Police v Loomes [2006] CKHC 1; CR 306, 307, 237 of 2004 (29 March 2006)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NOS: 306/04,307/04,
237/04

BETWEEN

POLICE

AND

OWEN MATUNGA LOOMES
Defendant

Sergeant T Howard for Police
Mr N George for Defendant

Date of Decision: 29 March 2006

DECISION OF NICHOLSON J

[1] Owen Loomes has pleaded not guilty to charges of dangerous driving causing death and injury and alternative charges of careless driving causing death and injury. He elected to be tried by Judge alone.

[2] The charges arise out of a collision which occurred between a green motor cycle driven by Mr Loomes and a red motor cycle driven by Mr Pokoroa Pauka. That collision occurred about 3 o’clock on the afternoon of Tuesday the 28th of October 2003. The collision occurred on the main island perimeter road near the Kavera Store. The weather at the time was fine and sunny, visibility was good, the road was dry. The road had a sealed surface, it was 6 metres wide and had a marked center line. The relevant speed limitation was 60 kilometres an hour.

[3] Pokoroa Pauka was16 years of age and had a pillion passenger, Niki Smith, who was 14 years of age. They were traveling south towards Titikaveka on their way home from school. Owen Loomes had just turned or was about to turn 19 years of age. He was alone on a green motor cycle traveling north towards Arorangi.

[4] The collision occurred when Owen Loomes was overtaking a car and it took place on his incorrect side of the center line. As a result of the collision, all three people on the two motor cycles were injured and admitted to hospital. Ms Smith received a serious head injury of which she unfortunately died 3 days later in the Starship Hospital at Auckland. Pokoroa Pauka received lacerations to his body and was in hospital for 7 days because of those. Owen Loomes received fractures to his limbs and was transferred to Middlemore Hospital in Auckland for further treatment.

[5] At the defended trial, the Crown called the evidence of 19 witnesses. This included the evidence of Inspector Strickland, an expert crash investigator.

[6] The defendant Owen Loomes gave evidence and called Mr Beckett, an expert crash investigator. The major difference in the evidence was in the versions of Mr Loomes and the people in the two cars which he had overtaken and was overtaking at the time of the collision.

[7] Owen Loomes testified that, that afternoon he had gone to the Pacific Resort Hotel where he worked to obtain a loan on account of his wages. He received an advance of $100 and he was on his way back to Tereora College with that $100 with a view to giving it to his niece Chanelle Williams so that she could get food for that evening. As it happened she was quite near to where the collision occurred but he did not know that.

[8] Mr Loomes said that as he approached Kavera he was following a motor cycle and two cars. He remembered waiting for the solid yellow lines which restricted overtaking to break so that he could overtake those vehicles. When the line did break, he said he overtook the first vehicle which was a motor cycle. He said that he then came in behind the first of the proceeding cars. This has been identified as a gray Nissan being driven by Ms Samuel. He said he was behind the Samuel car until a couple of approaching vehicles going towards Titikaveka had passed. He then started to overtake the Samuel vehicle. He then said he went back onto the correct side of road, behind the first leading car, a green Hyundai that has been identified as being driven by Mr Ataera. He said he was not behind the Ataera car for long, he said he looked ahead and couldn’t see any vehicle coming. He said he could see more than a 100 metres ahead so he thought that it was safe to overtake. He said that he was accelerating but he couldn’t get in front of the Ataera vehicle and he said he guessed that it was accelerating. So he said he flicked into second gear to try and accelerate and go ahead of him. He said there wasn’t sufficient gap between the Ataera vehicle and the Samuel car for him to slip back between them. He said at that point he looked ahead again and he could see a bus ahead in the distance, at a distance which he estimated at approximately 200-300 metres. He said otherwise apart from the bus, the road was clear and so he proceeded with his overtaking manouvre. He said that when he got near the point of impact the Ataera car was still beside him. He said he looked at him and thought, my gosh what are you doing. He said he then looked up and saw Poko and Niki waving to some people on the side of the road. He commented that Poko had come out of nowhere. He said he didn’t then pull up as he thought he would be able to get in front of the Ataera car and he thought, it’s alright I think I’m going to make it. He estimated that his speed was then approximately 60 kilometres an hour. He said, that the Ataera car was traveling at that same speed and at that time he was reaching the peak of his third gear. He couldn’t hear the noise of his motor but knew that it was going flat out. He said he then saw a shocked look on Pokoroa’s face but by then it was too late. He swerved to the right and he then blacked out and didn’t remember the actual collision.

[9] It is common ground that Mr Loomes did overtake a motor cycle first. That motor cycle had two Australian visitors on it. They were interviewed by the Police and statements obtained and copies given to the defendant’s counsel. It was anticipated that they would be able to come to Rarotonga for the hearing, however they were not able to come. The Crown applied for leave for their written statements to be admitted as evidence. This was opposed. After hearing the opposed application I declined to accept the statement of the two Australians who were on the motor cycle as evidence. I therefore disregard what each said in his and her statement about the matter.

[10] Other significant witnesses were the occupants of the gray Nissan. They were cousins, the Samuel cousins. Ms Tuamaki Samuel said that she was the driver of the gray Nissan. She and her cousin were on their way home from Vaima. She said that near the Rutaki School a motor bike overtook them. It was traveling at speed. The driver was traveling fast when he overtook them.

[11] She then said that they went along the road and nearing the Kavera Store, their speed was about 40 kilometres an hour. Ms Samuel said the same bike overtook us again. She said that it’s speed was about 60-70 kilometres per hour. She said that there was another car just in front of them, a greenish car. She said the speed of that car was the same as theirs and she said that the distance between their car and the car ahead of them, the green car, she estimated was about from the witness box to the wall which was indicated to be about 10 metres.

[12] She said that the driver in the green car was traveling about the same speed as her, she didn’t know that he was going to stop and she said he may have been doing 30. She said that she didn’t close the gap between her car and the green car which was ahead of them. She said that she was saying to her cousin, the passenger, something to the effect, "wasn’t that the bike that overtook us earlier" when the collision occurred.

[13] Her cousin Ms Temaru Samuel said in evidence that she and her cousin were on their way back from Vaima to Arorangi and at the Rutaki bridge a motor cycle overtook them. She said that the motor cycle went very far over onto the other side of the road. She said that as they were traveling past the Kavera Meeting House and further down, the motor bike overtook them again. She said that that was just about the bus stop when they saw Pokoroa and Niki approaching from the other side. She said that there was a green car just in front of them, that they were traveling at about 40 kph and she said that the gap between their car and the green car was about 3 metres and that the green car was traveling about 30 to 40 kph. She said she did not notice any change in the movement of the green car before the accident. She said that the motor cycle was traveling at about 70kph. She said that when she noticed Pokoroa and Niki, they seemed to be happy and they were coming on and she said that this motor bike was overtaking them her cousin said something to the effect, "isn’t that the man that overtook us." It was then that the collision happened.

[14] The driver of the green Hyundai car was Mr Tutai Ataera. He said that he had been with his wife that afternoon to collect coconuts and was on his way back from Vaima. He said that when he reached Kavera, he heard a noisy speeding bike. He said he checked in his rear inside mirrors to see where it was but he couldn’t see it until it passed him. He said his speed was 30 on the gauge. He said he couldn’t tell the speed of the motor cycle, all he could hear was the noise. He said that he could tell that it was high revs going fast. He said he couldn’t remember slowing down as he was already going slow. He said he was going to turn into Atupare Road which was ahead. He estimated some 20 metres. In fact, looking at the plan it seems to have been about 60 metres ahead. He said that the collision occurred when the motor cycle which was overtaking his car and was on the other side of the road.

[15] In cross examination it was put to him that Mr Loomes the driver of the motor bike would say that he had pulled over and then had sped up and he was asked what he said to that. He gave an immediate and prompt answer of "bullshit." It was then put to him that Mr Loomes would say that he was speeding. He answered "no" and he went on to say, "I was going to turn right in 20 or less metres, why would I speed up?" He repeated further when cross examined on the point, "I didn’t slow down and speed up I was going about 30 kph with a load of coconuts, I had slowed down in that area to about 30 kph as I was getting ready to turn." He said that the motor bike was going fast when it went past him and that they were not traveling at the same speed.

[16] His wife Mrs Ngatokorua Ataera was a passenger in the car with him. She said in evidence that when they got to the Kavera Meeting House, she heard a bike at high speed. When they got past the Kavera Petrol Station, the bike overtook them. She said her husband was driving at a very slow speed, about 40 to 45 kph. She heard the motor bike with a screaming motor. She was looking to the front at the time and did not see it coming from behind. She said that the crash took place right in front of them.

[17] The driver of the red motor cycle, Pokoroa Pauka gave evidence. He said that that afternoon he was coming from school with Niki Smith. They were traveling towards Titikaveka on his red motor cycle and he said that at the Mormon Church the school bus was behind him. He said his speed was about 40kph. When they got near to Puai Wichman’s house, there were people on the beachside near that house and they waved and that Niki waved back but that he didn’t believe that he waved although he may have nodded or words to that effect. He said that his attention was on those people for one perhaps two seconds. He said that when he turned and looked ahead, he saw two cars traveling towards him on the right hand side of the road and then he saw a green bike coming straight for them. He said he was traveling about 40kph. He said "there was not much I could do, it was hard to decide." He said that "the bike was on my left shoulder coming, there were cars coming on my right, I couldn’t go anywhere else." He said he was not sure what evasive action, if any, he took. He agreed in cross examination that if he had been traveling as far as possible to his left hand side of the road, the oncoming bike could have missed him. He said that the green motor cycle was on the edge of his side of he road.

[18] There wee other significant witnesses. First Joel Pokura. He said that he was on a motor cycle coming out of a driveway which was on the side of the Kavera store. He saw two cars coming from the direction of Titikaveka and so therefore he stopped then paused to allow them to go before he went onto the road. He said he had his foot down. He said that he heard revving and that a guy started overtaking at the Meeting House and came right in front of him. He said that at the Kavera Petrol Station, the motor cycle drove past at a very good speed indeed, he was flying very fast, he was in a bent-over position on the bike which he called the racing pose. He said that the speed of the motor cycle was fast, he estimated that it would be over 70kph. He said that the cars ahead of the motor cycle weren’t going fast. He said his attention was focused on the motor cycle.

[19] Another significant witness was Chanelle Williams. She said that she lived a the same residence as the defendant at that time. She had stopped near the bus shelter, near the Kavera Store, and she was there talking to a Fijian lady who was one of the witnesses as well. She said she was facing back towards Nikao. She saw Pokoroa and Niki coming towards her. She said initially in her evidence in chief she would not put an estimate on how fast they were going. She said that a motor cyclist went past and went in front of them. She said the last time she saw Niki and the driver of the motor cycle was when they were waving to somebody, probably in he beach house. She said the accident occurred very close to where she was and she estimated this as about 10 metres from her.

[20] In cross examination she was asked what the speed of Pokoroa’s motor bike was and she said quite categorically, 60kph or over. When asked in cross examination if a vehicle passed her as well as the motor cycle she replied it was a gray or silver or light colour, it was going pretty fast. Again, about the 60s, if not much faster. It was matching the speed of the motor cycle. She concluded her cross examination by saying she wasn’t exaggerating the speed to help her uncle. When asked in re-examination how sure she could be about the speeds, she said she could be totally sure of he speed of Poko and Niki’s bike at 60kph being a driver herself and she repeated that when both vehicles, the motor cycle and the car passed her, they were in line with each other and appeared to be at the same speed.

[21] I do not accept the evidence of Ms Williams on the aspects of speed and the position of the vehicles when they passed her. She is a close relative of the defendant and could be directly or indirectly influenced to give evidence favourable to him. Her evidence about the speed of the vehicles is contrary to the evidence of the people who were actually in the vehicles and had much better opportunity to judge with longer observation. Also, it is unrealistic to accept that she could estimate the speed of a motor cycle which was coming directly towards her as definitely as she purported to do in cross-examination. So therefore I place virtually no weight upon her evidence on those aspects.

[22] Sergeant Matapo gave evidence. She attended the scene and became the officer in charge of the matter. She described debris on the road, which indicated that the collision had occurred on Mr Loomes incorrect side of the center line. She arranged for photographs to be taken and they clearly show debris which confirms this.

[23] As I have said, evidence was given by two expert crash investigators, Inspector Strickland and Mr Beckett. There were aspects of the evidence of each of those expert witnesses which I have found to be helpful in reaching my decisions but their opinions depended very much upon the validity and accuracy of the information given by witnesses about where the various vehicle movements started and finished and the speeds of the vehicles at various stages.

[24] Witnesses gave evidence of their observation and evidence of such matters and there was considerable variation between their evidence on these matters. This is understandable for a number of reasons. Witnesses observe an event from different positions and get different views and opportunity to see what happened. They also observe for different lengths of time. Some observe fleetingly, others can be involved for a substantial period of time. There can also be a difference in focus of attention, some people might focus on one vehicle, others on another. There is also difficulty in estimating distance and speed. We see it so many times in this Court where a witness will point out a physical object in the Courtroom, when asked how far away it was, can vary quite unrealistically from what the estimate may be. Also too there can be a difference in the motive for giving particular evidence. Some witnesses are more independent than others.

[25] It is my function to assess the truth and reliability of the evidence. To decide what facts it proves and to draw proper inferences from these factors. I then reach a decision on those facts and inferences applying the pertinent legal principles which of course include the principle that the onus of proving each element of each charge rests on the Crown or Prosecution from beginning to end. There is no onus on the defendant to prove anything. The standard of proof required for each element is proof beyond reasonable doubt.

[26] I move on to decide the major disputed issue of whether Mr Ataera accelerated as Mr Loomes was attempting to overtake his green Hyundai car. I find that the evidence proves beyond reasonable doubt that Mr Ataera did not do that. He did not accelerate. I reject the evidence of Mr Loomes that he did.

[27] Mr Ataera’s evidence on this very important point was supported significantly by the evidence of his wife who was in the car with him and the evidence of the two Samuel cousins who were in the gray Nissan car following his car. It was also significantly supported by the evidence of the observer Joel Pokura who said that he was focusing his attention on Mr Loomes’ motor cycle and described the high speed at which it was traveling.

[28] I accordingly find, because of that direct, and I find reliable evidence, that Mr Ataera did not accelerate as asserted.

[29] There is a further factor in my finding on that point which is not as probative as the direct evidence of the witnesses whom I have mentioned. That is as to the Defendant’s first explanation.

[30] Inspector Strickland gave evidence that when he was in Auckland on the 3rd of May 2004 and that’s about 5 months or so after the accident, he was instructed to interview the Defendant Mr Loomes. He accordingly made arrangements to interview the Defendant and did so at the Avondale Police Station on the 3rd of May. Mr Loomes was accompanied by his father. Inspector Strickland explained that the police had evidence to charge him with dangerous driving causing the death of Niki Smith and that he then cautioned him according to the Judges Rules, that he need not say anything unless he wished to do so. Mr Loomes considered that. He asked whether he had to make a statement. He was told that he didn’t. He decided not to make a statement and left the Police Station without doing so. That he was told he was perfectly entitled to do, that was his right. However Inspector Strickland said that when he got back to the Cook Islands, he received on the 7th of May 2004, a fax from Mr Owen Loomes the Defendant. He produced that fax. It said after giving details of phone and fax address and details of Mr Strickland’s rank and position and address and I read "Friday May the 8th 2004. This is a statement in regards to the accident I had in Rarotonga on the 28th of October 2003. When I went to overtake, the only thing coming in the opposite direction was a bus pulling up to stop approximately 150 metres away. At that point, I made the decision to overtake. While proceeding to overtake the car, I did not see the other motor bike overtake the bus just prior to the collision where I temporarily froze as I was still in the process of overtaking. The other motor bike driver was not taking any evasive action so to avoid a head on collision I swerved to the right, unfortunately so did he." That fax is signed by the Defendant.

[31] In that explanation which he had plenty of time to consider and draft himself without any influence from the Police, Mr Loomes made no mention of the vehicle that he was attempting to overtake accelerating and thereby causing him difficulty in overtaking. If that had happened, this was highly likely to have been something which Mr Loomes would have remembered at that stage and to have then mentioned in explanation for the accident. That he did not do.

[32] Having made that important and critical finding of fact, I move on to consider the charges.

[33] The most serious charge is the charge of dangerous driving causing death. That charge alleges that on the 28th of October 2003 at Kavera, Owen Matunga Loomes of Aroa did drive a motor vehicle namely a green Suzuki motor cycle registration number AAG 715 on the main road at Kavera in a manner which having regard to all the circumstances of the case, was dangerous to any person or the public thereby causing death to Niki Temu Haumata Smith. That wording is a mirror reflection of the provisions of s. 25(1) of the Transport Act 1966. To prove that offence, the Prosecution must prove each of five elements beyond reasonable doubt. They are first, that the Defendant was the driver of the green Suzuki motor cycle at the time of the collision; second, that the driving was on a road; third that the Defendant drove in a manner which having regard to all the circumstances was dangerous to the public or to any person; fourth that there was some fault on the part of the Defendant which brought about the risk of death or injury and fifth, that the dangerous driving caused the death of Niki Smith. I now deal with each of those five elements.

[34] First, that the Defendant was the driver of the green Suzuki motor cycle at the time of the collision. There is no dispute about this. The Defendant has acknowledged in his evidence that he was. I find that proved beyond reasonable doubt.

[35] Second, that the driving was on a road. The evidence was that the driving was on the main perimeter road around Rarotonga I find that element has been proved beyond reasonable doubt.

[36] The third and the fourth elements are those which are primarily in contention, namely, that the Defendant drove in a manner which having regard to all the circumstances was dangerous to the public or to any person and fourth that there was some fault on the part of the Defendant which brought about the risk of death or injury. The pertinent law relating to those elements was stated by the New Zealand Court of Appeal R v Jones, decided in 1986 and reported in 1986 1NZLR page 1. That concerned a provision of the New Zealand Transport Act which is virtually identical to the Cook Islands provision. In that case Cooke J as he then was in delivering the judgment of the Court of Appeal referred on page 3 of the report to a statement by Lord Justice McCough in the English case of Gosney. This has been cited by both counsel in their submissions today and clearly represents not only the law of New Zealand but the law of the Cook Islands based on the identical provisions. This is what was said

[37] "As to the limbs of s. 55(1) referring to dangerous, in a judgment delivered by Lord Justice McGough in Gosney at page 680, the Court of Appeal said inter-alia "it is not an absolute offence. In order to justify a conviction, there must be, not only a situation which viewed objectively was dangerous but there must also have been fault on the part of the driver causing that situation. Fault certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving, nor does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a naturally poor driver straining every nerve to do the right thing falls below the standard of a competent and careful driver. Fault involves a failure, a falling below the care or skill or a competent and experienced driver in relation to the manner of driving and to the relevant circumstances of the case."

[38] Cooke J then continued. "In the New Zealand Court, that interpretation has been adopted in relation to a charge of dangerous driving under s. 57( c ) of the Transport Act 1962." He referred to the decision of Transport Ministry v McIntosh. "On the argument of the present case in this Court it was common ground agreed between counsel that the Gosney interpretation applied to dangerous in s. 55(1). We accept that this is the correct view, any other interpretation will be confusing and unwarranted."

[39] So that is the pertinent provision of law relating to this aspect of dangerous driving and the necessity of fault.

[40] In considering, the third and the fourth aspects, I take into account the manner of the Defendant’s driving, the way in which he drove his motor cycle in terms of its manouvres, it’s position on the road and its speed. I take into account all the circumstances, which include to surrounding circumstances. These include such things as the weather, the time of day, visibility, the locality and type of road and the density of traffic. I also take into account the meaning of dangerous as having its ordinary meaning of something that presents a real risk of injury or damage. As stated by the Court of Appeal in R v Jones whether the driving was dangerous having regard to the circumstances is to be assessed objectively. Whether the Defendant thought it was dangerous at the time is not relevant. So far as the fourth element of fault is concerned, that in turn is tied up with the third element to a point and as explained in Jones there must be some fault on the part of the Defendant to bring about the risk of injury or death. That fault does not need to be deliberate or reckless bad driving. What the Crown has to prove with relation to fault is that the standard of driving was below that expected of a competent and experienced driver. I find each of the third and fourth elements proved beyond reasonable doubt. In my view a competent and experienced driver would not have attempted to overtake the green Hyundai car by crossing the center line where it did unless the driver looked and satisfied himself that there was no oncoming vehicle which would be endangered by such overtaking. Mr Loomes said that he looked ahead and only saw the bus which he thought was approximately 200-300 metres away. I find from the evidence that Mr Pauka’s red motor cycle was between the bus and Mr Loomes at the stage that Mr Loomes was on that section near the store.

[41] Mr Loomes did not see it until it was opposite or about opposite Puai Wichman’s house which was approximately 40-60 metres from the point of impact. Mr Loomes said in evidence "it came out of nowhere." It didn’t. It came along the straight road for a considerable distance before it got abreast of the Wichman house I find and accept the evidence of the driver of the red motor cycle that he was traveling at a speed of about 40kph. Therefore it was there to be seen for a considerable time before the collision if a proper lookout had been kept and my finding is that it wasn’t. I find that a competent and experienced driver would have seen the red motor cycle much earlier than Mr Loomes did and would not have attempted to overtake the green Hyundai car in the face of that oncoming vehicle. I also find from the evidence, that Mr Loomes was traveling at a speed which was in the circumstances with two cars ahead of him much faster than a competent and experienced driver would have traveled along the section of the road near the Kavera Store. I accordingly find each of the elements 3 and 4 proved beyond reasonable doubt.

[42] So far as element 5 is concerned, and that is, that the dangerous driving caused the death of Niki Smith, the law is that the dangerous driving need not be the sole cause of death. It is sufficient if it was an operating and a substantial cause of death.

[43] In Mr George’s closing submissions today, he submitted that "the cold, selfish and cruel attitude" of the front driver Tutai Ataera caused this accident. That Ataera deliberately accelerated to prevent the Defendant from successfully completing the overtaking manouvre. That there was "silent road rage" by Ataera. He said if Mr Ataera had not deliberately obstructed the Defendant, the collision would not have happened. He submitted that Mr Ataera was guilty of dangerous and reckless driving which caused the accident.

[44] Mr George then went on to submit that the accident was caused by three people. Mr Ataera who on his submission should accept fifty percent responsibility for what happened and that equally then Mr Pauka and the Defendant should share the balance.

[45] In my view the dangerous driving of the Defendant was an operating and significant cause of Niki Smith’s death. Whether the accident would have occurred if Mr Pauka had been further to his left, who knows. It may or may not have. But the fact is that in my view the dominant cause of the death was dangerous driving by the Defendant.

[46] I therefore find that the charge of dangerous driving causing death to Niki Smith has been proved beyond reasonable doubt and I accordingly convict Mr Loomes of that offence.

[47] For the same reasons I find that the charge of dangerous driving causing injury to Pokoroa Pauka has also been proved reasonable doubt and I accordingly also convict Mr Loomes of that offence.