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State v Dandi [2019] PGNC 325; N7956 (13 August 2019)

N7956

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 92 OF 2017

THE STATE

-V-

BENSON RICHARD DANDI

Alotau: Toliken, J
2019: 13^th May

CRIMINAL LAW – Particular offence – Manslaughter by criminal negligence – Dinghy operator – Accused travels out to sea in bad weather - Dinghy hit by massive waves and capsizes – Deceased drowns and dies - Criminal Code Ch. 262; ss 302, 287.

CRIMINAL LAW - Dangerous thing - Duty of persons in charge of dangerous things – Duty to take reasonable care and reasonable precaution in use and management of dangerous thing so as not to endanger the life, health and safety of others.

CRIMINAL LAW – Standard of negligence – Criminal standard – Test for criminal negligence - Determined by reference to prevailing circumstances and not by reference to consequences - Criminal conduct - Variously described as “culpable”, “criminal”, “gross”, “wicked”, “clear” and “complete” - Negligence must go beyond a mere matter of compensation between the subjects and showed such disregard for the life and safety of others.

CRIMINAL LAW – Accused travelled too close to submerged reef – Unfamiliar with reef system in the area – Broke arm when he fell when dinghy hit by massive waves - Unable thereafter to control dinghy – Action not grossly reckless – No total abandonment of moral and legal responsibility to passengers – Verdict – Not guilty.

Cases Cited:
Papua New Guinea Cases

Beraro v The State [1988 – 89] PNGLR 562
The State v Vincent Waluka (2011) N4414
The State v Andrew Amoy [1978] PNGLR 266.
R v Druett [1965 – 1966] PNGLR 395
Evgeniou v The Queen [964] PNGLR 45; (1964) 37 ALJR 508
R –v- Peck, SC NO: 659 of 19 October 1971

Overseas Cases Cited:

Callaghan v The Queen [1952] 87 CLR 115
R v Bateman [1925] 28 Cox’s Crim Cases 33
Andrews v Director of Public Prosecutions [1937] AC 576

Akerele v the King [1943] AC 255
Counsel:

J Apo, for the State
P Palek, for the Accused

JUDGMENT ON VERDICT

13^th August, 2019

1. TOLIKEN, J: The accused Benson Richard Dandi was indicted on one count of manslaughter through criminal negligence pursuant to Sections 302 and 287 of the Criminal Code Ch. 262.

ALLEGATIONS

2. The State alleged that on 17^th August 2016, the accused, who was the operator of a dinghy, powered by 40HP Outboard Motor Engine (OBM) headed out from Alotau to Samarai Island, and on to Delina Island. From Delina he headed to Bonarua Island. On board were 3 passengers.

3. The weather was rough and the winds were strong, the kind which it is alleged was not permissible for a dinghy trip. In spite of that the accused put out to sea with his passengers.

4. As they were heading out toward Bonarua along the Suau Coast the dinghy was hit by massive waves. The waves filled the dinghy sweeping the accused and his passengers out of the dinghy into the sea including the deceased Telabesa Sema also known as Tima. They all swam but the deceased was never found despite a search being carried out for him immediately after the incident. His largely decomposed body was found some time later following the incident.

5. The State alleged that the deceased drowned and died in rough seas as a result of the accused’s recklessness in taking out the dinghy in rough seas and further in failing to take precautions by waiting for the weather to settle before travelling.

6. It is the State’s allegation therefore that the accused unlawfully caused the death of the deceased by failing to take reasonable care in the course of management and use of the motorized dinghy.

PLEA

7. The accused plead not guilty to the charge. He raised the defence of accident but abandoned the defence when reminded by the Court that the defence is not available for a charge of manslaughter by negligence. (Beraro v The State [1988 – 89] PNGLR 562) The accused thereafter traversed or generally denied the charge and trial was conducted.

UNDISPUTED FACTS

8. Much of the primary facts in this case are not disputed. The accused owned and operated a 23 footer dinghy powered by a 40HP outboard motor engine (OBM).

9. On 17^th August 2016, the accused left Alotau for Suau Island on his dinghy with three passengers namely Beiti Leitiel, Isa Lolo and the deceased. They carried only their shopping so the dinghy was lightly laden. To get to their destination they had to pass Samarai Island. Strong south-easterly winds were blowing and it begun to get rough but they travelled safely to Samarai. They made a brief stop at Samarai for the deceased to buy a six pack of beer and they headed in the general westerly direction toward Suau Island.

10. By then the sea was now getting rougher as the wind got stronger but the accused managed to safely negotiate the waves.

11. The accused had wanted to go to Bonarua Island first to pick up some waste oil to be used to cut timber for his house. And so he veered off in the general southerly direction for Bonarua. They stopped briefly at Delina Island to give smoke to the crew of the MV Hekau which had sought shelter from the bad weather at Delina.

12. They then pushed off for Bonarua to the south. By then the wind had intensified throwing up swells of up to 1 – 1.5 meters slapping the dinghy on the port side from the south-easterly direction.

13. To their right is a huge long reef. It commences off the coast at Iloilo on the mainland, and extends in the southerly direction pass Delina Island and ends just north of Bonarua Island before rounding off back towards the mainland. A Sketch Map (Exhibit E for the State) drawn by witness Iairo Niko and confirmed by Marine Maps of the area show that it extends some 10 kilometres further west from Iloilo.

14. There is a passage between the mainland and the reef. In bad weather there would be breakers right around and on the reef, but the sea between the mainland and the reef would be calmer. This is the route taken by people travelling west to Suau Island and beyond and so the accused would have been very familiar with this stretch of sea.

15. The accused had been operating his dinghy for about three years and thus considered himself to be an experienced dinghy operator. It was, however, his first time to make the trip to Bonarua and was therefore unfamiliar with the waters around there.

16. The accused pushed off heading straight for Bonarua. They came to a point on the reef about 130 – 150m from Delina when the dinghy was hit by three massive waves. The first one crashed onto the dinghy throwing the accused off balance. He fell to the bottom of the dinghy fracturing his arm as the second wave came crashing into the dinghy, sweeping him and his passengers out into the rough sea. Then the third wave swamped and sunk the dinghy as it crashed onto the reef. The accused lost complete control of the dinghy after that first hit when he injured himself.

17. The accused and his passengers managed initially to safely swim. The accused stood on or clung to the now submerged dinghy while the deceased hung onto a wooden pallet. Beiti Letiel and Isa Lolo managed to cling on to empty fuel containers. Beiti Letiel was able to briefly see the deceased as he clung on to the pallet but in the raging sea and crashing waves he lost sight of him.

18. Beiti Letiel and Isa Lolo managed to swim ashore at Iloilo and sought for assistance sometime around 4.30 p.m. Iairo Niko immediately put out to sea in his cousin’s dinghy with Leitiel a nd Lolo to the area where they had sunk. They found the accused swimming close to the shore and rescued him. They then found the dinghy but left it behind. Niko transferred the injured accused to a Health Centre dinghy which had also joined the search and rescue and he was rushed off to the Health Centre. Niko continued to search for the deceased but could not find him. He called off the search when it was getting dark. The deceased body was found about three weeks later.

19. At some point before the dinghy was hit by waves Letiel called out from under the boat’s makeshift canopy for the accused to follow the inner passage between the reef and the mainland. However, in the midst of the raging wind, the sounds of the engine and the pounding of the dinghy on the waves the accused did not hear Letiel and continued on his ill-fated course.

20. State witnesses Beiti Letiel and Isa Lolo described the weather as “pretty rough” and “pretty bad” and the winds were strong and waves high between Samarai Island and Delina and that the weather got progressively worse when they left Samarai. The waves were breaking by the time they reached Delina. The sea beyond the reef was rough with huge breakers. Iairo Niko described the weather as “rough” but said in cross examination that as an experienced operator he still could have negotiated the waves in the conditions prevailing at that time. The accused on the other hand described the sea as “choppy.”

21. The deceased had consumed all except one of his beer before the dinghy sank and therefore would have been intoxicated to a certain degree.

22. It was in the above circumstances that the deceased lost his life.

THE OFFENCE

23. The accused is charged with the unlawful killing (manslaughter) of the deceased by criminal negligence.

24. Section 291 of the Code provides that “any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.”

25. Section 302 of the Code relevantly provides for the offence of manslaughter in the following terms:

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, imprisonment for life.

ELEMENTS OF MANSLAUGHTER

26. The elements of the offence manslaughter are that the accused:

1. Killed or caused the death of the deceased
2. The killing was unlawful
3. The killing was under circumstances which did not constitute wilful murder, murder or infanticide.

THE ISSUES

27. The issues for my determination in this case are –

1. Did the accused cause the death of the deceased
2. Was the killing unlawful
3. Did the killing not constitute wilful murder, murder or infanticide?

ISSUE 1: Did the accused cause the death of the deceased?

28. From the admitted facts there is no doubt in my mind that the deceased died by drowning after the dinghy which the accused was in charge of sank when hit by massive waves around the reef just outside of Delina Island. The fact that the deceased may have been under the influence of alcohol, having consumed 5 beers, does not detract from the fact that his death is primarily attributable to the sinking of the dinghy. There can be no question therefore that death was caused by the accused who at the relevant time was in charge of the dinghy.
ISSUE NO.2: Was the killing of the deceased unlawful?

The law

29. The accused in this case did not directly cause the death of the deceased. Whether he intended to kill him, or cause his death, or cause him grievous bodily is not relevant. And since the State contends that the accused was criminally negligent, any discussion on this issue must start with the duty imposed upon him by Section 287 of the Code.

30. Section 287 relevantly provides:

287. DUTY OF PERSONS IN CHARGE OF DANGEROUS THINGS.

(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 on 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.

31. What a “dangerous thing” is, is not defined by the Code, but it is implicit from Section 287 that anything, living or non-living, moving or stationary, which, in the absence of reasonable care and precaution, in its use and management endangers the life, safety and health of any person, can be said to be a dangerous thing. For instance, a gun, a motor vehicle or a motorized dinghy or a boat which are all inanimate objects and which all require some level of skill, care and precaution in their use, are deemed dangerous things because they can cause death or injury to other persons if not managed properly.

32. His Honour Kawi, J, in The State v Vincent Waluka (2011) N4414, comprehensively surveyed the authorities (both local and foreign) on criminal negligence and the duty of care imposed by Section 287 of the Code. As to what constitutes “reasonable care and take reasonable precautions to avoid that danger” and the test to determine whether or not an accused is criminally negligent under the Code. His Honour said at pages 8 and 9 of his judgment–

24. The Court’s have endeavoured to define what the expressions “reasonable care and take reasonable precautions to avoid that danger” mean in terms of what amounts to criminal negligence in order for a charge of manslaughter to be sustained. The classic definition of criminal negligence is said to be contained in the case of R-v- Bateman [1925] 28 Cox’s Crim Cases 33 where the Lord Chief Justice Hewart said at page 36:

“In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets such as ‘culpable,’ criminal,’ ‘gross,’ ‘wicked’ ‘clear,’ ‘complete,’. But whatever epithets be used, and whether an epithet be used or not, in order to establish criminal liability the facts must be such that in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between the subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”

25. In ... Andrews –v- Director of Public Prosecutions [1937] AC 576,the House of Lords, Lord Atkins referring to Bateman’s case and approving the general principles laid down in that case, proceeds, at page 583.

“Here again I think with respect, that the expressions used are not, indeed they probably were not intended to be, a precise definition of the crime. I do not myself find the connotations of mens rea helpful in distinguishing between the degrees of negligence, nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case the degree of negligence shown is a crime and deserves a punishment. But the substance of judgement is most valuable, and in my opinion is correct”.

26. Indeed it is now well settled that these words describe a much higher degree of negligence, namely criminal negligence. This was so decided in Australia by the High Court in the case of Callaghan –v- The Queen [1952] 87 CLR 115, an appeal from a Section in the West Australia Criminal Code equivalent to Section 287 of the PNG Criminal Code. The Australian High Court in an unanimous decision (at page 124) held that because these words appear in a Criminal Code dealing with major crimes involving grave moral guilt, they were not intended to punish as manslaughter, the degree of negligence, which gives rise to civil liability. The High Court stated that those words describe the common law criminal standard of negligence.

27. That view was followed by the High Court on an appeal from the pre-independence P&NG Supreme Court decision in Evgeniou –v- Reginam [1964] P&NGLR 45 at page 46. Since then many judges here in Papua New Guinea have followed that judgement. An example is R –v- Peck, SC NO: 659 of 19 October 1971. More recently the Supreme Court adopted that statement of law in the case of Java Johnson Beraro –v- The State [1988-1989] PNGLR 562 at page 566.

...

30. Amet, J (as then was) in the case of Java Johnson Beraro stated that ultimately what is or is not, criminal negligence is a question of degree to be decided on the facts of each particular case. Whether an action or omission is criminally negligent or not, must be decided by reference to the circumstances at the time and not by the consequences of his conduct, which brought him before the court. In that regard His Honour relied on the Privy Council Decision in the Nigerian case of Akerele –v- the King [1943] AC 255. In that case, the appellant was a medical practitioner who was convicted of manslaughter of a patient contrary to similar provisions of the Nigerian criminal code. The Privy Council held that the common law distinction between civil and criminal negligence was applicable in considering whether the appellant was rightly convicted of manslaughter under that code. The Privy Council then referred to the trial judge’s reference to Bateman’s case and in particular and the following passage in Halsbury’s Laws of England (2nd edition volume 9 page 444:

“ What amount of negligence is to be regarded as gross is a question of degree for the jury, depending on the circumstances of each particular case”.

31. The Privy Council made it clear that the degree of negligence required is that it must be gross and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence or giving it similar descriptions.”

33. Hence, the standard of negligence to be established is the criminal standard. It must be demonstrated that the accused acted with such reckless disregard for the lives and safety of others so as to make his conduct deserving of punishment. The evidence must show a disregard for human life going beyond a mere matter of compensation. (Evgeniou v The Queen [1964] PNGLR 45; (1964) 37 ALJR 508; R v Druett [1965 – 1966] PNGLR 395) And such conduct must be “culpable”, “criminal”, “gross”, “wicked”, “clear” and “complete”. (The State v Andrew Amoy [1978] PNGLR 266.

34. The test as to whether an accused person is criminally negligent or not, is determined by reference to the circumstances prevailing at the time he performed the actions in issue and not by reference to the consequences that flowed there-from. (Java Johnson Beraro v The State [1988 -89] PNGLR 562.

Circumstances in Current Case

36. The circumstances prevailing at the time the deceased met his death are these:

1. The accused is an experienced dinghy operator. He had been operating his 40HP powered 23 footer dinghy between Suau Island and Alotau for a period of 3 years prior to the incident in question.
2. On the day in question he left Alotau with three passengers including the deceased. He only had a small amount of cargo, mostly food items and hence he was not overloaded.
3. When they left Alotau the South-easterly winds were blowing. The sea was pretty calm between Alotau and Samarai. The wind, however, picked up after they left Samarai. By the time they headed south for Delina bound for Bonarua the winds had intensified whipping up swells of approximately 1 – 1.5 meters and the waves were breaking as well. The conditions were variously described by witnesses as “rough”,“ pretty rough”, “pretty bad” and “choppy” but an experienced operator like Iairo Niko could still negotiate the waves. The waves were hitting the port side of the dinghy from the south-easterly direction.
4. Just west of Delina Island is a big long a reef which commences just off shore from Iloilo on the mainland and extends past Delina towards Bonarua. It extends some 10 kilometres to the west from its eastern fringes between Iloilo and Delina Island. There is safe passage that runs for about 10kms to the west between the northern edge of the reef and mainland along the Suau Coast.
5. At the relevant time waves were breaking onto the reef but the area between the reef and the mainland was calmer.
6. Despite his 3 years of plying the waters along the Suau coast, sometimes in similar weather, the accused had never before travelled to Bonarua, whether in calm or rough weather. He was therefore unfamiliar with this stretch of sea and lesser still with the location and extent of the reef system there.
7. And as he headed for Bonarua amidst strong south-easterly winds with 1 – 1.5 meter waves pounding his dinghy on the port or left side he was hit by three massive waves which swapped and sank the dinghy sweeping him and his passengers out into the raging sea on the reef. The first wave threw the accused off balance and he fell onto the dinghy floor breaking his arm rendering him incapable of controlling the dinghy as the second and third waves crashed into and swamped the dinghy under water on the reef amidst raging waves.

Deliberations

37. So, can it be said that the accused was criminally negligent in those circumstances? Did he fail to take reasonable care or precaution in order not to endanger the lives and safety of his passengers?

38. Mr. Apo submitted that the accused failed in the duty imposed upon him by Section 287 of the Code. He was reckless in undertaking that attempted journey to Bonarua in the face of strong south-easterly winds and swells of at least a meter. He had the option of taking the inner passage when prompted by Beiti Leitia, but he chose not to listen and in so doing placed his passenger’s safety and lives in harm’s way.

39. While the circumstances of this case are not entirely on all fours with those in Waluka’s case where the offender had overloaded his dinghy with passengers and roofing iron and cement bags, was drunk and travelled at night without a torch, the accused here nonetheless was totally reckless by pushing off for Bonarua – a journey he was unfamiliar with – amidst very bad weather, Mr. Apo argued.

40. Mr. Palek on the other hand argued that the State has not put its case beyond the civil standard which it is required to do in other to attach criminal responsibility on the accused for the death of the deceased by criminal negligence.

41. At the very outset I must say that the circumstances in this case are quite different from those in Waluka’s case. Waluka was rightly found to have been criminally negligent. He had consumed 4 bottles of beer while his dinghy was being loaded and while he claimed he was not drunk, His Honour Kawi J, held that the number of beers he had would have nevertheless affected his ability to control and manage the dinghy as he struggled to navigate waves of 1.2 – 1.5 meters in rough seas in the dark without any form of light to guide him.

42. The dinghy was also grossly overloaded with 18 passengers, 36 sheets of 16 feet corrugated roofing iron sheets, and 7 sheets of 7 feet fibro sheets together with 40HP Yamaha engines. The passengers were first denied boarding by a Mr. Tickler when they attempted to board out of concern for their safety. The offender pretended to put out to sea but as soon as Mr. Tickler also sailed out the accused returned and picked up the passengers.

43. The offender had set out very late in the afternoon and would be travelling in the dark to his final destination. Neither he, nor his passengers carried a torch light, the offender opting instead to rely on his local knowledge of the area. With his heavy load the offender decided to call in to another place along his route before his destination and this resulted in him travelling on in total darkness through rough seas.

44. His Honour held that in those circumstances the offender showed complete and reckless disregard for the lives and safety of his passengers. He described the offender’s conduct as “gross and wicked”, “criminally culpable or grossly culpable” and convicted the offender of manslaughter by criminal negligence.

45. The circumstances in the instant case, on the other hand, and particularly the accused’s management and control of the dinghy, cannot in my view be similarly described as “gross and wicked” or “criminally culpable or grossly culpable.” His dinghy was not overloaded nor was he drunk. Yes, he was travelling during rough weather with strong south easterly winds which were whipping up waves and swell of up to 1 meter. Was this the kind of whether that was impassable for small crafts? No, it does not seem to be the case because a seasoned operator like Iairo Niko said he could still safely negotiate the 1 -1.5 meter waves.

46. In my view the accused cannot be said to have been so reckless so as to risk the lives of his passengers including the deceased. Yes he was plying unfamiliar territory having not travelled this stretch of sea before. I find that he was travelling too close to the reef which he would have been able to make out given that waves were already breaking around him. And of course in those circumstances as often is the case around reefs, especially submerged parts of reefs, breakers would rise up suddenly creating surfs of several meters high. That is obviously what happened here.

47. The State submitted that the accused had the option of taking the calmer route between the reef and the coastline and was even told so by Beiti Letiel. I have, however, found that the accused that he did not hear what Beiti said as he was under the dinghies makeshift cabin amidst the sound of the engine and the pounding of waves against the dinghy. So while the suggested the route may have been safer (though longer to get to Bonarua), it is not in my view wise to be wise after the fact. I think that the accused was managing his situation as best as he could until hit by the waves because he was too close to the reef without realizing it.

48. That in my view is not a case of falling below the standard of care expected of him in the control and management of the dinghy in the prevailing circumstances. He was not grossly reckless or could it be said that he totally abandoned his moral and legal responsibility to his passengers as Waluka did. This was a case which cannot go beyond mere compensation to use the language of the authorities cited above. Maybe, just maybe, he would have managed to regain control of the dinghy had he not broken his arm by that first wave, but that would be conjecturing at best.

49. Be that as it may, I am not satisfied beyond reasonable doubt that the accused was criminally negligent. I therefore return a verdict of Not Guilty.
________________________________________________________________
P. Kaluwin, Public Prosecutor: Lawyer for the State
L. B Mamu, Public Solicitor: Lawyer for the Accused