Republic v Bwebwentekai [2004] KIHC 171; Criminal Case 38 of 2004 (8 July 2004)

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

High Court Criminal Case No. 38 of 2004

THE REPUBLIC

Vs

IOANE BWEBWENTEKAI

For the Republic: Ms Ruria Iteraera
For the Accused: Ms Jennifer Troup

Date of Hearing: 6 July 2004

JUDGMENT

On 17 January this year, between 8 and 9 o’clock in the evening Roota Teewe was driving a truck at Bikenibeu, in the direction of Betio. He was taking home about 20 people after a picnic at Temaiku. At Bikenibeu, near Mackenzie Point, he either had stopped or was stopping on the left of the road to allow a passenger to get off. The passengers called out to go to the other side of the road as the passenger wanted to be dropped on the lagoon side, at his house. Roota looked in his rear vision mirror, saw nothing behind except light from round a curve, indicated to turn right and veered across the road. A bus, driven by the accused, coming from behind and about to pass the truck, collided with the truck off the road on the right hand (lagoon) side. The bus went on to hit the fence of the Mormon property. A metal bar came through the windscreen and struck the passenger in the front seat injuring her so badly that she was dead on arrival at Nawerewere hospital.

I have to say that while Ms Iteraera was opening I thought the accused must be Roota the truck driver. His action in moving to his right across the road was the cause of the accident: if he had stayed on his left and dropped the passenger, then the bus would have passed harmlessly by. It appears that Roota may have been guilty of several offences. At random I mention rules 8, 9, 11 and 33 of the Road Rules. Roota made a most unwise and dangerous manoeuvre running across on to his wrong side of the road.

Yet the bus driver is the accused:-

Ioane Bwebwentekai is charged with the following offence:

Dangerous Driving contrary to section 31(c) of the Traffic Act 2002

Particulars of the Offence

On the 17th January 2004, at Bikenibeu village on South Tarawa Ioane Bwebwentekai drove a motor vehicle on a road recklessly and caused the death of Nei America Tato.

Ms Iteraera argued from the length of the skid mark, 18 paces from the collision between the vehicles to the fence which the bus hit and from answers to several questions in his caution statement that Ioane was going too fast. Estimates of speed were given. Ioane himself put his speed before he accelerated to pass the truck at 45 kph and after acceleration at 60 to 70 kph. Estimates of speed are notoriously unreliable and I do not rely on them. All I can conclude from those given in this case is that before he accelerated to pass, Ioane was not driving too fast on that road in that area at that time. The length of the skid mark means nothing. For two reasons: firstly, the velocity of the bus would have been affected by the collision with the truck and secondly the truck was brought to an abrupt stop by the fence; otherwise the mark would have been longer.

Ioane said he flicked his lights to indicate that he was overtaking: the bus conductor, Nei Ritia Bakatora said he sounded his horn. As the bus had nearly reached the truck, the truck suddenly turned out to the right into the path of the bus. Ioane swerved right but the right front of the truck hit the left passenger door of the bus: the bus then went on, dodging a coconut tree, to hit the fence.

Ioane was suddenly confronted with a difficult situation, an emergency. In the agony of the moment he could hardly have been blamed if he had done the wrong thing. But did he do the wrong thing? I think not: he did what any sensible driver would have done, went right to try to avoid a collision.

I have in cases in the last few months cited the decision of the House of Lords in R vs Lawrence ((1981) 1 All ER 974) in which Lord Diplock gave the test of reckless driving. The mode of driving must first create “an obvious and serious risk of causing physical injury” to someone and secondly the driver must have been driving without giving thought to the risk or, if he did give thought to the risk, went on to take it.

The prosecution relied only on high speed and even that was not proved. Even if high speed had been proved, it does not necessarily mean recklessness. Ioane’s driving had not created an obvious or serious risk to anyone. He was not driving recklessly. His actions have not been proved to be the cause of the tragic death of Nei America.

The accused was also charged of driving without a licence:-

Driving without a driving licence contrary to section 19(1) of the Traffic Act 2002.

Particulars of Offence

On the 17th January 2004, at Bikenibeu village on South Tarawa, Ioane Bwebwentekai drove a motor vehicle on a road without a driving licence.

Constable Takaua Tataua (who made a most helpful sketch of the scene) checked with whichever was the relevant Council and from the records found Ioane’s licence had expired. That was not sufficient proof. To prove the expiry of the licence from the records some person from the Council responsible for them should have been called to produce the records to the Court.

Three days after the accident, not having found his licence, Ioane applied for a new one. In evidence he said that his old licence had been with the bus owner, his employer. Nei Shru-Fung, the employer, said her practice was to check licences before allowing a driver to drive, to keep possession of licences and to warn drivers when a licence was due for renewal. She was away from Tarawa on 17th January. On her return she could not find Ioane’s licence. It had been current ten months earlier when she checked it and was due for renewal early in 2004: she could not say one way or the other whether it was current on the 17th January.

Strictly the accused had no case to answer on the charge of driving without a licence. Even allowing for the help to the prosecution in the evidence of Ioane and his witness Nei Shru-Fung, I could not find beyond reasonable doubt that he was unlicensed at accident.

The accused is not guilty on either count.

Dated the 8th day of July 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice