Rex v Mailau [2007] TOSC 41; CR 32-2006 (19 October 2007)

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

NO. CR 32 of 2006

REX

-V-

SUNIA MAILAU

BEFORE THE HON. JUSTICE ANDREW

Counsel:
Mr. Sisifa for the Crown and
Mr T. Fifita for the accused.

Dates of Hearing: 16 & 17 October, 2007.
Date of judgment: 19 October, 2007.

JUDGMENT

The accused is charged with one count of manslaughter by negligence contrary to section 86 (1) (b), 92 and 93 of the Criminal Offences Act.

In the alternative he is charged with one count of reckless driving.

The particulars alleged of the offence of manslaughter by negligence are as follows:

"on or about 21st January 2006 at MA’UFANGA you did drive the motor vehicle with Registration plate C11474 on Vuna Road heading west and you were grossly negligent when you drove the said vehicle at a very high speed causing the motor vehicle to swerve off the road and collide with an electric post and an ironwood tree and that such collision resulted in severe head injuries to a passenger, MATAELE KOLUSE, which eventually caused his death."

The accused pleaded not guilty to all charges.

It is not in dispute that on this night the accused was driving this vehicle in a westerly direction on VUNA ROAD in the early hours of the morning on 22nd January 2006 when it crossed to the opposite side of the road striking an electric pole and turning around and striking a tree at the rear of the car and that as a result of this collision the deceased, a passenger in the rear of the car, suffered head injuries as a result of which he died shortly thereafter at Vaiola Hospital.

The issue in the trial is whether the accused’s manner of driving was grossly negligent. It is the Crown case that the accused was driving at an excessive speed and that he was intoxicated at the time.

The first witness for the Crown was ‘Ofa Fine a schoolteacher. She said that on this night she was with the accused and several others and they had been drinking at the Davina bar. She says they left when it closed. She says the accused was driving and she sat in the rear seat behind the driver. The deceased was sitting in the rear behind the passenger’s seat. One other sat in the front seat and two others sat in the back with one sitting on the other’s lap. They had purchased 2 boxes of beer and drove to Popua where they drank the beer at the beach. She says they were drinking for about an hour. She says that some of them were arguing amongst themselves as to who would drive. She says they were seated in the car in the same positions as before and they came to Vuna Road near the Davina bar when they had the accident. In relation to speed she said "I only recall it when traveling and then said it "wasn’t too high and it wasn’t too low". In my opinion this witness appeared reluctant to give too much away and was hesitant about the speed of the vehicle.

The second witness one KAUFUSI KALI said that on this night he was working as security near the Billfish bar when he heard a vehicle coming and it was swaying from side to side or swerving from side to side and on the other side of the road it first hit an electric light pole and then it hit an ironwood tree. He said the vehicle made a large sound and he said "as I heard it, it sounded like high speed." Later he said it was medium speed.

PC SIALE visited the scene. He took measurements and made observations at 10 am that morning. He observed a skid mark which indicated the car was going sideways to some extent. The total distance of the skid mark to the 2nd point of impact ie. the tree, was 68 meters. The electric light pole was of metal construction and it was snapped in half. Photographic evidence shows extensive damage to the vehicle with the whole of its left side virtually demolished.

The accused in a Record of Interview conducted on the 24th January 2006 said that on this night they had been drinking beer and that he and the others with him had consumed about 2 boxes of Fiji beer. He was asked:

"Q.28: How did you have the accident?

1. We were on our way from ‘ANANA after our drink’s and were heading to Davina and when we approached DUPINCIA, MATAELE, Paea, Liki and ‘Ana were fighting at the back and speed that we used was 80 kilometer per hour. When in front of Billfish, MATAELE pulled up the handbrake and the rear part started to turn and swing to the front, I was not able to control the car and continued on so the left side of the car hit an electric post and to a tree and MATAELE was seated on that side."
   

The medical evidence disclosed that the deceased died at around 3:40 am on the 22nd January 2006 of head injury involving intracranial bleeding and that the injury would have occurred some 30 minutes earlier.

The accused has given sworn evidence. He said that he got a call after midnight to drop some workers home. He said they wanted to be dropped at DAVINA night club. He said he went to the night club. After that they drove to Popua where they all drank and they were there for about 1½ hours. He said he had about 3 beers. He said there was an argument and as they were driving MATAELE said to stop the car so they could fight and "I couldn’t stop or control the car and it turned on a circle to the side", he also said,

"Someone pulled the handbrake from the back and as I tried to apply the brakes it didn’t work because the car was swaying from side to side."

He then said he was sure it was Mataele who pulled the handbrake as it was he who wanted the car to stop. He described the car then hitting the electric pole and turning around and hitting the tree on the back of the car.

In cross examination it was put to the accused that he had been traveling at around 80 kilometers per hour and that he admitted to this in his Record of Interview. He said that he meant that the car might have gone at 80 kilometer per hour, when it swayed and seemed to be saying that he had been traveling at 40 kilometer per hour but that when the car swayed after he had braked and when it went from side to side and spun around it might have then got up to 80 kilometer per hour. In any event he said the police suggested this speed of 80 kilometers per hour.

In relation to the deceased having taken hold of the handbrake he said "I confirm that it was MATAELE". Then he said "I was sure it was Mataele" and later he said "I didn’t see this happen but that it must have happened otherwise the car would not have swayed."

I make the following finding of fact.

I do not accept the evidence of the accused. His evidence is implausible and he was an unconvincing witness. The fact is that he clearly said in his Record of Interview that he was traveling at 80 kilometer per hour at the time of the accident. The explanation that it only went from 40 kilometer per hour to 80 kilometer per hour after the brakes were applied and it started swaying is not acceptable evidence even apart from the physical improbability or even impossibility of this ever occurring. But the simple fact is that the evidence of the skid mark (which is not disputed) of some 68 meters and it being a skid mark showing the vehicle skidding to the side in irrefutable evidence of high speed. On the accused’s own admission it was 80 kilometer per hour in a 40 kilometer per hour zone. There is then the evident force involved from the snapping of the light pole to the near complete destruction of the whole left hand side of the car. All of this is incontrovertible evidence of high speed.

I find the accused to be an unimpressive witness whose evidence I cannot accept. Whilst there is no onus upon him, the background to this offence is that he is drinking for some time at a night club in the late hours of the night. He then goes with his friends to Popua where they consume further drinks over a period of approximately an hour and a half. I cannot accept his evidence that he only consumed some three beers. The reality is, and common sense must indicate in all the circumstances that he must have consumed more alcohol than he is admitting to and whilst I am unable to say how much he did consume, I am satisfied beyond reasonable doubt that alcohol played its part in this accident.

Likewise I do not accept the accused’s evidence that the accident was caused by the deceased leaning across from the rear seat behind the front passenger’s seat and pulling in the handbrake. The accused has given three versions of how this happened culminating in the version that he didn’t actually see it but surmising it must have been the deceased as he was the one who wanted the car to stop so he could get out and fight.

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.

I am satisfied beyond reasonable doubt that the accused’s manner of driving on an objective basis was grossly negligent in the circumstances. I am satisfied that he was driving an overloaded vehicle at high speed, ie at least 80 kilometers per hour in a 40 kilometer per hour zone when affected by alcohol. Such conduct falls so far short of the standard of care which a reasonable person would have exercised in the circumstances and involved such a high risk that death or really serious bodily harm would follow that it merited criminal punishment. In short I am satisfied beyond reasonable doubt that the accused’s manner of driving was grossly negligent and that it caused the death of the deceased.

I find the accused guilty of the charge and he is convicted.

It is unnecessary to reach any decision on the alternative count of reckless driving.

NUKU'ALOFA: 19 October 2007.

JUDGE