Republic v Tabwi [2004] KIHC 174; Criminal Case 39 of 2004 (20 July 2004)

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

High Court Criminal Case No. 39 of 2004

THE REPUBLIC

vs

RUI TABWI

For the Republic: Ms Ruria Iteraera
For the Accused: Mr Aomoro Amten

Date of Hearing: 19 July 2004

JUDGMENT

The accused was charged with dangerous driving (section 31 of the Traffic Act). He pleaded not guilty to that but guilty to careless driving (section 33) and the Republic accepted the plea.

On 1st November last year Rui Tabwi was driving a bus from Buota to Betio. Going through Taborio village he ran over a little 5-year old girl. She died immediately.

In her Summary of Facts Ms Iteraera alleged that the accused “had been speeding at the time”: his speed had been estimated at between 50 and 60 kph. The accused, through Mr Amten denied going too fast. As there was a dispute of facts I heard evidence.

The Republic called Iaaram Tabureka, a passenger in the bus the accused was driving. Iaaram was sitting at the back of the bus. He could not give an exact speed but said it was “high”. In cross examination he put it between 50 and 60 kph, not less than 50. Whatever it was, when the driver braked he and another passengers lurched forward.

The accused himself said he had been driving up to 55 kph but slowed down to 40 when he saw a group of people beside the road, thinking they might hail him. He did not see the little girl before it was too late. His wife and the bus conductor, Ruiti Katia, echoed her husband’s estimates of speed.

On the evidence, as I told Ms Iteraera, I could not find too high speed. Passengers lurched forward when brakes were suddenly applied but that may happen even at a low speed. As for the estimates of speed, they are inexact and I am not able to rely on them. Even if I had found speeding that would merely have increased the seriousness of the accused’s carelessness: it would not have made him guilty of an offence with which he had not been charged. He has a record of speeding: seven offences in 2001. I take them into account in fixing penalty even though this conviction is for careless driving, not speeding. The accused has admitted carelessness in not seeing the little girl.

Mr Amten made written submissions on penalty. The accused, now living on Betio, is the eldest in a family on Nonouti and helps to support it. He is married and has three children of his own. He has been driving buses for three years and has had other driving jobs before that. He also goes fishing and cuts toddy. He has apologised to the victim’s family and been reconciled with it.

Both counsel reminded me of the decision in the Republic vs Kian Tokia (CN 35/04). As set out in that case I am bound in this to disqualify the accused from holding or obtaining a driving licence for at least five years. That will be a severe penalty on this man, probably more severe than the fine of up to $500 which is the penalty for careless driving.

Rui Tabwi is fined $150 and is disqualified from holding or applying for a driving licence for five years. His licence must be surrendered forthwith.

Dated the 20th day of July 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice