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Prosecutor's Request No 2 of 1974 [1974] PNGLR 317 (12 December 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 317 - Prosecutor's Request No. 2 of 1974

[1974] PNGLR 317

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PROSECUTOR’S REQUEST NO. 2 OF 1974

Port Moresby

Frost ACJ Prentice Raine JJ

1 November 1974

12 December 1974

CRIMINAL LAW AND PROCEDURE - Manslaughter - Duty of persons doing dangerous acts - Degree of negligence required - Criminal Code (Queensland adopted) s. 288[cdxi]1.

CRIMINAL LAW AND PROCEDURE - Manslaughter - Duty of persons doing dangerous acts - Proof of negligence - Degree of proof required - Criminal Code (Queensland adopted) s. 288[cdxii]2.

On a charge of manslaughter arising out of the death of a man whose chest was opened without asepsis and by means of a bamboo knife by two accused who in the past were said to have acted as unqualified village doctors the trial judge directed himself that the standard of reasonable skill and reasonable care set out in s. 288 of the Criminal Code (Queensland adopted) required the Crown to establish either the grossest ignorance or the most criminal inattention on the part of the accused, and that it was his duty to ask himself whether a jury of the accuseds’ villagers would find “that the Crown had proven beyond reasonable doubt that the accused had acted with the grossest ignorance”.

Held:

(1) The law applicable on such a charge is that stated in the terms of s. 288 of the Criminal Code (Queensland adopted); the only elaboration necessary is that related to the degree of negligence required thereunder, which is that required by the common law standard in cases where negligence amounts to manslaughter and is usefully stated in Rex v. Bateman (1925) 94 L.J. (K.B.) 791, at p. 794.

Dicta of Ellenborough C.J. in Rex v. John Williamson [1807] EngR 87; (1807) 3 C. & P. 635 disapproved.

(2) (Frost A.C.J. dissenting) The introduction of a concept of a jury of Engas where no provision is yet made for the arraignment of accused before juries in Papua New Guinea, was misleading, imported too high a standard of negligence, did not preclude the necessity to assess the facts in the light of the directions of law required by s. 288 and the other sections of the Criminal Code (Queensland adopted), and accordingly amounted to a misdirection in law.

Reference.

This was a reference by the Secretary for Law under s. 30 of the Supreme Court (Full Court) Act 1968, of two questions of law for the decision of the Full Court arising out of the acquittal of two accused persons upon indictment before the Supreme Court on a charge of manslaughter.

The relevant portions of the reference of the trial judge are as follows:

...

2. The circumstances out of which the question of law arose and the facts as found by me were as follows:

(a) The deceased had been suffering from an illness which he attributed to a blow from a stick, received about one year before his death. In that year he sought medical attention at three hospitals, Government and mission staffed by qualified European doctors. He did not obtain any treatment which alleviated his condition. Immediately before his death his condition worsened and he called in the two accused and asked them to operate upon him.

(b) The two accused were village surgeons who claimed to have performed many operations successfully. They operated on the chest of the deceased who died three days later.

(c) The medical evidence was that death was caused by a purulent infective process in the pleural cavity of the lung. The medical witness for the Crown attributed this infection to a result of the operation.

(d) The particulars of criminal negligence alleged by the Crown against the accused were as follows:—

(i) the use of a bamboo knife for the operation and lack of asepsis;

(ii) the fact that the operation was performed on the chest; and

(iii) the massive infection which the doctor found to be present following the operation.

(e) I directed myself that the standard of reasonable skill and reasonable care set out in s. 288 is as the High Court said in Callaghan v. The Queen, (1952) 87 C.L.R. 115 at p. 124:

“That set by the Common Law in cases where negligence amounts to manslaughter”.

I further directed myself that the Common Law test as to the criminal negligence of unqualified medical men is that set out by Ellenborough C.J. in Rex v. Williamson, (1807) 3 C. & P. at p. 635, where he said:

“To substantiate that charge (manslaughter) the prisoner must have been guilty of criminal misconduct, arising from either the grossest ignorance or the most criminal inattention. One or other of these is necessary to make him guilty of that criminal negligence and misconduct which is essential to make out a case of manslaughter”.

(f) Accordingly I directed myself that the Crown must establish either the grossest ignorance or the most criminal inattention on the part of the accused.

(g) I further directed myself that the question of whether the accused had acted with the grossest ignorance was a jury matter and referring to Kwaku Mensah v. The King, [1946] A.C. 83 at p. 93, I asked myself whether a jury of Enga villagers would find that the Crown had proven beyond reasonable doubt that the accused had acted with the grossest ignorance.

(h) I found that all of the evidence was to the contrary and that the accused were accepted by the villagers as men of reasonable skill. I found that there was no direct evidence called by the Crown as to the qualifications and experience of the accused.

(i) I found there was no evidence upon which I could find that the use of a bamboo scalpel was grossly negligent nor was there any evidence as to lack of asepsis in the performance of the operation. I found that the fact that the operation was to the chest did not constitute evidence for lack of reasonable care by the accused.

(j) I found that the evidence as to the source of the infection in the chest was not wholly satisfactory in that the medical witness deposed that it was induced as a result of the operation whereas the evidence of the accused was that there was a pre-existing infection.

(k) I found that, on the assumption that the infection was caused by or was secondary to the operation; this fact was not evidence of lack of reasonable care.

(l) In making this finding I referred to the dictum of the Privy Council in Akerele v. The King, [1943] A.C. 255, at p. 264:

“The act had already taken place and its observed consequences, which only showed themselves at a later date, could not add to its criminality. The negligence to be imputed depends on the probable not the actual result”.

In considering this dictum I had regard to the discussion in Howard, Australian Criminal Law, 2nd ed., pp. 107-108.

3. I found there was no evidence to support a charge of manslaughter and acquitted the accused.

4. As requested by the learned Crown Prosecutor (the Secretary for Law consenting to such request) I do hereby refer for decision of the Full Court, the following questions:

1. Did I err in law in directing myself in the following terms, namely:

(a) “Accordingly I direct myself that the Crown must establish either the grossest ignorance or the most criminal inattention on the part of the accused”.

...

(c) That my duty was to “I ask myself whether a jury of Enga villagers would find that the Crown had proven beyond reasonable doubt that the accused had acted with the grossest ignorance”.

Counsel:

L. W. Roberts-Smith, for the Secretary for Law.

M. F. Adams and M. Kapi, amici curiae.

Cur. adv. vult.

12 December 1974

FROST ACJ: This is a reference under s. 30 of the Supreme Court (Full Court) Act 1968 of two questions of law for the decision of the Full Court arising out of the acquittal of two accused persons upon indictment before the Supreme Court on a charge of manslaughter. The charge arose out of the death of a man whose chest had been opened, as the Crown alleged, without asepsis and by means of a bamboo knife by the two accused who in the past were said to have acted as unqualified village doctors.

Counsel who appeared as amicus curiae to present the case against the Crown submitted that this court should not answer either of the questions on the ground that in view of the judge’s conclusion that the Crown had not provided the strict proof required as to the qualifications and experience of the accused, or the lack thereof, and the conditions under which the operation was performed, those questions would, if otherwise decided, have not led to a different result at the trial. He relied on the rule of practice laid down by the Full Court in Reg. v. P.M.[cdxiii]³. However, I do not understand that that rule of practice extends to specific matters of criminal law which were additional reasons upon which the trial judge expressly based his decision.

The law applicable upon the charge of manslaughter, is, as the judge held, to be found in s. 288 of the Criminal Code. It is in the following terms:—

“288. Duty of persons doing dangerous acts.—

It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act: 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 observe or perform that duty.”

However, the judge directed himself that the standard of reasonable skill and reasonable care set out in that section was “that set by the common law in cases where negligence amounts to manslaughter”, citing a passage from the judgment of the High Court in Callaghan v. The Queen[cdxiv]⁴. He then further directed himself that the common law test as to the criminal negligence of unqualified medical men is that set by Ellenborough C.J. in Rex v. John Williamson[cdxv]⁵ where, he said, “To substantiate that charge (manslaughter) the prisoner must have been guilty of criminal misconduct, arising from either the grossest ignorance or the most criminal inattention.” It was thus on those very terms the judge directed himself.

However, reference to the passage referred to in Callaghan v. The Queen[cdxvi]⁶ (which was a motor car case) shows that it provides no warrant to import into the Criminal Code any common law test dealing specifically with the criminal negligence of unqualified medical men. The question before the High Court was whether under the Western Australian provision, which is in the same terms as our s. 289, the degree of negligence prescribed was “as low as the standard of fault sufficient to give rise to civil liability” (at p. 124), and the High Court held that it would be wrong to suppose that it was so intended by the Code, and that it was the higher degree of criminal negligence set by the common law.

But even at common law today to apply Lord Ellenborough’s words literally would be to ignore the change in English usage since the year 1807. To adopt them as the basis of a judgment was to set too high a standard and was, in my opinion, wrong. Thus Archbold in stating the proposition for which Rex v. John Williamson[cdxvii]⁷ (inter alia) is cited as an authority omits the superlatives. The proposition is “... but if he is guilty of criminal misconduct, arising from gross ignorance or criminal inattention, and not from mere error of judgment, he will be guilty of manslaughter”. (38th ed., par. 2549.)

Archbold then provides a fuller statement which, if resort was to be had to any specific common law test, would have been apposite in the present case. The passage is contained in par. 2550 as follows:—

“In R. v. Webb, 1 M. & Rob. 405, Lord Lyndhurst laid down the following rule: ‘In these cases there is no difference between a licensed physician or surgeon and a person acting as physician or surgeon without licence. In either case, if a party having a competent degree of skill and knowledge makes an accidental mistake in his treatment of a patient, through which mistake death ensues, he is not thereby guilty of manslaughter; but, if, where proper medical assistance can be had, a person totally ignorant of the science of medicine takes on himself to administer a violent and dangerous remedy to one labouring under disease, and death ensues in consequence of that dangerous remedy having been so administered, then he is guilty of manslaughter. If I entertained the least doubt of this position, I might fortify it by referring to the opinion of Lord Ellenborough in R. v. Williamson[1807] EngR 87; , 3 C. & P. 635. I shall leave it to the jury to say, first, whether death was occasioned or accelerated by the medicines administered; and if they think it was, then I shall tell them, secondly, that the prisoner is guilty of manslaughter, if they think that in so administering the medicine he acted with a criminal intention or from very gross negligence.’ See also R. v. Markuss[1863] EngR 66; , 4 F. & F. 356; R. v. Chamberlain, 10 Cox 486; R. v. MacLeod, 12 Cox 534.”

It is apparent that the law as stated in R. v. Webb[cdxviii]⁸ cited by Archbold, a case which was tried in 1834, was drawn on in the drafting of s. 288 of the Queensland Criminal Code.

However, except to the extent that I have stated, that section requires no resort to the common law for its construction, and the judge was led into error in not applying the terms of that section.

The only elaboration required in the construction of s. 288 is related to the standard of skill and care required by that section. Under the common law standard which is applicable the degree of negligence required has been described as “gross” (Akerele v. The King[cdxix]⁹), or in the well known words of Lord Hewart C.J. in Rex v. Bateman[cdxx]¹⁰, such that it “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”. This statement of the law was approved in Akerele v. The King[cdxxi]¹¹. Both decisions were cases of alleged manslaughter against a doctor in respect of a patient’s death. It was the test adopted by Kelly J. in R. v. Wabia Yasi[cdxxii]¹², a case also of manslaughter under s. 288. See also Reg. v. Druett[cdxxiii]¹³. In Queensland it is regarded as desirable but not essential in cases of criminal negligence to direct the jury in the terms of Bateman’s case[cdxxiv]¹⁴—(see Carter’s Criminal Law, 4th ed., at p. 228, and the cases there cited). In my opinion it is the most useful expression of the common law standard for the purposes of a trial by a judge sitting alone.

I would, therefore, answer the first question, yes, the law applicable is as stated in the terms of s. 288 of the Criminal Code; the only elaboration necessary is that related to the degree of negligence required thereunder, which is that required by the common law standard in cases where negligence amounts to manslaughter, and is usefully stated in Rex v. Bateman[cdxxv]¹⁵.

I come now to the second question which is whether the trial judge erred in law in directing himself that his duty was to ask himself “whether a jury of Enga villagers would find that the Crown had proven beyond reasonable doubt that the accused had acted with the grossest ignorance.” (I have already dealt with the term “the grossest ignorance”). In his judgment the judge went on to find “that all of the evidence is to the contrary, that in fact the accused were accepted by the villagers as men of reasonable skill”.

I agree with Mr. Adams’ submission that the judge was not speculating as to the likely verdict of jurymen from the Enga district where the crime was alleged to have taken place. The judge was very well aware of his responsibility to decide the case sitting alone. It seems to me that the question which the judge was adverting to was the standard of conduct required by s. 288, which is that of the reasonable man, and he decided, for the purposes of the case, to treat the Enga villager as the equivalent of the reasonable man.

In the diverse circumstances of Papua New Guinea not much assistance is derived from the well known references to the reasonable man, such as the words of Greer L.J., “The person concerned is sometimes described as ‘the man in the street’, or ‘the man on the Clapham omnibus’ ...” (Hall v. Brooklands Auto Racing Club[cdxxvi]¹⁶).

In civil cases negligence has an objective meaning. “It signifies a failure to reach the objective standard of the reasonable man, and does not involve any enquiry into the mentality of the defendant. The same rule prevails in criminal law...” Criminal Law, The General Part, Glanville Williams, 2nd ed., p. 100. Reference can also usefully be made to the old case of Vaughan v. Menlove[cdxxvii]¹⁷, which is cited in Salmond on the Law of Torts, 15th ed., pp. 281-2. In that case Sir Nicolas Tindal C.J. said: “Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe.” (At p. 475).

The trial judge took for his “man of ordinary prudence” the Enga villager. But the Enga villager has been subject to Government and Mission influence for two decades. He votes for his candidate in the House of Assembly elections and has his Local Government Council. He has available medical treatment at hospitals which are conducted by the Government and Christian Missions, and are provided with trained medical staff and equipment. In the case of a very considerable proportion of families, he sends his children to primary and secondary schools, and, certainly in much smaller numbers, may have a son or a daughter at one of the tertiary educational institutes, including the two universities. In all the districts of Papua New Guinea the population varies from the primitive villager who has not entered the cash economy to the town or city worker. But for the purposes of the law some mean must be taken, and just as certain mental attitudes are presumed (Glasgow Corporation v. Muir & Others[cdxxviii]¹⁸ per Lord MacMillan at p. 457, cited Salmond on the Law of Torts at p. 282) so also is some standard of knowledge to be presumed. It is sufficient, in my opinion, to state that the reasonable man is, for the purposes of this case, to be presumed to be one whose state of knowledge and prudence is such that he appreciates the difference in training and skill between the qualified doctor and “the village surgeon” without any medical qualification. It was the judge’s task, in my opinion, to determine upon the evidence whether it was proved to his satisfaction beyond reasonable doubt that there was such a failure on the part of the accused in undertaking the operation at all, or in its conduct, to observe the care or caution of a reasonable man of the standard of prudence I have referred to, as amounted to criminal negligence. It was necessary also for the Crown to exclude that there was any case of necessity, and prove that the breach of duty caused the death.

The trial judge seems to have taken the view that the Crown had not excluded the possibility that the accused had some secret skill, a view of the evidence which it is unnecessary to discuss in these proceedings.

Before leaving the case I would refer to the case of Reg. v. Lamb[cdxxix]¹⁹, and, in particular, to the statement in the judgment that in cases of criminal negligence it is for the Court to consider “among other matters the state of the accused’s mind, including the question of whether or not he thought that that which he was doing was safe”, although such a person could be found guilty if the jury considered “his view as to there being no danger was formed in a criminally negligent way” (at p. 990). Whether the statement is applicable to cases such as the present under s. 288 can be left for decision until the occasion arises.

I would answer the second question as follows: “Yes; the standard applicable is better expressed simply as that of the reasonable man. For the purposes of this case a reasonable man was to be presumed one whose state of knowledge and prudence was such that he appreciated the difference in training and skill between a qualified medical practitioner and a ‘village surgeon’ without any medical qualifications.”

PRENTICE J: Two questions referred by the Secretary for Law, arising out of an acquittal on a charge of manslaughter, have been posed to the Court. The charge followed an operation performed by two primitive villagers who apparently had a reputation in their place for medical skill. The operation consisted of opening up the chest of a man with a bamboo scalpel. The patient had previously sought treatment at three properly staffed government and mission hospitals without avail. The prosecution relied upon s. 288 of the Criminal Code, which is in the following terms:—

“It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person or to do any other lawful act which is or may be dangerous to human life or health, to have a reasonable skill and to use reasonable care in doing such act; 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 observe or perform that duty”.

The Crown alleged in effect that there was such a lack of reasonable skill for, and such a lack of reasonable care in the conduct of the operation, as to establish the necessary degree of negligence to support a finding of manslaughter.

The learned trial Judge, in directing himself as to the degree of negligence required to be established on such a charge purported to rely on the dicta of Lord Ellenborough in R. v. Williamson[cdxxx]²⁰. The first question asks whether his Honour was wrong in law in directing himself in the following terms:—

“Accordingly I direct myself that the Crown must establish either the grossest ignorance or the most criminal inattention on the part of the accused”.

These words reflect those spoken by Lord Chief Justice Ellenborough in a case which was one of alleged manslaughter by reason of the negligence of an accoucheur. In Andrews v. D.P.P.[cdxxxi]²¹ Lord Atkin delivering the judgment of the House of Lords, said of Lord Ellenborough’s test:

“The word ‘criminal’ in any attempt to define a crime is perhaps not the most helpful: but it is plain that the Lord Chief Justice meant to indicate to the jury a high degree of negligence”.

The judgment of the House went on to discuss the words of Lord Chief Justice Hewart in R. v. Bateman[cdxxxii]²² in which the connotation of negligence importing varying degrees of criminal responsibility was canvassed. Lord Atkin while deprecating the use by Lord Hewart of the term “mens rea” and another aspect of the judgment, suggested that “the substance of that judgment was most valuable and in my opinion is correct”. It appears to have been the fact that Lord Hewart’s pronouncement—

“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”,

has been generally adopted since by judges in all cases of manslaughter by negligence. Lord Atkin (Andrews’ case)[cdxxxiii]²³speaking of a “general rule applicable to all classes of homicide by negligence” had stated—

“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 ‘recklessness’ most nearly covers the case”.

In the Court of Criminal Appeal in 1916 in R. v. Burdee[cdxxxiv]²⁴ Darling J. giving the judgment of the Court, stated—

“Personally I do not think Lord Ellenborough used the word ‘most criminal inattention’, but if he did so the passage is taken from a summing up to a jury and if he had been delivering a judgment he would not have discriminated between inattention which was most criminal or only slightly criminal”.

The High Court of Australia speaking of a motor car driving case in Evgeniou v. The Queen[cdxxxv]²⁵ in the judgments of McTiernan and Menzies JJ., stated that “to meet the standard of civil liability is not enough to constitute a breach of s. 289” (of the Queensland Code as adopted in Papua New Guinea) “there must be negligence according to the standard of the criminal law which may be described shortly as recklessness involving grave moral guilt”. A recent decision of the Court of Appeal R. v. Lowe[cdxxxvi]²⁶ assumed that manslaughter by negligence required proof of a high degree of negligence amounting to recklessness.

Lord Ellenborough’s words did not therefore seem to agree with the judgments of the last 170 years approximately. It is clear that his Honour the trial judge by the use of the two superlatives taken therefrom, was doing more than merely giving another description of the phrase “a high degree of negligence”; he was intending to apply the strictest of tests. With great respect I am of the opinion that he has put the test too high and has thereby misdirected himself. I am of the opinion that properly directing himself in accord with the judgments cited above, his Honour would in all probability have come to a different result at the trial. But even if this were not so, because of his Honour’s approach to certain other aspects of the evidence, I consider this question involves a general principle in a matter of public importance, which if uncorrected might set a precedent on a wrong basis and that it should be answered; and answered “yes” (The Queen v. B.P.)[cdxxxvii]²⁷.

The second question asks whether the learned judge misdirected himself in citing his duty as being to ask himself “Whether a jury of Enga villagers would find that the Crown had proven beyond reasonable doubt that the accused had acted with the grossest ignorance”.

In my opinion this approach is with respect wrong, for that it again imports too high a standard of negligence. But in addition I am of the opinion that the introduction of the concept of a jury of Engas is more than misleading. No provision is yet made for the arraignment of accused before juries in Papua New Guinea. There is no escape from a judge as a judge expatriate though he may be, deciding questions of fact as well as law. Even if he were to compare himself to a group of presumably instructed Engas of the future, he would I consider, be required to assess the facts in the light of the directions of law required by s. 288 and other sections of the Code. Whether sociologically to the good or not, s. 288 imposes duties and responsibility for consequences, upon persons undertaking surgical treatment. The section seems to me to require the conclusion that uneducated villagers undertaking thoracic surgery with a primitive bush instrument in conditions lacking in asepsis, on a man not in a state of necessity and who is within reach of hospitals, are acting without the reasonable care and skill positively required of them by the imposed law. That any degree of punishment would probably be minimal and of an educative and deterrent nature only, would not in my opinion, detract from their liability in crime for their statutory negligence (which in my consideration amounts to recklessness), if death resulted therefrom. For the reasons advanced in association with the first question I am of the opinion that this question should be answered; and answered “yes”.

RAINE J: I have had the advantage of reading the judgments of the Acting Chief Justice and my brother Prentice. Three questions were asked in the reference. The second question was withdrawn and accordingly will not be answered.

I agree with the answers given to the first question by my brethren, and I also agree with their reasons.

So far as the third question is concerned, I respectfully agree with the answer given by Prentice J., and I also agree with his Honour’s reasons in coming to his decision. With great respect I do not agree with the learned Acting Chief Justice when he says, at p. 324 of his judgment, “I agree with Mr. Adams’ submission that the judge was not speculating as to the likely verdict of jurymen from the Enga district where the crime alleged was to have taken place.” In my opinion, Lalor J. made it quite clear that he was doing the very thing that Mr. Adams submits that his Honour was not. I dissent from the view expressed by Lalor J. For my part I agree with all that Prentice J. has to say on the subject. In my view a trial judge does not ask himself whether a jury of Enga, Huri or Tolai villagers would find that an accused man committed a crime. This is not to say that in the running a trial judge ignores the climate of the area in which the crime was committed, wherein, on most occasions, the trial is conducted. Customs change from place to place and so does the trial judge’s approach to the evidence. “Autre pays autre moeurs.” On sentence, crimes are either more or less serious in one place or another, and thus it is that sentences vary from place to place. But these are very different things than saying, “I ask myself whether a jury of Enga villagers would find that the Crown had proven beyond reasonable doubt that the accused had acted with (gross) ignorance.”

Questions answered yes.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.

Amici curiae: M. F. Adams and M. Kapi.

ence>[cdxii]Section 288 of the Criminal Code (Queensland adopted) provides:

“288. Duty of persons doing dangerous acts:—

[cdxiii][1971-72] P. & N.G.L.R. 222.

[cdxiv] (1952) 87 C.L.R. 115, at p. 124.

[cdxv](1807) 3 C. & P. 635.

[cdxvi] (1952) 87 C.L.R. 115, at p. 124.

[cdxvii](1807) 3 C. & P. 635.

[cdxviii]1 Mood. & R. 405.

[cdxix] [1943] A.C. 255, at p. 262.