1969-70

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 1 - Regina v Himson Mulas

[1969-70] PNGLR 1

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

HIMSON MULAS

Rabaul

Ollerenshaw J

3-7 February 1969

10 February 1969

CRIMINAL LAW - Dangerous driving causing death - Evidence of driver’s prior consumption of intoxicating liquor - Dangerous driving and negligence - The Criminal Code, s. 328a.[i]1

On a charge under s. 328a of The Criminal Code of driving a motor vehicle dangerously and thereby causing death, evidence of the driver’s prior consumption of liquor is admissible provided it really bears to a significant extent upon his condition at the time of the alleged offence. In the Territory, where the trial is before a judge without a jury, it is unnecessary, when evidence of prior consumption of liquor is to be adduced, for the Court to make a preliminary inquiry to confirm that such evidence would tend to show that the driver would, at the relevant time, have been adversely affected by drink.

R. v. McBride, [1962] 2 Q.B. 167, referred to.

Upon a charge of dangerous driving causing death there is no issue of breach of duty towards the deceased. The questions in issue are: Was the accused person driving a motor vehicle on a road dangerously, that is dangerously towards the other persons who might reasonably be expected to be on or near the road; and, if he were, did he thereby cause the death of another person?

McBride v. The Queen [1966] HCA 22; (1966), 115 C.L.R. 44; Andrews v. Director of Public Prosecutions, [1937] A.C. 576 and R. v. Evans (1963), 47 Cr. App. R. 62, referred to.

Criminal Trial.

Himson Mulas was charged upon indictment with driving a motor vehicle dangerously on the Kokopo Road thereby causing the death of one Tonatina. All relevant facts appear sufficiently in the reasons for judgment.

Counsel:

N. H. Pratt, for the Crown.

Lefevre, for the accused.

10 February 1969

OLLERENSHAW J:  The accused man, Himson Mulas, is charged under s. 328a of the Code that he drove a motor vehicle dangerously on the Kokopo Road, on a journey from Rabaul, and that he thereby caused the death of one Tonatina.

Late on a Saturday afternoon at a bend or curve in the road to the right the vehicle which the accused was driving, not taking the curve, went off the bitumen to the gravel or dirt strip that ran on the left of the bitumen. Either its four wheels or at least two of them went on to the gravel. Thereupon, either wholly or partially out of the control of the accused it turned back and crossed the bitumen at an angle of approximately 45 degrees and hit and killed Tonatina who was sitting on a block of cement placed above the entrance to a culvert some five feet from the right-hand edge of the bitumen. The defence denied the elements of dangerous driving relied upon by the Crown, namely and briefly, excessive speed and inattention contributed to by an incapacity to maintain control due to the consumption of alcohol and attributed the course taken by the accused in driving his vehicle to the left to a need to avoid a danger created by a vehicle travelling from the opposite direction, which it passed at or about the bend in the road.

I interpolate here to record that early in the case for the Crown I overruled an objection to evidence being led as to the accused’s taking of drink late on that Saturday morning, an objection based upon the judgment of the Court of Criminal Appeal in R. v. McBride[ii]² from which counsel read this passage:

“In the opinion of this Court, if a driver is adversely affected by drink, this fact is a circumstance relevant to the issue whether he was driving dangerously. Evidence to this effect is of probative value and is admissible in law. In the application of this principle two further points should be noticed. In the first place, the mere fact that the driver has had drink is not of itself relevant: in order to render evidence as to the drink taken by the driver admissible, such evidence must tend to show that the amount of drink taken was such as would adversely affect a driver or, alternatively, that the driver was in fact adversely affected. Secondly, there remains in the Court an overriding discretion to exclude such evidence if in the opinion of the Court its prejudicial effect outweighs its probative value. It is impossible to lay down any general rule as to the way in which this discretion should be exercised, as each case must be considered in the light of its own particular facts, but in the opinion of this Court, if such evidence is to be introduced, it should at least appear of substantial weight”[iii]³ .

In this case of McBride[iv]⁴ the Court was concerned to emphasize in relation to alcohol in dangerous driving cases that the relevant thing is the condition of the driver at the time the driving is alleged to have been dangerous and to have caused death. This, I would have thought with respect, could rarely if ever be overlooked. Nevertheless the case serves as a warning to over-enthusiastic Crown Prosecutors not to introduce drinking unless it really bears to a significant extent upon the condition of the driver at the relevant time. I would have thought that a judge’s discretionary power to discharge a jury without taking a verdict where he considers it likely to have been improperly prejudiced, as for instance by the introduction of the consumption of liquor irrelevantly, that is where there is not adduced such evidence or such a substantial body of evidence as was indicated in the passage I have cited, would have been a sufficient safeguard. However, the Court seems to have considered that some kind of preliminary inquiry of the prosecution by the judge should take place when a question of the driver having taken liquor is first introduced, in order to ascertain that the evidence proposed to be adduced would tend to show, at least, “that the amount of drink taken was such as would adversely affect a driver”. I do not think that such a precaution is necessary where the trial is before a judge without a jury. I cannot imagine that judges are likely to be inflamed or prejudiced by evidence about the consumption of liquor by a driver that does not establish the condition of the driver at the relevant time. I think, too, because all the evidence cannot be led at the same time and, likewise, there can be but one witness in the box at a time, just as a witness can depose to only one drinking incident at a time, advantage should be taken of the situation without a jury and the evidence of the drinking be accepted chronologically. It is interesting to observe that it appears that the trial judge, of whose admission of evidence of drinking and direction to the jury thereon the Court of Criminal Appeal approved, had ruled in this case of McBride[v]⁵ that evidence relating to the amount of alcohol the appellant was said to have consumed should be admitted because it was desirable that the jury should have before them the whole picture in making the objective test whether or not the driving was dangerous and so on. See page 7 of the report in the All England Reports and the passage of the summing-up there quoted.

I should mention that in this trial, when counsel for the accused took his objection, I did make certain inquiries of the Crown Prosecutor such as a judge would make in pursuance of the judgment in R. v. McBride[vi]⁶ in a trial with a jury and the Crown Prosecutor said that later he would call two witnesses whose evidence would bear directly upon the condition of the accused as affected by drink at or about the relevant time later in the day, and this he did.

I now come to my findings upon the evidence and the probabilities clearly arising therefrom.

I do not think that the vehicle coming from the opposite direction created any danger of a collision between the two vehicles, that there was a critical situation that called for sudden evasive action by the accused, mistaken or otherwise: see R. v. Coventry[vii]⁷; or that the other vehicle was in any way responsible for the course the accused man’s vehicle took to the gravel whence it went, wholly or partly out of control, to the fatal impact.

I am completely satisfied that the accused man was inattentive to the road when he came to the bend and was driving at an excessive speed and so did not take the bend and drove on to the gravel and thereby caused his vehicle to take its erratic course to the culvert. I am completely satisfied that this dangerous driving was largely contributed to, if not caused by the quantity of alcohol he had consumed, which reduced his capacity to drive to a considerable extent and rendered him at the relevant time incapable of driving safely.

I would add that it is just possible that the accused imagined that the other car created some danger, but this I consider would have been unreasonable in the circumstances and I consider, too, would have been due to his condition to which I have referred and so, too, his conduct of the car.

I am satisfied beyond all reasonable doubt that he was driving dangerously and thereby killed the man named in the indictment.

Before concluding I would refer to counsel’s submission that, at most, the accused’s driving was negligent and that this was not sufficient for a charge of dangerous driving, a submission in support of which he cited some words that fell from Barwick C.J. in McBride v. The Queen[viii]⁸ .

I think this is a misconception on counsel’s part. Speaking broadly and generally I would think that most negligent driving is likely to be dangerous driving. However, as is emphasized by the authorities it is not a question of negligent driving of whatever kind or degree; there is not in such a trial as this an issue of breach of duty towards the deceased and it is better to put negligence out of one’s mind when considering such a charge as I am concerned with. The plain questions are: Was the accused person driving a motor vehicle on a road dangerously (my italics) that is dangerously towards the other persons who might reasonably be expected to be on or near the road, and, if he were, did he thereby cause the death of another person. I would add that in Andrews v. Director of Public Prosecutions[ix]⁹ Lord Atkin said:

“If this view be adopted it will be easier for judges to disentangle themselves from the meshes of the Road Traffic Acts. Those Acts have provisions which regulate the degree of care to be taken in driving motor vehicles. They have no direct reference to causing death by negligence. Their prohibitions, while directed no doubt to cases of negligent driving, which if death be caused would justify convictions for manslaughter, extend to degrees of negligence of less gravity. Section 12 of the Road Traffic Act, 1930, imposes a penalty for driving without due care and attention. This would apparently cover all degrees of negligence. Section 11 imposes a penalty for driving recklessly or at a speed or in a manner which is dangerous to the public. There can be no doubt that this section covers driving with such a high degree of negligence as that if death were caused the offender would have committed manslaughter. But the converse is not true, and it is perfectly possible that a man may drive at a speed or in a manner dangerous to the public and cause death and yet not be guilty of manslaughter: and the Legislature appears to recognize this by the provision in s. 34 of the Road Traffic Act, 1934, that on an indictment for manslaughter a man may be convicted of dangerous driving. But, apart altogether from any inference to be drawn from s. 34, I entertain no doubt that the statutory offence of dangerous driving may be committed, though the negligence is not of such a degree as would amount to manslaughter if death ensued”[x]¹⁰ .

I would also refer those who may be interested to what was said concerning negligence in the judgment in R. v. Evans[xi]¹¹.

I find a verdict of guilty.

Verdict: Guilty of dangerous driving causing death.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitors for the accused: P. G. Lefevre, Hickey & Co.

[i]The relevant provisions of s. 328a of The Criminal Code are:

“Any person who drives a motor vehicle on a road . . . dangerously is guilty of a misdemeanour and is liable to a fine of one thousand dollars or to imprisonment with hard labour for two years or to both such fine and imprisonment. . . . If the offender causes the death of . . . another person he is liable upon conviction upon indictment to imprisonment with hard labour for five years. . . . The term “drives a motor vehicle . . . dangerously” includes the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and use of the road . . . and the amount of traffic which is on the road . . . at the time or which might reasonably be expected to be on the road. . . .”

[ii][1962] 2 Q.B. 167; [1961] 3 All E.R. 6.

[iii][1962] 2 Q.B., at p. 172; [1961] 3 All E.R., at p. 9.

[iv][1962] 2 Q.B. 167; [1961] 3 All E.R. 6.

[v][1962] 2 Q.B. 167; [1961] 3 All E.R. 6.

[vi][1962] 2 Q.B. 167; [1961] 3 All E.R. 6.

[vii][1938] HCA 31; (1938) 59 C.L.R. 633, at p. 638.

[viii](1966) 115 C.L.R. 44.

[ix][1937] A.C. 576.

[x][1937] A.C., at pp. 583, 584.

[xi](1963) 47 Cr. App. R. 62, at p. 64.

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