Karo Gamoga v The State [1981] PNGLR 443

• Jurisdiction: Papua New Guinea
• Judge: Miles J:
• Judgment Date: 27 October 1981
• Citation: [1981] PNGLR 443
• Court: Supreme Court
• Year: 1981
• Judgement Number: SC212

Full Title: Karo Gamoga v The State [1981] PNGLR 443

Supreme Court: Andrew J, Pratt J, Miles J

Judgment Delivered: 27 October 1981

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KARO GAMOGA

V

THE STATE

Waigani

Andrew J Pratt J Miles J

24 June 1981

27 October 1981

CRIMINAL LAW — Particular offences — Dangerous driving causing death — Test to be applied — Test objective — Finding of fault required — What constitutes fault — Criminal Code, s. 336.

CRIMINAL LAW — Particular offences — Dangerous driving causing death — Sentence — Within discretion of court — Need for deterrence — Need to distinguish between heedlessness and recklessness — Criminal Code, s. 336.

CRIMINAL LAW — Appeal against conviction and sentence — Powers of appellate court — Distinction between inferences of fact and matters of credit.

In relation to the offence of dangerous driving causing death contrary to s. 336 (1) of the Criminal Code the test to be applied is an objective one which apart from the question whether the driving constituted a danger must include a finding of fault on the part of the driver causing the situation: such fault to involve a failure, or falling below the care and skill of a competent and experienced driver in relation to the manner of driving and to the relevant circumstances of the case.

R. v. Coventry (1938) 59 C.L.R. 633;

McBride v. The Queen (1979) 115 C.L.R. 44; and

R. v. Gosney [1971] 2 Q.B. 674 followed.

In sentencing for the offence of dangerous driving causing death, whilst the need for public deterrence prevails over other factors, the sentence itself remains within the discretion of the court which ought to distinguish for the purposes thereof between cases of heedlessness or recklessness; i.e. between cases of incompetence and error of judgment on the one hand and cases involving circumstances of aggravation on the other.

The Public Prosecutor v. Willy Moke Soki [1977] P.N.G.L.R. 165; and

The Public Prosecutor v. Sima Kone [1979] P.N.G.L.R. 294, discussed and explained.

Principles upon which Supreme Court will set aside findings of fact of court at first instance and distinction between inferences and matters of fact discussed.

Appeal.

This was an appeal against conviction and sentence on a charge of dangerous driving causing death contrary to s. 336 (1) of the Criminal Code.

Editorial Note:

The tests expounded here were applied in Migi Barton v. The State Unreported Supreme Court judgment S.C. 213 (M) of 24th November, 1981, in which an appeal against conviction and sentence on a charge of dangerous driving causing death was upheld and where the principles relating to the finding of fault were applied to a defence of sudden emergency where there was a finding that the passenger had grabbed the steering wheel and caused the dangerous driving.

Counsel:

A. Amet and N. Kirriwom, for the appellant.

K. Roddenby, for the State.

Cur. adv. vult.

27 October 1981

ANDREW J: In this matter I have had the advantage of reading the reasons for judgment of Pratt J. I agree with his reasons and with his conclusions and I wish to add only the following on my own behalf.

Section 336 of the Criminal Code provides, inter alia, as follows:

"336 (5) In this section, unless the contrary intention appears —

'drives a motor vehicle on a road or in a public place dangerously' includes the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and use of the road or public place and the amount of traffic which is on the road or in the public place at the time, or which might reasonably be expected to be on the road or in the public place;"

In the determination of the question of whether the driving constitutes a danger it is well established that the test is an objective one: R. v. Coventry (1938) 59 C.L.R. 633.1; McBride v. The Queen (1966) 115 C.L.R. 44.2 per Barwick C.J. at pp. 49, 50:

"The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all the circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place...

"A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.

"This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others."

The test of objectivity does not exclude as irrelevant an issue of fault or culpability. See R. v. Warner [1980] Qd. R. 207.3. The statement of the court of appeal in R. v. Gosney [1971] 2 Q.B. 674 at p. 680.4 is of assistance:

"It is not an absolute offence. In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation."

This statement is to be read in the light of the provisions of Ch. V of the Criminal Code ("the excusatory provisions"). See R. v. Warner (supra), R. v. Pius Piane [1975] P.N.G.L.R. 52.5 and Smith v. The Queen [1976] W.A.R. 97.6.

In R. v. Coventry (1938) 59 C.L.R. 633.7, the judgments emphasize that the question was not whether a person was indifferent to the consequences of his driving (which might be considered as recklessness) but whether the acts of the driver constituted a danger, real or potential, to the public, and that the standard was an objective one "impersonal and universal, fixed in relation to the safety of other users of the highway", citing McCrone v. Riding [1938] 1 All E.R. 157.8. The High Court added that casual behaviour and momentary lapses of attention, if they result in danger to the public are not outside the prohibition of the provision. See per Jackson C.J. in Smith v. R. (supra) at p. 104.

The appeal against conviction in this case alleges no error of principle or fact on the part of the learned trial judge. It is said that the proven facts should not or could not have constituted the offence of dangerous driving. But an appellant who argues that in the absence of error the inference of guilt is not reasonably open, has a hard row to hoe. This is particularly so in a case of dangerous driving causing death where so much rests on assessment of matters such as the movement of vehicles on the road and of human judgment, often in conditions of stress and a finding made based on "the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road or public place and the amount of traffic which is on the road or in the public place at the time, or which might reasonably be expected to be on the road or in the public place".

The appellant proceeded across a busy intersection. He had three lanes of traffic to negotiate and his vehicle with eight persons and he had to proceed uphill. The learned trial judge found that the appellant saw a vehicle coming on his left (an ambulance) which he failed to pay any further attention as he proceeded across the intersection. He found that there was a failure sufficiently to observe the speed of the oncoming vehicle, a failure to make a reasonably accurate estimate of its speed in terms of the ability of the accused's own vehicle to get across safely and in allowing an insufficient safety margin.

Bearing in mind all of those circumstances including the amount of traffic on the road, I am of the opinion that the inference that the manner of driving was potentially dangerous to the public was one which was reasonably open to the trial judge.

I think therefore, that the appeal against conviction fails. I turn to the appeal against sentence.

This charge is one where the punitive and deterrent aspects of punishment may well prevail over the reformative and where it may well be not inappropriate to sentence even a first offender of unimpeachable character to imprisonment for example's sake: See R. v. Thompson (1975) 11 S.A.S.R. 217.9. Or as it was expressed in R. v. Harstorff; Ex parte Attorney-General [1980] Qd. R. 597.10:

"In most instances in a case of the offence of dangerous driving causing death, the sentence must be gauged to act as a deterrent more so than to the extent that it must be gauged as punishment: its main function must be the deterrence of others."

The principle that the need for public deterrence in cases of dangerous driving...