In the High Court of Kiribati
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case No. 35 of 2004

The Republic

vs

Kian Tokia

For the Republic: Ms Eveata Maata
For the Accused: Mr Banuera Berina

Date of Hearing: 31 May 2004

JUDGMENT

Between 9 and 10 at night on Saturday 20 December last year there was an unfortunate accident on the road just west of the Gateway Bar between a saloon car driven by the accused Kian Tokia and a motor bike being ridden by Bombee Eritai. Bombee sustained serious injuries to his right leg. He was taken first to the Betio hospital and then to Nawerewere. Unconscious on arrival at TCH with continuous bleeding: he was pronounced dead at five past two on Sunday morning.

Kian Tokia has been charged with dangerous driving causing death.

Kian and his wife Nei Maria Langley, a passenger in the front seat, were driving easterly past Nano Lelei and towards the roundabout. A bus stopped in front of them. The bus had not pulled into the parking bay on the left but remained mostly on the roadway. The witness, Simon Posada, a lad of 16 who was in the bus:-

Bus stayed near the centre of the road: left hand wheels still on road. Left hand tyres of bus a bit off the road. Bus could have stopped further to its left. Car quite close to bus but partly over the centre of the road. It was partly over the centre.

Nei Maria said, "Half of bus off road".

I accept Simon and Maria's evidence to the effect that a good part of the bus was on the roadway, not as far to the left as the bus should and could have been. Kian stopped behind. He had two choices: either to wait behind until it moved off again or to pull out to pass. He made the latter. He saw the road was clear but as he was accelerating past the bus the motor cycle was coming towards him:-

Motor cycle on its left side of road. Accident in centre of the road. Motor bike had its headlight on: my lights on low beam. I could see it coming. Road was clear at the time. Motorcycle on his correct side of road. That road was clear.

The car hit the right side of the motor bike. Bombee had two pillion passengers, his wife Nei Kakoroata and his brother. They were all thrown off the bike but thankfully the pillion passengers were not badly hurt.

Nei Kakoroata described the bike as "a trailer type". I did not know what that meant so asked that the bike be brought to the court for me to have a look. The bike turned out to be a ordinary Honda with a wide carrier behind the seat sufficient to take – uncomfortably, I should think – two passengers. Counsel told me that is called a trailer bike.

After the close of the Defence case I took a view of the scene. Counsel agreed to the point of impact being opposite the roadway leading to Abamakoro Trading: the left hand front wheel of the bus was out from the line of the curve and a metre or so beyond the end of the parking bay: about 30 metres further on from that point begins a gentle curve in the road to the right: I observed and Counsel agreed that from the position of the bus one can see round the curve beyond the roundabout.

In her address Ms Maata reminded me of The Queen v Lawrence ((1981) 1 All ER 974). I remember particularly the passage in Lord Diplock's speech at 981j.

Two elements often associated with reckless driving are the influence of alcohol (or a drug) and high speed. Neither is present in this case.

Another element is lack of look out. The accused was guilty of that. From his position as he began to pull out he should have seen the motor bike – its headlight was on – coming towards him round the curve. The weight of evidence is that the bike was moving faster than the car but not that Bombee was speeding. The motor bike was there to be seen.

Bombee may have been looking not ahead but back at the Gateway. There was plenty of space in the mouth of the roadway to Abamakoro for Bombee to move further to his left. Perhaps so: relevant consideration in deciding civil liability and apportioning responsibility but not relevant on a criminal charge.

The accused is charged with a offence pursuant section 31 of the Traffic Act, driving "recklessly or in a manner dangerous to persons using the road".

To be guilty the driving must be very bad indeed. I could not find Kian guilty of driving very badly indeed.

There are in the Act the lesser offences of negligent driving (section 32) and careless driving (section 33).

Section 32:-

The driver of a motor vehicle must not drive the vehicle on a road negligently. Penalty: A fine of not more than $300 or imprisonment for not more than 6 months, or both.

Section 33:-

The driver of a motor vehicle must not drive the vehicle on a road without due care and attention, or without reasonable consideration for other persons using the road. Penalty: A fine of not more than $500.

I must confess that it is not easy to see the difference between sections 32 and 33. I suppose Parliament's intention was to put the three sections (31, 32 and 33) in descending order of seriousness: the various penalties shew that. Yet there is not much difference between negligent driving and driving without due care. As time passes the Court will have to define the difference. For the moment I suggest that negligent driving is a more serious offence than driving without due care and attention. 

It has been said that each one of us, when we drive, is guilty at some point in our journey of driving without due care and attention: the merest loss of concentration, even only momentarily, is enough. Kian made an error of judgment. He would have been sensible to have stayed behind the bus, not to have tried to pass it. He was guilty of a second error: when he did choose to pass the bus his look out was defective. The motor bike was there to be seen and avoided: if he had seen the motor bike earlier he may have been able to move left, closer to the bus and to have given the rider a "bim bim" to bring the car to his attention.

These two errors make Kian guilty of driving without due care (on the scale of seriousness of driving offences somewhere in the lowest third) but guilty neither of dangerous driving nor of negligent driving.

Dated the 3rd day of June 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice