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Koe, The State v [1976] PNGLR 562 (8 December 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 562 - The State v John Koe 

[1976] PNGLR 562

N74

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JOHN KOE

Waigani

Prentice DCJ

2-3 December 1976

6 December 1976

8 December 1976

CRIMINAL LAW - Manslaughter - Dangerous driving causing death - Standard of negligence required - Varying standards of criminal negligence discussed - Criminal standard of proof beyond reasonable doubt suitable to Papua New Guinea - Whether verdict of manslaughter or dangerous driving causing death in particular circum- stances - Criminal Code s. 292[dci]1.

On a charge of manslaughter or dangerous driving causing death, s. 292[dcii]2 of the Criminal Code, which specifies the duty of persons in charge of dangerous things, is to be interpreted as requiring proof beyond reasonable doubt of a criminal standard of negligence.

Evgeniou v. Reginam [1964] P. & N.G.L.R. 45;

Reg. v. Druett [1965-66] P. & N.G.L.R. 395, and

Callaghan v. The Queen (1952) 26 A.L.J.R. 456 followed.

In deciding whether facts establish the more serious charge of manslaughter rather than the lesser offence of dangerous driving causing death, the Court should ask itself, whether the facts show such a very higher degree of negligence as should result in a finding of manslaughter, or whether they show such a high but lesser degree of negligence (going at least beyond that required to establish civil liability in tort) as would warrant a finding of the lesser offence of dangerous driving causing death.

Andrews v. Director of Public Prosecutions [1937] 2 All E.R. 552 followed.

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;

Held

(1)      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.

(2)      That there should be a verdict of guilty of manslaughter.

Trial

The accused was charged on two counts of manslaughter in respect of the deaths of two people, who died as the result of being hit by a motor vehicle driven through the market at Gordon by the accused.

Counsel

BT Sharp for the State

GC Lalor for the accused

Cur. adv. vult.

8 December 1976

PRENTICE DCJ: On the afternoon of 12th August, 1976, the accused drove a black Holden vehicle into a section of the busy market at Gordon, colliding apparently with some 11 or 12 persons and killing two of them. He stands charged on two counts of manslaughter in respect of these deaths.

CONSIDERATIONS OF LAW

Defence counsel concedes that an alternative finding is open on a charge of manslaughter, namely that of dangerous driving causing death — this is by virtue of s. 337 of the Code. And, if I may say so, he with commendable realism in view of the evidence, concedes in his thorough address that the issue for the Court is plainly — should there be verdicts of manslaughter or of dangerous driving causing death.

The sections of the Code which must be considered on such a charge are ss. 292, 294, 303, 307 and 314. Discussion raged for many years in those courts of Australia which were charged with the interpretation of Sir Samuel Griffith’s Code and its adaptions, as to the meaning and effect of what is now s. 292 of our Code. Some courts were of the view that inasmuch as phrases apt to describe civil duties as to negligence had been used in the kindred sections; negligence only of the kind required to give rise to compensation between subject and subject, had to be shown to support criminal charges (such as manslaughter), where reliance was placed on the “duty of persons in charge of dangerous things”. The former Supreme Court of Papua New Guinea came to the conclusion that a higher, a criminal standard of negligence was required to support such a charge (Evgeniou v. Reginam[dciii]³ confirmed on appeal to the High Court of Australia; Regina v. Druett [dciv]⁴). The High Court of Australia had come to a similar conclusion in Callaghan v. The Queen [dcv]⁵, a case on appeal from Western Australia. This case was strenuously criticised by Mr. P. Brett in a learned article in 27 A.L.J. p. 6 on the ground that the High Court should have had regard to the debates in the W.A. Parliament and ought to have arrived at the conclusion that the W.A. section should have been construed so as to establish a lower onus on the prosecution. An argument based on Mr. Brett’s views seems to have been addressed to the National Court in State v. Elias Subang otherwise known as Salia Wangi of Rabaul[dcvi]⁶ but was not accepted.

Possibly it is open to argue in Independent Papua New Guinea that s. 292 should now be interpreted differently as being more in line with the development of underlying law as understood in the villages (if it be contended that pay-back and compensation demands indicate a different conception of what kinds of negligence call for punishment). The question of whether such a submission may be made in regard to Statute Law has not been raised or argued in this case; and even though it may be in the future, I do not think it is requisite or desirable for me to embark now on such a philosophical or sociological inquiry as would be involved in the first instance, without presentation of compelling evidence which would support such a differing interpretation. I consider I should adhere to a line of interpretation that has been applied in Papua New Guinea over many years to the comparable section in the present Code’s predecessor.

Neither has it been contended in this or in any other case since Independence, that I know of, that in criminal cases the onus of proof should be other than that beyond reasonable doubt. It seems to be fashionable just at present in some academic quarters to want to hurry along the scrapping of the common law. I hope I may be permitted the wish that such a corner-stone of the common law as this rule of evidence, will not be scrapped because it were different from custom and thought unsuitable to those in Papua New Guinea who live in villages although perhaps appropriate to those who live in towns; even if it could be proved (to what standard?) that in village life and in motor vehicle accidents people are able to come to instant conclusions as to criminal responsibility on a mere balance of probabilities — with satisfaction to themselves. If such a radical change is to be imported into the Criminal Law, then I would respectfully suggest to those who may think otherwise, that it should be done by specific legislation — not by judicial development of an underlying law. I propose, until instructed otherwise by the Supreme Court or by legislation of the House of Parliament to require that charges be proved beyond reasonable doubt. I pause to say that as far as I know from conference with my brothers, no point as to developing the underlying law as directed by the Constitution has been raised and made the subject of submissions by counsel in any case in Court since Independence.

DANGEROUS DRIVING CAUSING DEATH OR MANSLAUGHTER

The area of contention herein has been the submission that though negligence superior to that required to establish civil liability between subject and subject has been demonstrated, and though negligence of such criminal seriousness as would support a charge of dangerous driving causing death has been shown, nevertheless the negligence shown does not exhibit that “recklessness” or “negligence of a very high degree” or “grossness of negligence” (Andrews v. Director of Public Prosecutions[dcvii]⁷; Percy Bateman [dcviii]⁸; or R. v. Leach [dcix]⁹) which is required to justify a verdict of manslaughter.

In deciding whether facts establish the more serious charge of manslaughter, it may be that juries have in fact been paraphrasing Bateman’s case[dcx]¹⁰ so as to read “In order to establish criminal liability (for manslaughter) 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 (of the kind reserved for manslaughter)”— italicised additions being my own. See R. v. Leach [dcxi]¹¹.

But it seems that guidance should be sought from the decision in Andrews v. Director of Public Prosecutions [dcxii]¹², difficult to apply as it may be (as suggested in the learned article by Dean in Law Quarterly Review Vol. 53, p. 380). The Court of Appeal in United Kingdom in Reg. v. Lowe[dcxiii]¹³ makes an incomplete citation therefrom and appears to apply the view that it is necessary to find “recklessness” to support a conviction of manslaughter. With respect, this does not appear to have been the House of Lords’ opinion, for Lord Atkin’s speech envisaged that a high degree of negligence not involving indifference to risk, might support such a finding. Mr. Dean’s analysis of Andrews’ case[dcxiv]¹⁴ would suggest that a Court should ask itself, do facts show such a very high degree of negligence as should result in a finding of manslaughter, or do they show such a high but lesser degree of negligence (going at least beyond that required to establish civil liability in tort) as would warrant a finding of the lesser offence of dangerous driving causing death. It is probable, I think, that the summing up approved by the Court of Criminal Appeal in R. v. Leach[dcxv]¹⁵ would not be regarded as entirely adequate; for as Lord Atkin said in Andrews’ case[dcxvi]¹⁶:

“... 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 ...”

I should say at the outset that one must take care lest the seriousness of the outcome overshadow one’s consideration of the actual negligence at the time — as was illustrated in Akerele v. R [dcxvii]¹⁷; but nevertheless the quality of the driving may be deduced from resultant facts (McBride v. The Queen [dcxviii]¹⁸).

One notes that affection by liquor deliberately consumed, has not been regarded as providing a defence to such a charge as this which does not require a specific intent in the doer (Director of Public Prosecutions v. Majewski [dcxix]¹⁹; R. v. Kamipeli [dcxx]²⁰). One notes also that criminal negligence explained by the consumption of liquor has been regarded as one of the worst features (Reg. v. Watson [dcxxi]²¹; The Queen v. Gaiari-Ganerera [dcxxii]²²).

THE FACTS

The accused with two policemen and five other men on the day in question (a Thursday), having bought three cartons of beer at 14 Mile, went to a locality close to a pig farm and speedway in the general area of the original Rouna Quarries (9 Mile). Having “discussed” the beer there, during the course of which the owner of the car in question, black Holden AAB 866, went (no doubt drunkenly) to sleep. The party debated the question of who should drive the said car away from that site. The accused is said to have possessed himself of the owner’s keys in some fashion, and undoubtedly drove away that vehicle, which subsequently caused the tragedies at Gordon Market. He drove alone — apparently leaving an atmosphere of protest behind him.

The evidence of a highly qualified P.T.A. mechanical instructor who examined that vehicle after the aforesaid accident established to my satisfaction that the vehicle was gravely deficient. It should not have been on the road. It had two bald front tyres which alone would have disqualified it. On the first application of its brakes, there was no result at all. On a second application there was “about quarter pedal effect”. Further pumping could produce effective braking; but as the front offside brake lining was quite worn out, a pull to the left would be registered on such ultimate effective application.

Various deficiencies also existed to the steering. The steering shaft was loose on the column and the tie rod end loose on the drag link; and there was excess play in the steering box. You could move the steering wheel up and down and sideways a couple of inches, (something short of Keystone comedy effect). Such a deficiency would, the witness stated, produce a “shimmy” at 30 m.p.h., and when taking a corner you would have to “take up the play before the wheels actually turned”. You would have to maintain a very firm grip on the steering wheel. Such laxity would he thought, be obvious immediately you pulled out of a drive. Nevertheless he thought the vehicle would not veer if being driven on a straight road. The defects he observed were of long standing, and not attributable to recent accidental impact. The vehicle was definitely not roadworthy. In cross-examination this witness said the car would probably veer on normal application of brakes. Though the vehicle would not become uncontrollable at high speeds, over 30 m.p.h. it would become more difficult to control.

I pause to say that the accused neither made a statement nor gave evidence; so that except to the extent that the State witnesses appeared unreliable or faulty in recollection, their evidence went unchallenged.

[His Honour then dealt with the evidence of the State witnesses: a woman seated in a parked Colt who noticed the black Holden come around the corner from Erima towards her, swerve across the road towards her car, then back to its left, then back to its right colliding with her car and nearly turning it over: Inspector English who happened to be in the market who saw the Holden “come fast around the corner”.]

It could not safely take the corner, it swerved out to the side to his left, then swerved back to his right. It continued to travel in a zig-zag manner until it hit the Colt parked opposite him. The Holden made “excessive noise — that indicated still going on acceleration”. The Inspector assessed its speed at 35-40 m.p.h. It made a very loud impact.

It is apparent that from when it made a right hand turn coming from Erima to where it finished against the fence the Holden travelled some 417 ft. plus another 89 ft. (506 ft.).

It is clear from the Inspector’s and other witnesses’ evidence that after striking the Colt a glancing blow the Holden continued eccentrically, jumped a concrete kerb and “ploughed” through the people standing and sitting in the corner of the market area adjoining the intersection of Woodcock Road and Lapwing Drive, crossed the latter, and collided with a fence on the other side, having hit 11 or 12 people in its progress.

[The evidence of Inspector English then indicated that he spoke to the accused in Boroko cells about 60 minutes after the accident, when he appeared very drunk, and made a record of interview some five hours later when his condition was assessed as “recovering from drunkenness”.

Constable Kato as sector patrol officer, who saw the Holden go through the market and assessed its speed at 30 to 40 m.p.h., arrested the accused and formed the impression that he was drunk.

John Haino a former policeman, observed the erratic course of the Holden and its collision with 12 people.

Rex Butler, also observed the erratic course of the Holden, and collision with one woman.

Constable Peta gave evidence of the drinking party, and owned the Holden.]

An argument about the car ensued and the accused apparently possessed himself of the witness’ keys from a Snr. Constable Marum and drove off alone. The others were angry with him. The accused had never driven witness’ car before. Witness himself had had some five bottles earlier at an hotel and was apparently well under the influence. It is clear that the argument devolved upon the degree of intoxication of the various members of the group.

A record of interview was conducted with accused commencing at 11.45 p.m. on 12th August. It is clear from Inspector English’s evidence that it was not begun earlier, because of the condition of the accused’s affection by alcohol, which the Inspector observed when he first spoke to the accused at about 6.45 p.m. that night. Therein the accused stated “At first one of the vehicles collided with me and did the driver hit me on the right hand side at front bumper glove and then that vehicle shake me off the road. From there I collision between these people. The vehicle was a White Colt”. The accused stated his unfamiliarity with the control of the black Holden — “It was a bit different than the vehicle which I know how to drive it. The brakes double press then the brake’s on. And also the steering once you drive along the street its going one side”. Asked to explain the accident he said “At the first place the Colt tried to overtake another vehicle. And from there I was turned off the corner and then I put the accelerator on and the vehicle was run about 30 m.p.h. by the time too late for me to get the brake to stop the vehicle. Same time the car which was overtaking from the other vehicle hit me and I ran off the road”. His speed before he came to the overtaking vehicle was 30 m.p.h. He admitted consuming six bottles of beer at Moitaka (and I assume this to be referring to the speedway area), between 2.00-4.30 p.m. He had had no meal that day. He admitted that he had been affected by the drink he had taken. Further questioned as to the steering he said “Once you drive 30 m.p.h. then the vehicles going one side to the left”. He noticed the requirement to double press the brakes (to get a result) when he left Moitaka, but the one sided steering, he said, when he was turning in from Erima towards Gordon. He had taken the car because the others were “really drunk”.

If one is to assume that the accused, who neither made a statement nor gave evidence in this Court was trying accurately to recall the night’s events when giving his record of interview, then it is clear that between 11.40 p.m. and 12.55 a.m. he had a very confused, indeed totally inaccurate picture of what had happened during his approach from the corner of Woodcock Road towards the market area.

I am satisfied to the necessary degree that at the time of the accident the accused was driving the Holden vehicle in a state of very serious affection by alcohol. I think he had probably had more than six bottles of beer to drink, and that on an empty stomach. The observations made of him, taken in conjunction with the course his vehicle took and his account of the collision with the White Colt convinced me the accused was what the layman would describe as “drunk”. I am satisfied that he must have known he was intoxicated; and that if he had stopped to think must have known his driving ability was gravely affected. The evidence of the mechanic — Mr. Hoepper, leads me to the conclusion that the greater part of the happenings, though contributed to perhaps by the mechanical condition of the Holden, were attributable to his drunken condition and grossly negligent driving.

I am satisfied that the accused drove this vehicle in its defective and dangerous condition with an extremely high degree of negligence. That after coming around the corner from Erima at some 30 m.p.h. he had almost no control over his vehicle. That his vehicle “fishtailed” at least twice from one side to the other — taking most of the road space and crossing double centre lines in the process. That it collided with a stationary vehicle, the Colt, when it, the Holden, was on the wrong side of the road and indeed off the bitumen on that side. That it caused another orange car approaching on its correct side of the road to stop, and that it nearly collided as well with that orange car, head on. That it then veered to its left and was accelerated, that it jumped a concrete kerb and proceeded to knock down some 11 people killing two of them — proceeding without any visible lessening of speed through and out of the corner of the market area, and across another 29 ft. of roadway, and across a road verge to crash into the Barracks’ fence. The speed at which the accused was driving, though it was not high for an open road, was in the circumstances dangerous to others in the vicinity.

The accused’s manner of driving generally, and his failure to slow down, to stop, to control his vehicle in particular, could only I think be described as grossly negligent. His speed, as I say, though not fast for an open roadway, must I think be considered fast when one thinks of the traffic and pedestrian persons nearby. I find myself convinced that the accused’s driving exhibited for an appreciable time and over a significant distance a very high degree indeed of negligence — such as could well have attracted the epithet of “recklessness”. That he was exhibiting complete disregard for the lives and safety of others. I do not consider that there are features which would call for my bringing in a lesser verdict of dangerous driving causing death. This was indeed a case of manslaughter. The accused is convicted on both counts.

Verdict of guilty of manslaughter.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for the accused: W. J. Andrew, Acting Public Solicitor.

[dci] Section 292 of the Criminal Code provides as follows:

“It is the duty of every person who has in his charge or in 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, 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.”

[dcii] Section 292 of the Criminal Code provides as follows:

“It is the duty of every person who has in his charge or in 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, 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.”

[dciii] [1964] P. & N.G.L.R. 45.

[dciv] [1965-66] P. & N.G.L.R. 395.

[dcv] (1952) 26 A.L.J. 456.

[dcvi] (Unreported) N. 38 of 28 Apr. 1976 (Saldanha J.).

[dcvii] [1937] 2 All E.R. 552.

[dcviii] (1927) 19 Cr. App. R. 8.

[dcix] [1937] 1 All E.R. 319.

[dcx] (1925) 19 Cr. App. R. 8.

[dcxi] [1937] 1 All E.R. 319.

[dcxii] [1937] 2 All E.R. 552.

[dcxiii] [1973] 2 W.L.R. 481.

[dcxiv] [1937] 2 All E.R. 552.

[dcxv] [1937] 1 All E.R. 319.

[dcxvi] [1937] 2 All E.R. 552 at p. 557.

[dcxvii] [1943] 1 All E.R. 367.

[dcxviii] [1966] HCA 22; (1966) 115 C.L.R. 44, Barwick C.J. at p. 50.

[dcxix] [1976] 2 All E.R. 142.

[dcxx] [1975] 2 N.Z.L.R. 610.

[dcxxi] [1960] Qd. R. 332, Mack J. at p. 337.

[dcxxii] (Unreported) No. 455 of 3 Mar. 1967 (Clarkson J.).