The State v Captain Peter Robert Sharp

• Jurisdiction: Papua New Guinea
• Judge: Higgins, J
• Judgment Date: 28 July 2017
• Citation: (2017) N6813
• Court: National Court
• Year: 2017
• Judgement Number: N6813

Full : CR Nos 575 – 578 of 2015; The State v Captain Peter Robert Sharp and Captain Anthony Matasir Tsiau (2017) N6813

National Court: Higgins, J

Judgment Delivered: 28 July 2017

N6813

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOs. 575 – 578 OF 2015

THE STATE

V

CAPTAIN PETER ROBERT SHARP and

CAPTAIN ANTHONY MATASIR TSIAU

Accused

Kokopo: Higgins, J

2016: 11th –14th April, 14th–17th June, 1st-5th August,

6th –9th September, 29th & 30th November

2017: 13th February, 13th–17th March,

23rd & 25th May, 3rd–7th July, 28th July

CRIMINAL LAW – Manslaughter – capsizing and sinking of passenger ferry – whether negligence of the managing director or the master of the vessel sufficient for conviction – Negligence must be personal not vicarious – Negligence must be gross and deserving of criminal punishment

NO CASE TO ANSWER – Requirement that evidence insufficient for prima facie case

EVIDENCE - Insufficient Evidence – Prasad Direction – evidence leaving reasonable doubt even in absence of any defence case – Verdict to be entered without calling on defence

Cases Cited:

Papua New Guinea Cases

Java Johnson Beraro v The State [1988-9] PNGLR 562

R v Begari – Dubere (1962) N227

R v Johnson [1951] PGSC 1

R v Gamumu [1963] PNGLR 1

Regina v Gamumu [1960] PG Law Rep 1; [1963] PNGLR 1

State v Waluka [2011] PGNC 155; N4414

State v Subang [1976] PGNC 3

State v Paul Kundi Rape [1976] PNGLR 96

The State v John Koe [1976] PNGLR 562

Overseas Cases

Andrews v DPP [1937] 2 All ER 552

Campbell v The Queen [1981] WAR 286, 290

Mamote Kulang of Tansagot v The Queen (1964) 111 CLR 62

March v Stramare (F&MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

R v Huggins 92 ER 518

R v Prasad (1979) 2A Crim R 45, 47

R v Royall [1991] HCA 27

Vane v Fiannopoullos [1964] 2QB 739

Counsel:

P. Bannister & S. Dusava, for the State

D. R. Cooper, QC, for Capt. Peter Robert Sharp, (instructed by Warner Shand)

P. Kaluwin, for Capt Anthony Matasir Tsiau

RULING

28th July, 2017

1. HIGGINS, J: The State charges each accused, Captain Peter Robert Sharp and Captain Anthony Matasir Tsiau with manslaughter of a number of named persons being now 140 on 27 February 2012 when the MV Rabaul Queen, under the command of Captain Tsiau capsized and sank about 6am that day.

2. The State bears the onus of proving each and every element of that offence or offences beyond a reasonable doubt. The accused bear no onus of disproof nor is any adverse inference to be drawn against them for any perceived failure to answer questions or offer an explanation.

3. The charge being of manslaughter and that species of manslaughter being negligence not any intent to kill or endanger life, it is appropriate to set out the relevant law.

Manslaughter

4. S.302 Criminal Code Act.

‘A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19 [lesser penalty may be imposed], imprisonment for life’.

5. That is subject to s.24, that is, criminal liability will not attach where, in association with some act or omission of the accused there has occurred some accidental event which has substantially brought about the final result. (see Mamote Kulang of Tansagot v The Queen (1964) 111 CLR 62).

6. Nevertheless, s.287 is relevant. It provides:

(1) 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 that danger.

(2) A person upon whom a duty is imposed by subsection(1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty.

7. For the crime of manslaughter alleged to have resulted from any negligent act or omission the degree of negligence required is above that sufficient for s.327 (negligent act or omission causing bodily harm).

8. Reference is made to The State v John Koe [1976] PNGLR 562 per Prentice DCJ @ 265-6. His Honour’s findings may be summarised as being that for dangerous driving causing death, the degree of negligence to be proved must exceed that for civil liability yet that degree of negligence may be insufficient for manslaughter which requires a higher degree of negligence but short of that which might be described as reckless indifference to risk of death or serious bodily harm which might be enough for murder – citing Lord Atkin in Andrews v DPP [1937] 2 All ER 552 at 557. In Koe the accused, being severely intoxicated drove a defective motor vehicle at high speed through the Gordon Market. His driving was, undoubtedly “grossly negligent” even “reckless” and demonstrated “complete disregard for the lives and safety of others” (569).

9. The fact that many lives are lost in this instance is not of itself determinant of whether the accused has been guilty of criminal negligence – see Java Johnson Beraro v The State [1988-9] PNGLR 562. See also R v Begari – Dubere (1962) N227 per Smithers J.

10. The test for guilt or otherwise of manslaughter by criminal negligence is not in doubt however difficult may be the application of the relevant principles to the facts of any individual case.

11. The facts supporting such a finding must be established beyond reasonable doubt. There is no onus upon the accused to disprove any fact nor can any adverse inference be drawn from the failure of the accused to offer evidence or to provide any evidence to refute the prosecution case.

12. Importantly, to establish criminal negligence the concept of vicarious liability does not apply save insofar as a statutory provision so requires (see Vane v Fiannopoullos [1964] 2QB 739).

13. The concept, supported by s.7 of the Code, of a common purpose may suffice if the common purpose is to perform an act or acts that risk death or serious injury to a person or persons and are unlawful. (See R v Johnson [1951] PGSC 1). The more obvious and, hence, foolhardy that risk-taking conduct is, the more likely it is to cross the threshold between mere negligence and criminal negligence.

14. An example of a risk which, though when taken resulted in death not amounting to manslaughter, is R v Gamumu [1963] PNGLR 1. The accused had twice struck the deceased with a digging stick intending to silence her interruption of his grieving for a deceased sister. Mann CJ found that the accused could not be found guilty in circumstances where, though the blows actually causing death were intentional, they could not have been foreseen by a person such as the accused as likely to endanger the deceased’s life or cause her any serious harm, even though his acts were wrongful. His Honour said (at 7).

“I think therefore that the event not being foreseeable in the circumstances, was due to accident and that the killing is one excused by law unless it comes within the terms of Section 289. That Section would impose upon the Accused a duty to take care in using the stick for the purpose. Although this Section strongly suggests that the ordinary degree of negligence obtaining in civil cases is to be applied, it appears that the duty involved is a duty to take precautions to avoid danger to life, safety or health and that this has to be construed as setting up a standard of negligence corresponding with the common law concept of criminal negligence involving reckless disregard for the life and safety of others. In the particular circumstances of this case the question as to negligence becomes “Ought to have exercised greater care either to guard against risks, known or unknown, or to avoid any possible consequences”. In the circumstances, the failure to guard against the consequences which occurred, does not in my opinion fall below the standard required by Section 289”. The Accused was acquitted accordingly.”

15. More analogous to the present case save for the scope of the disastrous consequences is Koe v The State [1976] PNGLR 562.

16. The accused drove a dangerously defective vehicle whilst he was significantly intoxicated into a section of a busy market “fish tailing” at least twice from side to side, taking up most of the road space narrowly missing an oncoming vehicle jumping a concrete kerb and colliding with 11 people, killing two of them before crossing a road and colliding with a fence.

17. Though noting that “one must take care lest the seriousness of the outcome overshadow one’s consideration of the actual negligence at the time; Prentice DCJ found the manner of driving, ‘grossly negligent’, hence warranting conviction for manslaughter.

18. That test had been adopted in Prosecutor’s Request No.2 of 1974, [1974] PNGLR 317.

19. More analogous to the present case is State v Waluka [2011] PGNC 155; N4414. The accused was skipper of a dinghy carrying both building materials and people which capsized and sank in...