IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

THE QUEEN –v- JOHN MONTGOMERY
HARVEY-HALL

PORT MORESBY
Mann C.J.

/9/63

In this case the accused was tried upon two charges. The first laid under Section 323 of the Criminal Code was of Unlawful Wounding and the second was a charge laid under Section 328 which deals with the actual causing of bodily harm to a person by negligent acts or omissions. Counsel for the defence relied upon Section 23 at excusing the accused from responsibility, on the ground that the material incidents constituted an "accident" under that section. He also denied that negligence on the part of the accused was the cause of the accident.

It has been established to my entire satisfaction that the accused was driving his M.G. sports car along Healy Parade from Koki towards Port Moresby on the afternoon of Sunday the 2nd June, 1963 and was in the course of negotiating a pronounced but by no means sharp curve of the road, when his car left the macadamized portion of the roadway and ran along the gravel margin of the road close to the sea-wall. It is clear beyond question that four native pedestrians were walking along the gravel strip close to the edge which is supported by the sea-wall, and that the car struck or brushed past each of these four natives. At least one of the pedestrians was thrown over the sea-wall on to a rocky beach something like six feet below the level of the roadway. The others were likewise precipitated on to the rocky beach, but it is difficult and perhaps unnecessary to determine to what extent each of them was propelled over the edge by the car and to what extent his movement was assisted by an impulsive leap to avoid immediate danger.

All four received injuries in various degree, but one of them, LOLA, received a very severe and deep laceration in the region of the left calf, necessitating a surgical operation to remove damaged muscle tissue. This severe wound was the subject of the two charges on which the accused was tried. It appears to be certain that this injury was caused by LOLA being struck from behind by the front near side hub of the car.

The hub cap is of a kind not commonly seen sports cars, and fitted with two large protruding lugs designed to facilitate rapid removal. They are of a kind sometimes referred to as "knock-on" hub caps. This explanation of the wound is strongly supported by the damage done to the vehicle itself. It was fully described in evidence, and I had the advantage of inspecting the car in substantially the sane condition as it was at the time of the occurrence in question, and this enable me to appreciate more clearly the significance of the damage described by the witnesses.

There is a long indentation over the top of the front near side mudguard, indicating that a heavy and relatively soft object fell against the body of the car just behind the front wheel. Behind this again, in a direct line and at a slight angle across the car, the windscreen frame and supporting bracket have been bent rearwards, and the supporting strut has been driven downwards anti backwards with sufficient force to form a deep and extensive indentation into the top panel of the car just above the instrument panel. On the rear near side mudguard just above the wheel, is another indentation running longitudinally, again suggesting contact with a heavy and relatively soft object. The windscreen, which was made of Triplex safety glass, was very extensively cracked in more than one area, but owing to the presence of the intermediate safety layer, the windscreen held together.

The damage to the car thus strongly points to the conclusion that LOLA was struck on he calf by the hub-cap and that he (or one or more of the other pedestrians) was thrown against the mudguard of the car and partly across the bonnet, where he came heavily into contact with the near side portion of the widescreen which at that point would have a tendency to deflect him to the left, and that he (or one of the other pedestrians) was heavily thrown against to rear mudguard of the car.

LOLA was walking behind his two companions, who were walking along the gravel edge of the roadway off the bitumen, and was the first to be hit. There is no other footway provided and it is notorious that this gravelled portion of the roadway off the bitumen is used consistently by the public as footpath. These three men were walking in single file with their backs towards the on-coming traffic and had no reason to suppose that a car would leave the macadamized roadway and run them down. 

The fourth native pedestrian was KAIMOPE, who was walking some little distance away from the other three men and in the opposite direction. He says that he was within ten feet of the other men when he saw the car strike the witness LOLA, where upon he jumped over the sea-wall, but he was not quite in time to avoid being struck a glancing blow on the leg.

The accused did not stop immediately after the accident but according to his statement in Court, he drove on for some little distance and then pulled up at the side of the road to look back. He said that he could see nothing on the road, and so he drove on and went up Lawes Road, thus taking a somewhat roundabout path to reach the Hotel Papua in Port Moresby where his car was subsequently found parked.

According to his statements on the subject, the accused had no knowledge that his car had collided with anybody. He says that something hit his windscreen and he thought that it was either a bottle or a stone or some such object which somebody had thrown into his path.

When he pulled up on the road after the accident he was aware that his windscreen was extensively shattered, and when he looked back he could see nothing that indicated anything of significance to him. Of course by this time the four native pedestrians would be out of his sight on the beach below the wea-wail. Unless he expected to see a bottle or a stone on the roadway at a range of 100 yards or more, it is difficult to see how his stopping momentarily could have been intended to serve any useful purpose. It does tend to suggest that he was very drunk and did not know what had happened.

There is reliable evidence that on his way along Lawes Road the accused was driving for some distance on the wrong side of the road, so that Mr. Glyn Williams, who was driving in the opposite direction, was constrained to bring his car to a halt to avoid a collision, and that the accused continued along the extreme edge of the road on his wrong side until he was dangerously close to the other vehicle, whereupon he managed to turn sharply to avoid it. The evidence next picks up the trail where the accused entered the central area of Port Moresby from Champion Parade and entered Douglas Street from Hunter Street. In this locality the accused had spent portion or the earlier part of the day. Mr. Oswald Todd, Company Director, lives quite close to the corner. He gave evidence of the accused driving his car into Mr. Todd's driveway at an angle and getting the front wheel of the car caught up between the storm-water drain and the over-pass. Mr. Todd's evidence of the actions and behaviour of the accused gives a general picture of a high degree of inebriation, although individual items such as fumbling for keys, and difficulty with gears, if they stood on their own, might be found to be consistent with sobriety.

When the accused got back into his car and extracted the vehicle with some apparent difficulty from its position, he drove down Douglas Street and drove it right across a very heavy raised curbing around a garden area in the middle of the road. At this point the curbing projects to form a margin to a parking area, as is revealed in the photographs of the locality. Driving across this curbing not only caused a very loud noise, but also imposed severe strains and quite obvious damage to the wheels of the car and to the cement surface of the wall. The accused was soon afterwards intercepted by the police. He denied that he had been driving the car, denied that he had been drinking that day, and denied that he had any knowledge of an accident involving any person. He did, however, at an early stage tell the police that somebody had thrown a bottle which smashed the windscreen and he adhered to that explanation during his trial.

During the trial a good deal of evidence was given to the effect that the accused and his companions had visited a surprising number of places throughout Sunday morning and afternoon up until shortly before the collision occurred, and that at many of them he had been drinking. There is no precise indication of the quantity of alcohol which he consumed, but it is clear that from early afternoon onwards he was in a state in which he was frequently falling to sleep, and exhibited in his speech and manner clear indications of a heavy state of intoxication. A medical officer who examined him some time later in the evening gave evidence indicating that he was still in a state of intoxication, such as, in the opinion of the doctor, would render him incapable of driving a car safely.

All of this and other evidence convinces me beyond question that the accused had been drinking heavily all day and was in such a state of intoxication at the time of the collision that it was a matter of great danger to the public that he should bake any attempt to drive his car.

The accused appeared to me to have been quite frank about his actions, and I am prepared to accept it that he did not have a clear impression at all of what had happened. It seems to me that his perception of events about him as he drove the car along the road, must have varied from time to time, and that in addition to his state of intoxication and no doubt because of it, he was in fact extremely tired. The shattered windscreen no doubt reduced his range of vision, but being of Triplex and not armour-plate glass, did not become cloudy and opaque, so that it was still possible for him to drive.

I must examine very carefully the defence that somebody had thrown a bottle or stone or some other object into the path of his car. There is an overhanging rocky cliff above the road at the point where the collision occurred, and not only might somebody have thrown, some object from here or from elsewhere, but there is an obvious risk that any sort of rubbish of the kind which tends to accumulate in these places, night have been set in notion by some unknown cause and rolled down the cliff over the roadway. An object such as a bottle rolling down the rocky parts might have projected itself some distance across the roadway or, shattering on a rocky projection, sprayed the roadway with broken glass. Had something of the kind occurred, even a driver in full possession of his faculties might have become so startled as to commit some momentary error in driving. This whole question has been examined very carefully. The question for me is not so much whether it could happen, for undoubtedly it could, in any different ways. The question for me is whether it did happen, and if I am left in any reasonable doubt, the benefit of that doubt is extended to the accused.

Looking at the evidence I cannot see any substantial support for the contention of the accused. The witness KAIMOPE says that he saw glass coming from the car and there were other suggestions that glass which could have come from a shattered bottle was found in the vicinity. The police carefully picked up some broken windscreen glass lying on the road, in case it gave them some clue as to the identity of the driver, who was at that stage unknown to them. Their attention would not have been attracted to a bottle or part of a bottle on the roadway, since they knew nothing of this suggestion at the time. There was no glass missing from the windscreen of the car driven by the accused, and KAIMOPE's evidence of an impression which he gained from a distance of a few feet may be accounted for in a variety of ways. He may have assumed, as the police did, that the windscreen glass lying; on the road must have come from the car. He may have seen small splinters or he may have been misled by the cracking of the windscreen which he observed. It is clear that the glass picked up from the road was from a different kind of windscreen, and could have cone from any of the accidents that appear to be so willing to happen on that road.

I must however allow for the possibility that a piece of broken windscreen glass was thrown, or fell into the path of the car and that this broke the windscreen, and accounted for the fragments found on the road. Such a theory does not arise on anybody's evidence or from anybody's reliable observation. The windscreen gives not the slightest indication of impact with any dense hard object, regardless of size. There is no point at which the outside surface is impacted by contact with a hard object. Undoubtedly the damage to the car is fully explained by contact with the bodies of one or more pedestrians. Everything indicates contact with a heavy and soft object or objects. It could well be that when he stopped his car after the collision, the accused, becoming aware of his shattered windscreen and seeing nothing behind him, came to the conclusion that something must have hit the car, and his explanation may be perfectly honest up to this point, but if he were genuinely unaware of hitting anybody, he must have been in a very bad state of intoxication. I am satisfied beyond any doubt at all that the windscreen was broken by contact with one or core of the bodies of the pedestrians and by the consequential warping of the metal frame, and not by contact with any hard object.

In considering the defence under Section 23 of the Criminal Code, it is important to begin at the correct starting point when considering criminal responsibility. In ordinary speech the collision might be termed an "accident" as a matter of course and without reference to any legal analysis of the event.

Under Section 323, criminal responsibility attaches when a person unlawfully wounds another, unless there is some other provision in the Code which will relieve him of that responsibility. There is no doubt that the actions and conduct of the accused on the day in question were the cause of the injuries to LOLA. Under this section it is not a question of whether he caused the wounds by any particular means or in any particular manner.

The possible defence of intoxication under Section 28 of the Code does not assist the accused, for his intoxication could hardly be said to have been caused without intention on his part. Section 323 of the Code does not make any intent to cause the injury one of the elements of the offence. By virtue of Section 23 of the Code, the intent of the accused in relation to these injuries is declared to be irrelevant. There is no suggestion that the accused intended to inflict the particular injuries in question and therefore the last paragraph of Section 28 has no application.

Section 23 provides in effect that criminal responsibility does not extend to an act or omission which occurs independently of the exercise of the will of the accused or for an event which occurs by accident. The whole of this part of the section is expressed to be subject to the express provisions of the Code relating to negligent acts and omissions, and therefore it is only a conditional defence. If the occurrence is an accident, the accused is still criminally responsible unless it appears to the Court that that accident occurred otherwise than by reason of the failure of the accused to comply with the standard of care and the duties imposed on him by Sections 288 and 289 of the Code. If he did discharge his responsibilities under these sections, then he is not criminally responsible for the accident. If he did not, he is not made guilty of any particular offence under Sections 288 and 289 of the Code. He simply remains criminally responsible for whatever act or event is the subject matter of the charge, in this case the occurrence of an unlawful wounding under Section 323. If, on the other hand, the event appears to the Court not to be an accident within the meaning of Section 23, then there is no defence available to the accused under this heading. Whilst discussing the effect of Section 23, I exclude for the sake of clarity any question of onus of proof of facts.

Section 23 has received a good deal of earnest attention from all the Judges of this Court, and the questions which arise are by no means easy to answer. A similar statutory provision was considered by the Court of Criminal Appeal of Queensland in Reg. –v- Martyr 1962 Q.S.R. 398, and a comparable provision in the Tasmanian Criminal Code was considered by the High Court in Vallance -v- The Queen.

I have previously considered Section 23 in The Queen -v- Gamumu, Rigo, 6th June, 1960. The Queen -v- Diru, Madang, 26th May, 1960, The Queen -v- Koivi, Tapini, 23rd August, 1961, and in other cases reports of which are not available. My brother Ollerenshaw J. has considered the section in The Queen -v- Manga , Tapini, 30th January, 1963, and The Queen -v- Mamote, Madang, 5th August, 1963. My brother Smithers J. has considered the same section in The Queen -v- Talu, Minj, 25th February, 1963, and my brother Minogue J, has considered it again in The Queen-v- Miawet, Lae, 3rd April, 1963. There may be other cases to which I have no reference at present.

There is such a divergence of judicial opinion as to the Meaning of section 23 as to call for clarification of the law by higher authority. Meanwhile, I adhere to the views which I have previously endeavoured to express, as indicating the only meaning to be attributed to Section 23 which will enable the Code to operate with respect to this subject matter as an articulated whole. The only further contribution which I can make to the discussion which has taken place is to say that in my view the word "event" is not used as a term of art to create any distinction between it and the word "result" used in the second paragraph of the section. Injury or whatever other harm may be specified by any section of the Code creating an offence may equally constitute an "act"' "omission," "event" or "result." If A injures B, then in the language of Section 23 it might be said to A - "You have committed an act of wounding," or - "You have brought about the event that B was wounded." I do not think that the words matter. The substance of the present alleged offence is that the accused wounded LOLA. If the accused says - "I did not intend that result," this may be conceded, but it is irrelevant. If he says - "The event which happened occurred by accident," then this defence trust be examined and the appropriate tests applied. If he says "The wounding of LOLA did not occur by the exercise of my will," the answer is, "As a matter of causation, the wounding did occur in consequence of actions which you voluntarily performed in the driving of the car, in the circumstances, including your intoxication, under which the car was driven."

Going then to the question - "Was the wounding an accident within the meaning of Section 23?" , there are several circumstances or incidents which might be thought to constitute an event which might be accidental or otherwise. The fact that the accused was intoxicated was an event which was not caused by accident, similarly the fact that he was driving the car. The real question that I have to decide in this case and the significant event for the purposes of Section 323 may be expressed in this way: "Was the wounding an accidental event;" or, "Was the collision which occurred an event which occurred by accident?"

The answer to this question, in my view, is to be supplied by the further question - "Was it foreseeable to a person in the position of the accused when he drove his car that afternoon, and continued to drive it until the collision occurred, in such a state of intoxication that there was a real and substantial risk that his car would get out of control to such an extent as to run off the road and run down pedestrians using a recognised footway?

This is a question which the accused ought to have asked himself, and in my opinion the responsibility imposed by the Code upon individuals requires them to face up to this question before undertaking any course of action, which might result in loss of life or injury to other persons. I think that the only answer to this question which could be given by a person in the position of the accused, would be that there was the gravest and most obvious risk, when his proposed actions were examined in the light of common everyday experience. If a person in the position of the accused takes such a calculated risk, and no harm befalls any person, he escapes from offending against Section 323 of the Code, but nevertheless his actions could undoubtedly attract other penal provisions.

A motor vehicle driven in traffic and in the proximity of pedestrians is an obvious risk to life and limb, unless the proposed driver can say with confidence that by reason of his capacity to control the vehicle and detect danger quickly and take the necessary precautionary action, he is justified in setting the car in motion. If a driver takes the risk and a collission which is clearly likely to occur, does in fact happen, than the driver cannot say - "But this was not foreseeable, it was an accident."

Therefore in my opinion the accused, having caused the wounding, however unintentionally, is not excused. In the circumstances prevailing it was clearly foreseeable to a person in the position of the accused that pedestrians making normal use of the roadway were likely to be run down and injured in precisely the way in which these incidents happened. 

If my view as to the effect of Section 23 should be erroneous, and if the events which occurred and in particular the wounding, ought to be regarded as accidental in the appropriate sense, the accused in my opinion would still be criminally responsible under Section 323. The defence of accident is conditional upon his complying with the duties imposed on him by Section 288 and 289 of the Code. Section 288 applies to persons doing certain dangerous acts, and Section 289 applies to persons in charge of dangerous things. Neither section has any specific reference to motor cars, since when these provisions of the Code came into force, traffic accidents were not of the overwhelming social importance that they are today.

Nevertheless, in my opinion, the accused clearly comes within Section 289 as a person who had in his charge or under his control, (however imperfect that control may have been) something of such a nature that in the absence of care or precaution in its use or management, the life, safety or health of other persons might be endangered. In consequence there arises an express obligation under the section to use reasonable care and to take reasonable precautions to avoid such danger. The section does not expressly say that he is to desist from his conduct, but I feel confident that if the only way to avoid the danger was to desist from doing what he was proposing to do, then the section would require him to desist. He was driving the vehicle in a condition in which he was incapable of taking care. The fact that he drove it at all in a condition in which he was intermittently falling asleep from intoxication and tiredness, showed a reckless disregard for human life and safety. The effect of Section 289 is simply to say in substance - "if you do not discharge this duty you are responsible for what happens." Carrying this back into the wording of Section 23, the result is that the accused is not entitled to rely on as accidental event to relieve him of criminal responsibility.

I therefore find the accused Guilty upon the first charge of Unlawful Wounding.

The second charge laid under Section 328 is not an alternative charge to that prescribed by Section 323, and is no sense are the two mutually exclusive. If the same series of acts renders the accused guilty of both, the fact that he has only undertaken a single guilty course of conduct is of course a matter to be taken into account on the question of punishment, but conviction of the one offence does not relieve him of criminal responsibility in relation to the other.

The substance of the offence set out in Section 328 is that bodily harm is actually caused to a person by some negligent act or omission. This section does not require the Crown to disprove accident, for if that were raised as a defence it would merely result in the same inquiry as to negligence which is, in any case, material to the charge under Section 328. Section 23 may of course be usefully resorted to to show that some relevant act or omission was an unwilled act or omission of the accused. 

For the same reasons which in my view disentitle the accused to rely upon the defence of accident (even if the collision were, contrary to my view, an accident) I hold that the accused in driving the car in the circumstances prevailing at the time, was guilty of such a reckless disregard for public safety that he is responsible under Section 328. The actual duty which is referred to in Section 328 comprises any duty imposed on him within the contemplation of the Code, and would certainly include the duty to take the care and precautions specified in Section. 

I therefore return a verdict of Guilty with respect to the charge laid under Section 328, but I intimate for the assistance of Counsel that although the series of events which took place on the date in question have in my view satisfied the requirements of the statutory definitions of two distinct offences, I would, from the point of view of punishment, regard that series of events in the same lights as if they constituted a single offence.