Rex v Kupu [2002] TOSC 40; CR 048 2002 (28 August 2002)

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

NO. CR. 48/2002

BETWEEN:

REX
Prosecution

AND:

FONUA KI HE VAHA KUPU
Accused

BEFORE THE HON CHIEF JUSTICE WARD

Counsel: Mr Sisifa for the prosecution
Mr Paasi for the accused

Hearing: 27 - 28 August 2002
Ruling: 28 August 2002

RULING

The accused is charged with manslaughter by negligence in that, on 9 May 2001, whilst driving his car, he struck and killed a 67 year old man.

At the conclusion of the prosecution case, there was a submission of no case to answer. I am satisfied there is a bare prima facie case but I consider the evidence upon which the jury must decide is likely to lead to an unjust result. As I result I have stopped the case and directed the jury to return a verdict of acquittal. I gave brief reasons in court and said I would give full reasons in writing. I now do so.

The prosecution case was that the accused was driving south along Taufa'ahau Road in the Fanga area. The victim crossed the road from right to left and was struck and killed by the accused's car. No eye witnesses were called but two witnesses who were together in a vehicle travelling in the opposite direction saw the accused' s car after the impact and before it came to a stop. One of those witnesses was clear that the car was travelling at a speed of less than 30 kph whilst her husband put the speed at over 60 kph.

The accused went straight from the hospital, where he had taken the deceased, to the police station to report the accident and the police interviewed him the next day. He told the police that he was unable to state his speed because he was singing along with the car radio and his concentration was on that. He also confirmed that the deceased crossed the road from his right saying he ran across. He said he swung to the right to try and avoid the deceased but still struck him. He was thrown onto the vehicle and then back onto the road.

The evidence established that the deceased was struck violently on the left side of the body by the front nearside of the accused's vehicle and sustained a number of fractures to the skull and left leg.

The accused's account to the police was that the deceased ran across and he had no time to avoid the accident. His reference to reduced concentration was applied only to questions about his speed and any oncoming vehicle. They were not an admission that it contributed in any way to the accident.

As I have stated, on that evidence I find there is a prima facie case and, as such, the accused should be put to his defence and the matter left to the jury. The test is that where there is evidence upon which a jury properly directed could properly conclude that the accused is guilty, the jury should be left to decide.

However, on a careful consideration of the evidence that constituted the prima facie case, I was concerned that the issues upon which the jury was to decide were likely to be influenced by evidence that is manifestly unreliable thus producing a real risk of an unsafe verdict.

The unreliable evidence I refer to is a sketch plan drawn by the police the day after the accident. It was produced in court and it was a very bad plan. The officer who drew it included numerous measurements which had no relevance to the trial and omitted others that could be vital. In particular, skid marks are drawn but not measured and the distance from the point at which those marks end to a patch of blood at the side of the road is also not given any measurement.

The risk lies in the manner in which the jury might use this plan. Evidence of the vehicle's speed in a case such as this is clearly important. The jury are faced with two prosecution witnesses who are mutually contradictory. If the one is believed the accused was driving at a perfectly proper and responsible speed. If the other is correct he was driving in a built up area at 20 kph over the speed limit; a highly responsible act. In order to resolve that conflict the jury will need to look at the other evidence and in this case that effectively means the plan.

Although there has been no suggestion that the plan is to scale, I believe there is a serious risk the jury will speculate on the length of the skid marks and the distance the body was thrown by comparison to the other features marked with measurements. Unfortunately the scale is so incorrect that the distances cannot be relied on in any comparative sense. Thus, for example, a side road is marked as being 4.40m wide yet alongside it is another distance a little over half that which is marked as being 9.40m and another line only half as long again as the 4.40 m measurement is marked as being 20.27m.

It should be mentioned that the witness who put the speed of the accused's car at well over the speed limit also referred to seeing it pull sharply to the right as the accused told the police he tried to do. However, the plan shows the skid marks to run perfectly straight and the point at which the accused considered the impact to have occurred is also between those marks.

The test for the court in considering a submission of no case to answer has been stated clearly in R v Galbraith [1981] 73 Cr App R 124 at 127:

"How then should the judge approach a submission of "no case"? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."

However, the Lord Chief Justice went on to add:

"There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge."

I also bear in mind the comments of Turner J in the case of R v Shippey, Jedynak and Jedynak reported only in [1988] CrimLR 767 which states:

"It was conceded by the defence that there was undoubtedly some evidence which went to support "on a minimum basis" the proposition that the crimes allegedly committed by the defendants had been so committed by them. However, taking the prosecution case at its highest did not mean picking out the plums and leaving the duff behind. His Lordship found that he must assess the evidence and if the witnesses' evidence was self-contradictory and out of reason and all commonsense then such evidence is tenuous and suffering from inherent weakness. He did not interpret the judgment in .... Galbraith .... as intending to say that if there are parts of the evidence which go to support the charge then no matter what the state of the rest of the evidence that is enough to leave the matter to the jury. Such a view would leave part of the ratio of Galbraith tautologous. He found that he had to make an assessment of the evidence as a whole. It was not simply a matter of the credibility of individual witnesses or simply a matter of evidential inconsistencies between witnesses, although those matters may play a subordinate role. He found that there were within the complainant's own evidence inconsistencies of such a substantial kind that he would have to point out to the jury their effect and to indicate to the jury how difficult and dangerous it would be to act upon the plums and not the duff."

The commentary on that case by Professor Smith explains it as follows:

"It is quite clear that the case must not be withdrawn from the jury merely because the judge thinks that the principal prosecution witnesses are not telling the truth. That would be to usurp the function of the jury. It is arguably different, however, though the difference is one of degree, if the judge thinks that no reasonable jury could find that the prosecution witnesses are telling the truth. If that is truly the case, then there is no point in leaving the case to them, for (in the absence of damaging evidence appearing during the case for the defence) the jury, which we must assume to be a reasonable jury, would inevitably acquit."

I consider these as authority for the course I am taking. It is, and must be, an exceptional course and will only be rarely be appropriate. I feel, on the evidence available to the jury in this case, that there is a serious risk the jury will use the inaccurate plan to resolve the clear and otherwise effectively insoluble contradictions between the prosecution witnesses.

For that reason I directed the jury to return a verdict of not guilty.

NUKU'ALOFA: 28^th August 2002

CHIEF JUSTICE