Rex v Lutu [2002] TOSC 29; CR 107 2002 (15 October 2002)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CR. 107/2002

BETWEEN:

REX
Prosecution

AND:

MELINO LUTU
Accused

BEFORE THE HON CHIEF JUSTICE WARD

Counsel: Mr Sisifa for prosecution
Mr Tu’utafaiva for accused

Hearing: 10, 11 and 14 October 2002
Judgment: 15 October 2002

JUDGMENT

The accused is charged with manslaughter by negligence of Afei ‘Ahokava on 10 July 2002 at Veitongo.

There is little dispute of the facts that lead to this charge. The question for the Court is whether the manner in which the accused drove that day and which undoubtedly lead to the death of the victim amounted to gross negligence.

That afternoon, the deceased and his son-in-law, Lisiate Pulu, were towing an old, decrepit Bedford truck with a larger Isuzu truck. As they drove, the towline parted and the deceased, who was at the wheel of the Bedford, ran it to the side of the road so that it came to a stop with approximately half of the vehicle’s width off the road on the grass verge. Lisiate then backed his truck up to the Bedford to enable them to reconnect the tow. The two men were working between the two vehicles, which were at that time, about four or five feet apart.

The accused was driving along the road in the same direction in a smaller truck. He had only arrived from the United States the previous day for the funeral of his mother and was returning from the hospital mortuary in the truck, which he had borrowed from a sister of his wife. With him at the time, sitting in the passenger seat, was his older brother.

The truck the accused was driving ran into the back of the Bedford with sufficient force to push the Bedford forward into the back of the Isuzu truck which was, in turn, shunted some three metres further along the road. The two men, who were between the trucks were crushed by the vehicles and both thrown to the ground. The younger man was lucky enough to escape with no more serious injuries than bad bruising to his body but the older man received fractures to five ribs on the left side and to two on his right side. He died on his way to hospital and the doctor concludes that the most likely cause of death was massive crushing of his liver resulting in profuse internal haemorrhage.

There is no dispute that he died as a result of this accident.

The accused was seen by the police and told them that he and his brother were talking and laughing and he only noticed the truck when he hit it.

The prosecution evidence is that this occurred before 7.00pm whilst it was still quite light but early dusk. A witness who was working at the filling station nearly opposite heard the accident. He recalled that it was dusk but still light enough and only some of the vehicles on the road had their lights on. It was still clear enough for him to see what had happened some little way down the road. The accused’s brother, Siaosi Lutu, gave evidence and estimated the time of the accident as nearer to 7.30pm. The doctor recorded that the accused was dead on arrival at Vaiola hospital at 7.00 pm and I am satisfied this establishes the time of the collision clearly before that time.

Siaosi recalled that the lights were on in their vehicle and that is supported by the accused. Siaosi noticed that the speedometer went up to 40 although he did not know if it was registering miles or kilometres. The accused considered his speed to be between 20 and 25 mph, which would roughly accord with his older brother’s recollection if the speedometer was in kph.

The brother told the court that he called out to warn the accused that there was a truck and, although his recollection is that his brother was looking to the front, he still ran into the parked vehicle. He indicated that he called out the warning when the truck was about 20 feet away. At that speed and at that distance it would have been possible for the accused to have swerved slightly to the right and avoided it.

The accused gave evidence. He has held a United States driving licence for 22 years and has never had an accident. He said that he and his brother were laughing and talking but he was concentrating on his driving. He does not agree that his brother shouted a warning or, if he did, suggests it was as they struck the stationary truck.

He said he was driving on dipped lights, which he found unsatisfactory compared to the vehicles he was used to in America. However, he said he never saw the truck until they hit it. His explanation for that was that it was dark in colour and had no lights. He was laughing with his brother and turned to look at him. As he turned back to look to the front, the impact occurred. He could not say whether he put his foot on the brake but thought he probably did not have time to do anything.

He was asked how long he looked away from the road in front when he spoke to his brother and demonstrated what he did. His demonstration took about four seconds.

Mr Tu’utafaiva for the accused has submitted that the prosecution has failed to prove that the manner in which the accused drove and the events leading up to the accident amounted to gross negligence. He suggests that any driver using that particular road was entitled to assume that it was clear. The Bedford was dark in colour and had no lights and was blocking part of the carriageway on the side of the road the accused was using.

In the case of Fisi’inaua v R [1995] Tonga L R 62, the Court of Appeal explained:

“Section 92 of the Criminal Offences Act (Cap 18) provides that homicide which does not amount to murder is manslaughter, and if such homicide was caused by negligence, the offence in manslaughter by negligence. ... 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 as degree that justifies a finding of manslaughter. It may well be convenient to describe negligence of that degree as gross negligence.”

The burden remains on the prosecution to prove every element of the offence beyond any reasonable doubt.

On the evidence in this case, I am satisfied to that standard that the accident occurred because the accused failed to pay sufficient attention to his driving. He was not driving at excessive speed and his brother told the court he had no reason to criticise his driving prior to that. However, any driver has a duty to the public to drive in such a way that he is ready to deal with any situation that may reasonably be expected to occur.

In this case there was a parked vehicle without lights. I accept that such a vehicle would have been difficult to see in the dusk but, however inadequate the accused found the lights of his vehicle, he would have been able to see the truck some distance before he reached it if he was paying proper attention to his driving. Every driver must expect to find unlit parked vehicles at the side of the road and take action to avoid them. The same thing applies to any other potential obstruction. If the truck had been a pedestrian, it is unlikely that he would have had any light but that would not excuse a driver who knocks him down by negligently failing to keep a proper look out.

I do not accept the accused’s evidence that it was already dark. I am satisfied on the evidence as a whole that it was dusk. Every driver knows that is a time when visibility can be uncertain and should allow for that fact.

Although Mr Tu’utafaiva suggests that turning to speak to his brother was the ordinary way any driver acts, I cannot accept a driver who does so is exercising proper care. Even at 40 kph, the distance travelled by a vehicle in four seconds is considerable (over 40 metres). Had the accused been driving properly he could have avoided this accident easily. Instead, on his own admission, he never even saw the vehicle until he had hit it and I am satisfied to the same standard that he did not see it because he was not looking at the road ahead.

I am satisfied that is gross negligence and undoubtedly justifies a conviction for manslaughter by negligence. The accused is convicted as charged.

NUKU’ALOFA: 15 OCTOBER 2002

CHIEF JUSTICE