Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Dilu [2019] PGNC 54; N7778 (15 March 2019)

N7778

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1301 OF 2018

THE STATE

V

KIMBIRI DILU

Waigani: Berrigan, J
2019: 6, 7, 8 February and 15 March

CRIMINAL LAW – ss. 302 and 287 Criminal Code – Manslaughter through criminal negligence; requiring very high, “gross” or “wicked” degree of negligence; alternate finding of dangerous driving causing death contrary to s. 328 open on a charge of manslaughter pursuant to s. 329 of the Criminal Code.

Facts

The accused pleaded not guilty to one count of manslaughter contrary to s. 302 of the Criminal Code (Ch. 262) (the Criminal Code). The State invoked s. 287 of the Criminal Code to establish manslaughter through criminal negligence.

It was established at trial that sometime after 4pm on the afternoon of 1 April 2015 the accused was driving his police-issued vehicle along Wards Road in Port Moresby. He was travelling in the inner lane of two lanes bound in the direction of Hohola when he struck the deceased, 15 year old Serrah Kirio, whilst she was using the pedestrian crossing outside the Ted Diro Primary School. At the time there were some but not many teachers and students at the school gate. He failed to observe the deceased and her sister at the crossing. He did see that there was a taxi stopped in the outer lane at the crossing but drove on nevertheless. He was travelling about 40 kilometres per hour. The force of the impact threw the deceased several metres onto the ground. She was taken to hospital but died two days later from her injuries.

Held:

1. To establish manslaughter through criminal negligence the State must establish that the accused:
   
   1. owed a duty of care;
   2. was criminally negligent in failing to perform that duty; and
   100. thereby caused the death of the deceased.
        
2. The accused owed a duty of care pursuant to s. 287 of the Criminal Code. He was in charge of a motor vehicle, a thing of such a nature that, in the absence of care or precaution in its use or management, the life, safety or health of a person may be endangered: Evgeniou v The Queen (1965) ALR 209 applied.
   
3. To establish that the accused failed to perform the duty under s. 287 the State must establish that he was criminally negligent. This is the very high degree of negligence showing such disregard for the lives and safety of others so as to make his conduct deserving of punishment; often described as “gross” or “wicked” negligence: Beraro v The State [1988-89] PNGLR 562. In summary, “there must be negligence ... involving grave moral guilt”: Evgeniou, supra applied. R v Lavender [2005] HCA 37; [2005] 222 CLR 67 considered.
   
4. The test is an objective one. The accused’s conduct must be compared with the behaviour of a reasonable hypothetical person in the situation of the accused: Beraro applied. R v Lavender [2005] HCA 37; [2005] 222 CLR 67 considered.
   
5. The evidence at trial failed to establish that the conduct of the accused was criminally negligent.
   
6. An alternative finding of dangerous driving causing death contrary to s.328(2)(5) of the Criminal Code is open on a charge of manslaughter in connection with or arising out of the driving a motor vehicle, pursuant to s.329 of the Criminal Code: The State v Koe [1976] PNGLR 562; The State v Subang [1976] PNGLR 179.
   
7. To establish the offence of dangerous driving causing death the prosecution must prove beyond reasonable doubt that:
   
   1. the accused was driving a motor vehicle;
   2. the accused drove in a manner or at a speed dangerous to the public; and
   100. the dangerous driving caused the death of another person.
        
8. There is no dispute that the accused was driving a motor vehicle at the relevant time.
   
9. In determining whether the driving constitutes a danger to the public the test is an objective one: Gamoga v The State [1981] PNGLR 443 adopting and applying R v Coventry [1938] HCA 31; (1938) 59 CLR 633; McBride v The Queen [1966] HCA 22; (1979) 115 CLR 44.
   
10. There must also be fault on the part of the driver causing that situation: such fault to involve a failure, or falling below the care and skill of a competent and experienced driver in relation to the manner of driving and to the relevant circumstances of the case: Gamoga applying R v Gosney [1971] 2 QB 674. Cf R v Wilson [2008] QCA 319 and The Queen v R [1992] HCA 14; (1992) 173 CLR 572.
    
11. The accused’s driving was objectively dangerous. He failed to keep a proper lookout for pedestrians at the crossing. He did see the taxi stop at the crossing and yet failed to heed that warning. He failed to sufficiently reduce his speed or stop and proceeded instead to drive through the crossing. Although within the official speed limit, he was travelling at a speed that was dangerous in the circumstances. He failed to take proper and safe regard for vulnerable road users, namely pedestrians in the vicinity of a school and pedestrian crossing.
    
12. Furthermore, the accused was at fault. His driving fell well below the care and skill of a competent and experienced driver in relation to the manner of driving and the nature of the circumstances.
    
13. The State has excluded any statutory defences. The accused’s driving was not a result of any extraordinary emergency for the purposes of s. 26 of the Criminal Code. Nor was there a mistake of fact for the purposes of s. 25 of the Criminal Code. The accused did not see the pedestrians at the crossing because he failed to keep a proper lookout. That was not a reasonable mistake of fact on his part in the circumstances and at the place where he was driving. Nor was this an accident for the purposes of s. 24 of the Criminal Code. The collision with the deceased was a foreseeable consequence of the manner in which the accused drove the vehicle.
    
14. Finally, the prosecution must prove that the dangerous driving on the part of the accused was a substantial cause of the death of the deceased, but not that it was the sole substantial cause: The State v Subang [1976] PNGLR 179 applying R v Gould (1963) 47 Cr App R 241 and McBride v The Queen [1966] HCA 22; (1979) 115 CLR 44.
    
15. The accused’s dangerous driving caused the death of the deceased. The medical evidence established that the deceased died as a result of the injuries sustained on 1 April 2015. The injuries were suffered as a consequence of the accused’s dangerous driving and were the substantial cause of her death.
    
16. The accused is convicted of causing the death of Serrah Kirio by dangerous driving.
    

Cases Cited:
Papua New Guinea Cases

Beraro v The State [1988-89] PNGLR 562
Evgeniou v The Queen (1965) ALR 209
Gamoga v The State [1981] PNGLR 443
The State v Andrew Amoy [1978] PNGLR 266
The State v Darong Gware (2018) N7449
The State v Koe [1976] PNGLR 562
The State v Subang [1976] PNGLR 179

Overseas Cases

Jiminez v R (1992) 173 CLR
R v De’Zilwa [2002] VSCA 158; (2002) 5 VR 408
R v Lavender [2005] HCA 37; [2005] 222 CLR 67
R v Wilson [2008] QCA 319.

References cited

Sections 24, 25, 26, 287, 302, 328, 329 of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms E. Kave, for the State
Mr E. Sasingian, for the Accused

DECISION ON VERDICT

5 March, 2019

2. BERRIGAN J: The accused pleaded not guilty to one count of manslaughter contrary to s. 302 of the Criminal Code (Ch. 262) (the Criminal Code).
   
3. It is alleged that sometime after 4 pm on the afternoon of 1 April 2015 the accused struck the deceased, 15 year old Serrah Kirio, with his police-issued, white land-cruiser open back utility, registration number ZPD204, whilst she was using the pedestrian crossing at Ted Diro Primary School on Wards Road in Port Moresby, causing her death.
   
4. Prior to hearing submissions on verdict I drew the attention of both counsel to s. 328 of the Criminal Code. Whilst not conceded by the defence, it is my view that an alternative finding of dangerous driving causing death is open on a charge of manslaughter pursuant to s. 329: The State v Koe [1976] PNGLR 562; The State v Subang [1976] PNGLR 179.
   

“329. Additional Power to Convict for Dangerous Driving

(1) On an indictment charging a person with an offence in connection with or arising out of the driving of a motor vehicle by him (other than an offence against Section 328), he may be convicted of an offence against that section (with or without a circumstance of aggravation specified in Section 328(5)) if such offence is established by evidence.

(2) Subsection (1) applies notwithstanding the provisions of Section 539.”

5. For reasons that will become clear, it is also my view that the principal issue for determination in this case is whether the facts establish the very high degree of criminal negligence required to prove manslaughter, or whether they disclose that the accused is guilty of the lesser, though still serious, offence of dangerous driving causing death. See The State v Koe, supra.
   

State Case

6. The State called one witness, 14 year old Stephanie Kirio, the sister of the deceased, and tendered a number of documents by consent, which are dealt with as they become relevant below.
   
7. Stephanie Kirio gave evidence that at about 4 pm on the afternoon of 1 April 2015 she and her sister returned to their school, the Ted Diro Primary School, to look for their younger brother, Kelly, who had not returned home. On checking his classroom they were told by a teacher that Kelly had already left so they too headed home.
   
8. They went to the pedestrian crossing at Wards Road outside the school. A sketch map, Exhibit A, shows that Wards Road at that location is a dual carriageway with two lanes travelling in each direction, separated by a median strip. At the time there were some but not many teachers and students outside the school following the end of the school day.
   
9. Stephanie and the deceased stood at the crossing. A taxi stopped to allow them to cross. The girls held hands and stepped onto the crossing in front of the taxi, which was on the outer lane of the crossing, or the lane closest to them. As they were walking past the taxi across the road Stephanie noticed that there was a white Toyota police vehicle travelling at high speed on the inside lane. It was about 1 to 2 metres from the crossing. She told the deceased that they should go back because the vehicle was travelling too fast but the deceased said it was a crossing so they had to go. The vehicle did not slow down. Stephanie let go of the deceased’s hands and stepped back in front of the taxi. The vehicle hit the deceased throwing her into the air and onto the ground. See Exhibits J5 and J6. Stephanie felt dizzy and fell down. She woke up sometime afterwards.
   
10. Under cross-examination it was put to her that the taxi was dropping passengers off at the crossing. She did not agree. Nor did she agree that the accused’s vehicle was behind the taxi in the outer lane at the crossing before the accident, nor that it changed lanes from the outer lane to the inner lane and that it was at that time the vehicle hit the deceased. She was very clear that the car was travelling in the inner lane when it hit the deceased, and that at the time the deceased was on the crossing. After hitting the deceased the vehicle continued through the crossing, applied “a full brake” and stopped some distance beyond the crossing.
    
11. A medical certificate issued by Surgeon Esther Apuahe of the Port Moresby General Hospital establishes that the deceased died two days later on 3 April 2015: Exhibit H. On 9 April 2015 the National Health Department’s Deputy Chief Pathologist, Dr Seth Fose, Port Moresby General Hospital, conducted an autopsy on the body of the deceased. He found injuries to the head and body including fracture dislocations to the cervical vertebra and left femur. He concluded that death was caused by blunt trauma to the head and body as a result of a road traffic accident: Exhibits E, F and G. (His report refers to the date of death as 1 April but that is clearly a typographical error having regard to Certificates H and G.)
    

No Case Submission

12. At the close of the prosecution case defence counsel made an application to have the accused acquitted on the basis that there was no case to answer because the indictment failed to correctly state the date on which the offence occurred. It was submitted that the correct date of the offence was the date of the accident and not the date of death. For the reasons set out in my separate decision the application was dismissed. On an allegation of homicide, the date of the offence is the date of death.
    

Defence Case

13. The accused gave evidence on his own behalf. He is a police officer of 38 years’ standing, with more than 20 years’ experience as a driver.
    
14. He said that he was on his way from Boroko Police Station to Police Headquarters in town when he saw that the traffic at 2 Mile Hill was heavy and so decided to take Wards Road in the direction of Murray Barracks and Hohola.
    
15. He was driving in the outside lane as he approached Ted Diro Primary School when a taxi overtook him and stopped in front of him at the crossing and took on some passengers (not dropped off as put to the State witness). He was not speeding at the time but the taxi was in a hurry and did not park properly so he braked and moved into the inner lane to avoid hitting it. At that time he saw that no one was crossing the road. He moved to the inner lane and then the deceased ran into the bonnet of his vehicle.
    
16. Under cross-examination the accused said that he was not familiar with the road because he was based rurally. He also said that there were no other people along Wards Road at the time. In response to a question by the Court he said that he was 30 to 40 metres away from the crossing when the taxi overtook him.
    

Manslaughter through Criminal Negligence

17. The accused has been charged with manslaughter contrary to s. 302 of the Criminal Code. The State invokes s. 287 of the Criminal Code which provides (emphasis added):
    

“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 any thing, 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.”

18. To establish that the accused is guilty of manslaughter through criminal negligence the State must establish beyond reasonable doubt that the accused:
    
    1. owed a duty of care;
    2. failed to perform that duty; and
    100. thereby caused the death of the deceased.
         
19. The accused clearly owed a duty of care pursuant to s. 287. He was in charge of a motor vehicle, a thing of such a nature that, in the absence of care or precaution in its use or management, the life, safety or health of a person may be endangered: Evgeniou v The Queen (1965) ALR 209.
    
20. The critical issue is whether the accused failed to perform the duty under s. 287 of the Criminal Code such that he was criminally negligent. It is well established that this is a very high degree of negligence requiring proof that the accused acted with such disregard for the lives and safety of others as to make his conduct deserving of punishment: Beraro v The State [1988-89] PNGLR 562 (emphasis mine):
    

“Nevertheless, it has been well established that these words describe a much higher degree of negligence, namely criminal negligence... That view was followed by the High Court on an appeal from the pre-Independence Supreme Court of Papua New Guinea in Evgeniou v Reginam [1964] P&NGLR 45 at 46.

The classic statement of criminal negligence at common law is found in the judgment of Lord Hewart CJ reading the unanimous judgment of the Court of Criminal Appeal in R v Bateman (1925) 28 Cox’s Crim Cas 33 at 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 epithet 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 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.”

That decision was affirmed by the House of Lords in Andrews v Director of Public Prosecutions [1937] AC 576, where at 583, Lord Atkin said:

“[A] very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied ‘reckless’ most nearly covers the case ... but it is probably not all-embracing, for ‘reckless’ suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction.”

21. In summary, “there must be negligence ... which may be described ... as recklessness involving grave moral guilt”: Evgeniou, supra. In R v Lavender [2005] HCA 37; [2005] 222 CLR 67 the High Court of Australia, in confirming that criminal negligence is often described as “gross” or “wicked”, affirmed the following test set out in Nydam v R [1977] VicRp 50; [1977] VR 430:
    

“It is sufficient if the prosecution shows that the act which caused the death was done consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.”

22. The test is an objective one and the accused’s conduct must be compared with the behaviour of a reasonable hypothetical person in the situation of the accused: Beraro, supra; see also Lavender. A “significant departure” from the standard of care required is not enough: R v De’Zilwa [2002] VSCA 158; (2002) 5 VR 408.
    
23. It is also well established that in a case where death is alleged to have resulted from a failure to use reasonable care or take reasonable precautions required under s. 287, liability is to be determined without reference to the defence of accident under s 24(1) of the Criminal Code: Beraro.
    
24. Whilst this case must be decided on its own facts, it is useful to have regard to the following cases which have considered the application of s. 287.
    
25. In Evgeniou the High Court upheld the conviction of manslaughter through criminal negligence in circumstances where the accused killed a pedestrian by driving a car at reckless speed and with insufficient attention to dangers on the road.
    
26. In The State v John Koe, supra Prentice DCJ found that where the accused who had consumed a large amount of alcohol drove a dangerously defective vehicle, into a section of a busy market, “fishtailing” at least twice from one side to the other, taking most of the road space and crossing double centre lines in the process, colliding with a stationary vehicle on his wrong side of the road, nearly colliding with another vehicle on its correct side of the road, accelerating, jumping a concrete kerb and proceeding to knock down some 11 people killing two of them, proceeding without any visible lessening of speed through the market, across a road and into a fence; that the accused’s driving exhibited for an appreciable time and over a significant distance a very high degree of negligence, such as could well be described as “reckless” and a complete disregard for the lives and safety of others.
    
27. Similarly, in The State v Andrew Amoy [1978] PNGLR 266 the accused was convicted of manslaughter on evidence which disclosed that he drove his motor vehicle at a speed of approximately 90 miles per hour along a familiar highway whilst aware of the presence of people in the vicinity, and deliberately not keeping a look out to the sides of the road in order to avoid his face being seen by his villagers (he being accompanied by his girlfriend) and that he ran down a person (being in fact his wife) who had run out in front of the car and who subsequently died from the injuries received.
    
28. Both cases were referred to in the recent decision of The State v Darong Gware (2018) N7449 in which Kaumi AJ convicted the accused of manslaughter where in an effort to avoid being held up by an armed gunman he reversed at speed down a narrow single lane bridge, which lacked a footpath, at a time when many people were on the bridge, running over the deceased who died of her injuries two weeks later.
    
29. In The State v Subang [1976] PNGLR 179, however, Saldanha J ruled that there was no case to answer on a charge of manslaughter in circumstances where the accused whilst driving at speed attempted to overtake another vehicle and failed to notice an oncoming motor cycle. In attempting to bring his vehicle to a stop, a vehicle he was aware had defective brakes, he lost control and blocked the path of the motor cycle inevitably causing a collision. The court went on, however, to find the accused guilty of dangerous driving causing death.
    
30. Ultimately, what is or is not, criminal negligence is a question of degree to be decided on the facts of each particular case. Whilst noting that “one must take care lest the seriousness of the outcome overshadow one’s consideration of the actual negligence at the time... nevertheless the quality of the driving may be deduced from resultant facts”: The State v John Koe, supra applying McBride v The Queen [1966] HCA 22; (1979) 115 CLR 44. See also the comments of Amet J (as he then was) in Beraro.
    
31. The State’s witness impressed me as credible and reliable. She gave a very clear account of what happened that day. Her evidence was detailed, she answered without hesitation and did not falter under cross-examination. I will return to key parts of her evidence below.
    
32. The accused was unimpressive. Having heard and observed him I am unable to accept him as a witness of truth. This is based on a combination of my assessment of his demeanour when giving evidence together with the content of that evidence. He initially tried to distance himself from events, stating that it was the deceased who ran into his vehicle, although he ultimately accepted in cross-examination that it was he who hit the deceased. I don’t accept his evidence that there were no people along Wards Road that day. Apart from anything else, it is contradicted by his own evidence that he was unable to assist the deceased after the accident because he was quickly surrounded by others at the scene. Nor do I accept his evidence that he was unfamiliar with Wards Road because he was stationed rurally. This is in direct contradiction to his response to a very similar question in his record of interview in which he stated that he had been driving in Port Moresby and along Wards Road for 34 years: Exhibit B2, Question and Answer 34.
    
33. I also make it clear that I do not accept the accused’s evidence about the intervention of the taxi. On one hand his evidence is that after it overtook him he had to change lanes to avoid colliding with it and that is when he hit the deceased. On the other, he said he observed the taxi for two to three minutes collecting passengers. I prefer and accept the evidence of the State witness that the taxi was travelling in the outer lane when it stopped at the crossing to allow the girls to cross.
    
34. Nevertheless, the accused gave evidence although he was not obliged to do so. By entering the witness box and giving evidence he did not take upon himself any obligation to prove anything in this trial.
    
35. It is not suggested in this case that the vehicle that the accused was driving was mechanically faulty. The Police Examining Report provided by a certified examiner establishes otherwise: Exhibit L. Nor is there any suggestion that the accused was driving under the influence of drugs or alcohol or that his eyesight was impaired. There is very limited evidence of the accused’s driving leading up to the incident.
    
36. It is the State’s case that the accused was speeding. The State witness gave evidence that the accused was travelling at high speed. As I have said she was very impressive but she was only 10 years old at the time of the incident and more importantly, first saw the accused’s vehicle when it was just one to two metres away. It would be difficult for anyone to judge speed from that distance, other than that it was clearly a danger to herself and her sister.
    
37. Both State and defence counsel rely on the evidence of the fact, and distance, that the deceased was thrown on impact to support their respective contentions that the accused was or was not speeding. The defence also relies on the very limited damage caused to the accused’s vehicle: Exhibit J1. Counsel are not experts on such matters and neither am I. Whilst the evidence that the deceased was thrown some metres from the point of impact does suggest that the accused was travelling at some speed, without expert assistance to properly interpret this evidence it is of limited value. Critically, no independent or other eye-witness was called to give evidence about the speed at which the accused was travelling that day. In the circumstances I cannot be satisfied that the accused was speeding per se. Of course, adherence to the speed limit, or failure to do so, may not be determinative having regard to all the circumstances.
    
38. The evidence does establish and I find that on 1 April the accused was driving his vehicle along Wards Road. The incident occurred in broad daylight on a straight and flat stretch of road, with clear visibility. At the time the deceased was crossing a well-marked pedestrian crossing outside the Ted Diro Primary School. The road at that point is a dual carriage way with two lanes travelling in each direction, separated by a median stip: see Exhibits J3, 4 and 9. It was sometime after 4pm and sometime after the close of the school day. There were some but not many teachers and students at the gates of the school.
    
39. I am further satisfied that the accused was travelling in the inner lane of the roadway as he approached the crossing, that he failed to observe the pedestrians at the crossing, that he did see that there was a taxi stopped at the crossing, and that he nevertheless drove on colliding with the deceased on the crossing. By his own admission he was travelling at least 40 kilometres per hour: Exhibit B2, Question and Answer 38.
    
40. It is clear that the accused’s conduct was negligent. He failed to do what a reasonable person in the circumstances would have done. But this alone is not sufficient. His conduct must be criminally or “grossly” negligent.
    
41. I have considered the matter very carefully and having regard to the totality of the evidence I cannot be satisfied beyond reasonable doubt that the conduct of the accused fell so far short of the standard of care which a reasonable person would have exercised in the circumstances that it showed such little disregard for the lives and safety of others such that the State has established criminal negligence.
    
42. It is a question of degree and my finding would very well have been different if the State had established that the accused was speeding, or that there were many students in the area at the time.
    

Dangerous Driving Causing Death

43. I am however, satisfied that there is ample evidence to establish that the accused is guilty of causing the death of the deceased by dangerous driving contrary to s. 328(2)(5) of the Criminal Code:
    

“DANGEROUS DRIVING OF A MOTOR VEHICLE.

(1) For the purposes of this section–

“driving a motor vehicle on a road or in a public place dangerously” includes the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including–
(a) the nature, condition, and use of the road or public place; and
(b) the amount of traffic that–
(i) is on the road or in the public place at the time; or
(ii) might reasonably be expected to be on the road or in the public place;

(2) A person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanour.
Penalty: Subject to the succeeding provisions of this section...

(2) A person who drivers a motor vehicle on a road or in a public place dangerously is guilt of a misdemeanour.

Penalty: Subject to the succeeding provisions of this section...

(5) If the offender causes the death of or grievous bodily harm to another person he is liable on conviction on indictment to imprisonment for a term not exceeding five years.”

44. To establish the offence of dangerous driving causing death the prosecution must prove beyond reasonable doubt that:
    
    1. the accused was driving a motor vehicle;
    2. the accused drove in a manner or at a speed dangerous to the public having regard to all the circumstances; and
    100. the dangerous driving caused the death of another person.
         
45. There is no dispute that the accused was driving a motor vehicle at the relevant time.
    
46. It is well established that in determining whether the driving constitutes a danger to the public the test is an objective one: Gamoga v The State [1981] PNGLR 443 adopting and applying R v Coventry [1938] HCA 31; (1938) 59 CLR 633; McBride v The Queen [1966] HCA 22; (1979) 115 CLR 44:
    

“The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all the circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place...

A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.”

47. All matters concerned with the control and management of the vehicle are part of the accused’s "manner of driving". This includes “starting and stopping, signalling or failing to signal, and sounding a warning or failing to sound a warning, as well as other matters affecting the speed at which and the course in which the car is driven”: Gamoga adopting R v Coventry [1938] HCA 31; (1938) 59 CLR 633.
    
48. To “justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation: such fault to involve a failure, or falling below the care and skill of a competent and experienced driver in relation to the manner of driving and to the relevant circumstances of the case”: Gamoga applying R v Gosney [1971] 2 QB 674.
    
49. The State has established beyond reasonable doubt that the manner of the accused’s driving was objectively dangerous to the public in the circumstances. Members of the public include pedestrians on, or who might reasonably be expected to be on, the road.
    
50. The accused failed to keep a proper lookout for pedestrians at the crossing. He did see the taxi stopped at the pedestrian crossing and yet failed to heed that warning. He failed to sufficiently reduce his speed or stop and instead proceeded to drive through the crossing. He failed to have proper and safe regard for vulnerable road users, namely pedestrians in the vicinity of a school and pedestrian crossing. As above, he was travelling at least 40 kms per hour. That was dangerous to the public in the circumstances.
    
51. Furthermore, the accused was clearly at fault. Advertence to the danger on the part of the accused is not essential; all that is required is that his driving fell below the care and skill of a competent and experienced driver in relation to the manner of driving and the nature of the circumstances. The State has clearly established beyond reasonable doubt that his driving fell far short of that, and that he was aware of the danger. All of these failures are compounded by the fact that this took place at a school crossing sometime after 4 o’clock in the afternoon.
    
52. It is the defence case that the incident was an accident caused by the intervention of the taxi, that the accused did not see anyone on the crossing, and that the deceased failed to take precautionary action by stepping back.
    
53. In my view none of the statutory defences apply in this case. The State has excluded them beyond reasonable doubt as part of establishing the principal facts in this case. Nevertheless for the purposes of completeness I make it clear that there was no extraordinary emergency for the purposes of s. 26 of the Criminal Code. As above, I have found that the accused’s driving was not a result of any evasive action in response to the taxi. I don’t accept his evidence about the taxi and the defence was not fairly raised on the evidence. Nor was there a mistake of fact for the purposes of s. 25 of the Criminal Code. The accused did not see the pedestrians at the crossing because he failed to keep a proper lookout. That was not a reasonable mistake on his part in the circumstances in which he was driving. Nor was this an accident for the purposes of s. 24 of the Criminal Code. The collision with the deceased was a foreseeable consequence of the manner in which the accused drove the vehicle.
    
54. It is perhaps worth noting here that the courts in Queensland, in applying the equivalent provision, no longer direct juries that fault is required as a separate element of the charge. See R v Wilson [2008] QCA 319. This follows Jiminez v R (1992) 173 CLR in which the High Court of Australia unanimously rejected the approach of the English court in Gosney, supra, having regard to the objective nature of the offence, saying that “(d)riving in a manner dangerous to the public is at once both the offence and, if it is relevant, the fault.” That is not to say that the accused's mental state must necessarily be disregarded; the equivalent provisions under the Criminal Code of ss 24, 25, 26 and 32 may be raised. Whether such provisions are raised will depend on the evidence at trial. See R v Wilson [2008] QCA 349; [2009] 1 Qd R 476 at [15].
    
55. As above, I have applied the settled law under the Supreme Court decision of Gamoga and found fault beyond reasonable doubt on the part of the accused. I have also found that the State has effectively negatived any defences which may have been raised. It is not necessary for me to decide for the purposes of this case whether the approach taken in Queensland is apposite to this jurisdiction but in my humble view there appears to be much merit in it given the similarity in our Criminal Codes.
    
56. Finally, the prosecution must prove that the dangerous driving on the part of the accused was a substantial cause of the death of the deceased but not that it was the sole substantial cause: The State v Subang [1976] PNGLR 179 applying R v Gould (1963) 47 Cr App R 241 and McBride v The Queen.
    
57. I am satisfied beyond reasonable doubt that the accused’s dangerous driving caused the death of the deceased. The State submitted that the injuries on the left side of the deceased’s body might be explained by her turning towards her sister prior to being struck. This submission is unnecessary. On the State’s own medical evidence the injuries are consistent with having been sustained at the time of the initial impact with the vehicle or upon subsequent impact with the ground: Exhibit F, p 7. I have no doubt that the medical evidence establishes that the deceased died as a result of the injuries sustained on 1 April 2015. The injuries were suffered when the deceased was struck by the accused’s vehicle as a consequence of his dangerous driving and were the substantial cause of her death. It is no answer to say that the deceased could have avoided death by stepping back. It was the accused’s conduct that created the danger that resulted in the untimely and tragic death of Serrah Kirio.
    
58. The accused is convicted of causing the death of Serrah Kirio by dangerous driving.
    
59. Verdict: Not guilty of manslaughter but guilty of dangerous driving causing death.
    

_________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner