Rex v 'Ulupano [2007] TOSC 20; CR 152-2006 (4 September 2007)

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

CR.NO.152 of 2006

REX

-V-

SITA’APEI ‘ULUPANO

BEFORE THE HON. JUSTICE ANDREW

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

Date of Hearing: 3rd September, 2007.
Date of Judgment: 4th September, 2007.

Judgment

The accused is charged with manslaughter by negligence in that, on the 5th May 2006, whilst driving his car, he struck and killed an 82 year old man.

The trial has reached the stage where the Crown case has been closed, the accused has not given evidence and counsel have both addressed to jury. Whilst there was no submission made of no case to answer I can nevertheless take the case away from the jury and direct a verdict of aquittal at any stage of the trial and I propose to do so for the following reasons:

In my view the state of the evidence is such that a jury properly directed could not conclude that the accused is guilty of this charge. Having regard to the totality of the evidence as it militates most favourably for the Crown, I am not satisfied that the evidence upon which the Crown relies is capable of establishing beyond reasonable doubt that the accused could be found guilty of manslaughter by criminal negligence. I am not satisfied that on the evidence now before the jury they could be satisfied that the manner of the accused’s driving was grossly negligent in that it involved such a high risk that death or grievous bodily harm would follow which merited criminal punishment.

The facts as established are that the accused drove his vehicle on this night at approximately 10:00 pm to 11:00pm along Vaha’akolo Road in a northerly direction when he struck a bicycle being ridden by the deceased in the same direction as the accused. That is the bicycle was on the accused’s left. There are no eye-witnesses to the accident. The accused in a Record of Interview always maintained that he saw the bicycle about 10 to 15 metres in front of him and when it was approximately 1½ meters in front and to his left it turned right, into his path causing him to turn to his right to the middle of the road but that he hit the rear wheel of the bicycle causing the deceased to be thrown to the ground. There is no dispute that the deceased died of the resultant head inquiries. The accused always maintained that he was travelling at 30-40 kilometers per hour and he was not affected by alcohol. There is no evidence of alcohol ever being involved. The accused then acted responsibly doing everything he could to assist the deceased in getting him to hospital and he expressed deep remorse.

There is evidence from the scene of a mark on the road of some 3.2 meters in length but it has not been identified as being a skid mark and there is evidence from the police investigation of the site that it could have been there before the accident. There is evidence of some blood on the road at a point 1 meter in from the left side of the road which could be consistent with the bicycle having turned to its right. The Crown relies upon 2 witnesses who say they heard a loud bang at the time of the accident although neither saw the accident. I think that this is speculation to say that that is evidence that the accused was travelling at speed and should not be left to the jury as speculation. I am concerned that an issue upon which the jury is to decide may be influenced by evidence that is speculation thus producing a real risk of an unsafe verdict. The Crown relies on this as evidence of speed which amounts to gross negligence. The Crown also agreed that the only evidence of speed came from the accused.

That leaves the state of the evidence being, and the only evidence, that the accused was travelling at 30 to 40 kilometers per hour at night and driving normally when the deceased turned to his right in front of the accused’s path. There is some evidence in support of the deceased having turned to his right as it is known that he was intending to go to Queen Salote College which was at this stage almost to his right. As such, the entirety of the evidence does not exceed the fact that this was a tragic accident and the evidence could not show that the accuseds’ driving reached such a high standard as gross negligence deserving of criminal punishment.

For these reasons I propose to direct the Jury to acquit the accused.

There is an alternative verdict under s.25(2) of the Traffic Act (pursuant to s.94) of dangerous driving. I am also of the opinion that there is insufficient evidence to establish that offence. That is that a jury properly directed would not lawfully convict the accused of this alternative offence and I also propose to direct the jury to acquit the accused upon that charge.

The accused is found not guilty and is discharged.

DATED: 4 September 2007.

JUDGE