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Tango, Regina v [1975] PGSC 36; [1975] PNGLR 250 (20 July 1973)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 250 - Regina v Tango

[1975] PNGLR 250

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

MOSES TANGO

Kieta

Frost SPJ

17-20 July 1973

CRIMINAL LAW - Manslaughter - Dangerous driving causing death - �In a manner dangerous to the public� - Whether public includes passenger - Criminal Code (Queensland adopted), s. 328a[cclxxxix]¹.

WORDS AND PHRASES - �Public� - �In a manner dangerous to the public� - Dangerous driving - Includes passenger - Criminal Code (Queensland adopted), s. 328a[ccxc]².

The provision in s. 328a of the Criminal Code (Queensland adopted) that �the term �drives 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 ...� should be given its natural meaning and, accordingly, the public includes passengers in the vehicle being driven by the person concerned. R. v. Burnside[1962] VicRp 14; , [1962] V.R. 96 and Pawley v. Wharldall, [1966] 1 Q.B. 373 followed.

Trial

This was a trial of the accused on a charge under s. 328a of the Criminal Code (Queensland adopted) that he drove a motor vehicle on a road dangerously thereby causing the death of a passenger in his motor vehicle. The case is reported only on the interpretation placed on s. 328a of the Criminal Code.

Counsel

B. M. Ryan, for the prosecution.

A. J Cavit, for the accused.

Cur. adv. vult.

20 July 1973

FROST SPJ: The accused man is charged upon indictment under s. 328a of the Criminal Code (Queensland adopted) that on 26th April, 1973 he drove a motor vehicle on a road dangerously and thereby caused the death of one Pasingan Elias. My findings of fact, upon which I am satisfied beyond reasonable doubt, are that at about 10.45 p.m. on the date charged, the accused drove a red Holden utility, upon the rear of which the deceased was a passenger, along the road near the beach at Loloho when the utility skidded across the road and its rear off-side was in collision with a coconut tree. It was then brought to a stop on the roadway about 40 yards away in a car park. Unfortunately the deceased, who was seated with his back to the cabin suffered a severe head injury, as his head was flung back against the wall of the cabin. He was treated at the Arawa Hospital, but the attempts at operation to stop the intracranial bleeding which he suffered were unsuccessful and he died a few days later, on 28th April, 1973. His Honour then referred to the facts in detail).

I proceed now to consider the submissions made on behalf of the defendant as to the effect of s. 328a[ccxci]3 of the Code.

Counsel first submitted that on its proper construction it was not sufficient for the Crown to establish that the driving was dangerous so far as a passenger is concerned, �for the section was not meant for the protection of persons in the car itself, but was for the protection of persons using the highway�, citing Kennedy J in Troughton v. Manning[ccxcii]⁴. That was a case in which Divisional Court had to consider a similar section in the Motor Car Act 1903. The facts of the case were that the appellant, having refused to pay a toll for a motor car, the respondent, a toll collector, placed himself in front of the car to prevent it proceeding. Having been warned to stand clear, the respondent, after the car was in motion, came on to the side of the car, was carried along and, having asked the appellant to stop, fell off and was injured. The speed of the car was reasonable and no danger was caused to anyone but the respondent. It was held that the conviction, one element of which was driving recklessly, or at a speed or manner dangerous to the public, was wrong. Although Kennedy J went on to say that he did not think that the intention was to punish anyone who was reckless as regards passengers in the car (op. cit. pp. 856-7), the basis of the judgment of Lord Alverstone CJ seems to be that there was no evidence of dangerous driving in the circumstances. In Australia the dictum of Kennedy J was followed by Napier J in Kelly v. Walsh[ccxciii]⁵�and by Wolfe J in Dempster v. Davies [ccxciv]⁶. The factual situation in the latter case is analogous to that in Troughton v. Manning [ccxcv]⁷. However, in each of the Australian cases, the decision was capable of being supported on the ground that there was no proof of dangerous driving in the circumstances. In the former case Napier J stated, by way of qualification, that he �desired to guard himself against any expression of opinion that the risk imposed upon the passengers is entirely irrelevant, or that -- for example, in the case of a public conveyance -- the passengers could never be regarded as members of the public using the highway� (Supra, pp. 482-3). There are, also, expressions of opinion the other way. Thus in R. v. Burnside[ccxcvi]⁸�Sholl J directed the jury that, for the purposes of a similar provision, viz. the Crimes Act 1958 of Victoria, s. 318, a passenger in the accused�s car might be a member of the public. Pawley v. Wharldall[ccxcvii]⁹�was a case of a prosecution under s. 31 of the Road Traffic Act 1960, which provides for an offence if a person drives a motor vehicle on a road without reasonable consideration for other persons using the road. It was held that the description, �other persons using the road� included passengers in the vehicle being driven and was not confined to persons outside the vehicle. Lord Parker CJ pointed out that the judgment of Kennedy J in Troughton v. Manning[ccxcviii]¹⁰�went much further than was necessary for the decision in that case, and that Lord Alverstone had not laid down any such sweeping interpretation of the section. Lord Alverstone clearly treated it �as a very special case in which the toll keeper had no doubt been assaulted, but where the actual driving at twelve miles per hour was in no way reckless or negligent� (at p. 759). Lord Parker CJ then held that there was nothing in Troughton v. Manning[ccxcix]¹¹�which would prevent the court from giving the words of s. 3 of the Road Traffic Act their natural meaning.

On the whole I have come to the conclusion that the view expressed by Sholl J is correct. I take the same view of s. 328a as the Court of Appeal took of the legislation in Pawley v. Wharldall [ccc]¹², that is, that there is no warrant for giving the words of s. 328a any other than their natural meaning, or for reading down the expression �the public� in that section so as to exclude passengers in the vehicle being driven by the person concerned.

The same view of the section has, in the past, been taken by other judges of this Court.

Accused convicted.

Solicitor for the Crown: P. J Clay, Crown Solicitor.

Solicitor for the accused: W. A. Lalor, Public Solicitor.

[cclxxxix]Infra p. 251 footnote.

[ccxc]Infra p. 251 footnote.

[ccxci]�328a. Dangerous driving of a motor vehicle. Any person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanour and is liable to a fine of one thousand dollars or to imprisonment with hard labour for two years or to both such fine and imprisonment, or he may be summarily convicted before two justices in which case he is liable to a fine of two hundred dollars or to imprisonment with hard labour for six months or to both such fine and imprisonment . . .

N1>If the offender causes the death of or grievous bodily harm to another person he is liable upon conviction upon indictment to imprisonment with hard labour for five years.

N1>The term �drives 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 the nature, condition, and use of the road or public place and the amount of traffic which is on the road or in the public place at the time or which might reasonably be expected to be on the road or in the public place. . . .�

[ccxcii] (1905) 92 L.T. 855, at p. 856.

[ccxciii][1929] S.A.S.R. 481.

[ccxciv][1966] W.A.R. 118.

[ccxcv](1905) 92 L.T. 855.

[ccxcvi][1962] V.R. 96.

[ccxcvii][1966] 1 Q.B. 373.

[ccxcviii](1905) 92 L.T. 855.

[ccxcix](1905) 92 L.T. 855.

[ccc] [1966] 1 Q.B. 373.