Police v Metuarau [2015] CKHC 17; CR542.2014 (23 July 2015)

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

CR NO: 542/2014

POLICE

v

SHARNIA METUARAU

Date: 23 July 2015
Counsel: Mrs C McCarthy for the Police
Mr B Mason for Defendant

DECISION OF THE HONOURABLE MR JUSTICE COLIN DOHERTY

[1] Sharnia Metuarau was driving a motor vehicle on 31 August 2014; at approximately 1.00am that morning.

[2] As a result of an accident she has been charged with carelessly driving a motorcycle causing injury to the rider of another motorcycle, that was Mr Cook. He was travelling from the Avatiu to Tupapa direction and had come through the intersection just adjacent to the Courthouse in Avarua. That intersection is governed by a roundabout. He had proceeded through the roundabout and in an area adjacent to the entrance to Trader Jacks and a little on the Vaka shed side of that entrance way. He collided with the defendant's motorcycle.

[3] This case is about whether or not the motorcycle driven by the defendant had crossed the centreline into the pathway of Mr Cook.

[4] Mr Cook described the incident as being one where the other motorbike driven by the defendant veered onto his side of the road and there was no way that he could avoid the collision. He was he said travelling on the inside of his lane which is the seaward side of the Main Road. He thought he might have been doing 30 to 40 kilometres per hour and while he could not be sure, if pressed he would have estimated the speed of the other vehicle about the same. He said that as soon as he saw the other motor vehicle which had its headlight on but was not indicating, the crash was inevitable. The right side of the two motorcycles collided and it appears that Mr Cook's right leg took a significant part of the impact and it split open requiring admission to hospital for three or four days, surgery upon his right knee and thereafter a week off work. It was accepted by the defendant that that injury had occurred.

[5] On the other hand the defendant said that she was intending to turn right off the road to go to Raro Fried Chicken which is on the Avatiu side of the Trader Jacks driveway. No one really could estimate the distance between her turning point where this accident and Raro Fried Chicken but as I look outside the Courthouse delivering this decision then when those look directly on it, it might be perhaps 20 metres at most.

[6] She had a pillion passenger, one of her friends. It was their evidence and particularly that of the defendant that they had come to a stop. The defendant said that she had indicated that she was turning right, had stopped at the white line and put her foot on the ground and it was Mr Cook who caused the collision.

[7] Both of the defence witnesses accepted that they had been passed by another motorcycle and that they were distract to the extent at least of having looked at that motorbike.

[8] The pillion passenger Ms Pouao was really not too sure of anything. She seemed hesitant about giving her evidence but she did say that the motorcycle that was driven by the defendant had stopped.

[9] Later investigation of the motorcycles show that there had indeed been a front right to front right impact. There were bent forks. Significantly, the Sergeant in charge of the investigation thought that they front rim of the defendant's vehicle had come in contact with something quite substantial because part of the rim was peeled back. That does not go too far into determining exactly how this accident occurred.

[10] I think the defendant genuinely believes that she stopped at the white line. I am not sure that her pillion passenger is as categorical but she backs up that story. Both of them however admitted to distraction.

[11] So I intend really to put aside the evidence of the defendant and her friend and to an extent that if Mr Cook and see what other evidence there was that bears on what happened. And the primary evidence is where the people concerned and the motorcycles ended up after the collision.

[12] Constable Marsters was off duty and was at Raro Fried Chicken picking up his sister. He saw Mr Cook's vehicle by a motorcycle come through the intersection and past Raro Fried Chicken and moments later heard the crash. He was pretty instantly on the scene. He thought it might have taken him a minute to get from Raro Fried Chicken to the scene.

[13] He was precise and unmoved in cross-examination as to exactly where he saw the bikes ended up. He said both of them were in the middle of the sea side lane; that is the lane in which Mr Cook was travelling. He thought that the bikes were about two metres from the seaward edge of the road towards the centre. He observed the bikes and turned his attention to Mr Cook who he saw was injured and assisted him with others. It was not long after that that the bikes were removed from the road. This was because a crowd had gathered. The Sergeant in charge later in evidence estimated that to be 10 or 20 people and they took it upon themselves to shift the bikes and therefore there were no measurements done by the Police or any in-situ photographs able to be taken.

[14] When the Police did arrive Constable Tararo was on the scene and it was his task to identify and talk to any witnesses. He did however observe the road at the scene. By the time he got there the bikes had been removed by others. He did however observe the dent in the front wheel of one of the bikes, but importantly he said that he observed "bits and pieces" all over the road on the left side closest to the Vaka shed. He said there were no bits and pieces on the other side of the road. He was able to identify the front part or mudguard of the bike which had some yellow pieces. He could not describe any of the other bits and pieces. However, what he says corroborates the evidence of Constable Marsters and also would tend to corroborate the evidence of Mr Cook. That is, that the accident itself is more likely to have happened on the seaward side of the road. And on the seaward side of the road by quite a margin. There was not any evidence of crash scene dynamics or physics as to what might have gone where following a crash at these speeds but commonsense leads me to the view that with the bikes on that side of the road with Mr Cook on that side of the road with debris on that side of the road, then it is likely to have happened on that side of the road.

[15] Ms Pouao the pillion passenger said that she had ended up on the road when they came to grief at about the centreline. The question is whether or not the prosecution has proved beyond a reasonable doubt that the defendant drove her motor vehicle at a standard which fell below that of a reasonably prudent driver in the circumstances. It may well be that she came to a stop but all of the evidence points to the fact that if she did she came to a stop in or at least part of the way in the lane way of Mr Cook.

[16] I am more of the view that the independent evidence tends to confirm Mr Cook's evidence that the vehicle veered onto his side of the road. I think it is more likely that the defendant was trying to glide across to Raro Fried Chicken rather than turn the right angles which she did. It seemed to me to be significant distance away. A reasonable prudent driver in those circumstances would not have crossed the white line without making sure that the way was clear.

[17] I find that the prosecution has proved beyond a reasonable doubt that that is exactly what the defendant did. And that doing so caused the collision and the injury to Mr Cook. I therefore find the charge proved.

Colin Doherty, J