Republic v Hicking [2001] KIHC 1; Criminal Case 61 of 2003 (4 January 2001)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Case No. 61 of 2003

THE REPUBLIC

vs

JAMES HICKING

For the Republic: Ms Ruria Iteraera
For the Accused: Mr. Aomoro Amten

JUDGMENT

The accused, James Hicking, was charged with "Grievous Harm contrary to section 220 of the Penal Code .... "

S. 220:

"Any person who unlawfully does grievous harm to another is guilty of a felony ...."

The particulars:-

"James Hicking on the 29 October 2000, at Betio on the island of Tarawa unlawfully caused grievous harm to Marea and Atatika."

Although there is no hint of it, the charge arises out of a tragic road accident.

Probably between five o'clock and six o'clock in the morning of Sunday 29^th October 2000 the victims Marea, a boy of 14 or 15 and Atatika, a boy of 16, were sleeping on the bitumen of the road running east and west on the ocean side on Betio. The spot was described as near Tong's house which is next to Johnny's Service station. The boys were lying close together, their heads in the middle of the road, their feet to the ocean side. What they were doing was foolhardy, to say the least.

The second witness, Joseph Tekaie, was driving a double cab pick up:
the first witness, Nei Teieta Tirae, was sitting next to him. Others were in or on the vehicle as well.

Having seen the form on the road, Joseph stopped the pick-up "about 8 meters from them" according to Joseph, "very close to the boys" according to Nei Teieta. Joseph sounded the horn for some time but the boys did not stir. Nei Teieta got out intending to move them out of danger. Before she could reach them another vehicle, a saloon car, approached travelling east, in the same direction as the pick up had been and going very, very fast engine revving according to Nei Teieta. The car ran over the boys causing such serious injuries that they both died. The accused in his statement to the police, tendered by consent, admitted driving the saloon car. The car either did not stop (according to Nei Teieta) or stopped only momentarily and drove off again (according to Joseph). Nei Teieta ran over to the victims. She recognized them as being her son, Atatika and her nephew Marea.

Hearing the evidence I was puzzled why the accused was charged with Grievous Harm. Ms Ruria Iteraera, prosecuting, was candid enough to acknowledge that by the time the Attorney General received the file from the police it was too late, out of time, to lay a charge under the Traffic Act, 1952, for example pursuant to S.23 or S.24.

The Director of Public Prosecutions looked round for some alternative charge and decided on S. 220 of the Penal Code. The charge was laid on 14 October 2003, almost three years after the accident.

Perhaps manslaughter could have been charged but perhaps no medical evidence was available. I also notice S. 230 of the Code: I shall stop speculating and be content with suggesting that the charge with Grievous Harm was misconceived.

Ms Iteraera argued that mens rea is not an element in the offence of Grievous Harm: neither the word "intentionally" nor the word "maliciously" appears in section 220. I refused to accept the argument: it would mean that section 220 creates an absolute offence, no question of intent or recklessness needing to be proved.

The answer to Ms Iteraera's argument may be put in two ways. Section 9 (1) of the Code:-

".........a person is not criminally responsible for an act ..........which occurs independently of the exercise of his will, or for an event which occurs by accident."

The second way to answer Ms Iteraera's argument is this. (The language may be regarded as old fashioned but it is the language with which I am familiar.) It would be a complete departure from the fundamental principle of the criminal law that, subject to exception, mens rea must be proved before an accused may be convicted of a crime. As Barwick CJ said in The Queen v O'Connor (146 CLR 64 @ 76)," at the least an intent to do the physical act involved in the crime charged is indispensable to criminal responsibility". It is so fundamental a principle that I would not be prepared to depart from it.

The prosecution had not led any evidence at all of intention to cause grievous harm. In his statement all the accused said was:-

"I want to say that regarding being colliding a human and I believe that such happening occurred just beyond my ability to avoid its happening since that night was quite dark and basically that I would not expect a man to lie sleeping in the middle of the night on the public main road. My lights were on the state of low beam so I got a very short time opportunity to get on a break. If those boys had been walking I would not have collided them. I do regret for what was happening but it is something that I did not expect it to happen."

Nei Teieta's evidence that the car was going very, very fast and the engine revving is not sufficient evidence that the accused was driving recklessly.

I accepted Mr. Amten's submission that the accused had no case to answer and discharged him.

Dated this day of 2004.

THE HON ROBIN MILLHOUSE QC
Chief Justice