Republic v Tetaua [2004] KIHC 156; Criminal Case 56 of 2003 (17 March 2004)

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

High Court Criminal Case No. 56 of 2003

THE REPUBLIC

vs

KOBEBE TETAUA

For the Republic: Mr David Lambourne, Solicitor General
For the Accused: Mr Banuera Berina

Date of Hearing: 17 March 2004

JUDGMENT

About 10 o’clock on the evening of Friday 25th October 2002 Teakamatang Enoka was a passenger in a 2-ton truck driven by Kobebe Tetaua. They were driving from Betio to Bikenibeu. Outside the Stewart Club at Ambo the truck went to its left, partly at least off the bitumen and hit a casuarina tree. The passenger side of the truck took the main force of the impact. Teakamatang was so badly injured that he died on the way to hospital.

Kobebe has been charged with reckless driving causing death, contrary to section 24(2) of the Traffic Ordinance Cap 98:-

Particulars of Offence

On the 25th October 2002, at Ambo village on South Tarawa, KOBEBE TETAUA drove a motor vehicle on a road recklessly and caused the death of Teakamatang Enoka.

Two men saw the accident. Sefanaia Tuus was at a birthday party at the Stewart Club. He acknowledged that he was drunk but said he had a clear recollection of what happened. He had left the party to catch a bus to buy beer at Taborio:-

.....saw truck approach, from Betio. I ran to lagoon side to stop bus. Thought at first a bus: surprised to find it was a truck: it drove on and had collision. Before it got to me. Road is straight. Collided with casuarina. Bang! .......saw passenger groaning in pain ....... Saw Kobebe later – roaming round in front of Stewart Club gate. He had shitted himself. Didn’t check him. He was not exactly staggering but swaying. Didn’t hear him speak. Smelt of liquor when first opened door. Lights of truck didn’t go out: after collision out on left.

Tente Aueia was also at the Club. He was not drinking alcohol. He was to go with Sefanaia to buy the beer:-

(We) were to catch a bus. Vehicle approach: thought bus: called Sefanaia. It was off road and continued on until collided with casuarina. Very loud noise .........smelt alcohol – swaying, staggering. “Did anything happen?” I didn’t reply as he walked away. Noticed no injuries on Kobebe ..... After crash truck lying across road, rear of tray: road blocked: pointing to lagoon side ..... Half the truck was off the tarmac, colliding with small casuarina trees until it collided: saw it about 10-20m.

Tente did not notice afterwards whether the truck lights were on or off.

Tekabu Toani did not see the accident but heard the sound of the impact. He ran to the scene:-

Casuarina tree hit by truck. Driver Kobebe “Did anything happen?” Dazed: he walked away – swaying, staggering: shit himself. One light on, other off: driver’s side on. We extricated passenger. Went to hospital with passenger. Dead.

In answer to Mr Berina in cross-examination Tekabu said Kobebe after the accident was speaking clearly.

Final prosecution witness was Eria Tawai, Corporal of police. He came on the scene while on police patrol:-

Truck had collided with casuarina ........front facing lagoon side, rear across road. Truck collided with casuarina: marks shewing rear had swung. Marks off road. Skid marks on tar sealed road: sand marks indicating truck had been off road – depression: a pace off tarmac in sand: can’t say how long. Enquiries: searched for driver. Apprehended (K). Drunk and shitted. Heavy odour of alcohol: swaying, slow in speech (Arrested) him. Didn’t interview him – drunk, complaining of chest pain. Took him to hospital.

Corporal Eria’s statement is exhibited. In it he says, “the suspect – was hiding himself among party members”.

In cross-examination he refused to agree with Mr Berina that Kobebe was speaking and walking normally.

I found all four witnesses reliable. I believe they were telling the court truthfully and accurately what they saw and heard.

To his credit the accused gave evidence. He is an engineer with Air Kiribati. He had been playing soccer on the police field in Betio between 5.30 and 6.30. He had a can of beer afterwards. He then spent three hours nearby and had five small cups of sour toddy, possibly more. Driving on the way from Betio he was drinking from time to time out of a second can of beer: he had not finished it at the time of the accident. His speedometer was not working: he just assumed he was not driving really, really fast.

Kobebe gave two explanations of the cause of the crash. The first was that about 15 metres before he hit the casuarina tree the lights of the truck failed. He tried to stop but could not in time. That the lights failed is directly contrary to the evidence of Sefanaia and Tekabu that the driver’s side lights were working after the accident.

The accused’s second explanation was that he himself blacked out (and presumably lost control). He had never blacked out before although he has since. He has not consulted a medical practitioner about this. He did not mention it to anyone at the time. I regard the second explanation as recent invention.

I found Kobebe an unconvincing witness. Of course he did not have to prove anything. The onus of proof of the charge beyond reasonable doubt rested on the prosecution.

It is a pity that in Kiribati we have no objective methods of testing for sobriety. The police do not have the equipment to analyze breath for alcohol – breathalyzers as they are called – nor is a blood sample taken. The police do not – I had never been told that they do – even make such objective tests as were common 50 years ago in other places: getting a suspect to walk a straight line, stand on one leg or with eyes closed, try to touch the tip of nose with index finger. In this trial all the evidence of drunkenness is imprecise, merely the opinion of Corporal Eria that Kobebe was drunk and the descriptions of the three civilian witnesses. I must do my best with the evidence I have.

In his final address the Solicitor General pointed out that Corporal Eria considered the accused too drunk to take a statement from him. Strong evidence but still imprecise. Accepting the truthfulness and accuracy of the prosecution witnesses, remembering the accused’s admission as to what he had drunk and the way in which he was driving, I have no reasonable doubt that he was so much under the influence of alcohol as to be incapable of effective control of the truck.

The impact was a heavy one: afterwards the rear of the vehicle was partly across the road, blocking it: the front was pushed in: all probable indications of considerable speed. The accused had no idea of his speed, hoped it was not fast. None of the prosecution witnesses gave evidence of speed.

I cannot, on this scant evidence, make any finding beyond reasonable doubt on speed.

What does “reckless” mean? The Concise Oxford defines “reckless” as “disregarding the consequences of danger: lacking caution: rash”.

The Solicitor General referred me to the decision of the House of Lords in
R v Lawrence ((1981) All ER 974). Lord Diplock gave the test of reckless driving in his speech:-

In my view, 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 (@ 982).

I have found that the accused was so drunk as to be unable to exercise effective control of the vehicle. Yet he drove. He thought he was alright, as most drivers under the influence do. He even went on swigging from a can of beer as he drove. This was “reckless”: he disregarded the danger of driving in this condition: he was lacking caution: rash. I can be satisfied of both things set out by Lord Diplock: Kobebe was driving in such a manner as to create the risk – he drove off the road and hit the casuarina tree: he had given no thought to the possibility of the risk, thought he was alright to drive.

That Kobebe was driving in his condition was of itself reckless. Indeed it is difficult to imagine any intoxicated person driving and not being guilty of driving recklessly. Drunken driving is reckless driving.

Mr Berina in his address concentrated on my duty to give his client the benefit of any reasonable doubt I may have about his state of sobriety and therefore ability to drive safely. Unfortunately the facts are too strong for him. I have no reasonable doubt.

The accused is guilty as charged.

Dated the day of March 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice