(1964) 37 ALJR 508

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Owen J:
• Judgment Date: 12 March 1964
• Citation: [1964] PNGLR 45
• Judgment Number: No319
• Year: 1964
• Docket Number: Evgeniou v Regina [1964] PNGLR 45

Full Title: Evgeniou v Regina [1964] PNGLR 45; (1964) 37 ALJR 508

High Court: McTiernan J, Taylor J, Menzies J, Windeyer J, Owen J

Judgment Delivered: 12 March 1964

1 Criminal law—manslaughter; Negligence—motor accident; Criminal negligence; Criminal procedure

2 High Court upheld conviction in No298 but on different basis; Criminal Code s289; judge erred in using s23; recklessness involving grave moral guilt; trial judge should have ruled on no case submission without requiring election by defence

CRIMINAL LAW—Unlawful killing—Failure to take reasonable care and precautions in use and management of motor vehicle—Necessity to prove criminal negligence—Queensland Criminal Code (Adopted) s23, s289, s291.

CRIMINAL LAW—Practice—Hearing—Submission on behalf of accused that no case to answer—Necessity to elect whether to call evidence or not.

At the trial of a charge of unlawful killing against a motorist whose vehicle hit and killed a pedestrian the trial judge made a finding of guilt on two grounds, firstly that unless the accused was excused by s23 of the Criminal Code (and on the facts he was not) he was guilty of unlawful killing whether or not he had been negligent and secondly that the accused was guilty because he had failed to discharge the duty imposed on him by s289 of the Code on appeal to the High Court.

Held:

(1) By the Court that the trial judge was in error in making a finding of guilt based on the applicability of s23.

(2) By McTiernan J, Menzies J and Windeyer J (Taylor J and Owen J dissenting) that in making his finding on the second ground the trial judge had applied the correct test of liability, there was evidence to support such a finding, and the appeal must be dismissed.

Callaghan v R (1952) 87 CLR 115 and R v Scarth (1945) QSR 38 applied.

Held:

Further, by McTiernan J, Menzies J and Owen J that where at criminal trial it is submitted on behalf of the accused at the close of the Crown case that there is no case to answer, the trial judge should rule on the submission without requiring the defence to elect whether to call evidence or not.

Appeal:

This was an appeal by leave to the High Court of Australia from the conviction and sentence of the appellant by Mann CJ in the Supreme Court of the Territory. The appellant had been convicted of unlawful killing and sentenced to six months' imprisonment with hard labour. He appealed upon, inter alia, the following grounds:

"(a) His Honour the trial judge was wrong in law in his determination of the question whether the death of the deceased Justus Besiaro was an accident within the meaning of s23 of the Criminal Code.

(b) His Honour was wrong in law in his determination of the question whether the Appellant's conduct amounted to criminal negligence within the meaning of s289 of the Criminal Code".

The facts appear sufficiently from the judgments.

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McTiernan J and Menzies J:

Justus Besiaro died in a collision with the appellant's motor car just before midday on 29th June, 1963, near Port Moresby. The deceased was crossing the Hubert Murray Highway from north to south and the appellant was driving his motor car along the highway in an easterly direction from Port Moresby. The collision occurred in something over 100 feet to the west of the junction of the Hubert Murray Highway with Hohola Road in an area where speed was restricted to 30 miles per hour.

The appellant was charged under s291 of the Criminal Code with unlawful killing and Mann CJ convicted him of manslaughter. From that conviction he has appealed by leave to this Court.

Stated shortly, the facts were that the deceased, carrying a child and an outspread red umbrella to shield the child from the sun, was one of a group of seven native people who had been waiting on the northern verge of the highway for an opportunity to cross to the other side. When a car driven by a witness Martyn and travelling in a westerly direction on the far side of the highway passed the group, the deceased stepped out on to the roadway. Before he had gone more than a few steps he was hit by the appellant's car. The appellant's car passed Martyn's car—which was travelling at about 15 miles per hour—about 20 yards to the west of the place where the deceased had been standing and, as it did so, the loud rush of air which its passage caused attracted Martyn's attention. Looking in his rear–vision mirror, he saw the red umbrella in the air and a body in the air slightly above the level of the bonnet of the appellant's car. The body dropped out of sight and then reappeared some distance ahead of the car on the roadway not far from the intersection of Hohola Road and Hubert Murray Highway. It was established that the appellant's car came to rest about 40 feet west of Hohola Road and the deceased's body was 26 feet 6 inches further on in front of the car. Tyre marks on the road leading to the near rear side wheels of the stationary car measured 115 feet 6 inches. Tests made subsequently to the collision with the appellant's car on the road showed that with a hard application of the brakes it would pull up from a speed of 30 miles per hour in 36 feet. From the place where the collision occurred it was possible to see 200 yards along the road towards Port Moresby.

Upon this evidence and disbelieving the appellant's written statement to the police and his evidence, Mann CJ found that the appellant failed, by a combination of reckless speed and failure to observe an actual danger when it arose, to discharge the duty imposed upon him by s289 of the Queensland Criminal Code as adopted in the Territory of Papua and New Guinea. That section provides as follows:

"It is the duty of every person who has in his charge or under 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 such 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."

It has been established by R v Scarth (1945) St R Qd 38—a decision upon the Code in question—and by a decision of this Court upon the corresponding section of the Western Australian Criminal Code in Callaghan v R 87 CLR 115 that negligence sufficient to meet the standard of civil liability is not enough to constitute a breach of s289; there must be negligence according to the standard of the criminal law, which may be described shortly as recklessness involving grave moral guilt. Mann CJ understood this and referred to R v Scarth and we have no doubt that, when he said: "Even, therefore, on this most favourable view of the duty owed by the accused under s289, he failed, by a combination of reckless speed and failure to observe an actual danger when it clearly arose, to discharge his duty, and on that ground also the accused is guilty of manslaughter", he was applying the correct standard in finding the appellant guilty of negligence according to the standard of the criminal law. We consider, moreover, there was ample evidence to support this conclusion and we would dismiss the appeal.

It appears, however, that the learned Chief Justice, in applying s289, was embarrased by the course he took in considering, in the first place, whether the appellant was guilty of manslaughter unless excused from liability by s23 of the Code. That section had no application because of the opening words: "Subject to the express provisions of this Code relating to negligent acts and omissions". His Honour, however, seemingly considered that, unless the appellant was excused by s23, he was guilty of unlawfully killing whether or not he had been negligent provided that he had caused the death of Justus Besiaro and his primary finding of manslaughter was reached upon this basis. With respect, we are satisfied that it was wrong to have dealt with the case independently of s289. It is true that the Code provides that any killing not authorised, justified or excused by law is unlawful (s291); furthermore, to kill is to cause death directly or indirectly by any means whatever (s293). It is, moreover, apparent from sections such as s294, s296 and s299 that death may, for the purposes of s293, be caused by an omission as well as by an act. There are, however, strong indications that it is only an omission to observe or perform a duty that is to be regarded as giving rise to criminal responsibility: see s285—s290 and s299. These indications we accept. In this case the appellant was at the relevant time a person who had...