Republic v Etia [2002] KIHC 51; Criminal Case 31 of 1999 (6 March 2002)

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

High Court Criminal Case 31 of 1999

THE REPUBLIC

vs

TEUNA ETIA

For the Republic: Mr Tion Nabau
For the Accused: Ms Taoing Taoaba

Date of Hearing: 27, 28 February & 1 March 2001

JUDGMENT

On 5 April 1999 Arobati Kautu, a lad of about 5 or 6, died after he had been knocked down by a bus on Banraeaba village road. It was about midday.

The bus was driven by the accused. He has been charged with two offences in the alternative, manslaughter and reckless driving causing death.

The particulars of manslaughter:-

Teuna Etia on or about the 5th day of April 1999, having control of a moving van/bus registration number 5408, 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 the child Arobati Kautu.

The particulars of reckless driving causing death:-

Teuna Etia on the 5th day of April 1999, drove a motor vehicle, registration number 5408 on a road, namely Banraeaba village road, recklessly, and he collided with and caused the death of the child Arobati Kautu.

The account of how the tragedy occurred given by the prosecution witnesses was different to that given by the accused and his witness.

Prosecution evidence was to the effect that the little lad had gone to the store on the lagoon side of the road, had bought an ice block, had crossed the road to the ocean side and turned to walk, off the bitumen and on the hard surface shoulder of the road, in the direction of Betio, when he was hit from behind by the bus. Defence evidence was to the effect that he had left the store with his ice block and had been running across the road to the ocean side when he has hit by the bus: he was in the middle or more than halfway across when he was hit.

Prosecution witnesses were Tikimau Baririki, a school girl, now aged 14 but 12 at the time, Temanga Tibau and Beeni Naniseni. Tikimau and Beeni were adamant that Arobati was walking on his left of the road, off the bitumen when he was hit from behind. Temanga, himself a bus driver although at the time acting as the conductor on the bus the accused was driving, did not see the collision. He was sitting at the back but from his experience of driving he estimated the accused’s speed at over 60 kph. Tikimau said the accused’s speed was “OK – not too fast or too slowly”.

On that evidence the prosecution certainly made out a prima facie case on both charges.

[I pause here to say that I am puzzled as to why the two charges were laid. I suggest they, here, come to the same thing: see Archbold (1992 ed) @ paras 19-97 and 19-98.]

The defence case was altogether different.

The accused said he was driving the bus with a load of passengers in the direction of Betio. His speed was 45 kph – he did not think he got to 60: he was not going at a high speed. He saw a child suddenly in front of him: the child was running from the lagoon to the ocean side. “He was very close – 3 metres” is my note. “I saw him when I first hit him. He rolled along the ground (out of sight)”.

The accused acknowledged that, in the area where the accident happened, the road is straight and the surface good. I had noted that on the view.

Indeer Moria has been a police officer for 8 years. On this day he was off duty and travelling in another bus going in the opposite direction, towards Ambo. Indeer was sitting behind the driver. “I saw child run in front of bus from lagoon side to ocean side of the road. My bus driver braked because of the child. He was hit by bus coming in opposite direction .....No vehicle I saw in front accused’s bus. Can’t say accused’s speed but not very fast......The boy was hit in middle of road, not on ocean side, whilst he was running. On the road but towards the ocean side – boy was more than ½ way across the road. I saw him brake and swerve towards lagoon side” (from my notes from examination-in-chief). “Saw child running from lagoon to ocean side. He ran directly to opposite side of the road. I did not see that the boy had run across the road and was walking towards Betio: that did not happen – he was running across the road” (cross examination).

Indeer was a good, indeed an impressive witness. I prefer his evidence to that of the witnesses for the prosecution. His evidence must raise at least a reasonable doubt about the accused’s guilt on either count. As it is I think it a substantially accurate account. I therefore adopt it for the purposes of making findings.

I find that Arobati was knocked down when he ran across the road in front of the bus the accused was driving: he was at least halfway across, may be more than halfway across the bitumen.

Mr Nabau addressing, referred me to the House of Lords decision in the Queen v Lawrence ((1981) 1 All ER 974 and especially to a passage from the speech of Lord Diplock (at 982)) ..... -

“...an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things: first, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and, second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had none the less gone on to take it”.

Accepting, as I do, that the lad ran across the road in front of the bus, could I as a jury find, on the test formulated by Lord Diplock that the accused has been driving with culpable negligence (the phrase in section 192(1) of the Penal Code) or recklessly? I have to consider two matters – speed and look out.

Only one witness puts the accused’s speed at more than 60 kph. He himself says 45, Tikimau said it was “OK”. I pause to remark that even 45 kph through a village or any settlement – and in this vicinity there are buildings on both sides of and quite close to the road – may be too fast but I could not regard it as “culpably negligent” or “reckless” to drive at 45 kph nor beyond reasonable doubt even at more than 60 kph (assuming, as I do, the witness meant not much more than 60).

What about look-out? The accused was faced suddenly with an emergency. In the emergency he responded properly by braking and swerving. But should he have been faced suddenly with the emergency? Certainly not as suddenly as he was. There is no evidence of anything blocking the view to his right front as he approached the point of collision. There was no reason why he should not have seen Arobati before he did. The child must have been, if the accused had been keeping a proper look-out, in his view, if not from the time he left the store, then at least from the moment he ran on to the road. The accused’s look-out was defective. Did this defective look-out amount to culpable negligence or to recklessness? Ms Taoing Taoaba for the accused referred me to Stone and Dobinson ((1977) 64 Cr.App.R 186 @192-193). Reading the case fortifies me in saying that the accused’s defective look-out amounted neither to culpable negligence nor to recklessness.

The prosecution has failed to prove either count beyond reasonable doubt and I must find the accused not guilty on each.

However the accused was negligent in not keeping a better look-out: he was not driving with due care and attention.

Mr Nabau referred me to section 157 of the Criminal Procedure Code. Pursuant to subsection (2) I find the accused guilty of careless driving, an offence under section 23 of the Traffic Code.

THE HON ROBIN MILLHOUSE
CHIEF JUSTICE
(06/03/02)