Rex v Holani [2004] TOSC 7; CR 158 2002 (26 February 2004)

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

NO. CR.158/2002.

BETWEEN:

REX
Prosecution

AND:

RODNEY KATOA HOLANI
Accused

BEFORE HIS HON. CHIEF JUSTICE WARD

Counsel: Mr Kefu for Prosecution.
Mr V. Foliaki for the Accused.

Hearing: 18 and 19 February, 2004.
Judgment: 26 February, 2004.

JUDGMENT

The accused is charged with alternative counts of manslaughter by negligence and reckless driving, contrary to section 92 of the Criminal Offences Act and section 25(2)(a) of the Traffic Act respectively. Both offences relate to the events surrounding a road accident on 7 October 2002 at ‘Atele which resulted in the death of Pauline Fatongi Fineanganofo.

The prosecution case is that the accused was driving a three tonne truck along the Taufa’ahau road. He had turned out from the road leading to the Bird Park in Veitongo and was heading towards town. In the truck were two friends and they were all sitting in the front cab.

As they approached the USP Centre, the accused overtook two vehicles. Shortly before that, those vehicles had also been overtaken by a red minibus driven by the deceased. She had then indicated left, pulled in to the side of the road almost opposite the entrance to the Golf Club at ‘Atele and stopped.

As the accused completed overtaking but before he had regained the left side of the road, the red minibus pulled out. One of the passengers in the truck gave evidence for the prosecution and told the court that the deceased appeared to be making a U-turn and, as she crossed in front of them, the truck ran into the front right side of the minibus.

The deceased was thrown out onto the road and her vehicle continued driverless a short way along the road and then crashed through the Golf Club fence and into some bushes before it stopped. The accused was able to stop his truck very shortly on the right side of the road.

The accused and his passengers got out of the truck and found the deceased lying on the road obviously alive but grievously injured. A passing vehicle took her to hospital where she was pronounced dead shortly after her arrival. She had died from multiple fractures of the skull including a basal fracture and associated haemorrhaging. There is no dispute that she died as a result of the injuries from the accident.

The truck was damaged on the front left side and the red minibus was damaged on the driver’s door and at the rear on the same side.

The prosecution called the driver of one of the vehicles the deceased and the accused had overtaken. She described how the red minibus had overtaken her vehicle and a white car in front at the same time and she then noticed it pulling in at ‘Atele. She then noticed there was a white minibus behind her. She was next aware of a blue truck overtaking her car and the car in front of her. It was still on the right hand side of the road when the red minibus started to pull out and the accident occurred. She had not seen the blue truck until it was actually overtaking her but she was uncertain whether it had overtaken the vehicle behind her at the same time as it overtook her. She was driving at 40-45 kph and estimated that, as it overtook her, the truck was driving at 60 kph.

The accused was interviewed by the police later the same day. He told how he noticed the red minibus at the side of the road parked well onto the grass. As he was about 40 feet away, he noticed it start to move onto the road. He told the police he changed down and drove to the middle of the road to drive past it. However, the van did a U-turn and he saw the driver was a woman. He was, by that time, on the right hand side of the road and his truck struck the minibus on the driver’s door. He also said that, at the time he was passing the red minibus, he was doing about 60 kph. He made no mention of the fact he had overtaken the other vehicles. In his written statement he said, "I do feel for what has happened and the death of the woman but I did not expect the van to do a U-turn and I crashed into it."

The accused gave evidence to similar effect. He told the court he had overtaken the other two vehicles but that had occurred by USP and he had regained his correct side of the road by the time he noticed the red minibus start to move. He was 30 feet away at that time and estimated his speed to be 55-60 kph.

As the minibus turned in front of him he saw the lady driving and noticed she was holding a ‘phone’ to her ear. That had also been noticed by his passenger. He pulled to the right to avoid hitting the minibus but they collided.

On the evidence as a whole I am satisfied beyond reasonable doubt that the accused did overtake two vehicles and was still on the right side of the road when the red minibus started to move. He was driving at 60 kph and that section of the road is limited to a speed of 40 kph.

The damage to the vehicles is puzzling. It is clear that the driver’s door of the red minibus took a substantial blow and it is clear it must have been from the left front side of the accused’s truck. Viewed in isolation, that could be accounted for by the accused pulling to his right, as he described but it is difficult to account for the substantial damage to the rear of the minibus when only the left front of the accused’s truck was involved. I consider that could suggest that the red minibus, once it came onto the road, was driving in the same direction as the accused. In that case, if the truck’s left front struck the rear of the minibus at speed by pulling in too quickly, it could have swung the minibus round and deflected the truck to the right sufficiently for the left front to have impacted with the driver’s door also.

However, I do not consider that is a clear enough conclusion and I am not sure whether the deceased was simply pulling out into the road or whether she was attempting a U-turn. I therefore take it in the accused’s favour that she was making such a turn in front of him. I do not accept that this occurred when the red minibus was only 40 feet away. The accused has told the court that he had time to change down and to brake before the collision occurred. I am satisfied beyond reasonable doubt that, at 60 kph, that would have required a longer distance than 40 feet.

In view of my finding that the deceased may have made a U-turn, it matters little but I did not believe the evidence of the accused and his passenger that she was using a mobile ‘phone’ and am satisfied beyond reasonable doubt she was not.

As a prudent driver, the accused should not have overtaken when he knew there was a side road. There is no doubt that he would have started his overtaking before the road to the right by the Jehovah’s Witness building and he agreed that the entrance to the Golf Club is as busy as many side roads. The fact he did so overtake did not contribute to this accident but it is evidence of his general standard of driving at the time.

Once the other vehicle pulled out in front of him and started to make a U-turn, he should have pulled to his left. Instead he pulled right and thus turned the way the other vehicle was driving.

As has been stated, there is no dispute that the accident caused the death of this lady and that the accused as a driver of a motor vehicle owes a duty of care to all other road users. It is a question, therefore, of whether the accused failed to exercise the duty of care he owes others and the degree of that failure and the sole issue for the court is whether the manner in which the accused drove amounted to gross negligence.

In cases of manslaughter by negligence the prosecution must satisfy the court beyond reasonable doubt before there can be a conviction that there was a very high degree of negligence. It needs to prove that the manner in which the accused drove showed a disregard for the life and safety of others.

The evidence is such that the court must take it in the accused’s favour that he was confronted with a vehicle making a U-turn in front of him when he was very close. If that had occurred when he was driving properly, there would be no question of negligence and the accident may have been prevented entirely. However, in this case, the accused was driving a relatively heavy vehicle too fast for that section of the road, he overtook two vehicles at the same time so he was not able to regain his correct side of the road and was therefore unable to take sufficient steps to prevent the collision. Confronted with such a situation he pulled the wrong way thus increasing the chance of a collision. I am satisfied that he was driving recklessly and, in so driving, failed in his duty to other road users. I am satisfied the manner of his driving taken as a whole amounted to a very high degree of negligence and he is convicted of manslaughter by negligence.

The charge of reckless driving was an alternative count and I therefore give no verdict.

NUKU’ALOFA: 26^th February, 2004.

CHIEF JUSTICE