Republic v Tsiode [1984] NRSC 4; [1980-1989] NLR (11 July 1984)

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

IN THE SUPREME COURT OF NAURU

CRIMINAL JURISDICTION

CRIMINAL CASE NO. 2 OF 1984

REPUBLIC

v

MEIYOUWA TSIODE

JUDGMENT

The accused has pleaded not guilty to four charges. They are:-

Count 1 Manslaughter contrary to section 303 of the Criminal Code Act 1899, of Queensland (1st Schedule) Adopted.

Particulars of offence; Meiyouwa Tsiode, on or about the 2nd of May 1984 at Nauru, unlawfully killed one Kana Gadoengin.

Count 2 Negligent Act Causing Harm contrary to section 328 of the Criminal Code Act 1899, of Queensland (1st Schedule) Adopted.

Particulars of offence; Meiyouwa Tsiode, on or about the 2nd of May 1984 at Nauru, drove a motor vehicle furiously upon the public highway whereby bodily harm was actually caused to one Kana Gadoengin.

Count 3 Speeding contrary to section 28(a) of the Motor Traffic Act 1937-1973.

Particulars of offence; Meiyouwa Tsiode, on or about the 2nd of May 1984 at Nauru, drove a motor vehicle to wit Toyota Van registered No. 5224 upon the public highway in Ewa District at a speed exceeding 50 miles an hour.

Count 4 Dangerous Driving: contrary to section 19(1) of the Motor Traffic Act 1937-1973.

Particulars of offence; Meiyouwa Tsiode, on or about the 2nd May 1984 at Nauru, drove a motor vehicle to wit Toyota Van registered No. 5224 upon the public highway in Ewa District in a dangerous manner.

The charges arise out of an incident that occurred at Nauru on 2 May 1984 involving the accused the driver of a motor van and the deceased Kana Gadoengin, a girl then aged eleven years. The main facts are not in dispute. The accused was driving a van in a northerly direction from the district of Ewa towards Anetan. As he proceeded along that part of the road adjoining the football oval he saw the deceased riding her bicycle ahead of him. He moved to the centre of the roadway to overtake her but tragically she moved further out towards the middle of the roadway and a collision occurred. While there was some conflict in the evidence it appears that the girl was struck by the left side of the van almost at the front of the vehicle. This is supported by the fact that after being thrown into the air she landed by the side of the road rather than being thrown further forward. The accused stopped his van further along the road and after returning to the scene of the collision took the unconscious child to the hospital. It is not disputed that she died in hospital the next morning as a result of the serious injuries sustained in the collision without having regained consciousness. The prosecution has based its case on the estimates of excessive speed on the part of the accused. Evidence that the van was speeding was given by three eye witnesses to the collision and by another man who while not observing the impact estimated the speed of the van just before the collision. The estimates varied but it was claimed that the accused’s speed was in excess of the 30 m.p.h. speed limit that applies on the island.

Three girls, Michelle Oppenheimer and Roxy-Anna and Andriana Notte gave evidence that they had been sitting on a stonewall under the tomano tree alongside the 3-in-1 store on the seaward side of the road when Kana arrived on her bicycle. The girls were eating mangoes and suggested to Kana that she should go and get some for herself. It is clear from the evidence that she set off on her bicycle with that purpose in mind. It is also clear that she must have been oblivious of the van approaching from behind for she proceeded towards the middle of the road with the intention of crossing to the other side. She was not crossings the road at right angles but had proceeded north for a short distance before veering towards the middle of the roadway. This was confirmed by the accused in the course of making a statement to Police Sergeant Kapua as to what had occurred. The answer to a number of questions he replied as follows:-

Q. Why didn’t you see the child before you hit it?

A. I saw it.

Q. Then why did you hit it?

A. No, the child drove into my path, I did not mean to hit it.

Q. State more clearly. You said the chid drove into the path of your car?

A. I was trailing behind it when the child just swerved into the path of my car and that’s when the crash occurred, it hit the front left of the headlight.

Three of the girls gave evidence of seeing the accused’s vehicle approach at a fast speed. Michelle Oppenheimer said “Kana was going off to where we got the mangoes towards Anabar. While she was going a car came fast. She was going to cross the road and it was going to overtake her. Then it hit her on the side of the car.” Later she said in answer to a question about the speed “80. The speed was fast.” Roxy-Anna Notte said “When she (Kana) left us a car came travelling fast and hit her”. “While Kana was going she seemed to be turning. The car was overtaking and it hit her on the side near the front”. She was asked if she could estimate the speed. She said she could not but it was fast. While one could understand that those young children may have gained a mistaken idea of excessive speed having regard to the suddenness of the shocking tragedy involving their friend, their estimates of excessive speed were corroborated by two men who have driving experience. Those men had been working on a rubbish truck and had stopped near the shop. One of the men (Oprey Iwugia) was an eye witness to what occurred. He stated that he saw a car going past at a fast speed, that he saw the child crossing the road and going to the other side of the road when the car struck her. He said that the child was on the beach side of the road on her bicycle and turning onto the other side of the road. When asked to estimate the speed of the vehicle he said between 30 and 60 m.p.h. While that covers a wide range of speeds he clearly thought the vehicle was travelling far too fast. His colleague Leslie James Demingauwe, while not witnessing the impact saw the van go past the shop at what he described as a fast speed and well past the speed limit. The proof of excessive speed is totally against the accused and is unchallenged. He was proceeding on a straight stretch of road near a shop. There were no obstructions or other vehicles to mar his vision. He saw the child on the bicycle but he did not slow down. He tried to change course to overtake her. By travelling at a speed well in excess of the legal limit he gave himself no opportunity to avoid the collision when the child unexpectedly veered in front of him. The fact that children and animals are present in large numbers near the roadway on Nauru has been recognised by strictly limiting the maximum speed on the island to 30 m.p.h. There can be situations where even speeds under that speed limit can be dangerous. Young children on bicycles are notoriously unpredictable. The law endeavours to protect them from that by limiting the speed at which motorists are entitled to travel. I have no doubt that the accused failed on this occasion to meet the standards required of a prudent motorist in travelling far too fast for the circumstances then prevailing. However determined that factual issue I have to consider whether the prosecution has established beyond reasonable doubt the charges laid against the accused.

Section 303 of the Criminal Code provides: “A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter.” Manslaughter may be voluntary or involuntary. The latter is committed where death results from an unlawful act which any reasonable person would recognise as likely to expose another to the risk of injury. In this case the prosecution alleges that the unlawful act committed by the accused was to drive the van in such a manner that any reasonable person would recognise that such driving would expose any person in the area to the risk of at least some harm.

Although it need not be proved that the accused himself intended, or even foresaw, harm to another, the requirement of an unlawful act will ordinarily require proof that the accused had the necessary mens rea (or state of mind) to render the act unlawful.

An unlawful act does not include an act which becomes unlawful merely because of the negligent manner in which it is performed. Thus a person who causes the death of another while committing the offence of dangerous driving is not necessarily guilty of manslaughter. A distinction has to be drawn between acts of omission and acts of commission. If a driver is grossly negligent that may constitute an act of commission and the driver may be guilty of manslaughter. Likewise an act of omission may give rise to liability for manslaughter if it is grossly negligent. Each case has to be determined on its own facts.

In R v. Bateman [1925] 19 Cr. App. R. 8 Hewart L.C.J. stated the law as follows:

“In order to establish criminal liability the facts must be such that... the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.”

Bateman’s case was concerned with alleged negligence by a medical practitioner. The principle enunciated there, however, was adopted by the House of Lords in respect of motor vehicle cases in Andrews v. Director of Public Prosecutions [1937] A.C. 576. At page 583 Lord Atkins stated:

“The principle to be observed is that cases of manslaughter in driving motor cars are but instances of the general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough; for the purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before felony is established. Probably of all the epithets that can be applied, “reckless” most nearly covers the case.... but it is probably not all-embracing, for “reckless” suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction.”

In R v Wooler [1971] QWN 10 it was held that where a charge is brought against a person arising out of death following a road accident the more appropriate charge in most instances is a charge of dangerous driving causing death rather than manslaughter which should be reserved for the most serious cases.

Taking into account those tests I am satisfied that the accused’s actions in exceeding the speed limit in the way he did and in the circumstances then prevailing do not justify a conviction on a charge of manslaughter. It is not denied that the consequences were both serious and tragic but it is the manner of driving at the time that has to be determined. On the whole of the evidence and applying an objective test I am satisfied that the accused drove dangerously near the shop and where children were to be seen. He drove without the proper care of a prudent motorist. The Motor Traffic Act 1937-1973 provides in S. 28:-

“A person shall not drive a motor vehicle upon a public highway -

(a) at a speed exceeding thirty miles per hour; or

(b) at a speed exceeding fifteen miles per hour:

(i) while passing a school at a time when children are or likely to be entering or coming out of school;

(ii) while passing a church at a time when the congregation is or is likely to be entering or coming out of church;

(iii) while passing a hospital;

(c) at a speed exceeding such speed as may be specified by Cabinet in respect of any public highway or part thereof and notified in the Gazette.”

The onus on a motorist as regards speed is quite clear. To drive at such a speed gave the accused no chance to take evasive action or to stop or slow sufficiently to avoid striking the child in such a violent manner. The fact that the child veered towards the middle of the road is not an excuse in this situation. Contributory negligence is not a defence to such a charge if the accused’s own action were the proximate and effective cause of death. In R v Hennigan [1971] 3 All E.R. 133 the English Court of Appeal held that a motorist may be held guilty of dangerous driving causing death if it is proved that the driving is more than a minimal factor in causing death and even in a civil action he might only be held to be partly to blame.

For the reasons given I propose to dismiss count one and to convict the accused on counts 2 and 7. I find those charges and the lesser charge of speeding contained in count 3 proved beyond reasonable doubt. The defendant will be convicted on those three charges and on counts 4, 5 and 6 to which he previously pleaded guilty.

B. J. McK. KERR
ACTING CHIEF JUSTICE

11 July 1984