Republic v Baraidogi [1984] NRSC 3; [1980-1989] NLR (13 July 1984)

[1980-1989] NLR
[Ed – No page no. in original]

IN THE SUPREME COURT OF NAURU

Criminal Case No. 239 of 1984

THE REPUBLIC

v

SAM BARAIDOGI

JUDGMENT

This is an application under S.172 (l) of the Criminal Procedure Act 1972. That section gives the Director of Public Prosecutions the power to apply to the Supreme Court for committal in certain cases where an accused person has been discharged by the District Court on a preliminary hearing.

The accused Sam Baraidogi was charged with manslaughter and dangerous driving arising from an accident involving a car driven by him and a motor cycle ridden by the deceased.

The District Court held a preliminary inquiry and passed an order on 29 June 1984 discharging the accused in respect of both charges.

Mr Sharma for the Director of Public Prosecutions has submitted that there was sufficient evidence to put the accused on trial. He traversed the evidence of the police witnesses and submitted that there was sufficient circumstantial evidence available to put the accused on trial on charges aimed to establish that the accused failed to yield the right of way to the deceased and that he was thereby responsible for the accident which led to the death of the motor cyclist.

Mr Keke for the accused has submitted that the Resident Magistrate was right to discharge the accused. He stressed that the purpose of a preliminary hearing is to establish whether there is evidence upon which the accused should be put on trial and submitted that there was no such evidence in this case.

I have read the order of the learned Resident Magistrate and perused the evidence presented to him. While it is perhaps surprising that the accused was not questioned by police officers following the accident he has a right of silence and is entitled to put the prosecution to the proof in a criminal case.

There were no independent witnesses to the collision the noise of which was heard by some of them. The plan produced in evidence indicates that the accused had proceeded from the entrance to the hospital grounds onto the road upon which the deceased was travelling and would have been required to yield the right of way to the motor cyclist. But there is no other evidence. The deceased died in hospital without having regained consciousness. There is no evidence that the accused failed to yield the right of way nor is there any evidence that he failed to stop before pulling onto the roadway or as to whether the motor cycle had its headlight showing. In fact the impact which was heard appears to have occurred on the accused’s correct side of the road. Why the deceased was on the incorrect side cannot be explained. There may be reasons but there can only be speculation as to those reasons. It can only be a matter of conjecture.

There is certainly no evidence to establish the high degree of negligence or recklessness that must be proved to justify putting the accused on trial for manslaughter and indeed there is no other evidence to establish a prima facie case on a charge of dangerous driving.

I am satisfied that the learned Magistrate was right in his decision to discharge the accused.

This application is refused.

B.J. McK. Kerr
ACTING CHIEF JUSTICE.

13 July 1984