PNGLR 395
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V.
DRUETT
Port Moresby
Ollerenshaw J
16-18 November 1966
21 November 1966
CRIMINAL LAW - Manslaughter - Motor vehicle - Duty of persons in charge of dangerous things - Degree of negligence required to amount to crime - Intoxication - No defence that deceased accepted the risk - Criminal Code, ss. 289, 303.
Section 289 of the Criminal Code provides:
“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 or such a nature that in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger: and be 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.”
The accused drove a motor vehicle while intoxicated. On approaching a curve at a moderate speed, the accused slowed down but drove on in a straight line and so ran off the road down a steep embankment. The accused was unhurt but his passenger was killed. The accused was charged with manslaughter.
Held:
(1) The standard of care required of persons in control of motor vehicles is the same as that required by the common law where negligence causing death is alleged to amount to manslaughter.
(2) To support an indictment for manslaughter the prosecution must prove a breach of the duty imposed by s. 289 according to the standard of the criminal law. Such a disregard for the life and safety of others must be revealed by the evidence as to go beyond a mere matter of compensation, but to amount to a crime against the State deserving punishment.
(3) Either the accused failed to observe this obvious embankment or how close his vehicle was to it, or he deliberately drove over it in an attempt to reach the lower road. His unexplained failure to observe the embankment or its proximity would amount to culpable negligence. An intentional driving from the road over the embankment would be an act of criminal folly.
(4) The accused must have known he was in such a state of intoxication as to be incapable of driving properly. Nevertheless, he chose to drive and expose his passenger to the risk. His condition materially contributed to, if it were not the main cause of, his fatal driving.
(5) The subject of this trial is a breach of duty to the State, not a breach of a private duty. It is not a defence to a breach of the duty imposed by s. 289 to prove that the passenger was negligent in accepting the risk.
Cases referred to:
Evgeniou v. The Queen (1963-1964), 37 A.L.J.R. 508; Callaghan v. The Queen (1952-1953), 87 C.L.R. 115; R. v. Scarth, [1965] Qd.R. 38; R. v. Bateman (1925), 94 L.J.K.B. 791; Andrews v. Director of Public Prosecutions, [1937] A.C. 576; Roggenkamp v. Bennett [1950] HCA 23; (1950), 80 C.L.R. 292.
Trial on Indictment.
The facts appear sufficiently from the judgment.
Counsel:
Dabb, for the Crown.
Reitano, for the accused.
Cur. adv. vult.
21 November 1966
OLLERENSHAW J: The accused person, George Albert Druett, is charged that on the 22nd day of September, 1966, he unlawfully killed Gertrude Grace Cooper, that is to say that he killed her in circumstances that did not constitute wilful murder or murder but still unlawfully and so committed the crime of manslaughter under s. 303 of the Criminal Code.
At the material time he was driving his motor vehicle in which the deceased woman with her young child were his passengers. The vehicle left the road, travelled over an embankment and crushed the woman to death when it rolled on her after she had been thrown out.
In these circumstances his criminal liability depends upon s. 289 of the Code, in these terms:
“Duty of persons in charge of dangerous things.
289. It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger: and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.”
The standard of care required of persons in control of motor vehicles is the same as that required by the common law where negligence causing death is alleged to amount to manslaughter, as it is alleged in this trial: see Callaghan v. The Queen[cdvi]1, approving the majority decision in R. v. Scarth[cdvii]2.
This standard of care was defined by Lord Hewart C.J. in R. v. Bateman[cdviii]3; see also Carter’s Criminal Law of Queensland 2nd ed., where the relevant passage is cited at p. 249. Omitting some of the citation, it was said:
“To support an indictment for manslaughter the prosecution must prove the matters necessary to establish civil liability (except pecuniary loss), and, in addition must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”
In Andrews v. Director of Public Prosecutions[cdix]4 it was said by Lord Atkin:
“The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough: for the purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied “reckless” most nearly covers the case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter: 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. If the principle of Bateman’s case[cdx]5 is observed it will appear that the law of manslaughter has not changed by the introduction of motor vehicles on the road. Death caused by their negligent driving, though unhappily much more frequent, is to be treated in law as death caused by any other form of negligence: and juries should be directed accordingly.”
This principle of the law requiring me to consider whether I am satisfied beyond reasonable doubt that there was negligence on the part of the accused so culpable as to attract criminal responsibility was discussed in all the judgments in Evgeniou v. The Queen[cdxi]6, where (at p. 509) it was said by McTiernan and Menzies JJ.: “It has been established . . . that negligence sufficient to meet the standard of civil liability is not enough to constitute a breach of s. 289; there must be negligence according to the standard of the criminal law, which may be described shortly as recklessness involving grave moral guilt”, and (at p. 512) Taylor J. referred to the passage I have cited from Bateman’s case[cdxii]7 as: “The classic definition of criminal negligence ...”.
At the relevant time the accused was engaged in taking his passengers from a party at the Four-Mile Club, which is situated a short distance from the Hubert Murray Highway at Four-Mile, to their home, said to have been at Six-Mile. He travelled in his Holden utility along the well-known route that takes vehicles from Port Moresby to, amongst other places, its airport. He drove up Six-Mile Hill and was driving down the upper Morea-Tobo Road, about a mile and a half from the Four-Mile Club, at about half past twelve o’clock in the morning.
The relevant section of the road, cut into the hill-side, is shown clearly in the photographs, Exhibits A (1) and A (2). There is a lower Morea-Tobo Road that branches off to the left, in the direction he was travelling, from the upper road, about a hundred yards before the relevant section of the upper road is reached, and rejoins it as is shown in the Exhibits A (1) and A (2). Other parts of the lower road are shown in the Exhibits A (3), A (5) and A (6).
Between the upper and lower roads there is an embankment that makes angles with these roads at the relevant section of about 45 degrees. This embankment commences shortly after the lower road leaves the upper road and runs down alongside the upper road. The presence and appearance of the embankment are shown from Exhibits A (1) and A (2) and a closer view of it at the relevant place is afforded by Exhibits A (3) and A (4). It is an obvious feature, clearly visible to a driver of a motor vehicle, travelling down the upper road in the daytime, and, if anything, more obvious at night-time in the light from the vehicle’s head-lamps and the fluorescent lights on poles beside the lower road. I viewed the scene at night with counsel and the accused person in conditions which were agreed to be, and which the evidence reveals were similar to those obtaining at the relevant time on the night of the 21st-22nd September, a fine clear night.
The evidence led for the Crown has not been disputed and I have no hesitation in accepting it. It shows that when the accused’s vehicle was still some little distance from the curve of the road to the right, which is shown in the Exhibits A(1) and A(2), and travelling at about thirty-five miles per hour, he successfully applied his brakes and, instead of attempting to take the curve, he drove his vehicle in a straight line taking it, after some forty feet, from the bitumen on to the twelve feet wide gravel verge that lies between the left edge of the bitumen and the top of the embankment.
The vehicle travelled along this verge, getting nearer to the top of the embankment because of the curve to the right of the road and of the embankment skirting it. The vehicle was then turned slightly to the right but its left wheels went over the top of the embankment some fifty-three feet from where they had left the bitumen and the right wheels, after travelling around the verge, followed over the top some distance further along the gravel verge. When the vehicle went over the top of the embankment it was travelling at a speed that “could not have been more than ten miles an hour” and “probably was nearer five”. Notwithstanding the steepness of the embankment the vehicle went down it at such an angle that it might have successfully negotiated the embankment had it not collided with a large stone and rolled over. After rolling over it regained the upright position as shown in the Exhibits A(5) and A(6).
The accused person did not give any evidence in his trial in which there has not been any evidence at all to explain the incident or his irregular driving over the embankment, nor did he give any explanation to the police officer who interviewed him some hour or so after the event. He suffered no injury other than an insignificant scratch on the forehead and I find, upon the evidence, that his memory was not affected by his experience nor did this contribute to anything that he said after it.
It appears from the evidence that the deceased woman and her husband, Don Cooper, were friends of his: “He’s a mate of mine”, the accused said to the police officer. It also appears that the husband was not involved in the incident in any material way. A witness, who was awakened by the crashing of the utility and drove from his home to the scene, said to the accused as he sat on the bank at the side of the lower road, appearing to be pretty dazed, “Are you all right?”, to which he replied “Yes, but”. It seems to me that already he must have known that his woman passenger was gravely injured if not dead. A little later he volunteered to this witness this remark: “Don’t tell me Don Cooper’s involved in this”, to which the witness replied “What?”. The accused then said to him “Don Cooper, don’t tell me he’s in this”. Whereupon this witness said to him “Weren’t you driving it?” and the accused replied “No” and either “I can’t drive” or “I don’t know how to drive”.
In the course of the interview, to which I have already referred, the accused said to the police officer “She’s dead is she, Mrs. Cooper?” and upon the officer replying “Yes”, the accused said “And I was responsible for it”.
From all the evidence and the probabilities arising from it, in all the circumstances calling for my consideration, it would not be unreasonable to conclude that the accused applied his brakes when he did because he had suddenly realized or been told that he was on the wrong road. So, too, for the course that he took over the top of the embankment, after travelling along the gravel verge, I can see only these possible explanations: that he failed to observe this obvious feature or how close his vehicle was to it, or, that he deliberately drove over it in an attempt to reach the lower road. His unexplained failure to observe the embankment or its proximity, in my view, undoubtedly would be culpable negligence within the meaning of the authorities I have cited. An intentional driving from the road over the embankment would be an act of criminal folly.
So far I have not mentioned the accused’s condition at the time he was driving and the findings I have made are those that I would make even if he had been sober at the time. In fact he was drunk and there is overwhelming evidence that leads me to, what I consider to be, the inescapable conclusion that he was in such a state of intoxication from the liquor he had consumed at the party that he was incapable of driving properly. He must have known this and he chose to take, and expose his passengers to the risk. Doubtless his condition materially contributed to, if it were not the main cause of his fatal driving.
His counsel relied upon the onus on the Crown to prove the charge beyond all reasonable doubt, and he also faintly submitted that I should accept the evidence of an usher from the club, called for the accused, to show that he was not intoxicated. I find this evidence intrinsically unacceptable for the purpose and, in the light of the other evidence, worthless.
Counsel for the accused person also made a submission, based upon his understanding of the passage I have cited from Bateman’s case[cdxiii]8, to the effect that the deceased woman probably had knowingly consented to run the risk of being driven home by the accused in the condition in which he was and that this relieved him of his criminal responsibility as it might relieve him of his civil liability in accordance with the principles enunciated in Roggenkamp v. Bennett[cdxiv]9, to which counsel referred. He subsequently withdrew this submission; I think quite properly because, in my opinion, it is without substance, and I would merely direct attention to the words of s. 289 and, e.g., what was said about contributory negligence by Taylor J. (at p. 511) and by Owen J. (at p. 514) in Evgeniou v. The Queen[cdxv]10. The subject of this trial is a breach of duty to the State not a breach of a private duty.
I am satisfied beyond reasonable doubt that on the facts proved there is no hypothesis reasonably open which is consistent with an absence of reckless and culpable negligence on the part of the accused person.
I find a verdict of: guilty.
Verdict: Guilty of manslaughter.
Solicitor for the Crown: S. H. Johnson, Crown Solicitor.
Solicitors for the accused: Norman White & Reitano.
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[cdvi](1952-1953) 87 C.L.R. 115.
[cdvii][1945] Q.S.R. 38.
[cdviii] (1925) 94 L.J.K.B. 791, at p. 793; (1925) 28 Cox C.C. 33, at p. 36.
[cdix] [1937] A.C. 576, at p. 583.
[cdx](1925) 94 L.J.K.B. 791.
[cdxi](1963-1964) 37 A.L.J.R. 508.
[cdxii](1925) 94 L.J.K.B. 791.
[cdxiii](1925) 94 L.J.K.B. 791.
[cdxiv](1950) 80 C.L.R. 292.
[cdxv] (1963-1964) 37 A.L.J.R. 508.
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