Prosecutor's Request No 2 of 1974

• Jurisdiction: Papua New Guinea
• Citation: [1974] PNGLR 317
• Date: 12 December 1974
• Court: Supreme Court
• Year: 1974

Full Court: Frost ACJ, Prentice J, Raine J

Judgment Delivered: 12 December 1974

1 Criminal law—manslaughter; Medical law; Criminal negligence; Evidence—sufficiency; Customary law and ways—Enga

2 Judge erred in acquittal in No782; village doctors negligent in performing surgery; gross ignorance or criminal inattention; jury standard improper in Enga Province situation; too high a standard for negligence

CRIMINAL LAW AND PROCEDURE—Manslaughter—Duty of persons doing dangerous acts—Degree of negligence required—Criminal Code (Queensland adopted) s288

S288 of the Criminal Code (Queensland adopted) provides: "288. Duty of persons doing dangerous acts:—It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act: 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 observe or perform that duty."

CRIMINAL LAW AND PROCEDURE—Manslaughter—Duty of persons doing dangerous acts—Proof of negligence—Degree of proof required—Criminal Code (Queensland adopted) s288

On a charge of manslaughter arising out of the death of a man whose chest was opened without asepsis and by means of a bamboo knife by two accused who in the past were said to have acted as unqualified village doctors the trial judge directed himself that the standard of reasonable skill and reasonable care set out in s288 of the Criminal Code (Queensland adopted) required the Crown to establish either the grossest ignorance or the most criminal inattention on the part of the accused, and that it was his duty to ask himself whether a jury of the accuseds' villagers would find "that the Crown had proven beyond reasonable doubt that the accused had acted with the grossest ignorance".

Held:

(1) The law applicable on such a charge is that stated in the terms of s288 of the Criminal Code (Queensland adopted); the only elaboration necessary is that related to the degree of negligence required thereunder, which is that required by the common law standard in cases where negligence amounts to manslaughter and is usefully stated in R v Bateman (1925) 94 LJ (KB) 791 at 794.

Dicta of Ellenborough CJ in R v John Williamson (1807) 3 C & P 635 disapproved.

(2) (Frost ACJ dissenting) The introduction of a concept of a jury of Engas where no provision is yet made for the arraignment of accused before juries in Papua New Guinea, was misleading, imported too high a standard of negligence, did not preclude the necessity to assess the facts in the light of the directions of law required by s288 and the other sections of the Criminal Code (Queensland adopted), and accordingly amounted to a misdirection in law.

Reference.

This was a reference by the Secretary for Law under s30 of the Supreme Court (Full Court) Act 1968, of two questions of law for the decision of the Full Court arising out of the acquittal of two accused persons upon indictment before the Supreme Court on a charge of manslaughter.

The relevant portions of the reference of the trial judge are as follows:—

. . .

2. The circumstances out of which the question of law arose and the facts as found by me were as follows:—

(a) The deceased had been suffering from an illness which he attributed to a blow from a stick, received about one year before his death. In that year he sought medical attention at three hospitals, Government and mission staffed by qualified European doctors. He did not obtain any treatment which alleviated his condition. Immediately before his death his condition worsened and he called in the two accused and asked them to operate upon him.

(b) The two accused were village surgeons who claimed to have performed many operations successfully. They operated on the chest of the deceased who died three days later.

(c) The medical evidence was that death was caused by a purulent infective process in the pleural cavity of the lung. The medical witness for the Crown attributed this infection to a result of the operation.

(d) The particulars of criminal negligence alleged by the Crown against the accused were as follows:—

(i) the use of a bamboo knife for the operation and lack of asepsis;

(ii) the fact that the operation was performed on the chest; and

(iii) the massive infection which the doctor found to be present following the operation.

(e) I directed myself that the standard of reasonable skill and reasonable care set out in s288 is as the High Court said in Callaghan v R (1952) 87 CLR 115 at 124:

"That set by the Common Law in cases where negligence amounts to manslaughter".

I further directed myself that the Common Law test as to the criminal negligence of unqualified medical men is that set out by Ellenborough CJ in R v Williamson (1807) 3 C & P at 635, where he said:

"To substantiate that charge (manslaughter) the prisoner must have been guilty of criminal misconduct, arising from either the grossest ignorance or the most criminal inattention. One or other of these is necessary to make him guilty of that criminal negligence and misconduct which is essential to make out a case of manslaughter".

(f) Accordingly I directed myself that the Crown must establish either the grossest ignorance or the most criminal inattention on the part of the accused.

(g) I further directed myself that the question of whether the accused had acted with the grossest ignorance was a jury matter and referring to Kwaku Mensah v R [1946] AC 83 at 93, I asked myself whether a jury of Enga villagers would find that the Crown had proven beyond reasonable doubt that the accused had acted with the...