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Republic v Scotty [1977] NRSC 9; [1969-1982] NLR (C) 30 (5 October 1977)

[1969-1977] NLR (C) 30

IN THE SUPREME COURT OF NAURU

Criminal Case No. 3 of 1977

THE REPUBLIC

v

INAK SCOTTY

5th October, 1977.

Manslaughter - death caused unintentionally - section 289 of the Criminal Code of Queensland (adopted) - recklessness involving grave moral guilt to be proved.

Manslaughter - death - causation - injury must be an operating and substantial cause of death.

The accused, riding a motor cycle at a speed in excess of the speed-limit for the road, went into the right-hand half of the road in order to overtake a landrover pulling a trailer. As a result his motor cycle collided head-on with a motor cycle being ridden in the opposite direction in its correct half of the road. The rider of that motor cycle received severe head injuries and ceased to breathe, until turned on his side by a bystander. He was taken to hospital where it was found to be necessary to insert a breathing tube into his wind-pipe and to use a mechanical respirator to assist his breathing. His inability to breathe properly without it was due to the head injuries. Four days later the Director of Health and Medical Services decided to send him to Australia for treatment which was not necessary to preserve his life but would have rectified damage to his jaws and cheek bones and so have assisted his recovery. However, as there was only one mechanical respirator in Nauru, it was necessary for it to be disconnected from him while it was installed in the aircraft. There was a difference of medical opinion as to his ability to survive without respiratory assistance for as long as it would take to install the respirator in the aircraft. In the event he died during that period as the result of inability to breathe. The accused argued that, since the victim’s life could have been maintained by the respirator and his chances of recovery were good provided that for so long as he needed respiratory assistance the use of the mechanical respirator was continued, the doctor’s deliberate removal of him from the respirator was a supervening act which itself caused his death and broke the chain of causation between the accused’s driving and the death.

Held: (1) Liability for unintentional manslaughter is to be determined by reference to section 289 of the Criminal Code of Queensland (adopted). There must be recklessness involving grave moral guilt.

(2) An act is to be taken to have caused death if, notwithstanding that a supervening act also contributed to causing the death, the former act was “and operating and a substantial cause” of it.

Accused convicted.

D.G. Lang for the Republic
L.D. Keke for the accused

Thompson C.J.:

The accused is charged with manslaughter, contrary to section 303 of the Criminal Code, which is the First Schedule to the Criminal Code Act of Queensland 1899, an adopted statute. He is alleged to have committed that offence by riding a motor cycle on the main road so that he collided with a motor cycle coming in the opposite direction and thereby caused the death of the person riding that other motor cycle.

As appeals now lie from this Court to the High Court of Australia, this Court is, in my view, bound by decisions of that Court on the construction of the Criminal Code. In particular it is bound by the Court’s decision in Evgeniou v The Queen (1964) 37 A.L.J.R. 508. In that case the High Court of Australia decided that in a case such as the present one liability depends solely on section 289 of the Code. Section 289 provides as follows:

“It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health, of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger: and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.”

The High Court of Australia also affirmed in Evgeniou’s case earlier decisions that negligence sufficient to constitute a breach of section 289 must be negligence according to the standard of the criminal law, which (per McTiernan and Menzies JJ. at p. 509) “may be described shortly as recklessness involving grave moral guilt”.

In the present case the defence has not seriously disputed the facts alleged by the prosecution to constitute the recklessness of the accused and that that recklessness caused the collision as the result of which Paul Fritz was injured. The accused neither gave evidence nor made an unsworn statement and no witnesses were called for the defence. I accept as truthful all the prosecution witnesses who gave evidence of the collision and of the circumstances preceding and following it. Accordingly I find that it has been proved beyond all reasonable doubt that the accused, riding his motor cycle at a speed in excess of the speed-limit of 30 m.p.h., overtook the landrover and boat-trailer driven by Nelson Tamakin by going onto the wrong side of the road, where his motor cycle collided head-on with the motor cycle ridden by Paul Fritz who was on his correct side of the road; that the collision occurred during the hours of darkness and the headlamp of Paul Fritz’ motor cycle was lit, was clearly visible to Nelson Tamakin in the landrover which the accused was overtaking and could, therefore, have been seen by the accused if he had been paying proper attention to what was in the path of his motor cycle; that the accused had consumed approximately one bottle of whisky during a period of not more than 12 hours immediately preceding the and in consequence was intoxicated; and that as the result of the collision Paul Fritz received injuries which caused him to bleed from the nose and mouth and, until turned on his side by Nelson Tamakin, to cease breathing. Accordingly I find the accused was guilty of recklessness of the degree required to constitute an element of the offence of manslaughter.

It is not disputed that Paul Fritz was taken to the Nauru General Hospital shortly after the collision, had a breathing tube inserted into his windpipe and was assisted to breathe by a mechanical respirator, remained under medical care at the hospital until 8th February but died, still under medical care, on that date. What is in dispute, however, is whether his death was caused by the injuries which he suffered in the collision.

Evidence bearing on this issue was given by one witness only, Dr. V.B. Malhotra. He was a palpably honest witness and was examined and cross-examined as such. Both the examination-in-chief and the cross-examination were lengthy and detailed. From Dr. Malhotra’s evidence I find the following facts to be proved beyond all reasonable doubt:-

1. The cause of Paul Fritz’ death was cerebral anoxia, which was caused by respiratory failure, which was caused by failure of the respiratory centre of the brain.

2. Paul Fritz was able to breathe with the assistance of a breathing tube inserted into his windpipe and connected to a mechanical respirator. When he died the mechanical respirator had been removed for a period of about 20 minutes.

3. Paul Fritz was suffering from severe concussion, which is an injury to the brain, and would not have been able to breathe sufficiently to sustain his life if he had not been assisted to do so by the mechanical respirator from almost immediately after his admission to hospital on 4th February. This was because of the effect of the concussion, which was an injury which he suffered as a result of the collision.

4. A decision was taken on 8th February by Dr. Anderson, the Director of Health and Medical Services, to send Paul Fritz to Melbourne by air on that day, so that he could obtain treatment in the maxillary unit of the Royal Melbourne Hospital for his jaws and cheekbones, which had been badly smashed as a result of the collision. That treatment was not necessary to preserve his life but would have assisted his recovery from the bone injuries.

5. There was only one mechanical respirator available in Nauru. Dr. Anderson decided that it should be installed in the plane that was to take Paul Fritz to Melbourne, and that it would be necessary for him to remain without it for a period of up to one hour while it was being installed. In order to ascertain whether he could safely remain without it for that period, Dr. Anderson twice removed it from him on the morning of 8th February. Each time he managed to breathe without it for a period of about half-an-hour but was having difficulty breathing sufficiently towards the end of that period. As a result Dr. Malhotra expressed to Dr. Anderson after the first of those two trials the opinion that it would be unsafe to remove the respirator from Paul Fritz and that he ought not to be transferred to Melbourne until a later date. Dr. Anderson, however, decided to proceed with the transfer on that day.

6. When the mechanical respirator was removed from Paul Fritz at about 12.30 p.m. on 8th February to be installed in the plane, he was left in the care of the matron of the hospital and a sister who had available to them a hand-operated respirator with which they could assist him to breathe, if necessary.

There is one area of doubt regarding the causation of death. That is in respect of the question whether, during the two periods on the morning of 8th February when Paul Fritz was breathing without the respirator, his brain became more congested as the result of his being unable to breathe sufficiently. Dr. Malhotra stated that it was possible and that the very fact that Paul Fritz died within a shorter Period after the final removal of the respirator than the periods for which he had survived without it on the two previous occasions tended to show that some deterioration had occurred. Before that there had been no apparent deterioration since the time of the operation on 4th February. I find, therefore, that it is reasonably possible that the congestion of the brain was made worse by the two periods on the morning of 8th February when he was left to breathe without the respirator, and that that worsening of the congestion contributed towards causing his death. However, I am satisfied beyond all reasonable doubt that the cause of the insufficient breathing during those periods was the severe concussion he suffered as a result of the collision, that is to say that the original injury, the congestion of the brain, prevented the respiratory centre of the brain from functioning properly during those two periods.

What has been established in this case, therefore, is that the chain of physical causation between the injury to the brain suffered in the collision and death was unbroken; but the chain was completed probably only as the result of the deliberate interruption by Dr. Anderson of the treatment which for more than three days had been preventing the injury from having the effects which, but for that treatment, it would naturally have had. The question which has to be decided now is whether, because of the interruption of the treatment and its contribution to causing Paul Fritz’ death, the injury originally suffered in the collision was not, to adopt the expressions used by the Courts-Martial Appeal Court in the case of Thomas Joseph Smith (1959) 43 Cr. App. R. 121 at p. 131, “an operating cause and a substantial cause”.

Because death was the result of the unbroken chain of physical causation, to which I have just referred, originating in the injury originally suffered in the collision, a chain which would have been completed more quickly but for the treatment which Paul Fritz received from the doctors, I find that that injury must be regarded as having been “an operating cause and a substantial cause” of his death and that the accused must be found guilty.

However, if I am wrong in so finding on that basis, I make the further finding of fact, based on the evidence of Dr. Malhotra, that Dr. Anderson’s action in interrupting the treatment which was sustaining Paul Fritz’ life, although unnecessary, was not unreasonable, as its purpose was to facilitate the further and better treatment of serious injuries to the bones of the head suffered by him as the result of the collision. It was certainly not so rash as to be held to be grossly negligent. A person who causes serious injury to another cannot escape liability for that other’s death from that injury on the ground that the injury remained untreated, even if treatment was available and would have prevented death (Robert Konrad Blaue (1975) 61 Cr. App. R. 271). Logically, therefore, his liability should not be affected by the fact that treatment, having been commenced, is discontinued so that the original injury takes effect as though there had never been any treatment. Possibly that may not be so if the person responsible for discontinuing the treatment is criminally negligent in doing so; I express no opinion on that except to say that it appears to be logically unsound. But in this case Dr. Anderson was not criminally negligent. If, therefore, my finding of guilt based simply on causation is incorrect, I find the accused guilty also on the basis which I have just stated.

I find him guilty of the manslaughter of Paul Fritz, as charged in the information.