Regina v Kaipua [2017] SBMC 16; CMC-CRC 405 of 2016 (31 May 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Criminal Case No. 405 of 2016

REGINA

-V-

MAFTON KAIPUA

Date of Hearings: October 18-20, 2016 and May 10 and 19, 2017
Date of Judgment: May 31, 2017

F. Fakarii for prosecution
S. Aupai for defence

JUDGMENT

Prosecution case

1. The defendant, Mafton Kaipua (“defendant”) stands trial for the charge of causing death by reckless or dangerous driving contrary to section 38 of the Road Transport Act. The prosecution alleged that he caused the death of Lindon Tautai, a 2 year old child (“deceased”), when he failed to concentrate or look to the front of a land cruiser he was driving and resulted in the vehicle bumped into the deceased. The prosecution further alleged that immediately before he hit the deceased, he was busy looking and showing hand gestures to a person at the side of the road while the vehicle was still moving and thus, he failed to see the child who was in front of him on the road. This occurred on 15^th June 2016 at Matahenua road in West Rennel.
   

Defence case

2. The defendant on the other hand did not deny that he was talking to at least one of the persons who were at the side of the road at Matahenua. Further, he did not deny the deceased died as a result of the motor vehicle accident. He, however, denied he was reckless or was driving in a dangerous manner prior to hitting the deceased. In his explanation, he said that he stopped at Matahenua and was talking to Joseph who was at the roadside and it was during the course of the conversation or during the course of taking off that the deceased walked under the vehicle which somehow inevitably made the vehicle to run over him. Hence, his death was not a result of reckless or dangerous driving as alleged by the prosecution, but an unfortunate incident that occurred without his knowledge.
   
3. It is clear that these are two opposing or contrary views. Therefore, at the end of the day, one version cannot be true. One must be accepted and the other be rejected.
   
4. To determine the defendant’s guilt, it will depend on whether or not the prosecution is able to prove its case beyond reasonable doubt.
   

Issues for determination

5. Against the background of this case, the issues for me to decide are; first, whether or not the defendant did stop the vehicle during the course of communicating or showing hand gestures to either Jeffery or Joseph. Finally, whether during the course of communicating with Jeffery or Joseph, he continued to drive but failed to look to the front of the vehicle, resulted in the fatal collision.
   

Facts of the case

6. This tragic incident occurred in West Rennel, Rennel and Belona Province. The evidence unfolded during the trial revealed that on 15^th June 2016 before midday, the defendant drove the land cruiser to drop a Lucas Saw Mill at Tavamangu village. He drove it despite he was not a licensed or a qualified driver. He was accompanied by Vincent Sausongo who would drop at Tavamangu with that Lucas Mill.
   
7. He left Tavamangu and set to drive to Baichupu village to pick two persons as operators of the Lucas Mill. In order to reach Baichupu, he has to go through Matahenua settlement.
   
8. When he reached Matahenua, he saw Jeffery, Joseph and others were at the side of the road near a maroon land cruiser parked along that same road. Whether or not he stopped and talked with Jeffery or Joseph is a point of contention. As he was about to drive past Matahenua, he hit a 2 year old male-child who was left unsupervised on the road.
   
9. He got out of the vehicle and saw the child lying motionless on the road at the back-right side of the vehicle. He lifted the child and noticed he was not moving anymore. He knew that he just hit the child and hence, he was overwhelmed with the emotion that he had fatally struck him, so he started to cry whilst he carried him beside the vehicle. This made others came to him and eventually attended to the deceased.
   
10. The deceased was immediately transported to Tingoa Health Centre but unfortunately, died along the way. The medical officer who examined his body revealed that he sustained head injury; bleeding to his mouth and nose as a result of the impact.
    
11. The defendant was questioned by police about how he hit the deceased. In his response in the record of interview, he said “Mi say for go but tyre punch mi look go but small pikinini lay down”^[1] meaning, he was about to go/drive but his tyre was punched and when he looked, he saw the child was lying down or words to that effect.
    

Evidence adduced by both parties

12. Relevant to the issues, the court considers the evidence of Rodger Tetehua (PW1) and Jeffery Gibaoika (PW3) for the prosecution, and the evidence of the defendant (DW1) for the defence.
    

Whether or not the defendant stopped the vehicle at Matahenua settlement

13. The evidence of Tetehua revealed that during the day on 15^th June 2016, he was one of those who were present at the side of the road at Matahenua before the defendant came in the land cruiser. It was a fine day. There were other people there as well including Jeffery. While he was standing in front of a coffee table about 5-6 meters from the road, the defendant arrived in the land cruiser. He observed the defendant looked towards Jeffery and talked to him while the vehicle kept on moving forward slowly along the driveway. He didn’t stop the vehicle while he was talking to Jeffery.
    
14. He saw the defendant left Jeffery and accelerated the vehicle but heard him stopped some distance not far from him. He looked over to where he stopped and saw his face was serious and was carrying a child from a position he described to be at the right side of the road. This aspect of evidence was maintained even during cross examination.
    
15. Gibaoika’s account of evidence also revealed that he was also at the side of the road at Matahenua the day the incident occurred. He was waiting for transport to go to the seaside when the defendant arrived in a land cruiser. When the defendant was on the road in front of him, he showed hand gestures to him indicating the direction he wanted to go but, the defendant pointed to inland or the opposite direction. During the period when they were communicating through hand gestures, the defendant was looking at him and did not stop the vehicle. He, however, kept driving slowly along the road. As soon as the defendant drove past him and accelerated the vehicle, he heard the vehicle stopped not far from where he was. He looked over to the defendant and saw him carrying a child. He and the others went over to the defendant. When he arrived, he observed the child’s condition and said to those who were there that the child already died.
    
16. On the contrary, the defendant stated that after he dropped Vincent and the Luca Mill at Tavamangu, he intended to drive to Baichupu to pick two operators for the Lucas Mill. When he reached Matahenua, a location before Baichupu, he stopped at the side of a maroon land cruiser and was talking to Joseph who asked to follow him if he’s going to Lavangu. He recalled that they talked for about 2 minutes. After he told Joseph that he was heading to a different location, he drove the vehicle and felt the back-right tyre of the vehicle was jerking as if it ran over a timber or a stone, or the tyre might be punched. He stopped and exited the cabin of the vehicle. When he was outside, he saw the child laid on the road and was not shaking. He lifted the child and started to cry. This made people from that settlement started to run to where the accident occurred.
    
17. That is essentially the case for the defence.
    

Assessment of the evidence

18. This is a word against word case. If I were to decide on which version of evidence is to be accepted, I will decide on a version that is credible, reliable and one that was supported or corroborated by other evidence.
    
19. Two witnesses have testified that they saw the defendant did not stop at all but continued to drive slowly along the road and at the same time, he was busy making hand gestures to Jeffery without paying attention to the front of the vehicle. Hence, if the defendant had stopped and talked with Joseph for about 2 minutes as he claimed, it is reasonably expected these two witnesses would have said so in court. Even Jeffery (as the one who made the hand gestures to the defendant) denied the defendant’s assertion that he stopped and talked with Joseph at the side of the road at Matahenua.
    
20. In a broad-day light case like this, it would be very easy to distinguish and know with certainty a vehicle that stopped compared to the one that didn’t stop. There is a big difference between a vehicle in a stationary position and one that is in a moving position along the road. This aspect of evidence will be more reliable and credible if given by a witness who is so closed and observed the movement of the vehicle.
    
21. In comparison to the defence case, I find there is a ring of truth in the prosecution’s evidence. Their observations that the defendant did not stop but kept driving slowly past Matahenua are consistent and unshaken. Hence, I have absolutely no difficulty in believing the two prosecution’s witnesses since they were looking directly to the defendant when he drove past the road and moreover, they were just at the roadside very close to him. If their recollection of whether the defendant had stopped at Matahenua is uncertain for example, it is expected that each of them will give varying account in terms of their observation and perhaps, one of them might corroborate or support the defendant’s version that he stopped the vehicle before driving off prior to the accident. Unfortunately, this does not occur in this case, but as the evidence clearly established, they saw the defendant did not stop but drove slowly past Matahenua.
    
22. I have observed their demeanour in court and noted that they gave their evidence in a clear and forthright manner. The overall tenor of their evidence is unbiased, reflective of their observations of the movement of the vehicle and further, was not tainted with any ulterior motive to falsely accuse the defendant.
    
23. Having accepted their evidence, I am satisfied that the defendant did not stop at all when he reached Matahenua but as the evidence overwhelmingly revealed, he kept driving slowly whilst at the same time was busy making hand gestures to Jeffery.
    
24. I am not convinced of the defendant’s version that he stopped and talked with Joseph. His version of case is unsupported and less credible compared to the evidence of the prosecution. Hence, his explanation that he stopped and talked with Joseph is untenable, and manifestly unsubstantiated.
    

The point of impact

25. There is no issue that the deceased died as a result of the motor vehicle accident. Further, there is no issue that the incident occurred during a broad-day light and the portion of the road where the accident occurred was a straight unobstructed road. Although there were flower plants along the side of the road at Matahenua settlement, they were not that big to form a canopy that would obstruct the view of the defendant.
    
26. The evidence clearly established that as soon as he accelerated the vehicle, he somehow stopped few meters away from Gibaoika and Tetehua. His explanation that he felt his back-right tyre had ran over an object is crucial, as this in my view, indicates the point of the impact.
    
27. The jerking of the vehicle occurred at the back and not at the front of the vehicle. Therefore, the inference that can be drawn here is; the deceased must have walked or moved under the vehicle between the front and back tyres of the right side of the vehicle. This occurred during the time the defendant was diverting his attention to Jeffery and was busy communicating to him with hand gestures. If he concentrates with his driving and looks to the front of the vehicle, he would easily detect or see the deceased from a sufficient distance and would take evasive measure/action to avoid colliding with him. He failed miserably in that regard and as a result, the vehicle bumped into the deceased.
    

Failure to look in front of the vehicle whilst driving resulting in a fatal collision – is that reckless or dangerous driving?

28. I am mindful of the requirement that the court should not hold the view that because someone has died, the defendant must have been driving recklessly or dangerously. Cases involving fatal motor vehicle accidents must be decided solely on each own set of facts, or on case by case basis.
    
29. When considering all the evidence in this case, the court finds the defendant’s manner of driving immediately and at the time he hit the deceased had established directly and indirectly the following evidence:
    

29.1 First, when he reached Matahenua, he was looking and showing hand gestures to Jeffery who was at the roadside;

29.2 Second, during the course of showing hand gestures to Jeffery, he did not stop the vehicle but nonetheless continued to drive it along the road;

29.3 Third, he continued to drive it whilst his attention was diverted from the front of the vehicle. This creates an obvious and serious risk to the child who at that time was using the road;

29.4 Fourth, as a result of his failure to look to the front of the vehicle, it bumped into the child;

29.5 Fifth, the child died as a result of the collision; and

29.6 Finally, the fault in this case is not attributed to the deceased but on the defendant who was in charge of the land cruiser and was not concentrating with his driving. His failure to concentrate to the front of the vehicle also created a dangerous situation when viewed objectively. This is because there is high possibility of colliding with any road user especially children or other vulnerable persons who might reasonably be expected to be on the road at the material time taking into account the road runs through a settlement.

30. Having reached these findings, the question to ask is; whether the defendant’s manner of driving that caused the death of the 2 year old child is reckless or dangerous at the material time? So what then is reckless or dangerous driving?
    
31. In R v Lawrence,^[2] the court explained reckless driving as follows:
    

“..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 secondly, 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 nonetheless gone on to take it.”^[3]

32. For dangerous driving, the court in R v Gosney^[4] explained it in these clear terms:
    

“In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. ‘Fault’ certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a naturally poor driver, while straining every nerve to do the right thing, falls below the standard of a competent and careful driver.”^[5]

33. The reasons and findings of the evidence alluded to herein justify the conclusion that the defendant’s manner of driving is reckless or dangerous at the material time. His manner of driving fits well with the explanations from the two case authorities. He drove in that manner and caused the death of an infant who was using the road at the material time. This offends section 38 of the Road Transport Act. It doesn’t matter his manner of driving must occur over a considerable time before his driving can be said to be reckless or dangerous. Despite he was driving slowly and failed to look out or concentrate to the front of the vehicle even for that short span of time and resulted in the death of the child, the requirements for reckless or dangerous driving had already been proved. The fault in this case must rest on the defendant and not the deceased.
    
34. On the contrary, this case may be considered differently if he stops the vehicle to talk with Jeffery and whilst during the course of the conversation, the deceased walks unnoticeably under the vehicle and during the course of taking off, he runs over the deceased. In my view, the situation explained in this scenario may not be reckless or dangerous as the element of fault on his part may be difficult to prove.
    
35. It is the duty of the defendant to take care when driving on a public road to ensure he keeps a proper look out, giving timely warning or take evasive measures to those who may not be aware of an incoming vehicle. This duty becomes onerous when it involves little children who are prone and vulnerable to motor vehicle accidents. This obligation was emphasised in the case of Public Prosecutor v Joe Kaltang^[6] referred to in Public Prosecutor v Vuti^[7] where the Supreme Court of Vanuatu echoed "There are more pedestrian using the roads, particularly children. It is the duty of every driver to drive carefully and particularly look out for children.”^[8]
    
36. The advice expressed in Kaltang’s case is relevant and applicable to our jurisdiction. I adopt it to stress the need for drivers to be careful when the road users are particularly young children.
    
37. This is a tragic case where a young life was prematurely lost as a result of a motor vehicle accident. It could be easily avoided if the defendant had paid attention and looked to the front of the vehicle whilst driving past Matahenua settlement. He failed to do that as expected of him as a driver who controlled the vehicle, resulting in the death of this 2 year old child.
    
38. Based on the findings I reached herein, I am satisfied the prosecution has discharged its onus and find the defendant is guilty of causing death by reckless or dangerous driving contrary to section 38 of the Road Transport Act.
    
39. 14 days right of appeal applies.
    

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THE COURT

Augustine Aulanga – Principal Magistrate

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^[1] See answer 13 in his record of interview - Exhibit P6
^[2] (1981) 73 Cr App R 1
^[3] Cited and quoted at page 711 of the Criminal Law in Solomon Islands
^[4] [1971] 55 CrAppR 502
^[5] At page 508
^[6] [2003] VUSC
^[7] [2013] VUSC 155; Criminal Case 84 of 2007
^[8] At page 2 of the decision