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Beraro v The State [1988-89] PNGLR 562 (21 December 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 562 - Java Johnson Beraro v The State 

[1988-89] PNGLR 562

SC379

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

JAVA JOHNSON BERARO

V

THE STATE

Waigani

Bredmeyer Amet Sheehan JJ

28 September 1989

23 October 1989

29 November 1989

21 December 1989

CRIMINAL LAW - Evidence - Competency - Child - Examination as to competence - Need for court to be satisfied that child understands liability to punishment if evidence false - Understanding that wrong to tell lies insufficient - Oaths, Affirmations and Statutory Declarations Act (Ch No 317), s 6.

EVIDENCE - Competency - Child - Examination as to competence - Need for court to be satisfied that child understands liability to punishment if evidence false - Understanding that wrong to tell lies insufficient - Oaths, Affirmations and Statutory Declarations Act (Ch No 317), s 6.

CRIMINAL LAW - Particular offences - Manslaughter by criminal negligence - Defence of accident not available - Criminal Code (Ch No 262), ss 24, 287.

CRIMINAL LAW - Particular offences - Manslaughter by criminal negligence - Standard of duty of care - Discussion of - Question of degree - Circumstances at time of act or omission relevant in answering - Consequences not relevant - Fatal shooting on hunting trip - Criminal Code (Ch No 262), s 287.

CRIMINAL LAW - Sentence - Manslaughter - Manslaughter by criminal negligence - Fatal shooting on hunting trip - More serious than dangerous driving causing death - Sentence of four years IHL appropriate.

The Oaths, Affirmations and Statutory Declarations Act (Ch No 317), s 6, provides that a court

“shall ... if satisfied that a person called as a witness understands that he will be liable to punishment if his evidence is false, declare in what manner his evidence shall be taken”.

An accused was convicted of wilful murder on his own evidence and the evidence of the only eye-witness, a child aged four years three months at the time of the killing and five years two months at the date of trial. The child, when examined as to competency to give evidence, understood it was wrong to tell lies but was not examined as to and did not indicate whether he also understood he would be liable to punishment if the evidence was false.

The victim was killed when the accused fired three shots at birds in kunai grass in a swamp area between 6 and 6.30 pm from a public area in which a number of other people were present. The victim was bending over, setting a bandicoot trap.

On appeal against conviction,

Held

(1)      Where a child is examined as to competency to give evidence the court must be satisfied under s 6 of the Oaths, Affirmations and Statutory Declarations Act (Ch No 317) that the child understands that he will be liable to punishment if his evidence is false.

(2)      As there was no evidence before the trial judge from which he could conclude that the child understood that he could be punished if he told lies in court, the child was incompetent and his evidence was wrongfully admitted.

(3)      The Supreme Court, on appeal, had the same power to substitute a conviction for a lesser offence as did the trial judge under s 539 of the Criminal Code (Ch No 262), on the admissible evidence.

(4)      The defence of accident under s 24(1) of the Criminal Code has no application to manslaughter by negligence.

Timbu-Kolian v The Queen [1967-68] P & NGLR 320 followed.

(5)      For the purposes of s 287 of the Criminal Code (Ch No 262), which prescribes the duty of care, breach of which will give rise to criminal liability as “a duty to use reasonable care and take reasonable precautions to avoid” danger, what is or is not, criminal negligence is a question of degree to be decided on the facts; 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.

Callaghan v The Queen (1952) 87 CLR 115 at 121; R v Bateman (1925) 28 Cox’s Crim Cas 33 at 36; and Andrews v Director of Public Prosecutions [1937] AC 576 at 583, considered and applied.

(6)      (Amet J dissenting) In the circumstances, the appellant was guilty of the high degree of negligence which justified a verdict of manslaughter.

(7)      The appropriate sentence was about four years imprisonment with hard labour but as the appellant had served nearly two years eight months, which was almost equivalent to four years imprisonment with the usual remissions for good behaviour, a sentence equivalent to the period of imprisonment already served should be imposed and the appellant should be released from custody forthwith.

The State v Polin Pochalon Lopai [1988-89] PNGLR 48, applied.

(8)      (Per curiam) Manslaughter by criminal negligence involving the use of a gun is more serious than dangerous driving causing death resulting in death of one victim because it carries a greater maximum sentence and because a gun is more lethal than a motor car.

The State v Polin Pochalon Lopai [1988-89] PNGLR 48, considered.

Cases Cited

Akerele v The King [1943] AC 255.

Andrews v Director of Public Prosecutions [1937] AC 576.

Callaghan v The Queen (1952) 87 CLR 115; 26 ALJ 456.

Evgeniou v Reginam [1964] P&NGLR 45.

R v Bateman (1925) 28 Cox’s Crim Cas 33; [1925] All ER 45; (1925) 19 Cr App R 8.

R v Peck (Williams J, SC No 650 of 19 October 1971, unreported).

R v Scarth [1945] QSR 38.

State, The v Polin Pochalon Lopai [1988-89] PNGLR 48.

Timbu-Kolian v The Queen [1967-68] P&NGLR 320.

Appeal

This was an appeal against conviction and sentence on a charge of wilful murder.

Counsel

N Nwokolo, for the appellant.

C J Russell, for the respondent.

Cur adv vult

21 December 1989

BREDMEYER J: The appellant lives in Gerehu and on 1 October 1986 took a borrowed shotgun and went into the Waigani swamps to shoot something for dinner. He fired three shots, he says, at birds, one or two of which hit and killed Bona Laloka who at that time was near his bandicoot trap. The appellant was convicted after a trial of wilful murder and sentenced to a term of imprisonment which, together with the pre-trial custody period, amounted to 18 years imprisonment with hard labour. The appellant has appealed against conviction and sentence.

THE COMPETENCY OF A CHILD WITNESS

The appellant was convicted of wilful murder on the evidence of the only eye-witness to the killing, Billy Bona, a child aged four years three months at the time of the trial and the son of the victim. One of the grounds of appeal challenged the admissibility of this child’s evidence. The ground is as follows:

“(4)    The learned trial judge erred in admitting the evidence of a child who did not understand the nature of an oath or of the meaning of a solemn declaration or affirmation without being satisfied that the child understood that he would be liable to punishment if his evidence was false.”

The relevant section is s 6(1) of the Oaths, Affirmations and Statutory Declarations Act (Ch No 317), which reads:

“6.      Taking evidence of person incompetent to take oath, etc

(1)      Where a person called in a civil or criminal proceeding as a witness in a court or before a Commissioner for Oaths or other person authorized to administer an oath, appears to the court, Commissioner for Oaths or person authorized, to be incapable:

(a)      of comprehending the nature of an oath; or

(b)      of understanding the meaning of the solemn declaration or affirmation referred to in Section 5,

the court, Commissioner for Oaths or person shall, if satisfied that the person called as a witness understands that he will be liable to punishment if his evidence is false, declare in what manner his evidence shall be taken.”

Mr Fraser Pitpit, who represented the appellant at his trial, objected to Billy Bona giving evidence. I quote the complete transcript of evidence on this point:

“Pitpit — objects to child giving evidence.

Billy Bona — Preliminary questioning by the Court.

Q.       What is your name?

A.       Billy.

Q.       Your father is?

A.       Bona.

Q.       Do you go to school?

A.       No.

Q.       Are you going to school?

A.       Yes.

Q.       Do you go to church?

A.       Yes.

Q.       You go with mother and father?

A.       Yes.

Q.       Do you know Bible?

A.       Yes.

Q.       Know God?

A.       Yes. God be/happy if tell lies.

Q.       If you tell lies, would God be happy?

A.       No.

Q.       Is it good to tell lies?

A.       No.

Q.       If someone tells lies, would God be angry?

A.       No.

Pitpit still objects — very serious offence child can’t understand difference between lies and truth.”

The trial judge then gave a three-page ruling on the competency of the witness. The key part of his ruling is as follows:

“I found the child to be very intelligent and was confident in answering questions. He understood it was wrong to tell lies. He said he usually went to church. But he repeated and said ‘No’ to my question: ‘If someone tells lies would God be angry?’ I decided upon the repeated answer that the child did not appreciate the nature and obligation of oath and hence I decided against him giving evidence on oath. However, I decided that he was able to give evidence upon affirmation. I decided so under s 5 and s 6 of the Oaths, Affirmations and Statutory Declarations Act (Ch No 317).”

The child was then affirmed and gave evidence.

As to the child’s age, his mother said he was born on 14 June 1982. He was thus four years three-and-a-half months at the time of the killing and five years two months at the date of trial. The last lines of s 6(1), which I have quoted, require the court to be satisfied that the person called as a witness “understands that he will be liable to punishment if his evidence is false”. The last three questions in the transcript give the witness’s understanding. The answers to the first and third of the last three questions contradict one another. “Q. If you tell lies, would God be happy? A. No”; and “Q. If you tell lies, would God be angry? A. No”. The trial judge was right in concluding that the child could not be sworn — because he was not clear that God can punish if he took an oath on the Bible and then told lies. The court was left with the second last question: “Q. Is it good to tell lies? A. No”. That goes part of the way — the child knew that it was not good to tell lies, but he was not asked about, or told, that he could be punished if he told lies in court. In my view, the trial judge had no evidence before him from which he could conclude that the child understood that he could be punished if he told lies in court. He should therefore have ruled the witness incompetent to give evidence.

During the hearing of the appeal, we unanimously ruled the evidence of Billy Bona inadmissible and the above reasons are an elaboration of briefer oral reasons which we gave at the time. To my surprise, both counsel before us then assumed that the result would be a quashing of the conviction for wilful murder and an acquittal. But under s 27(2) of the Supreme Court Act (Ch No 37), the Supreme Court on appeal can substitute a conviction for some lesser offence, as the trial judge could have done under s 539 of the Criminal Code (Ch No 262). We therefore asked counsel to address us with authorities on the possible alternative verdict of manslaughter by criminal negligence. As this caught counsel by surprise, we then adjourned for one month to enable them to prepare submissions.

THE DEFENCE OF ACCIDENT

I agree with the views of Amet J that the defence of accident given under s 24(1) of the Criminal Code has no application to manslaughter by negligence because of the express opening words of that subsection and because, in any event, the matter has been resolved by authority.

CRIMINAL NEGLIGENCE

Section 287 of the Criminal Code provides:

“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 any thing, 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.”

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) 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 case concerned medical negligence which is covered in s 286 of the Code but, as the wording of that section is similar to s 287, the case is directly relevant. 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:

“Simple lack of care such as will constitute civil liability is not enough: for 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 ... 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.”

I agree with the discussion by Amet J of the law and cases on criminal negligence, and especially with his comment that, ultimately what is, or is not, criminal negligence is a question of degree to be decided on the facts. I also particularly like and agree with his comment that, whether an action or omission is criminally negligent or not, must be decided by reference to the circumstances at the time and not by the consequences of his conduct which brought him before the court. In the same way, on a charge of dangerous driving causing death, the criminal negligence is the quality of the driving in the prevailing circumstances and that issue must not be influenced by the consequences of the driving, for example, by the number of people killed. Those consequences are relevant on sentence only.

I now turn to a discussion of the facts. What were the circumstances of the shooting? How many shots hit the victim? Where were they fired from? What was the appellant firing at? What was his line of vision like? What people were in the area or might be expected to be in the area? The trial judge made but one finding of fact on these questions and that was that the accused fired two shots. But as the trial judge relied heavily on the evidence of Billy Bona, which we have ruled inadmissible, it is necessary for us to examine these questions afresh. There is no dispute that the accused fired two shots from his shotgun but it is in dispute whether each shot hit the victim and the position from where they were fired. The police evidence is that they found two spent cartridges; the first, marked Expert 2, was found 20 metres from the victim who was lying dead next to his bandicoot trap. The second spent cartridge, marked Expert 3, was found about 10 metres from the body of the victim. Various examinations were carried out by a firearms expert, Mr Kanowski in Brisbane, and he said that both cartridges were fired from the accused’s gun which was an exhibit. Cartridge Expert 2 contained No 2 shotgun pellets and cartridge Expert 3 contained No 3 shotgun pellets, the No 2 pellets being slightly larger and heavier than No 3 pellets. The medical evidence was that the body contained numerous shotgun wounds and that these were concentrated around the left side of the chest wall lacerating the lung and heart causing a massive haemorrhage in the left chest cavity. Others were found on the left thigh. The cause of death was through a haemorrhagic and punctured heart caused by multiple shotgun injuries. I conclude that the pellet wounds to the left thigh were not fatal. Ten shotgun pellets were recovered from the left lung and chest cavity and five pellets were recovered from under the skin of the left thigh. These pellets were taken by safe hand to Mr Kanowski who said that the 10 pellets from the chest were No 2 shotgun pellets whereas the five pellets from the thigh were No 3 shotgun pellets. Thus his evidence shows that two shots were fired at the victim and that the fatal shot was fired from cartridge Expert 2. Obviously, if a person is crouching, the thigh is near to the chest so one shotgun blast could catch both areas. Mr Kanowski agreed in cross-examination that there can be some variation in the weight of same-sized pellets. It was then put to him that the injuries to the chest and thigh could have come from the one shot. He said that, in his opinion, the 10 pellets and the five pellets could not have come from the same shot. Mr Kanowksi also examined the singlet which the victim was wearing at the time which had approximately 40 small holes in it which were consistent with having been caused by the passage of No 2 shotgun pellets. The area in which the holes were present was approximately 16 cm by 16 cm. By conducting tests on the spread of pellets from the shotgun, he concluded that the spread of pellets on the singlet was caused by a shot fired at a distance of between 10 to 22 metres. A fair summary of the State evidence is that the fatal shot was to the chest and was caused by a No 2 cartridge fired from a distance of about 20 metres.

What is the accused’s own evidence on the shooting? His record of interview given on the night of the killing is quite brief. He said he saw a wild duck sitting on pitpit grass and got the shotgun and shot at it. When he fired that shot, all the ducks were flying everywhere. He went to pick up the duck and then saw some more ducks sitting on the pitpit grass so he took the gun, loaded the cartridge, and fired a second time at those ducks. He went closer to check the ducks and heard the cry of a man as if he had been hit. He then got frightened and left. These answers imply that it was his second shot which hit the victim.

In his sworn evidence given at the trial, he said that he aimed and fired the first shot at a bird. As a result of that shot, some birds scattered and some landed on the pitpit and others landed beyond the pitpit where he could not see them. He changed his position. A little bird flew back. He saw the kunai and pitpit moving and he thought a bird was running into the pitpit so he fired at that bird. Then he heard someone cry out in pain and he realised he had hit someone and became very afraid for his life and for that of his children. Later on he said that after the first shot, two or three birds flew and went beyond the pitpit. He then saw and heard birds flying back to where they originally came from. One of these birds flew in the direction where the victim was. He said, “I had a quick glance and I saw the pitpit and grass so I thought it was one of those birds so I shot at that direction”. He says that it was this second shot which got the victim. He heard a cry and he estimates the distance was 15 to 20 metres. He marked his position at the place of the second shot on a sketch plan, exhibit “M”.

I think it fair to conclude from the State and defence evidence that the second shot hit the victim in the chest and killed him. It was fired from the cartridge (Expert 2) and contained No 2 shot. It was fired from a distance of 15 to 20 metres. The accused said he did not eject the cartridge exactly where he fired so the finding of the cartridge shell does not pinpoint the appellant’s exact location.

What was he firing at? No State eye-witness gave evidence on this, so we are left with the accused’s own version. I have already quoted the relevant evidence. He told the police in his interview that the first shot was fired at “a wild duck sitting on the pitpit grass”. His second shot was also fired at some more ducks which he saw sitting on the pitpit. In his sworn evidence he said he fired the first shot at birds. They scattered and flew away. He changed his position. A little bird flew back to where they had been.

“Then when I saw the kunai and pitpit moving I thought the bird was running into the pitpit so I fired. When I fired I did not hear any noise ... when I fired down where the pitpit were [sic] and that when I moved forward to where the police said the shell was. Then I heard a noise. One noise which said ‘Aiha!’ Then I heard that it came from the direction in which I fired. I said, ‘Oh no’.”

He said that after firing the second shot he moved a little and ejected the cartridge in the place where the police discovered the cartridge shell (Expert 2). Later he said:

“After the first shot 2-3 birds flew and went beyond the pitpit. I thought the birds could land where the shell were see [sic]. I also looked if any birds came around there. I was looking and I heard birds starting flying back to where they were originally came from. When birds took off, one flew to the direction where the deceased was. I had quick glance and I saw the pitpit and grass so I thought it was one of those birds so I shot at that direction.

Q.       See anyone else beneath the movement of kunai grass?

A.       No, I did not see anything at that area.

Q.       You only see pitpit and grass so you fired?

A.       Yes.” (My emphasis.)

What was the vegetation like along the line of sight at the time of the second shot? The photos tendered unfortunately do not help a great deal because the police concentrated on the location of the other shell, Expert 3. They have illustrated its location in relation to the victim and the trap in photos B2 and B3. Those photos illustrate one shot, but not the fatal shot. But some of the other photos are helpful, especially those which show the trap and the surrounding vegetation. From the photographs, the sketch plan exhibit “O”, and from the oral evidence, it is clear that the trap was on the ground; it was surrounded by kunai grass about waist high. One of the witnesses said it was a metre-and-a-half high. The trap was located at the edge of the kunai and hard against some wild pitpit higher than a man’s height. The line of sight from where the fatal shot was fired appears to have been across the kunai slightly down hill and the victim who was near his trap would be obscured by the kunai if he was kneeling down and if he was standing up he would be standing against a taller back-drop of pitpit and would not be silhouetted against the horizon. In cross-examination the appellant said he was roughly 15 to 20 metres from the victim when he fired the second shot and the terrain was going slightly downwards. The vegetation between him and the victim, meaning along his line of sight, was “a mixture of pitpit and kunai grass at the time I shot”.

What was the appellant firing at? His own evidence varies a little here. In his record of interview which I have quoted, he said that each shot was fired at a duck or ducks “sitting on the pitpit grass”. In his sworn evidence describing the same shot, he said “then when I saw kunai and pitpit moving I thought birds running so I fired”. And in the passage just quoted, which is part of examination-in-chief, he said, “I had a quick glance and I saw the pitpit and grass so I thought it was one of those birds so I shot at that direction”. The sworn evidence was given at greater length and probably is a more accurate account. Note that both shots were fired at ground level at a quarry which had gone into kunai grass (waist high) and/or pitpit grass (say six feet high).

Where did the shooting take place and how many people were in the area or likely to be in the area at that time? The accused told Inspector Linonge that it happened “at the sewerage” near Gerehu Stage 5. In his police interview, he described the area at the back of Gerehu Stage 5. In the sketch plan, exhibit “O”, the accused marked where he parked his vehicle and it is the road around the sewerage pond near Gerehu Stage 5. He said he fired his first shot just a few metres from where he parked his bus. The trial judge went on a view but did not leave us with a note of his observations. I consider I am entitled to take judicial notice of standard government maps. The Gerehu sewerage pond is shown on a large map hanging on the wall of the National Court which is Port Moresby City and Suburbs, scale 1:10,000, produced by the National Mapping Bureau in 1984. The swamp itself is also shown on two other maps, City of Port Moresby, Milinch of Granville, Fourmil of Moresby, and on Hamil of Moresby, NE, Milinch of Granville, Fourmil of Moresby. From these maps, it is clear that the Gerehu sewerage pond is within the town boundaries of the city of Port Moresby. The sewerage pond is situated between Ranudogu Rd, a perimeter road, and a north-west extremity of the Waigani swamp. At its nearest point the southern boundary of the pond is about 220 metres from the road I mentioned; and at its nearest point the swamp is about 600 metres from the road. So the shooting took place somewhere between 220 and 600 metres from the nearest road and houses in Gerehu. The accused himself, in his evidence, said it took two to four minutes to drive there from his house in Gerehu Stage 5. Constable Elkis, who went to the scene to see the body on the fatal night, said the body was about 100 metres from the nearest swamp. The accused was not firing at birds over water. Indeed, for his first shot which he fired near his vehicle, he said he put his back directly to the swamp.

How many people could a reasonable man expect to be in the area at that time? I note that the area is close to Gerehu houses and it has a road to it giving vehicular access. A witness named Heni Makefa, who lives at Gerehu Stage 4, was there with nine little boys. He saw the accused and others there, saw the gun and heard the shots. He said he goes there often in the day-time to fish and has been there many times. He said men do go there to shoot birds. He did not see any wild ducks on that evening but said there are some there closer to the big swamp. Makefa was there with nine children, the accused was there with three children and two dogs. Both he and the accused said they saw a Central Province man there with big hair and a yellow shirt. The accused mentioned that this unknown man was there with children. The victim, Bona Laloka, was also there near his bandicoot trap with his four-year-old son, Billy. Adding up all these people mentioned and, assuming the Central Province man with the big hair had two children, there were 19 people in the area at the time of the shooting, four of whom were adults and 15 were children who are, of course, less easily visible to a shooter.

What was the time of the shooting? The accused said he left work at Belltek Laboratories (which is in Gordons) at 5 pm. He drove home and on the way dropped some people off at University and Waigani market. At his house at Gerehu Stage 5, he “stayed for a time being”, drank tea and had a rest. He said at about 6 pm he told his wife he would go and look for some meat in the swamp. It took two to four minutes to drive there. When he got to his destination and let the children out to play with their BMX bicycles, he said, “It was already late in the afternoon”. The date was 1 October, about halfway between the shortest day and the longest day of the year. The witness Makefa, who passed the car, saw the children, and heard the shots, said it was “close to evening so I had to hurry back”. I think it fair to conclude that the shots were fired after 6 pm when the light was less than perfect.

Let me summarise these findings. The appellant went shooting in an area just a few hundred metres from the suburb of Gerehu in the area of the Gerehu sewerage pond and the Gerehu end of the Waigani swamp. The area has road access. People were in the area with their children. The evidence is that people do go there to shoot and fish. It is public land not traditionally owned and it is reasonable to infer that people from Gerehu go there from time to time for a variety of purposes: shooting, fishing, collecting firewood, for exercise, and other purposes. Being not traditionally owned, anyone is allowed to go there. The vegetation there is kunai grass and some pitpit, also a few trees and shrubs. The area is not perfectly flat, there are some slight hollows and slopes. The kunai grass is waist high or a little higher. One witness put it at a metre-and-a-half high, which is four feet 11 inches which is chin-high on me. Visibility after 6 pm is not perfect. A shotgun is a more lethal weapon than a spear or bow and arrow; it can fire further than a hand-held spear and its spread of shot makes it more dangerous than a spear or an arrow over a wider area. The reasonable man who goes shooting in that area at that time with a shotgun should know all those things.

I consider that to shoot in those conditions at ground level, that is, from the shoulder into kunai grass, at a target which has gone into kunai grass, shows a very high degree of carelessness. I consider that it amounts to gross negligence or criminal negligence. He fired his first shot into the kunai or pitpit a few seconds after parking his vehicle. I consider that the reasonable shooter who wants to shoot at ducks in that area should shoot at them over water, flying overhead, or perched on a tree. I consider that, given the circumstances I have described, it is highly dangerous for a shooter to shoot at ground level into kunai or pitpit because the vegetation can easily obscure or partially obscure a person, adult or child, who might be there.

I consider he is guilty of that high degree of negligence which justifies a verdict of manslaughter. With the rejection of the evidence of the child, Billy Bona, there is no eye-witness evidence that the appellant deliberately fired at the victim intending to kill and hence the verdict of wilful murder cannot stand. I would quash that verdict and the sentence which was imposed upon it. Under s 27(2) of the Supreme Court Act, I substitute a verdict of manslaughter.

We invited submissons on an appropriate sentence for manslaughter if we should return such a verdict. I have considered those submissions. This is a case of manslaughter by criminal negligence by the use of a shotgun resulting in one death. It is not as serious, in my view, as manslaughter by assault, for example by a punch or kick to the belly which leads to a spleen death. It is not as serious because, in those cases, the punch or kick is deliberate. In The State v Polin Polachon Lopai [1988-89] PNGLR 48, I suggested a range of sentences from five years imprisonment for a plea of guilty to six years for a conviction following a plea of not guilty, for that kind of manslaughter. I consider that manslaughter by criminal negligence involving the use of a gun is more serious than dangerous driving causing death resulting in the death of one victim which may incur a sentence of up to one or two years imprisonment, because it carries a greater maximum sentence and because a gun is more lethal than a motor vehicle. I consider that the appropriate sentence for the appellant, bearing in mind all the factors on sentence that were mentioned to the trial judge and those which have been argued before us, is about four years imprisonment with hard labour. As he has already served two years, seven months and three weeks to date, which includes a pre-trial custody period of four months, that is almost equivalent to four years imprisonment with the usual remission of one-third for good behaviour. I therefore would substitute a sentence equivalent to the period of imprisonment already served and order his release from custody forthwith.

AMET J: The appellant was found guilty and convicted of wilfully murdering one Bona Laloka near the swamps on the outskirts of Gerehu Stage 5 in Port Moresby on 1 October 1986. It was not in dispute that the deceased died from shotgun pellet wounds he received from a shot fired by the appellant from the shotgun he used at the time. The only eye-witness to the shooting was Billy Bona, the son of the deceased, who was aged four years three months at the time of the incident. It was only on the strength of this witness’s evidence for the State that the trial judge found the appellant guilty of wilful murder. The appellant has appealed against both his conviction and the sentence which was 18 years imprisonment.

One of the grounds of appeal against conviction was that:

“the learned trial judge erred in admitting the evidence of a child who did not understand the nature of an oath or of the meaning of a solemn declaration or affirmation without being satisfied that the child understood that he would be liable to punishment if his evidence was false.”

After hearing submissions on this ground of appeal from counsel for appellant, the court invited counsel for the State to respond to this ground of appeal first as the court considered that, if this ground was successful, it would dispose of the appeal against conviction for wilful murder. Following counsel’s address, the court unanimously concluded that it would uphold this ground of appeal in favour of the appellant for the reasons that Bredmeyer J gives, with the consequence that because the child’s evidence was the only evidence upon which the appellant was found guilty of wilful murder, his appeal against that conviction would succeed. The court then invited counsel to address the balance of the issues as to what the alternative verdict might be: whether it could be unlawful killing by negligent acts or omissions under s 287 of the Criminal Code (Ch No 262) or a complete acquittal.

Counsel for the appellant spent much time advancing arguments relying upon the defence of accident under s 24 of the Criminal Code. Section 24(1) provides that:

“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.”

It was submitted that the relevant act of hitting the deceased on the chest by pellets fired from the shotgun by the appellant was not the exercise of the will of the appellant and so the death of the deceased was an event that occurred by accident. Reliance was placed on the Australian High Court decision in Timbu-Kolian v The Queen [1967-68] P&NGLR 320 as being the authority for the proposition.

With respect to learned counsel for the appellant who spent much time and energy in arguing the defence of accident, quite simply, as counsel for the State submitted, where manslaughter by negligence is alleged under s 287 the authorities are clear that the s 24 defence of accident has no relevance. The s 24 defence is made “subject to the express provisions of this Code relating to negligent acts and omissions”, so that, in a charge of manslaughter where death is alleged to have resulted from a failure to use reasonable care or take reasonable precautions as required by s 287, liability is determined without resort to s 24. The High Court of Australia in the case of Evgeniou v Reginam [1964] P&NGLR 45 dealt with this misapplication of s 24 definitively. When the charge is that of negligent acts or omissions under s 287, causing death, s 24 has no application. The shotgun was clearly a dangerous thing within the meaning of s 287 so the s 24 defence of accident therefore does not arise for consideration.

The only issue remaining for determination therefore is whether the actions or omissions of the appellant were of such a nature as to amount to criminal negligence. If he was so criminally negligent in his management and use of the dangerous firearm, then he would be guilty of manslaughter; if his use or management of the firearm did not amount to criminal negligence, then he would not be guilty. The courts have endeavoured to define what the expressions “reasonable care and reasonable precautions” mean in terms of what amounts to criminal negligence in order for a charge of manslaughter to be sustained. The classic definition of criminal negligence is said to be contained in Bateman’s case (1925) 28 Cox’s Crim Cas 33 where the Lord Chief Justice Hewart said, 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.”

In a later case of Andrews v Director of Public Prosecutions [1937] AC 576, in the House of Lords, Lord Atkin, referring to Bateman’s case and approving of the general principles therein, proceeds, at 583:

“Here again I think with respect that the expressions used are not, indeed they probably were not intended to be, a precise definition of the crime. I do not myself find the connotations of mens rea helpful in distinguishing between degrees of negligence, nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case the degree of negligence shown is a crime and deserves punishment. But the substance of the judgment is most valuable, and in my opinion is correct ... Simple lack of care such as will constitute civil liability is not enough: for 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.” (My emphasis.)

The question then arises, what is the degree of negligence required by s 287? The High Court of Australia in Callaghan v The Queen (1952) 87 CLR 115 posed a similar question (at 121) in relation to the equivalent provision of the Western Australian Criminal Code, s 291a, and proceeds:

“The words ‘use reasonable care and take reasonable precautions’ smack very much of the civil standard of negligence; yet, particularly of late, defaults involving no moral blame at all are treated as exposing the party to civil liability for negligence in respect of any damage which results.”

After referring to and approving the decision of the Queensland Supreme Court in R v Scarth [1945] QSR 38, the High Court continues (at 121):

“The question obviously is one of difficulty but in the end it appears to depend upon a choice between two courses. One is to treat the omission to perform the duty to use reasonable care and take reasonable precautions as a description of negligent conduct to be applied according to a single and unvarying standard no matter what purpose for which the description is employed. The other is to recognize that it may have different applications when it is a description of fault so blameworthy as to be punishable as a crime and when it is used to describe a basis of civil responsibility for harm that is occasioned by the omission.”

The High Court proceeds then to refer to Sir James Fitzjames Stephen’s  Digest of the Criminal Law in which he defines this form of unlawful homicide as occuring when death is caused by an omission, amounting to culpable negligence, to discharge a duty tending to the preservation of life, and the terms in which he summed up to a jury the neglect which may make a man guilty:

“Manslaughter by negligence occurs when a person is doing anything dangerous in itself or has charge of anything dangerous in itself and conducts himself in regard to it in such a careless manner that the jury feel that he is guilty of culpable negligence and ought to be punished. As to what act of negligence is culpable, you, gentlemen, have a discretion, and you ought to exercise it as well as you can.”

The High Court referred to another work of Sir James Fitzjames Stephen, The History of Criminal Law (vol 3) at 9-11, and said:

“He proceeds to enumerate these duties. In his enumeration, he includes a duty to do dangerous acts in a careful manner, and a duty to take proper precautions in dealing with dangerous things. He deals with the question of the degree of want of care in the following passage: ‘To cause death by the omission of any such duty is homicide, but there is a distinction of a somewhat indefinite kind as to the case in which it is and is not unlawful in the sense of being criminal. In order that homicide by omission may be criminal, the omission must amount to what is sometimes called gross, and sometimes culpable negligence. There must be more, but no one can say how much more negligence than is required in order to create a civil liability. For instance, many railway accidents are caused by a momentary forgetfulness or want of presence of mind, which are sufficient to involve the railway in civil liability, but are not sufficient to make the railway servant guilty of manslaughter if death is caused. No rule exists in such cases. It is a matter of degree determined by the view the jury happen to take in each particular case.”

In applying all of these epithets to whether the appellant was criminally negligent or not, it must be decided by reference only to the situation prevailing when the accused performed the actions in issue and not by reference to the consequences which brought him before the Court. In the Nigerian case of Akerele v The King [1943] AC 255, the appellant was rightly convicted of the manslaughter of a patient contrary to similar provisions of the Criminal Code of Nigeria. The Privy Council held that the common law distinction between civil and criminal negligence was applicable in considering whether the appellant was rightly convicted of manslaughter under of a patient that Code. The Privy Council (at 262) referred to the trial judge’s reference to Bateman’s case and the following passage in Halsbury’s Laws of England (2nd ed), vol 9 at 444:

“What amount of negligence is to be regarded as gross is a question of degree for the jury, depending on the circumstances of each particular case”,

and approved both references as correct statements, but said that it must be remembered that the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation. The Privy Council (at 262) referred to another statement of Lord Chief Justice Hewart in Bateman’s case that:

“‘It is desirable that, as far as possible, the explanation of criminal negligence to a jury should not be a mere question of epithets. It is, in a sense, a question of degree, and it is for the jury to draw the line, but there is a difference in kind between the negligence which gives a right to compensation and negligence which is a crime.’

How necessary it is to keep this distinction in mind may be illustrated reference to two cases. In a note to Reg v Noakes (1866) 4 F & F 921 it is said: ‘It is impossible to define it [ie culpable or criminal negligence], and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinions’.”

To test the quality of the conduct of the appellant as to whether or not he used reasonable care and took reasonable precautions to avoid any danger at the time when he fired the shot and thus whether he was criminally negligent or not, it is necessary to refer to the relevant facts established beyond doubt as existing at the time. As we have dismissed the evidence of the only other eye-witness to the incident, only the evidence of the appellant as to what happened remains to be considered. There is some small assistance to be gained from some photographs taken of the scene as to the location of the bandicoot trap amongst the tall grass and the relative height of the pitpit and kunai grass as being indicated by two policemen in photographs B2 and B3. Photographs B5 and B6 show the bandicoot trap amongst the kunai grass with a policeman also standing in B6 giving some idea of the height of the kunai and pitpit grass. These photographs would show the pitpit grass behind the policeman and the bandicoot trap to be as tall as or even taller than the policeman whereas the kunai grass in front of the policeman and the bandicoot trap, in the direction from which the photographs were taken, is above knee-to-waist high. The evidence of witness, Heni Makefa, does confirm that there was kunai grass and pitpit growing as shown in the photographs. At p 34 of the transcript of evidence, this witness suggests the kunai to be about one metre tall and that the body of the deceased was close to the pitpit which he estimated to be taller than the kunai grass. Witness Constable Piritai, who also attended the scene, described the grass near the body to be above a normal man’s height. The next witness, Constable Simewa who also attended the scene, described the location where the deceased’s body was found next to the bandicoot trap as having a bit of clearance in front of the trap and that the general area was kunai grass and wild pitpit. Upon being shown the photograph B3, he described the height of the grass as being about a metre tall. When he was asked how high the tallest grass between the two policemen was, he answered “tallest grass roughly one-and-a-half metre on the waist [sic]”. At p 59, the following series of questions and answers was recorded:

“Q.     If man standing on right, lady and man standing on left would he see him clearly?

A.       Yes.

Q.       If man on left was squatting would you see him clearly?

A.       Still see him but not very clearly.

Q.       If man on left lying down would he see him clearly?

A.       No.”

In his evidence, the appellant gave an account of what took place. He stated at p 64:

“When I fired, some birds scattered, some went towards big swamp and others went to where the deceased was. Others fell in pitpit and others went beyond the pitpit ... I came to first drain where there was a lot of pitpit. I had already loaded the gun where I fired the first shot. Because some birds scattered and some landed on pitpit and others landed beyond pitpit I could not see them. I believe that they went beyond and landed on the ground. When I came, there was a lot of pitpit which we saw yesterday. They were not thick before. Probably within a year they grew thick. When I came the birds began to scatter. So I locked the gun and ready to fire. I walked, a little bird flew back from where they came. This one that was on the ground flew to follow other lot. Then when I saw kunai and pitpit moving I thought bird running into pitpit so I fired. When I fired I did not hear any noise.”

Those essentially are the facts pertaining to the circumstances in which the appellant fired the shot which, it is not denied, hit the deceased causing his death. This is also the only evidence relating to the grass and pitpit vegetation and the height of the grass. I accept also that the medical evidence as to the nature and location of the pellet wounds on the body of the deceased are supportive of and consistent with the deceased being shot in a squatting position. That would appear to be consistent with his attending to setting the bandicoot trap near which his body was, as shown in photographs B5 and B6. The other relevant facts are that it was between 6 and 6.30 in the afternoon. There is some evidence that the area is a common ground where others also from Gerehu and the city of Port Moresby go to hunt wild game. There is also evidence that on this afternoon there were some other persons present in the area. There is, however, no evidence as to precisely how many people — men, women or children — were present in the vicinity at the time. There was no evidence as to the regularity or frequency of other people from Gerehu or Port Moresby going to hunt wild game in the area. There was no evidence at all that setting of bandicoot traps in the area was a common occurrence and especially late in the afternoon, about 6 to 6.30 pm. There was no evidence that people have been known to squat amongst the tallish pitpit and kunai grass either setting bandicoot traps or doing other kinds of things at that late hour of the day.

These being the facts relevant or prevailing at the time the appellant aimed and fired the shot, the question is, can his conduct be said to have been criminally negligent? If the deceased was standing, as shown by the photographs B2 and B3 and was shot, when he would have been clearly visible, then I would have no hesitation in concluding that the appellant’s action would have been criminally negligent. But as I have accepted that the deceased was squatting in setting the bandicoot trap and thus may not have been able to be seen in the grass in the direction in which the appellant says the birds flew and landed amongst the pitpit grass, can the appellant’s action in so firing the shot in the direction where he saw no person standing be said to have been criminally negligent? Should the appellant have gone to where the birds had flown to, to ensure that no human beings were there, before he fired the shot? What other reasonable care or reasonable precautions need he have taken to avoid hitting the deceased, who was squatting in the grass and was not able to be seen in an area where there is no evidence that some persons might be squatting and setting bandicoot traps? There is no evidence that, from the distance that the appellant shot and in the circumstances of the height of the grass, had he looked more carefully he would have seen the deceased. In all of these circumstances, can it be safely said beyond a reasonable doubt that the actions of the appellant were culpable, or criminal, or grossly negligent such as to amount to criminal negligence, or was it simply a matter of civil liability, for the fact of injury being occasioned to the deceased, without any omission to use reasonable care or take reasonable precautions on the part of the appellant? It might be put in another way: what reasonable care and reasonable precautions should the appellant have taken in addition, in the circumstances, to avoid hitting the deceased who was squatting amongst the tall grass and who could not be seen at the time? Whether the accused was criminally negligent or not must be decided by reference to the situation prevailing when the appellant performed the action in issue and not by reference to the fatal consequence.

The only other Papua New Guinea authority resembling the facts in this case is R v Peck (1971) No 650, a decision of Williams J in Madang on 19 October 1971. The accused was charged with unlawful killing by a point 22 rifle in criminally negligent circumstances. Williams J ruled that s 23 (the forerunner to s 24) did not apply, by adopting the principles in Bateman’s case, Callaghan’s case and Evgeniou v Reginam. The particular facts found in that case can be compared with the appellant’s actions or omissions in this case. His Honour stated them at p 8:

1.       It is equally clear on the accused’s own statements both to Crown witnesses and in this Court that he was, at the time of discharging the shots from the window, aware that a person was within the general direction of his line of fire.

2.       It was late at night and, according to the accused, “there was a partial moon overhead”.

3.       The area into which he was firing has trees, bushes and shrubs.

4.       The distance from the bedroom window to where accused observed a head was 16 feet.

5.       The accused in sighting the rifle observed a head which must mean that the head of the man was within his line of sight when sighting the rifle.

6.       There was the ever-present likelihood of sudden movement of the person behind the frangipani bush.

The accused said he aimed to the left of the figure and considered what he did was safe. Williams J said it was, however, not a question of whether the accused says that he considered his actions safe, but whether the ordinary reasonable man would consider them safe. His Honour concluded, at p 8:

“It seems to me that, looked at from the standpoint of the ordinary reasonable man, the actions of the accused in discharging the fire-arm in the circumstances I have outlined were fraught with risk and danger of a very high degree and that the accused in consequence was in breach of the duty imposed on him by s 289 of the Criminal Code.”

None of these kinds of factors were present in this appellant’s case.

In the end result, applying all these principles and epithets, and on the facts that were before the trial judge, I cannot safely say beyond a reasonable doubt that the actions of the appellant were culpable, negligent or grossly negligent such that he could be said to have been criminally negligent or criminally liable for the death of the deceased. I would therefore return a verdict of not guilty and acquit the appellant.

SENTENCE

Though I dissent from my brothers on appeal against conviction, I agree with their conclusion on sentence, in particular the reasons given for them by Bredmeyer J. I have nothing further to add.

SHEEHAN J: I agree with the views of Bredmeyer and Amet JJ on the law and with the views of Bredmeyer J on the facts. I agree that the conviction for wilful murder must be quashed and that a conviction of manslaughter be substituted. I agree with the sentence proposed and, in view of the time the appellant has spent in custody, that he should now be released.

Appeal against conviction allowed. Verdict of manslaughter substituted. Appellant released from custody

Lawyers for the appellant: Ikennas.

Lawyer for the respondent: K Bona, Public Prosecutor.