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Regina v Cakic [1968] PGSC 22 (25 September 1968)

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

CORAM: OLLERENSHAW, J.

Wednesday,
25^th September, 1968.

REGINA

v.

LOUIS CAKIC

JUDGMENT

The accused person, Louis Cakic, is charged that on Saturday the 3rd day of June, 1967, he unlawfully killed Fanti Amegau, that is to say that he killed him in circumstances that did not constitute wilful murder or murder but still unlawfully and so committed the crime of manslaughter under section 303 of the Code.

Between half past six and a quarter to seven o'clock in the evening of the 3rd June, 1967, Fanti was struck and killed by a motor car as it travelled outward from the town of Madang along the Modilon Road about 250 yards beyond its junction with Kalibobo Drive.

The Crown alleges that the accused was the driver of the motor car. If he were - and I should add if he were driving consciously - his criminal liability would depend upon his having caused Fanti's death by criminally negligent driving. I referred to the relevant law as I understand it in my judgment in Regina v. Druett^[1] and I do not repeat what I said there.

No eyewitnesses of the collision were found. However, Mr. McKenzie and Mr. Caesar at the time were sitting in the former's residence above the store as shown in the sketch, Exhibit "A". They heard a bump or muffled thump and the sound of a motor car that brought them to their feet immediately and Mr. McKenzie heard natives cry out: "Car i kilim man." As he stood McKenzie, who said he heard the car proceeding on the side of the road and also referred to the "high-pitched note of the engine", saw opposite him a Holden motor car travelling out of town on the opposite side of the road from where he was and partly on and partly off the bitumen. He estimated that it was travelling at a speed of between 50 and 60 miles per hour. The effect of his evidence is that when he saw it the car appeared to him to be travelling to the bitumen from the dirt strip beside the bitumen. He rang the Police Station. Mr. Caesar, who saw the top of the car as it went away just beyond where he was and under the strip light above the bitumen as shown on the sketch, that is, as he said, just before it disappeared around the bend, estimated its speed at between 45 and 50 miles per hour. It is convenient to mention here that Modilon Road runs perfectly straightly for a distance of about 390 yards from Kalibobo Drive to this bend.

Mr. Caesar ran down the stairs and back along the road towards the town a short distance and found Fanti's body on the grass beyond the footpath on the other side of the road. The foot of the left leg was touching the footpath and the other leg was entirely missing from the hip. Fanti, whose entrails were exposed, was dead. This witness found his right leg on the roadway some distance beyond the body as the car had travelled; the heel was on the bitumen and the rest of the leg was on the dirt strip between the bitumen and the footpath. Underneath this leg this witness found the tail-light unity or assembly of a Holden motor car and pieces of its orange plastic were found on the dirt between it and the footpath.

Inspector York, who arrived at the scene shortly after the collision but after the body and the leg had been removed to the hospital, found, amongst other things, the mark of a car tyre going from the dirt strip on to the footpath in a significant relation to the first of two pools of blood which he found on the footpath and the position of which he described and indicated in his sketch, Exhibit "A". Mr. Caesar said that the second of these pools of blood was near where he found the body.

There is too, considerably more evidence that bears on where the collision occurred and how it did occur and also what car it was that killed Fanti. I am completely satisfied that the off White Holden sedan motor car Registered No. 29934, which the accused hired that morning from the Avis people at Tutt Bryants and of which there is evidence that he was in charge as driver between five and ten minutes after the accident, killed killed Fanti when it was driven off the bitumen across the dirt strip of the road and on to the footpath, where Fanti was, and struck him from behind.

I am completely satisfied that on this straight stretch of road in this built up area this car travelled at a speed of not less than 45 miles per hour from the 24 feet of bitumen of the roadway across the 7'6" dirt or gravel strip and on to the footpath and that as it travelled along the footpath before swerving back across the dirt strip to the bitumen it struck Fanti. The footpath was about 7' wide and, as any Madang motorist would have known, would have carried many native pedestrians at the time. It is convenient to mention here that there is convincing evidence that the accused was aware at the relevant time of the likely presence of native pedestrians.

I am completely satisfied that the driver of this car at the time was guilty of not merely criminal negligence but indeed of gross criminal negligence which caused the death of Fanti. I do not understand these matters to be disputed and Counsel for the accused in his address referred to the car being driven erratically and knocking a pedestrian down. I do not, however, rely upon this and I have no doubt about my findings which I make upon the evidence.

There is convincing evidence that between five and ten minutes later the accused, although he was quite aware of what was going on and of what he was doing, was so intoxicated as to be incapable of driving a motor vehicle with safety to himself, the other occupant of the car and other users of the road. If the accused were the conscious driver of the vehicle at the time of the killing then his intoxication explains the erratic course of the car. I am completely satisfied that at the time of the collision the car was travelling at a speed of certainly not less than 45 miles per hour; probably it was more. Again, if the accused were the conscious driver his intoxication and the fact that he knew that he was about three-quarters of an hour late for his appointment with Sister Smith would explain the speed. Sister Smith, whom he picked up at the hospital some mile or so beyond the place of the collision with Fanti, explained why she considered the accused was under the influence of liquor and this included his handling of the bonnet of her car, and, when he was driving his car with her as a passenger, his swerving from the bitumen on to the dirt strip beside the bitumen and back again and once his swerving across the centre line of the bitumen into the path of an on-coming car. This was while they were going from the hospital the short distance to pick up the Wiltons and the car was travelling between 25 and 30 miles per hour. Eventually, upon leaving the Wiltons, Sister Smith persuaded the accused not to drive the car because of his intoxication and to allow Mr. Wilton to drive.

She noticed quite a few very small spots covering about a third to a half of the left hand side of the windscreen in front of her as she sat in the passenger seat of the front of the car and this and the behaviour of the accused caused her to ask him what he had hit, to which he replied: "Nothing has happened".

After they had picked up the Wiltons, who lived nearer to the town than the hospital, they proceeded, with Mr. Wilton driving, towards the accused's place of employment at the Ten Mile Camp of Nova Construction, where they were to attend a party. They had not gone far when Mr. Wilton discovered that the left front tyre had become deflated. While changing the wheel under some light at the Overseas Cable Station he saw on the front mudguard spots, that looked like blood, and some dents.

He looked closer and noticed other blood and signs of damage along the left hand side of the car from front to rear. He noticed, too, that its left hand side rear tail-light unit had been torn out and was missing. I do not go through all the evidences it is sufficient to say that, although at the time when the wheel was changed the accused again denied having hit anything, when they reached the Nova Camp and were able to examine the car under a strong light Mr. Wilton and Sister Smith had no difficulty in demonstrating to the accused that this car had hit a body - a body that had left blood along the side of the car and, at the air intake grille on the left hand side of the bonnet just below the windscreen, what Sister Smith took to be flesh. Although up to this stage he had denied his knowledge of having hit anything he agreed that they should return to Madang to the Police Station where he had a recorded interview with Inspector Honisett, the Officer in Charge of the Police at Madang.

In answer to the Inspector's questions the accused said that he had been the only driver of this car which he had hired that morning from the Avis people at Tutt Bryants, that he had left the club at about half past six to pick up Marie, (Sister Smith) at the hospital, whither he had gone on the main street past Jack O'Connor's place."

He also said that he had had half a dozen middies in the club where he arrived at about 3.30 p.m. and two bottles at home - which would have been about midday or shortly after. He did not remember with whom he was drinking at the club.

I quote now some of the Inspector's questions and the accused's answers:

Q. Tonight we had a complaint that a car mounted the footpath and nearly ran over Mrs. O'Connor outside Territory Motors. Do you know anything about that?

A. No.

Q. Was it you.

A. I don't think so.

Q. Could it have been you.

A. Could have been. As far as I know I was driving allright.

Q. Tonight a man was struck by a car in Modilon Road. The car did not stop. Do you know anything about that.

A. No.

Q. Could it have been your car.

A. I don't know. I was driving along. Did not notice anything.

Q. When you were going out to the Hospital and coming back did you notice a group of people or anything else unusual near the native picture theatre or S.P. Brewery store.

A. No. There is always a lot of boys around.

I must come now to what eventually emerged as the defence in this trial.

In his address at the conclusion of the evidence Counsel for the accused said this:

"It is the submission of the defence that what happened that evening was that when the time came for the party to leave the Madang Club the accused was found to be so insensible that someone else that evening took the wheel, that that person drove erratically, that he had a collision with a pedestrian, that he was all too aware of the gravity of the situation, that he drove to the hospital and there abandoned the car and the accused who was in it, that the accused at some later time awoke or recovered consciousness, alighted from the car and proceeded to look for Miss Smith."

In my view there is not a scrap of evidence that supports either of these suggestions, that is that someone else and not the accused was the driver at the fatal moment and that he was insensible during the short period from the club to the hospital on the journey to pick up Sister Smith that took only minutes. The evidence is all the other way. Counsel for the accused has submitted that the onus being upon the Crown as to all the elements of criminal responsibility in this trial - which of course it is - I should "at the end of and on the whole of the case" have a reasonable doubt "created by the evidence given by either the prosecution or the accused as to whether the accused killed the deceased".

I entirely agree that the onus throughout is upon the Crown and that all the evidence is to be taken into consideration as to a possible state of insensibility or automatism see Regina v. Hetenave-Tete and Loso-Sarufu^[2]. It has not been submitted that the accused drove in an insensible state or state of automatism but that he was in such a state, that in fact he suffered a blackout, at the end of his time at the club and that someone else was driving on the fatal journey from the club to the hospital. However, I have considered the possibility that the accused while himself driving on this journey was unconscious or insensible or incapable of knowing what he was doing.

The witnesses for the Crown I considered formed an impressive group of truthful people. These included Sister Smith and Mr. Wilton, who were by no means unsympathetic towards the accused, and Inspector Honisett, to mention only some of them. To none of these in all that took place that evening from the time he met Sister Smith at the hospital, from which time he said in chief he remembered the happenings, did the accused suggest the possibility of another driver or that he had suffered a period of unconsciousness: Indeed, as I have recounted, he told Inspector Honisett that he was the only driver of the car. I would interpolate here that although the accused's attention was drawn by his Counsel in chief to the evidence of Sister Smith, Mr. Wilton and Mr. Honisett as to what happened from about 6.45 that evening and the accused said he remembered the events, he did not dispute their evidence. In cross-examination he did resort to not remembering on occasions when he thought that the evidence being put to him with veracity where his liability is in question. He does not claim to have mentioned that someone else was or may have been driving at the fata; time or that he was unconscious to his friends on the following Sunday or the Monday morning before his departure for Australia – a departure he made although he had promised Inspector Honisett to come to see him on the Monday morning. I would mention in passing that in evidence he volunteered that, at the airport as he was with his friend who drove him there and was about to leave early that Monday morning this occurred: ".... we shake hands and he told me in German language that it will be forgotten in sixty years time." to the question: "What did you think he meant would be forgotten in sixty years time" he replied: "I didn't think nothing at all Your Honour, I only remember what he said". I mention here that in my consideration of the accused's criminal liability I have put out of my mind and disregarded his sudden departure from the Territory although I am far from satisfied with the truth of his explanation of it to the effect that he became scared when his friends told him that he would be killed by the natives because of the killing of Fanti and impressed upon him that he should leave.

I do not review all the evidence that bears upon the defence as submitted by Counsel for the defence. I should, however, refer to such evidence as has been adduced on behalf of the accused and upon which Counsel for the accused relies.

The person pointed to as the driver of the car is one Joe Pilacik and the accused's Counsel led evidence to the effect that the accused had net this person earlier on that Saturday and invited him to his party at Ten Mile that night. The accused did not quite rise to the bait when Counsel asked this question: "During the course of that day do you remember inviting Joe Pilacik to come with you in your car to the party" and the accused replied: "I remember this morning saying to him: 'I will see you at the Madang Club'. He agreed to that. I seen Joe there. I was talking to him there the very last before I left the club ........ I do net remember if we both left together".

I will now set out in full the main evidence upon which Counsel for the defence relies - although I should add that he has also urged probabilities which he saw arising from all the evidence. The evidence I mentioned is this:

Q. Did you meet anybody at the Club.

A. Not for about half an hour later that evening, then I met a few of my friends whom I was expecting to come to this Club this evening as I didn't know where they was living.

Q. Was Joe Pilacik amongst them.

A. Yes he was.

Q. After you met your friends what did you do.

A. I invited them all to the party.

Q. Did they accept the invitation.

A. Yes they did sir.

Q. How many of them were there.

A. Three or four.

Q. After they had accepted your invitation what did you do.

A. Some of them left before me and I was waiting for a few more friends to come.

Q. Did you say some of them left but not all, is that what you mean.

A. Some of them left not all.

Q. Was Joe Pilacik amongst those who remained.

A. Yes sir.

Q. What happened next.

A. I told them that I was going to pick up some people in town. I left the Club.

Q. What time was that.

A. It must have been about half past six.

Q. Did you leave the Club alone or in company with someone.

A. I don't remember.

Q. Had you been drinking at the Club.

A. Yes sir.

Q. Were you drinking beer or spirits.

A. I was drinking beer sir.

Q. How much.

A. It wouldn't be more than two glasses.

Q. Can you remember driving in the car away from the Club.

A. No. sir.

Q. Can you remember leaving the Club, walking out of the Club.

A. I only remember saying to the people: "I must go now". I don't remember leaving the Club.

Q. After saying that what is the next thing that you remember.

A. The next thing I remember is seeing Miss Smith on the front of her car.

Q. Where was that.

A. At the hospital sir. I remember helping her putting the bonnet on her car. I remember driving with her in my car to Mr. Lindsay Wilton's place.

Q. Yes just pausing there, is this the case that after you said that to your friends at the Madang Club you don't remember anything further until you found yourself at the hospital looking for Miss Smith.

A. Yes sir.

O. And you say you saw her.

A. I saw her.

Q. And now you have been in Court and you have heard people say what happened from the time you drove Miss Smith to the Wiltons until the time Inspector Honisett drove you to the hospital, now do you remember the events taking place from the time you drove Miss Smith to the Wiltons to the time Inspector Honisett drove you to the hospital.

A. Yes sir.

Then followed the passage I have already cited verbatim about meeting Joe Pilacik that morning and seeing him at the Club down to: "I do not remember if we both left together".

There is no further mention in the evidence of Joe Pilacik or of anybody else other than the accused who may have driven the car and killed Fanti - except that the accused doesn't know where Joe Pilacik now is.

I have carefully considered the evidence of Mr. Reay-Young, the doctor called on behalf of the accused. I do not think that it assists his defence at all even when considered intrinsically and certainly not when considered in relation to the other relevant evidence.

I do not propose to review all the evidence. I have considered the whole of it and the probabilities arising from it. I am convinced that the accused person was consciously driving the car, knowing and understanding what he was doing, when it struck and killed Fanti and, as I have already said, that the car was driven with gross negligence - gross criminal negligence - when it killed him.

I am satisfied that the Crown has proved the charge of manslaughter beyond all reasonable doubt. I find a verdict of guilty.

______________

Solicitor for the Crown: S.H. Johnson, Crown Solicitor
Solicitor for the accused: W.A. Lalor, Public Solicitor

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

CORAM: OLLERENSHAW, J.

Wednesday,
25th September, 1968.

REGINA

v.

LOUIS CAKIC

FOR SENTENCE

The offender has been found guilty of criminal negligence in driving a motor car along Modilon Road, Madang, and thereby killing a pedestrian.

As I have said his negligence was not merely criminal in the sense of the authorities which I cited in Regina v. Druett but grossly criminal.

In Regina v. Druett I imposed a sentence of two years imprisonment with hard labour for the reasons which appear from my judgment and what I said when passing sentence. If any comment may be made by me upon that sentence, in my view, it would be that it was too light.

The criminal conduct on the part of this offender I consider to be far worse than in Regina v. Druett and I have contemplated imposing a sentence of four years imprisonment with hard labour.

I cannot but take a serious view of killing by criminally negligent driving by a man who, as I believe, well knew the risk he was taking and the great danger he created on the road. Apart from any question of punishment, deterrence is an important thing in these cases. Although we live with bloodshed and slaughter on the roads the Courts should continue to do what they reasonably can to deter criminally reckless driving, particularly drunken driving.

However, over a year has elapsed since the event in this case and I do not doubt that during that period the offender has suffered worry about the consequences to him. Of course it all started from his own fault, and, it may well have been, it probably was his fault that this delay has occurred. I will disregard the question of his responsibility for the delay and take into consideration this period of anxiety and its probable effect upon his health.

In all the circumstances I consider that the appropriate sentence is one of imprisonment with hard labour for a term of three years and that is the sentence I impose.

I have no doubt that if and when the offender requires treatment for his ulcer this will be afforded in full measure and that, although I have said "with hard labour", he will not be required to perform work unsuitable to whatever his condition may be.

^[1] (1965-66) P. & NGLR 393.
^[2] (1965-66) P. & NGLR 336.