Republic v Bureka [2001] KIHC 8; Criminal Case 30 of 2000 (13 March 2001)

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

High Court Criminal Case 30 of 2000

THE REPUBLIC

Vs

URIAM BUREKA

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Neil Allen

Date of Hearing: 12 & 13 March 2001

JUDGMENT

The accused pleaded not guilty to two offences charged against him in the alternative:-

Count 1

Statement of Offence

Manslaughter contrary to section 192(1) of the Penal Code Cap. 67

Particulars of Offence

Uriam Bureka Etia on or (sic) 25 July 1999, having control of a moving vehicle registration number TUC 5539, failed to manage the vehicle and take reasonable precaution, by failing to keep a proper lookout, and by failing to slow the vehicle to a speed appropriate for the circumstances, and as a result, he collided with and caused the death of Taare Baurerei in Betio town road.

In the alternative

Statement of Offence

Reckless Driving Causing Death contrary to section 24(2) of the Traffic Ordinance Cap. 67.

Particulars of Offence

Uriam Bureka on 25 July 1999, drove a motor vehicle, registration number 5539 on a road, namely Betio town road, recklessly, and he collided with and caused the death of Taare Baurerei.

Before the hearing began Mr Neil Allen for the accused, took the point that the alternative charge was laid out of time. The date alleged, 24 July 1999: the date charge laid 18 August 2000: more than 12 months between the two dates.

Section 31A of the Traffic Ordinance:-

No prosecution for an offence against this Act shall be commenced after the expiration of 12 months from the time of its commission.

On the face of the indictment the second count was out of time. I therefore dismissed it and the trial proceeded only on count 1.

It was on a Sunday. In fact 24 July 1999 (the date originally alleged) was a Saturday but from the evidence both of the accused and of Nei Buangi Baurerei, the mother of the deceased who gave evidence for the accused, the tragedy occurred on a Sunday. I accepted their evidence. Perhaps the mistake in date arose because a Request for Medical Examination and the Report of Dr J L Goolin (Exhibit P1) are both dated 24th. However the mistake arose, with the consent of Ms Pauline Beaiatau prosecuting and of Mr Allen, I amended the charge to make the date 25 July 1999.

The accused lives at Ambo. He is a seaman. On this morning he drove his saloon motorcar into Betio looking to buy fish for lunch. He had not had any alcohol. He approached that part of the Betio town road known as “the loop”. Outside Bob Beia’s house (not far from the Marine Training Centre) his vehicle collided with the deceased. The accused put his speed before he saw the deceased at 45 kph: he said he saw the deceased “about 10 metres away” (I should think that is an under estimate) and slowed down. The configuration of the roadway has now changed. At the time the bitumen was narrow – as Bob put it, two vehicles going in opposite directions would have a problem passing, if each were in its own lane, “one would have to move over to allow the other through”. Bob’s fence was less than a metre from the bitumen. Bushes grew within two feet of the fence: the bushes were an obstruction to view. Bob said of a vehicle:-

Have to slow down – children fisherman: oncoming traffic should also be careful space between road and fence less than a metre.

As well, this was a Sunday morning. One witness put the time at “about 12 o’clock”, another “somewhere between 10 and 11”: the accused said it was “going on to 11 as church goers on way back from church”. I expect there were quite a lot of people walking on or on the side of the road at the time.

All this added up to the need to drive comparatively slowly and to keep a careful look-out.

The only prosecution witness who saw the accident was Kiaieta Tebaakia, a boy now aged 12. Before hearing his evidence I examined him as to his understanding of an oath and was satisfied that I should hear him. He was walking on the left of the road near Bob’s house: he saw the man hit. This is how he described it:-

As the car was driving it took a curve, ran through some bushes and hit the man. The bushes were off the road. The man was from the bushes 5m. The man was walking on the side of the road, on the sand. He was thrown on to the front of the car. He was on top of the car: the car slowed down and that caused him to fall off. The car then drove away.

On that account the accused must have driven off the bitumen to his left and hit the deceased from behind. There was evidence from other witnesses of a truck coming towards the accused in the opposite direction which, given the narrow road, makes moving off the bitumen to the left plausible.

Kiaieta appeared a believable witness and, if his account stood on its own or had been corroborated, I would have been able to accept it.

The accused, on the other hand, gave a quite different version. It had already been anticipated by a prosecution witness Toromon Taburuea, once a police officer, who heard the accused say (at the scene before the deceased was taken to the hospital), “It was I who hit that man as he ran in front of my vehicle.”

The accused’s version:-

First saw him about 10m away. I driving from Temakin to Takoronga. Taare walking from side to side on the road – my speed, 45. I then saw him fall among some bushes. Thought he’d gone into Bob’s gate (Beia) as I’d seen him there before. I kept at same speed. He was going from side to side on the left of the road. Thought he was going into the gate. A truck approached me. Road curved and narrow. Person appeared from side of road I was driving on. He appeared from amongst bushes. Just applied brakes when side of car hit his legs, his head hit windscreen and he was thrown on to other side of the road......very surprised, didn’t know what had suddenly appeared. Left side of my car – tyre on edge of bitumen. If I’d swerved I would have run into vehicle approaching.

The accused was corroborated to an extent by a defence witness, Bureua Arobati:-

I was on a car, a truck, going to Temakin: I was on the back. Saloon car passed us, saw man stagger on to road: we went a little farther and heard a bang. Our driver drove on. Didn’t see what caused bang. -------- I drive, over 20 years. Speed of saloon car – a good speed – around 40/45 kph.

Given the defence evidence, I could not accept beyond reasonable doubt that the accused went off the bitumen to his left and hit the deceased walking on the shoulder of the road. The prosecution has failed to discharge the onus of proof it had. I must prefer the account given by the accused – that the deceased staggered on to the road in front of him.

Even on the prosecution case I doubt if it were manslaughter. Manslaughter is a most serious crime: the prosecution must shew a very high degree of recklessness as for example, high speed, lack of look-out, utter disregard in driving for the safety of others. That was not so here.

Manslaughter should not be charged simply because there has been a death on the road caused by a collision. There are other less serious – even though still very serious – charges which may be laid: such as Reckless Driving Causing Death (section 24(2) of the Traffic Ordinance) or Careless Driving (section 23 of the Ordinance). Only in the most serious cases is it likely that the prosecution will be able to prove manslaughter beyond reasonable doubt.

[I pause here to say that I was surprised to be told that the accused, who went to the police to report the accident, was then kept in custody, in accordance with police practice, simply because there had been a death: he was not released until late that night after Nei Buangi interceded on his behalf. Mr Allen did not complain of this so I say no more except that I cannot see any justification for the practice: a person should not be kept in custody unless arrested and charged with an offence. Not every death on the road must give rise to the charging of a person.]

I could not find the accused guilty of manslaughter. What has greatly concerned me is whether he was guilty of careless driving, due to defective look-out and going rather too fast.

Several witnesses have described the scene. Obviously it was a difficult area requiring special care – a narrow road curving (for the accused) to the left, bushes obstructing view, a lot of people about at this time, a truck coming the other way. The side, not the front, of the accused’s vehicle hit the legs of the deceased. The accused was properly concentrating on the truck coming towards him. He had seen the deceased earlier wandering on the road and assumed because he had lost sight of him, that the deceased had gone through Bob’s gate. So the accused took no more interest in him. This was a mistaken assumption and should not have been made. There was always the chance Taare could, as he did, suddenly reappear. I conclude that the accused was guilty of carelessness in his driving – defective look-out and a bit too high speed - but not by any means the most serious case. It has been said that each of us who drives is probably guilty of careless driving at some stage of every journey we make. On this occasion the carelessness had fatal consequences.

Should I then convict the accused of careless driving pursuant to section 23 of the Traffic Ordinance?

Section 157 of the Criminal Procedure Code appears to give the court power to do so.

Mr Allen argued that I should not. He relied on section 31A of the Traffic Ordinance. He reminded me that a prosecution under section 23 would have been statute barred by the time the charges were laid: as a matter of policy the Republic should not be able to get round the time limit in the Traffic Ordinance by charging a more serious offence under the Penal Code for which there is no time limit. The construction of section 157 is, I suggest, open to argument: it may be argued that as an accused is not being charged with a lesser offence, then no time limit for laying the charge applies. However I prefer Mr Allen’s argument. As a matter of policy the court should not accept a construction which would allow the time limit in the Traffic Ordinance to be circumvented. I have come to the conclusion that the accused cannot be convicted of careless driving.

There are two other matters, the first arising out of the construction of section 157 of the Criminal Procedure Code. When one compares section 157 with section 163 there appears to be an overlap. Section 157 is a statement of the common law position and section 163 is confined to a lesser alternative, “manslaughter in connection with the driving of a motor vehicle”: so also with sections 158 to 172. Section 173 provides:-

The provisions of sections 157 to 172, both inclusive, shall be construed as in addition to, and not in derogation of, the provisions of any other Ordinance and the other provisions of this Code, and the provisions of sections 158 to 172, both inclusive, shall be construed as being without prejudice to the generality of the provisions of section 157.

So there is no conflict between section 157 and the sections which follow it. I do suggest, though, that there is a drafting error in section 163: it must have been there for many years. The sections mentioned should be sections 23 and 24 of the Traffic Ordinance, not sections 24 and 25. Section 25 of the Traffic Ordinance, taking vehicles without authority, can hardly be an alternative to manslaughter in connection with the driving of a motor vehicle. Perhaps the Maneaba ni Maungatabu may care to consider the matter.

Finally, based on evidence which Mr Allen led both from the accused and from Nei Buangi, it appears that the accused has acted since immediately after the tragedy with rectitude and generosity towards Taare’s family. Mr Allen tried to use his client’s good conduct as the basis for my making an order dismissing the charge.

Section 38(1) of the Penal Code:-

Where, in any trial, the court thinks that the charge against the accused person is proved but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the accused, or to the trivial nature of the offence or to the extenuating circumstances in which the offence was committed, it is not expedient to inflict any punishment, the court may, without proceeding to conviction, make an order dismissing the charge, either absolutely or conditionally.

Section 38 is in a familiar form. In any of the three sets of circumstances set out the court may dismiss a charge. The conduct of this accused after the tragedy does not fall within any of those. His conduct, were he to be convicted, might go to penalty but would not affect conviction or otherwise. Mr Allen could point to no local statute allowing me to take into account, in considering conviction, the conduct of an accused after an offence has been committed.

I find the accused not guilty.

ADDENDUM

On 2 March, a Mention Day, this case was mentioned and listed as the first standby trial for the week beginning Monday 12 March. The State Advocate Mr Tion Nabau, appearing for the Republic, told the court that this trial would be ready to proceed.

On Friday 9 March the office of the Director of Public Prosecutions was informed that the trial given priority for the next week would not proceed as the accused was still overseas. Accordingly this trial would begin on Monday morning.

The trial did begin on Monday 12 March and by lunch time Ms Pauline Beiatau had called all the witnesses she had available. She then asked for an adjournment until late on the morning of Tuesday 13 March as the police officer who had been in charge of the investigation would not be available until then. I suggested to Mr Allen that he should proceed with the defence case and the investigating officer could give his evidence later. Mr Allen, for reasons which I accepted, was unwilling to do this. I then told Ms Beiatau that I would not give her an adjournment: that would have left the court with nothing to do for 24 hours – would have meant the waste of a day. I felt this quite unacceptable when Mr Nabau had given the assurance that this case would be ready for hearing.

Ms Beiatau then closed the Republic’s case and the defence case proceeded.

I have made this note as Ms Beiatau told me the Republic proposes to appeal against my refusal to grant the adjournment.

THE HON ROBIN MILLHOUSE
CHIEF JUSTICE