Prosecutor's Request No 2 of 1974

• Jurisdiction: Papua New Guinea
• Judge: Frost ACJ, Prentice J, Raine J
• Judgment Date: 12 December 1974
• Citation: [1974] PNGLR 317
• Court: Supreme Court
• Year: 1974
• Judgement Number: FC73

Full Court: Frost ACJ, Prentice J, Raine J

Judgment Delivered: 12 December 1974

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PROSECUTOR'S REQUEST NO. 2 OF 1974

Port Moresby

Frost ACJ Prentice Raine JJ

1 November 1974

12 December 1974

CRIMINAL LAW AND PROCEDURE — Manslaughter — Duty of persons doing dangerous acts — Degree of negligence required — Criminal Code (Queensland adopted) s. 288Section 288 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."1.

CRIMINAL LAW AND PROCEDURE — Manslaughter — Duty of persons doing dangerous acts — Proof of negligence — Degree of proof required — Criminal Code (Queensland adopted) s. 288Section 288 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."2.

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 s. 288 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 s. 288 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 Rex v. Bateman (1925) 94 L.J. (K.B.) 791, at p. 794.

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

(2) (Frost A.C.J. 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 s. 288 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 s. 30 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 s. 288 is as the High Court said in Callaghan v. The Queen, (1952) 87 C.L.R. 115 at p. 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 C.J. in Rex v. Williamson, (1807) 3 C. & P. at p. 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. The King, [1946] A.C. 83 at p. 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 grossest ignorance.

(h) I found that all of the evidence was to the contrary and that the accused were accepted by the villagers as men of reasonable skill. I found that there was no direct evidence called by the Crown as to the qualifications and experience of the accused.

(i) I found there was no evidence upon which I could find that the use of a bamboo scalpel was grossly negligent nor was there any evidence as to lack of asepsis in the performance of the operation. I found that the fact that the operation was to the chest did not constitute evidence for lack of reasonable care by the accused.

(j) I found that the evidence as to the source of the infection in the chest was not wholly satisfactory in that the medical witness deposed that it was induced as a result of the operation whereas the evidence of the accused was that there was a pre-existing infection.

(k) I found that, on the assumption that the infection was caused by or was secondary to the operation; this fact was not evidence of lack of reasonable care.

(l) In making this finding I referred to the dictum of the Privy Council in Akerele v. The King, [1943] A.C. 255, at p. 264:

"The act had already taken place and its observed consequences, which only showed themselves at a later date, could not add to its criminality. The negligence to be imputed depends on the probable not the actual result".

In considering this dictum I had regard to the discussion in Howard, Australian Criminal Law, 2nd ed., pp. 107-108.

3. I found there was no evidence to support a charge of manslaughter and acquitted the accused.

4. As requested by the learned Crown Prosecutor (the Secretary for Law consenting to such request) I do hereby refer for decision of the Full Court, the following questions:

1. Did I err in law in directing myself in the following terms, namely:

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

...

(c) That my duty was to "I ask myself whether a jury of Enga villagers would find that the Crown had proven beyond reasonable doubt that the accused had acted with the grossest ignorance".

Counsel:

L. W. Roberts-Smith, for the Secretary for Law.

M. F. Adams and M. Kapi, amici curiae.

Cur. adv. vult.

12 December 1974

FROST ACJ: This is a reference under s. 30 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 charge arose out of the death of a man whose chest had been opened, as the Crown alleged, without asepsis and by...