Republic v Benuakai [2002] KIHC 56; Criminal Case 22 of 2001 (26 April 2002)

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

High Court Criminal Case No. 22 of 2001

THE REPUBLIC

vs

BWAUNO BENUAKAI

For the Republic: Mr Kirata Komwenga
For the Accused: Ms Emma Hibling

Date of Hearing: 23 & 24 April 2002

JUDGMENT

In October 2000 Ruiti Tebiria and Tebiria Bwaaro lived in the village of Bonriki. On the evening of 31^st October they went to visit a daughter who lived on the other side of the runway. On their way home later in the evening they stopped at the edge of the runway quite close to the fence on the village side, lay down and, covered by a tarpaulin, went to sleep. The next thing Tebiria remembers – by then it seems to have been about 3 o’clock in the morning – is being hit. He said at first he did not know much about it: he thought he was dreaming and did not know what had hit him: he only knew when a car reversed towards him. He and his wife had been hit by a police car which was doing a patrol along the runway. The aim of the patrol was to discourage people from cutting holes in the perimeter fence and from interfering with runway lighting.

Tebiria received some injuries – Ms Hibling for the accused argued that they could not be regarded as “grievous” and she may be correct – but Ruiti died from hers. It is not clear whether she was killed instantly or died on the way to the hospital: she was dead when examined at the central hospital by Doctor Taketiau Beriki.

The accused was charged on two counts – causing grievous harm contrary to section 220 of the Penal Code and careless driving contrary to section 23 of the Traffic Ordinance.

At the close of the Republic case, Ms Hibling submitted that her client had no case to answer on count 2: the airport runway is not a “road”.

“‘Road’ or ‘public road’ means any road to which the public has access and includes bridges over which a road passes” (section 2 of the Traffic Ordinance). This is similar to the definition in the English Road Traffic Act 1930:-

“‘Road’ means any highway and any other road to which the public has access, and includes bridges over which a road passes”.

In Buchanan vs Motor Insurance Bureau (1955 1 All ER 607) McNair J, following the Scottish case of Harrison v Hill, held that a road within the premises of the Port of London Authority was not a “road” as defined in the Road Traffic Act “because it is not a road to which the general public had access either as a matter of legal right or by tolerance to the Port of London Authority” (headnote).

The evidence here is that although members of the public do cross the runway and do spend time on it either in social intercourse or sleeping, that is against the law and the police and airport security do their best to stop it. That being so I could not find that the runway is a place to which the public has access “either as a matter of legal right or by tolerance”. I upheld Ms Hibling’s submission.

The trial continued on count 1.

The accused gave evidence that, having worked the afternoon shift at the Otintai Hotel (it was during the Forum) he went on night duty at midnight. He, in company with another police constable, Teunaia Ieremia, was to patrol the runway. They left a third police officer at the Temaiku end of the runway. Teunaia was looking to his left at the fence and the accused was looking to his right at a group of security people in the middle of the runway. He was not looking in front of him until it was too late. When he was very close to the victims under the tarpaulin he saw something ahead, tried to swerve but hit them: he reversed as Tebiria had said.

Section 220 of the Penal Code:-

“Any person who unlawfully does grievous harm to another is guilty of a felony,”.

In The Republic v Reungaru Taaboru (Criminal Case No. 19 of 2001) I doubted (at page 2 of my Reasons) whether causing grievous bodily harm was an appropriate charge to lay arising out of a road accident. I acknowledge that there the charge was “grievous bodily harm” and I use the term “road accident”. Here the charge is “grievous harm” and I have ruled that this was not a “road” accident. The distinctions make no difference to my doubts in this case, as in Reungaru. The point is mens rea: for a charge to succeed under section 220 the accused must intend to do grievous harm. It could not be argued here that Bwauno intended to harm either victim. One element necessary to prove a charge under section 220 is missing.

I realize the Republic was in a quandary as to what charge to lay. All the relevant sections in the Traffic Ordinance include the qualification “on a road” (I notice these words have been included by amendment to each section). The runway is not a road and any charge laid under sections 23 or 24 of the Traffic Ordinance would fail. Looking through the Penal Code there may be sections under which the accused could have been successfully prosecuted or there may be other charges either at common law or under other statutes. As I have not heard argument it would be inappropriate to be specific. All I say now is that section 220 of the Penal Code is not one of the sections under which, given the circumstances, the accused could be successfully prosecuted.

I find the accused not guilty on either count.

Dated the 26^th day of April 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE