Fisi'inaua v R [1995] TOLawRp 8; [1995] Tonga LR 62 (3 March 1995)

[1995] Tonga LR 62

Fisi'inaua

v

R

Court of Appeal
Burchett, Tompkins JJ
Appeal 21/94

3 March 1995

Constitution - earlier acquittal
Criminal law - manslaughter by negligence – degree
Criminal law - earlier acquittal
Sentencing - manslaughter by negligence

Arising out of a motor accident the appellant was charged and convicted of manslaughter by negligence and sentenced to 15 months imprisonment, 6 months to be served immediately, the remaining 9 months to be suspended for 2 years. On appeal against conviction and sentence.

Held (dismissing both appeals)

1. The appellant's earlier acquittal on a charge of driving whilst intoxicated, arising from the same accident, was not relevant or applicable.
2. For Cl. 12 of the Constitution to have effect it is essential that the offence for which the person faces trial is the same as the offence for which he has already been tried. Neither the offence itself here nor any of the particulars of the offence, relied on the essential elements that would be required to be proved to establish the charge of driving whilst intoxicated.
3. In cases alleging manslaughter by negligence (as 92 & 93 Criminal Offences Act) the onus resting on the prosecution is to prove that the accused person is guilty of negligence to such a degree that justifies a finding of manslaughter. It may well be convenient to describe negligence of that degree as gross negligence.
4. Manslaughter, whether through negligence or any other unlawful act, is a serious offence to be met by a corresponding penalty to punish the offender and reflect society's concern at the taking of another's life.

Statutes referred to:
Constitution Cl 12
Criminal Offences Act s 92, 93

Counsel for appellant: Mr Veikoso
Counsel for respondent: Ms Weigall

Judgment

The Court today sat as a court of two, due to the indisposition of the third member, and in accordance with an order made by the Chief Justice pursuant to the Court of Appeal (Sickness of Members) Rules 1995, made pursuant to s 9 of the Court of Appeal Act (Cap.9).

In December 1994 the appellant was tried on one charge of what is described in the indictment as manslaughter by negligence, contrary to ss 92 and 93 of the Criminal Offences Act, in that on or about 8 August, 1992 he caused the death of Samiuela Potemani by driving motor car registered no. C. 47 in a negligent manner.

A co-accused Tiona Fifita faced the same charge. In the judgment delivered on 22 December 1994, Ward CJ found that the charge against Fifita was not proved but that he was guilty of dangerous driving under s.94 of the Criminal Offences Act. He found that the charge against the appellant was proved with the result that the appellant was convicted of manslaughter by negligence. The appellant was sentenced to 15 months imprisonment, 6 months to be served immediately, and the remaining 9 months to be suspended for two years. His licence was endorsed and he was disqualified from driving for 2 years.

The appellant has appealed against conviction, and against sentence to the extent that under the sentence, the appellant was required to serve 6 months imprisonment.

The Appeal Against Conviction

The accident that resulted in the death of the deceased occurred somewhere around 8:00am on the 8th of August 1992. The deceased was returning from his work as a night watchman riding a motorcycle. There was a collision between a car driven by Fifita and the deceased. There was also a collision between the car driven by the appellant and the car driven by Fifita.

In convicting the appellant, the Chief Justice found that the appellant was driving at a high speed. Although he had slowed down by the time he reached the intersection where the impact occurred, he was driving so fast and so close that an accident was almost inevitable. The Chief Justice found that the appellant was endeavouring to over-take. So there were 2 elements in the Chief Justice's finding, first that of excessive speed and secondly overtaking at an intersection. The Chief Justice said the appellant performed the overtaking movement so negligently that he collided with Fifita's vehicle in front of him, and that, as a direct result, he caused the death of the deceased.

In his challenge to the conviction, Mr. Veikoso for the appellant raised three principal grounds. We deal with each in turn.

The earlier acquittal for intoxicated driving.

The appellant was charged in the Magistrates' Court on 17 December 1993 with intoxicated driving arising out of the same series of events. He was also charged with driving without a licence. The charge of intoxicated driving was dismissed. He was convicted of driving without a licence and fined T$100.00. It was the submission of counsel for the appellant that, having being charged and acquitted with intoxicated driving, he could not be charged and convicted of an offence arising out the same series of events.

Clause 12 of the Constitution of Tonga states:

"No one shall be tried again for any offence for which he has already been tried, whether he was acquitted of convicted, except in cases where the accused shall confess after having been acquitted by the court and when there is sufficient evidence to prove the truth of his confession."

The latter part of that definition has no relevance for the provision to apply, if it is essential that the offence for which the person faces trial is the same as the offence for which he has already been tried. That was clearly not the case here. Neither the offence itself, nor any of the particulars of the offence, relied on the essential elements that would be required to be proved to establish the charge of driving while intoxicated.

That he had been so charged and acquitted was in the mind of the Chief Justice when he delivered his decision. He expressly said that he did not seek to go behind that verdict of acquittal, and that there was nothing in the evidence before him to say more than that he had been drinking for sometime up to the early hours and had not been drinking since.

It is apparent from that passage, and from the judgment as a whole, that the Chief Justice, in arriving at his decision, did not in any way consider that decision was affected by any consumption of alcohol by the appellant. That ground of appeal therefore cannot succeed.

Whether the appellant caused the death of the deceased

Counsel for the appellant submitted that the learned Chief Justice erred in holding that the appellant caused the death of the deceased. As we understand his submission, it is not based on any issue relating to the medical cause of death. The Chief Justice expressly found in his judgment that the deceased died three days after the accident in hospital as the result of the injuries received in the accident. That finding is not challenged.

As we understand the submission made on behalf of the appellant, the challenge to the cause of death is rather based on a contention that it was not the action of the appellant that caused Fifita's car to collide with the deceased but rather that Fifita's car collided with the deceased before the car driven by the appellant collided with the car driven by Fifita if the latter were the case then it would follow that the appellant did not cause the death of the deceased.

But the Chief Justice examined that issue in detail and he reached the conclusion to which we have already referred, namely that the car driven by the appellant collided with the car driven by Fifita, causing it to collide with the deceased. If that finding be upheld, it would follow, as the Chief Justice found, that the appellant thereby caused the death of the deceased. Whether that finding should be upheld is dependant upon the outcome of the third ground advanced by the counsel for the appellant.

Whether the Chief Justice's factual findings were correct.

In his judgment, the Chief Justice made a detailed and, with respect, careful analysis of the evidence in support of the prosecution case and in support of the case for the appellant. He referred to and analysed the evidence given by different witnesses. He made certain factual findings which we will now summarise.

He was satisfied that the glass on the road was from this accident. The position of the glass, with the agreement between the witnesses that the deceased was struck as he left the intersection, points to it having come from the headlights of the appellant's car as it struck Fifita's car before the cyclist was hit. He was satisfied that the nearside of the appellant's car struck the rear offside of the car driven by Fifita just as the latter entered the intersection.

He found Fifita to be a careful and generally credible witness. He referred to the fact that immediately after the accident, the appellant pushed his car across the road, reversed around the corner, and drove off. He did not check to see if anyone was hurt, and although he considered he had done no wrong, he took no steps to ascertain the name of the other driver or the number of the car. He took his car, not to his home, but to that of his passenger. His Honours assessment of the appellant was that he was evasive and unbelievable.

He found that the appellant and Fifita were both exceeding the speed limit. They slowed down because of a bus crossing the junction. At the time of the impact between Fifita's car and the motor-cycle, he considered Fifita's car was driving at between 50 and 60 kilometres per hour. He then arrived at the conclusion to which have already referred as to the immediate cause of the accident.

In support of this ground of appeal, counsel for the appellant referred to a number of respects in which he submitted the evidence of various witnesses was either contradicted by or inconsistent with the evidence of other witnesses. He referred particularly to evidence of the witness Tupou Mapakaitolo whose evidence, he submitted, should have been accepted. However, the Chief Justice carefully considered her evidence and in the face of the other evidence available, decided not to accept it. That clearly was a course open to him to adopt.

Counsel then referred to the evidence of traffic officers who attended the scene, to evidence relating to the broken glass, and also to evidence from Fifita, that he did not brake before he collided with the deceased because he was surprised. He submitted that the whole of the evidence called by the Crown was so conflicting that it was not safe to convict either the appellant or Fifita of manslaughter by negligence. He further strongly urged that to justify a conviction, the Crown must prove what he described as gross negligence.

Section 92 of the Criminal Offences Act (Cap 18) provides that homicide which does not amount to murder is manslaughter, and it' such homicide was cause by negligence, the offence is manslaughter by negligence. Section 93 provides that every person who commits manslaughter by negligence is liable to imprisonment not exceeding 10 years, and every person who commits manslaughter in any other way is liable to imprisonment for 15 years.

Although the section does not refer to gross negligence, we are prepared to accept that the onus resting on the prosecution is to prove that the person accused is guilty of negligence to such a degree that justifies a finding of manslaughter. It may well be convenient to describe negligence of that degree as gross negligence.

The primary submission of counsel for the appellant was that, for the reasons to which we have already referred, but particularly because of what he submitted were the conflicts in the evidence, the Chief Justice was not justified in making a finding of gross negligence.

We have carefully considered the submissions that he has advanced and the detailed reasons and findings of the Chief Justice. We are not satisfied that any grounds has been advanced to justify reversing those findings. Once it is accepted that at the time of the accident, the appellant was driving at an excessive speed, that he was endeavouring to overtake on an intersection, and that he did so so negligently that he collided with the vehicle in front of him, we are satisfied that the Chief Justice was justified in concluding that his actions amounted to negligence of such a degree as to Justify a conviction for manslaughter.

Although not directly relating to the facts causing the accident the action of the appellant in immediately leaving the scene of the accident, once can only assume in order to avoid the consequences of what he had done, was itself a recognition by the appellant of the culpable nature of his conduct.

For these reasons we are satisfied that the appeal against the conviction cannot succeed.

The appeal against sentence

We have already referred to the sentence imposed. In support of Mr Veikoso's primary submission that the sentence should be varied by suspending the whole of the term of imprisonment, he provided to the Court a letter from the general manager of the ANZ Bank here in Nuku'alofa. This letter is dated 2 Marh 1995. It was not, of course, available to the Chief Justice. But it was submitted to us without any objection by counsel for the Crown. The letter reports the appellant's resignation with effect from yesterday. It also records that the appellant has developed to be a prominent and valuable member of the bank's Staff. The general manager states that his knowledge has contributed enormously to the upgrading of the bank's computer system and the manager is highly impressed with the appellant's personal motivation. The manager states that the bank will offer the appellant full re-employment if the appeal be successful or the sentence suspended. But if the sentence is carried out then his resignation becomes permanent and his career position with the bank is at an end.

The appellant is married with one child one year old and his wife is expecting another. He is the breadwinner for the family. He has no previous convictions save for the conviction for driving without a motor vehicle driver's licence, arising from this accident.

One cannot help having sympathy for the position in which the appellant finds himself, and for the consequences on his wife and child. But the fact is that the appellant, through his carelessness, has caused the death of another. The law has always regarded manslaughter, that is causing the death of another through negligence or any other unlawful act, as a serious offence. It must be met by a corresponding penalty. This is not only to punish the offender, but also to reflect society's justifiable concern and indeed condemnation of any person who takes the life of another through negligent or otherwise culpable conduct.

We are satisfied that the Chief Justice had in mind the excellent record of the appellant, even if he did not have the detail which we now have, when he suspended the sentence he imposed for 9 months. The consequence of the sentence imposed is, in effect a term of imprisonment of 6 months. Given all the circumstances, in particular the conviction for manslaughter by negligence and the degree of carelessness that involves we are not satisfied that the sentence imposed by the Chief Justice was excessive.

The appeal against sentence is dismissed.