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Public Prosecutor v Noel [1998] VUSC 79; Criminal Case No 087 of 1998 (30 October 1998)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

HELD AT LUGANVILLE/SANTO

(Criminal Jurisdiction)

Criminal Case No.87 of 1998

PUBLIC PROSECUTOR

-V-

KUVU NOEL

Coram: Mr Justice Oliver A Saksak

Mr William Falau - Clerk

Counsel: Mr Bill Bani Tangwata for Public Prosecutor

Mr Edward Naliel for the Defendant

ORAL VERDICT

The Defendant pleaded not guilty to a charge of unintentional harm causing death contrary to section 108(c) of the Penal Code Act CAP. 135 (the Act) when re-arraigned on 19th October 1998. Initially he was charged with causing death by reckless driving contrary to section 12 of the Road Traffic (Control) Act [CAP.29] to which he pleaded not guilty on 18th August 1998. In addition he pleaded not guilty to a charge of driving a vehicle without independent footbrake contrary to section 31 of the Road Traffic (Control) Act.

The matter was dealt with on trial on 19th October, 20th October (morning only) and 21 October (afternoon only). I deliver an oral verdict today because in the course of the trial I have noted the attendance of the members of relatives both of the deceased person's and the Defendant's and the anxiety they have for an urgent decision of the Court. The Prosecution has called about seven witnesses. Their evidence was summarised by Mr Tangwata yesterday and I need not repeat them. The standard of proof required in criminal cases is proof beyond reasonable double. Section 8 of the Act is specific on that. The Defence called three witnesses including the Defendant himself. Their evidence is such that the Court has found it difficult to judge whether or not the Defendant is guilty of the charge of unintentional harm causing death. I likened the trial to a boxing match of two very good experienced boxers. They both put up such a good fight that it is difficult for the referee to announce the winner but in the end announces the winner on a technical point.

So it is with this case. Had it not been for the technicality of the Law, I would acquit the Defendant today. Defence Counsel has referred the Court to some important English cases on the matter which are contained in his written submissions. I do not propose to deal with them. I instead look at what our law says. The law which the Defendant is charged with is section 108(c) of the Act. It reads:

"No person shall intentionally cause damage to the body of another person, through recklessness or negligence, or failure to observe any law.

Penalty: (a) ....................,

(b) ....................,

(c) if the damage so caused result in death, imprisonment for 5 years." (emphasis added)

Criminal intent and recklessness are defined by section 6 of the Act which reads:-

"6(1) No person shall be guilty of a criminal offence unless he intentionally does an act which is prohibited by the Criminal law and for which is specific penalty is prescribed. The act may consist of an omission, or a situation which has been created intentionally.

(2) No person shall be guilty of a criminal offence unless it is shown that he intended to do the very act which the law prohibits, recklessness in doing that act shall be equivalent to intention.

(3) A person shall be considered to be reckless if:-

(a) Knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and

(b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.

(4)A person shall not be guilty of a criminal offence if he is merely negligent, unless the crime consists of an omission. A person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise ......" (emphasis added).

The elements of the offence under section 108 of the Act and the issues of recklessness, negligence and failure to observe any law were dealt with by me in the case of Public Prosecutor -v- Silas Robert, unreported Judgement dated 15th December, 1997. I read the following passages from page 10 fifth paragraph.:-

"From the prosecutions submissions it seems to me that they are saying that recklessness means negligence as they have not attempted to distinguish to two. That is not correct. From the legal provisions referred to above, it is clear to this Court that the two terms 'reckless' and 'negligence' are different and are separate elements that they have to prove.

I do not mean that the prosecution has to prove all three elements of recklessness, negligence or failure to observe a law as required by section 108(c) in order to prove guilt under that section. No, they can prove only one or all but it's wrong to say that one element is the same as the other.

The ordinary meaning of the word 'reckless' in the English language is 'careless', 'heedless', 'inattention to duty'. Literally it means 'without reck'. 'Reck' is an old English word meaning 'heed', 'concern' or 'care' (see R -v- Bates [1952] 2All ER. 842, per Donovan, J at pp.845-846)."

From page 11, I read the following passages:-

"The term 'recklessly' means something more than mere negligence or inadvertence.

I think it means deliberately running an unjustifiable risk (see Reed (Albert E. J& Co. Ltd -v- London and Rochester Trading Co. Ltd [1954] 2 Lloyds Rep. 463 per Devlin, J at p.475).

The term 'recklessly' means grossly careless. Recklessness is gross carelessness in the doing of something which in fact involves a risk being such having regard to all the circumstances, that the taking of that risk would be described as 'reckless'.

In describing the test, Megan, J said:

"The only test, in my view, is an objective one. Would a reasonable man knowing all the facts and circumstances which the doer of the act as 'reckless' in the ordinary meaning of the word in ordinary speech? As I have said, my understanding of the ordinary meaning of that word is high degree of carelessness. I, do not say 'negligence' because ' negligence' connotes a legal duty" (see Shawnigan Ltd -v- Vokins & Co Ltd [1961] 3 all ER 396, per Magaw J, at p.403.

I accept these definitions as correct as this reflects the position as far as Vanuatu law is concerned as clearly provided in section 6(3) of the Act. 'Recklessness' therefore involves a risk, knowing the risk and the consequences and yet taking that risk."

Applying these to the facts as given in evidence before the Court, there is no doubt that the Defendant knew he was driving a vehicle with a defective foot brake. Indeed he admitted in his own evidence when questioned by the Court that his hand brake was not in working condition. He admits that his vehicle is about 9-10 years old and that he is still driving it today. The Defendant is a highly experienced mechanic. He knows all these defects and yet chooses to drive such a vehicle, knowing the risk and the consequences of having an accident. In my judgement the Defendant was reckless.

Section 11 of the Road Traffic (Control) Act CAP.29 makes it an offence for any person to drive, or who being the owner of a vehicle permits another to drive a vehicle which is or any part thereof is being a danger to the public. Under Section 6(2) of the Act the Defendant having driven such a vehicle was reckless and his action is equivalent to intention. That is the technicality of the law which the Defendant is caught by. Notwithstanding that he did not intend to cause the death of the victim, he must be made liable because he was reckless. That is the reason why Parliament enacted a law which includes liability for actions done without intention but with recklessness.

On that technical point I find the Defendant guilty of unintentional harm causing death under section 108(c) of the Act. Further I find the Defendant guilty of driving a vehicle with a defective footbrake contrary to section 31 of the Road Traffic (Control) Act. I accordingly convict the Defendant as charged.

In sentencing I take into account what Mr Naliel has said in mitigating sentence on behalf of the Defendant. In particular the fact that the Defendant did stop and picked up the victim in his own truck to the hospital in an attempt to save his life. That it was he himself who summoned the doctor and he assisted in carrying the victim onto the hospital bed. I appreciate his attempts at paying compensation to the relatives of the late William Moli, victim. The issue of compensation will be left entirely to the Chiefs. What the Defendant did to the victim at the end of the accident to save his life is an act of charity, love, compassion and mercy. He could have escaped from the scene but he did not. This is an example to be followed by others who face similar situations. We need more drivers of such character on our roads. This earn the Defendant a lot of credit.

This is a case very much like the case of Silas Robert except that the Defendant is charged only with two offences, while Silas Robert was charged with four offences. Further Silas Robert left the scene of the accident. This Defendant stopped and assisted the victim he had accidentally hit. As I have said before this earns the Defendant credit.

For those reasons I consider that it is appropriate that only a fine should be imposed. As I did with Silas Robert by imposing a fine under section 12 of the Road Traffic (Control) Act, so I do in sentencing the Defendant.

I now sentence the Defendant to pay a fine of VT100,000 and I order that he pays prosecution costs in the sum of vt60,000.

Under section 94 of the Criminal Procedure Code Act [CAP.136] you have a right to appeal against this conviction and sentence.

DATED at Luganville this 22 day of October, 1998.

Sealed: 30th October, 1998.

BY THE COURT

OLIVER A SAKSAK

Judge of the Supreme Court