R v Mafi [2024] TOSC 30; CR 69 of 2023 (24 May 2024)

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

CR 69/2023

REX
-v-
Kepueli Christopher MAFI

Judgement

BEFORE : THE HONOURABLE COOPER J

Counsel : Miss Kafa for the Prosecution
Mr. Edwards for the defendant

Date of Verdict : 24 MAY 2024

ORDER OF COOPER J
DATE OF ORDER: 24 MAY 2024

CORRIGENDUM

VERDICT : THE COURT FINDS MR. MAFI GUILTY UPON THE CHARGE OF CAUSING DEATH BY DANGEROUS DRIVING

Corrigendum - At paragraphs 3 and 214 “westerly direction” has been clarified by simply replacing that term with the word “west”.
At paragraphs 242 and 243, whereas Mr. Taufu’i was walking from Pele’hake to Nualei, so heading west, from the Cargo Warehouse to the scene of the accident and where his body was found, he was on the right hand lane of the road, the “east-bound carriageway”. The mistake in referring to it otherwise has been corrected.

REASONS

1. On the night of 20 November 2022 at approximately 0400 hrs, Mr Mafi was driving along the Taufa ‘ahau road in an easterly direction approaching Nualei. He was the sole occupant of that car; a blue Toyota Ractis registration C27580.
2. It is undisputed that moments later his car struck, Mr. ‘Ahotau Taufu’i, when he, Mr. Taufu’i, was in Nualei, in front of of Samipeni’s bus park. Mr. Taufu’i died of his injuries soon after.
3. Only a few minutes before Mr. Taufu’i had been seen, outside the Nuelei Restaurant, 374 meters east of that spot his body was later found. At that time he was walking west along the Taufa’ahua road, that is to say walking “...west into town”^[1].
4. To put it differently, though he would have had no reason to know it, Mr. Taufu’i was walking towards the on-coming Mr. Mafi, who driving in his car.
5. Officer Lea’aemanu took over the ensuing investigation. The blue Toyota Ractis registration C27580, had become the vehicle of interest by late November 2022.
6. On 29 December Officer Lea’aemanu passed a funeral, that vehicle was parked by the road. Mr. Mafi was in the area of the funeral. The officers spoke to him and on account of what was said, in two separate statements he made to the police, that day and the next, Mr. Mafi was then arrest on 30 December 2022.
7. Mr. Mafi was interviewed by the police on 1 January 2023.
8. Mr. Mafi was charged with causing death by dangerous driving contrary to section 27 (5) Traffic Act (the Act).
9. On 30 January 2024 Mr. Mafi appeared for his trial, having elected trial by Judge sitting alone. He was represented by Mr. William Edwards.
10. Mr. Mafi faced the following indictment

Kepueli Christopher Mafi is charged with the following offence:

STATEMENT OF OFFENCE

(Count 1)

DANGEROUS DRIVING CAUSING DEATH contrary to section 27(5) of the Traffic Act.

PARTICULARS OF THE OFFENCE

(Count 1)

Kepueli Christopher Mafi of Ha’asini, on or about 20 November 2022, at Nualei, you did drive a motor vehicle C 27580 heading east on Taufa’ahau Road, at a speed and in a manner which, having regard to all the circumstances, might be dangerous to the public, when whilst speeding and driving while you were tired, you fell asleep and hit and drove over ‘Ahotau Taufu’i who was walking on the left side of the road, causing his death.

11. The elements of the offence the prosecution submitted they had to prove have to prove are
    1. Mr. Mafi
    2. Drove a motor vehicle
    3. On a road
    4. in a speed and in a manner, having regard to all the circumstances might be dangerous to the public, and
    5. caused the death of ‘Ahotau Taufui
12. The Trial
13. A number of witnesses were called. For example, people who arrived at the scene of the accident almost immediately in the aftermath; ‘Ofisi Finau and Lu’isa Pasi.
14. Solomone Kaumatule, who saw a small car pass him heading in an easterly direction.
15. Timothy Palusi and Sefita Tonga’uiha came upon Mr.Taufu’i body in the road moments later as they drove into town.
16. In my estimation the proper starting point for assessing the evidence is to turn to the agreed documents
    1. The Agreed facts
    2. The Court Book
    3. The Statement Mr. Mafi gave 29 December 2022
    4. The Statement Mr. Mafi gave 30 December 2022
    5. The Police Interview he gave 1 January 2023 along with the reply he made when charged and the statement he wrote out after he was charged.

The Agreed facts

1.The Accused is Kepueli Christopher Mafi, a 32-years-old male, from Ha'asini.

2.The Accused owns a light blue Toyota Ractis car, with motor vehicle registration number C27580 (“blue car ).

3.On 20 November 2022, before 4:00 AM, Kevini Penitani was driving along the Taufa'ahau Road,at Nualei, and had seen 'Ahotau Taufu'i walking on the right side of the road.(disputed)

4. At about 4:00:52 AM, the CCTV footage from the Nualei Cargo Warehouse (footage") captured 'Ahotau Taufu'i walking past the warehouse, along Taufa'ahau Road heading west.

5. The footage also captured the following motor vehicles at the relevant times -

a. At about 4:05:44 AM, a grey car drove past the warehouse, heading east.

b. At about 4:07:51 AM, a black SUV drove past, heading east.

c. At about 4:09:09 AM, a white SUV drove past, heading west.

d. At about 4:09:30,the blue car drove past, heading east.

e. At about 4:11:27, a white van drove past, heading east.

6.Sometime after 4:00AM,'Ahotau Taufu'i was seen by Solomone Kaumatule walking in front of the Nualei restaurant, heading west into town.

7.Around the same time, the Accused was driving his blue car along the Taufa'ahau Road at Nualei and was heading east to Ha'asini.

8.The Accused dozed off and continued to doze off while he was driving at Nualei, in front of the little church close to Samipeni's bus parking area.

9.While he was driving close to Samipeni's home, the Accused was dozing off, and he felt his blue car drive over something but continued to drive.

10. Around this time, 'Ofisi Finau, Lu'isa Pasi and Solomone Kaumatule heard a loud thud.

11. 'Ofisi Finau and Lu'isa Pasi, both of whom were living at Samipeni's home, immediately looked out onto the road and saw a body laying on the road. They also noticed a part of a motor vehicle on the road.

12.Moments later Solomone Kaumatule saw a small car driving past him, the car was making a loud noise as it drove past him.

13. At about 4:09:30, the footage captured the blue car driving past the Nualei cargo warehouse.

14. Immediately after this, Timothy Palusi and Sefita Tonga'uiha, both of whom were driving into town in a white SUV, saw a body laying on the road and a part of a motor vehicle on the road.They stopped to check what had happened.

15. Meanwhile, the Accused continued to drive heading east to Ha'asini, and he heard a noise of something that was dragging beneath the blue car.

16. At about 4:11 AM, Semisi Telefoni drove past the Nualei cargo warehouse and was following a trail of water that started from where the body was laying on the road.

17. The Accused continued to drive and then parked on the roadside, opposite the Vaini Community Hospital, where he got off and tried to attach the part that was dragging underneath the left side of the blue car and then continued to drive.

18. At this time, Semisi Telefoni reached the Vaini Community Hospital and saw the small park parked at the opposite side of the road. He noticed that the water trail ended there. He also saw someone get out of the car and was hitting something at the left, bottom side of the car.

19. The Accused stopped again in front of a bakery at Vaini, just opposite the Church of Tonga.He got off and again tried toattached the part of the car that was loose beneath the left side,before he continued to drive to Ha'asini.

20. At about this time, Tu'a Tonga also drove past the bakery, heading east, and he saw the blue car parked in front of it. He saw someone get off from the car and it appeared as if he was trying to fix something on the bottom, left side of the car.

21. Sometime later, Timothy Palusi and Sefita Tonga'uiha transported the body from Nualei to Vaiola Hospital.

22. At about 4:30 AM, 'Ahotau Taufu'i arrived at the Vaiola hospital and was attended to by Dr.Eileen Tupou.

23. According to Dr. Eileen Tupou's medical report, 'Ahotau Taufu'i sustained the following injuries-

a. Head-likely basal skull fracture;

b. Chest-both clavicles fractured; multiple Rt side ribs fractured with contusions of the right lung

c. Pelvic-open book fracture of pelvis; complete fracture of sacrum;

d. Left femur fracture-closed fracture, complete at mid shaft;

e. Massive bleeding due to polytrauma;

f. Pelvic bleeding.

24. After about more than an hour later,'Ahotau Taufu'i passed away.

25. The Police were notified about the accident and had taken photographs of the Deceased's body,the crime scene and exhibits (a inner left fender, a mobile phone and a phone cover)which were found at the crime scene.

26. On 29 November 2022, the Police seized the blue car on the basis that the blue car was missing its front, left inner fender (or mud guard) and the inner left fender (exhibit) fit into the car. The Police took photographs of this.

27. On the same day, the Accused voluntarily informed Police that he was in Vava'u for work purposes at the time of the accident and that it was his brother who had caused the damage to the car.

28. On 30 November 2022,the Accused voluntarily contacted Police and informed them that he wanted to make another statement.

29. In his second statement, the Accused informed Police that he had been at his in-laws place in Fanga since 1:00 PM on Saturday and was driving back from Fanga to Ha'asini in the early hours of Sunday morning.

30. He informed Police that he dozed off and continued to dozed off,while he was driving, as he approached Samipeni's house. Suddenly he felt his blue car jump but he assumed it had been a rock, so he continued to drive, heading east.

31. On the same day, the Police arrested the Accused.

32. On 1 January 2023, the Police interviewed the Accused and gave him his rights. In his interview, the Accused accepted that there were damages to his car after the incident in front of Samipeni's house. Those damages were described as-

a. a crack in the middle lower part of the front bumper;

b. the protective cover beneath the vehicle came off;and

c. the black mudguard of the left, front wheel was missing.

33. In his interview, the Accused stated that he assumed that he hit a rock because there was no blood on the car.

34. The Accused also accepted in his interview that he was remorseful because his driving had led to a loss of life.

35. On or about 28 January 2024, Officer Havea Fusikata measured the distance from the Deceased's body was found and the Nualei Cargo warehouse and it was 374 meters.

36. For the avoidance of doubt, the Prosecution and the Defendant, through his Counsel,agree to tender the following exhibits by consent-

a.CCTV footage from the Nualei Cargo Ltd, on 20 November 2022, from 4:004:28AM;

b.Google Satellite Map of the crime scene;

c. Sketch Map of the crime scene;

d.Photographs of the Deceased's body;

e. Photograph of the Deceased's body at the crime scene;

f. Photographs of the crime scene;

g. Photographs of the exhibits from at the crme scene;

h.Photographs of the blue car at the Fua'amotu airport;

i. Photographs of the Accused conducting a demonstration;

j. Photographs of the car inspection conducted at the Ministry of Infrastructure;

k. Medical Report prepared by Dr. Eileen Tupou, dated 20 November 2022;

l. Report from MOI by Krishna Ayla Hansen, dated 9 January 2023;

m.Report from MOI by 'Otenili Ma'u, dated 12 January 2023;

n.X-ray images of fractures to the Decesed's body; and

o.Motor vehicle registration details of C27580.

DATED this 30th day of January 2024.

17. That document was signed off by both trial Counsel. The Court was told that the text in red was disputed by the defence, despite the document being described as agreed facts.

The Court Book

18. It was an agreed document, so must be considered in tandem with this judgement. It was not reduced to electronic form and it contains many photographs and maps. I will not summarise them all but refer to the necessary material during the course of this judgement.

Mr. Mafi’s statement 29 December 2022

19. That is at tab 4 of the Court Book
20. Mr. Mafi signed the declaration of truth at the top of the statement. Then he told the police, inter alia, he remembered 20 November 2022 as he was in Vava’u for work. There was no damage to his car C27580, before he left. On his return, his wife told him brother had used that vehicle . His brother had caused the damage.
21. He then signed off the bottom of the statement as to the truth of its contents.

Mr. Mafi’s statement 30 December 2022

22. That is at tab 5 of the Court Book.
23. Mr. Mafi signed of the declaration of truth at the top of the statement.
24. It is instructive to reproduce it in full, sensitive personal details redacted :

My full name is stated above and I am 30 years old, reside at Ha'asini, employed at the project department of Tonga Power Limited. This is my phone number is 7720543 for any contact. (Signature)

I remember Saturday 19th November 2022; I came to Fanga with my wife Lu'isa Mafi to their family home of their father Silivia Lavulo, turn at the hair salon in Fanga inside there the second home on the right side, approximately it is after 1 noon or thereabouts. (Signature)

I came with my wife and our children to Fanga to watch and house watch their family home and to take care of the children of my wife's sister as she was taken for surgery.Around early morning on Sunday 20 of November this year I drove back home to Ha'asini from Fanga in our little car, the type is TOYOTA RACTIS plate number C-27580 and the colour is light blue. I drove back to Ha'asini on Taufa'ahau road this is around half past 3 or thereabouts.(Signature)

When I drove on the road to return to Ha'asini I dozed off while I was driving and I continued to doze off when I was driving at the bend at Nualei forefront of the little church close to Sampeni's bus parking area. I fell asleep when all a sudden I felt the car was climbing over something in the middle of the road. When I woke up I was driving close to where Samipeni's home was. (Signature)

I thought it was a rock that I climbed on so I continued driving, when I was closer to the gas station at the end of Vaini to Nualei I heard a voice or sound of something that is dragging beneath the car.I continued driving then parked on the roadside opposite to the Vaini hospital then I got off and tried to attach the part that was dragging underneath on the left side of the car and I did not recognize any water or fuel running down from the bonnet of my car.(Signature)

After attaching the part that was loosed from the left side of my car I continued driving on my way home, but I stopped again at the forefront of the bakery in Vaini facing the Church of Tonga, I do not know what Church of Tonga it is but it is opposite to the bakery.I got off again there and again attached the part of the car that was loosed beneath the left side. After attaching the part that was loosed from the car, I continued driving all the way home in Ha'asini. (Signature)

The statement that I have made in page 01,02,03 is all true and I have already been informed by Police Officer Vaiangina that I shall be liable to be prosecuted for an offence if I make any statement that is false or that I believe to be false. (Signature)

The police Interview 1 January 2023

25. This appears in full at tab 6 Court Book.
26. The sections I consider relevant are these :

Q27	Whose car is it?
A27	It is mine (Signature)
Q28	Who is the car registered in?
A28	It is me, in my name (Signature)
Q29	What is the plate number of the car?
A29	It is C27580(Signature)
Q30	Who else returned with you home?
A30	It was only me(Signature)
Q31	Who was driving?
A31	It was me (Signature)
Q32	Can you talk about your return back home?
A32	I drove on Taufa'ahau Road with the intention of returning to our residence in Ha'asini. Operating my vehicle C27580, in an eastward direction, I reached Nualei where I dozed off. This was directly in front of Samipeni's residence, where buses are parked; it seems the car jumped or lifted a little. I continued driving and reached the Vaini gas station, where I heard something drag from beneath the car.(Signature)
Q33	What did you do when you heard the dragging beneath the car?
A33	I stopped and park in front of the resident facing the Vaini Hospital Centre,then I got out and looked under the car. (Signature)
Q34	What did you notice there?
A34	The protective cover located beneath the vehicle, just in front of the bonnet had fallen off. The source of the noise was the left front part of the cover. (Signature)
Q35	What was your thoughts on what had happened?
A35	I thought it was just a rock, given the absence of any visible blood on the car.
	(Signature)
Q36	Could you talk about the continuation of your drive to Ha'asini?
A36	I heard the same noise again so I stopped by at the bakery of the Church of Tonga and adjusted the cover again to stay up then I continued driving and arrived at home.(signature)
Q37	When you think about what happened to your car it was damaged and the person who died on the public road was raised in the news. How did you feel about that?
A37	I thought it happened after me. (Signature)
Q38	In your answer to question 33, wherein you mentioned stopping at Vaini facing the Vaini Hospital and observing a something trickling. What comments would you provide regarding of that?
A38	Probably it is the water of the air conditioner. (Signature)
Q39	In your answer to question 33. Did you notice any other damage?
A39	Just the slip off of the cover beneath the vehicle also and there was a crack in the middle lower part of the front bumper. (Signature)
Q40	What additional observations did you make regarding the damages sustained by your vehicle?
A40	I realized that the black mudguard of the left front wheel was gone. (Signature)
Q41	What were your thoughts when it was gone?
A41	I thought that it might have fallen off in the location where the car jumped or lifted a little at in Nualei. I came by that area but therewas no mudguard there.(Signature)
Q42	How do you feel about the offences alleged against you?
A42	I feel remorseful as I am aware that it has led to a loss of life. I feel guilty because it was me that caused the death. (Signature)
Q43	How do you feel about the intervew that has been conducted?
A43	Alright,I feel independent. (Signature)

27. Following his interview, Mr. Mafi was charged. The reply to being charged was recorded. He was then invited to make any statement he wished on the matter. He was told that he did not have to unless he wanted to and the officer could write it or he could if he chose.
28. The statement he gave the police he wrote himself.
29. Both the reply to the charge and the statement Mr. Mafi signed off.

CR No.BT 5813		Police Station: C.P.S	PD NO:01
Charged at: Traffic Office		Time: 1924Hrs on 01.01.2023
Person(s)Present: PC Pousini, CFC Lea'aemanu
	To:Kepueli. C. Mafi Alias - of Ha'asini
	You are charged with the offence(s) shown below. You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.
	The Charge
	On or about the 0400hrs, 20.11.2022 at Nualei Did commit the offence of reckless driving causing death, contrary to section 27 (5) of the Traffic Act, where while driving the vehicle No.C27580 eastern on Tafa'ahau Road in Nualei recklessly, at a speed and in a manner which, having regard to all the circumstances,is or might be dangerous to the public, causing you to hit 'Ahotau Taufu'i (m)29yrs of Pelehake while he was walking west on his right side of the Road causing his death.(Signature)
	Do you wish to say anything? You are not obliged to say anything unless you wish to do so,but whatever you say will be taken down in writing and may be given in evidence. 1. Yes it is true. (Signature)
	(Signature) I have received the original copy of this charge (Signature) Signature of Accused
	Signature of IO (Signature) - Time: 1932HRS Date: 01.01.23 Signature of Accused/Defendant (Signature) - Time: 1932HRS Date: 01.01.23 Signature of Witness (Signature) - Time: 1932HRS Date:01.01.23

CR No. BT 5813/22 Name in Full: Kepueli Christopher Maf Date of Birth: 02.01.1992 Marital status:Married School Attended: Fokololo Recorded at: Traffic Office	Police Station: C.P.S Address:Ha'asini Place of Birth: Vaiola Occupation:TPL Resides at: Ha'asini Time: 1937hrs	PAGE.01 PD NO:01 Sex:M Religion: Catholic On 01.01.2023
Person(s) Present: PC Pousini,CFC Lea'aemanu

I Kepueli Christopher Mafi wish to make a Statement.

I want myself to write what I say.

I have been told that I need not to say anything unless I wish to do so and whatever I say may be given in evidence. (Signature)

I make this statement of my own free will. I have been told that I need not to say anything unless I wish to do so and whatever I say may be given in evidence. (Signature)

“I state that I am truly remorseful for I know I was responsible for the accident that caused the death. In truth is that I did not expect such a thing to happen. I apologize to all of the family, acquaintances and relatives who mourned. I thank the Police for the work they do. Thank you (Signature)”

(only the part in quotation marks was the text he wrote, of the foregoing, albeit signed by him from time to time, all the rest were the words of the pro forma document)

30. It is with these agreed facts and documents in mind I turn to the evidence called at trial.

The witnesses’ evidence

Kevin Penitani

31. He had been at a function, in Ha’ateo, after a rugby game at Toloa college the afternoon 19 November 2022. He and Mr. Mafi were in fact team mates and had both played at teat rugby match.
32. Mr. Penitani was at the after game function with other friends and team mates as well as Mr. Mafi andf many, perhaps all of them were drinking alcohol. He was at this drink up from approximately 5 pm to 9 pm. Beer and punch was being drunk. He did not know how much Mr. Mafi had drunk.
33. At approximately 9 pm Mr. Penitani went and picked up his mother and dropped her at her bingo.
34. Later he picked up his mother and then he drove her and a friend to Ha’asini, then he returned to Ha’ateo. He stated he did not see Mr. Mafi there at that time.
35. Later he went back to Ha’asini.
36. He had passed Mr. Tautu’i on the road. He was walking in the middle of the road. He described him as very drunk.
37. When asked what type of beer he, Mr. Penitani, was drinking he stated it was “Woodstock”.

Cross-examination

38. He had seen Mr. Taufu’i, walking in the middle of the road, swaying as he walked.
39. He confirmed it was not unusual to see people walking in the road at this time.
40. Mr. Penitani thought he himself was not drunk, nor impaired by alcohol so as not to be able to drive.

Solomone Kaumatule

41. He had been working as security at the Nuelai Restaurant early hours Sunday 20 November 2022. He was facing the Taufa’ahau road around 0400 hrs.
42. It was then he saw the figure of Mr. Taufu’i walk past. He described him as walking as any normal man would, heading west, on left side, just to side of the road.
43. As Mr. Taufu’i passed a shop owned by a Chinese people, Mr. Taufu’i crossed the road. Then he was on right hand side of road and walked along, just on the sider of the road. He watched him until he was out of sight.
44. Some 4 or 5 minutes later he heard the sound of a bang.
45. He described the noise as being like an empty box or a dog. The he saw light approaching, the light turned out to be coming from a vehicle. The vehicle passed and as it did he heard something clashing or loose under the vehicle.
46. It was a mini light blue car.

Cross-examination

47. He also confirmed it was normal to see boys there at that time of night, by which I understood him to mean walking in the road as Mr. Taufu’i had been. Mr. Kaumatule went on to say not just Fridays and Saturdays, it was a normal sight any night of the week.
48. He confirmed he saw Mr. Taufu’i walking normally. He was employed as security, so he had watched him carefully all the while he walked up the road until he went out of sight.

Taua Tonga

49. In the early hours Sunday morning, 20 November 2022 he was returning home. As he came close to where he lived he saw the scene of the accident another vehicle had stopped and people were on the road looking at Mr. Taufu’i on the ground.
50. He assisted by using a torch to help the others there.
51. Seemingly he stayed a short time leaving those already dealing with the situation to carry on doing so. He drove on and further along the Taufa’ahau road noticed a navy blue vehicle parked at a small bakery in Vaini. He described that other vehicle as making a noise that indicated it had hit something.
52. That was the only other vehicle he saw along the road up to that point.

Cross-examination

53. He confirmed that Mr. Taufu’i body was face down on the road. He confirmed it was Mr. Mafi he saw at the bakery in that parked vehicle and that Mr. Mafi had tried to hide himself so as not to be recognised.
54. He did not see any damage to the vehicle Mr. Mafi was in.
55. In answer to question from the Court to clarify what he had said, Mr. Tonga stated that Mr. Mafi had sat up straight and turned his face to wards and to face the roof of the car he was in so he would not be recognised and so as to use the roof to cover himself.
56. Cross-examined further on this point He was adamant that was what Mr. Mafi was doing, hiding his face from him.

Sefita Tonga’uiha

57. He was with a colleague, driving into Nuku’alofa to work. The area where they found Mr. Taufu’i body was a dark part of the Taufa’ahau road. They spotted his figure in the road from about 20 meters away.

Cross-examination

58. He confirmed they were 20 meters away when saw his body plying prone. He did not think they would have seen him from 60 meters away that night.

Tomothy Palusi

59. He was the passenger in Mr. Tonga’uiha’s car and added nothing to his evidence.

‘Ofisi Finau

60. He lived at that time in Nualei. The early hours of 20 November 2022 he heard a bang and he and his partner realised what that noise they thought must have been caused by. They ran outside and found Mr. Taufu’i grievously injured, lying on the road with blood around him.
61. He confirmed whereas there is a street light at that point, it was not working.

Cross-examination

62. He said he heard no scream before the bang or anyone cry out nor after the bang did he hear the noise of a car breaking.

Hola Vanisi

63. She is the sister of Mr. Taufu’i.She lived with him ad their family in Pele’hake.
64. In her evidence she recounted the events of that day. They had been working, as a family, in the bush picking water melons.
65. Much later, that evening, she recalled how her brother wanted to use their father’s car. Their father objected. There was a disagreement and she recalled how her brother was upset. She recalled he was disappointed, shook his head, put his hands in his pockets. At that time she could smell alcohol on her brother’s breath. She had not seen him drinking though. He had not been drinking in their fale.

Semisi Telefoni

66. His evidence was of coming on the scene of the accident, following the vehicle he believed was responsible and noting the partial number plate C2580.

Cross-examination

67. Mr. Telefoni explained that the vehicle he followed, he thought responsible for the accident was leaking some type of liquid and that leak left a trail.
68. In Vaini he saw the vehicle he had been following, now parked. He did not look to see if it was damaged. He slowed down and passed and carried on his way.

Krishna Ayla Hansen

69. He is a Land Transport Officer. He inspected the car in question, Mr. Mafi’s Toyota Ractis on 9 January 2023.
70. His report is at tab 8 of the Court Book.
71. Relevantly he found the head lights were in good condition. That meant their beam would reach 45 meters, that is to say 150 feet in the dark. He tested them in the dark and those were his finding.
72. He clarified what he meant by that. That was 45 meters/150 feet on normal, dipped, beam, not high beam, or as he put it not “highlighted”.
73. He referred to the photographs at tab 1 Court Book.
74. I note there are several mini booklets at tab 1. Those he referred to are marked, top right of the page, “Photos take 9.1.23”.
75. Mr. Hansen stated those photographs were taken by the police and he himself saw the officers take these photographs.
76. He referred to the photographs at pages 2 and 3 of that discrete booklet of images to point out how the under body cover of thefront of the car had been shunted forward, splitting it in two.
77. He noted that the pins that ought to have held the under body cover in place were missing. He also pointed out a new screw, that is to say not one inserted in the manufacture of the vehicle had been inserted into the under body cover to fix it back into place.
78. The photos also clearly show the bottom section of front bumper and how it had split and then had a piece of metal screwed either side of that split to hold it together.

Cross-examination

79. It was put to him that those “modifications”, as Mr. Edwards put it, could have been made at any time. He readily agreed that was so.
80. He was asked about what could have caused the damage to the bumper and if it could have been caused by the vehicle driving into someone lying in the road. He stated that could have caused the damage.
81. Then he was asked if he would expect there to have been damage to the bonnet, front and a smashed windscreen if the vehicle had struck someone standing in the road. He said that is what he would have expected.
82. He clarified the tests done with the headlights had been at 10 pm at night.

Dr. Eileen Tupou

83. Her evidence was examining Mr. Taufu’i in the Vaiola hospital. He was found to have blood coming from his ear, nose and mouth and had a fractured nose.
84. He had a fractured pelvis. The X ray revealed also a he had suffered a fractured left femur.
85. CT scans are not available in the Vaiola hospital.
86. Her examination revealed that he had an “open book fracture” to the pelvis. An X ray showed how it had been split open. She had never seen a fracture to the pelvis as severe as that before.
87. She confirmed it was consistent with a motor vehiocle injury.
88. She deduced a lot of the internal organs oi that area had been damaged, for example the bladder and the rectum and blood was seen coming from his penis, so consistent with his b ladder rupturing.
89. She described the force that caused it as “High energy, high speed.”
90. This she associated with having been caused by a moving vehicle.
91. Ultimately the cause of death was through blood loss. She thought that in all likelihood was from the injuries to both the pelvis and the thigh.
92. In response to questions asked buy the Court to clarify those answer Dr Tupou stated the following
93. She believed he had been struck from behind, that the bruising to his buttocks forced her to conclude that. She believed Mr. Taufu’i was standing at the moment of impact and the reason she was clear about that was because the majority of the injuries were to the pelvis.
94. She then repeated her opinion and stated she thought Mr. Taufu’i was standing when hit by the vehicle that caused him to die.

Cross-examination

95. Mr. Edwards put to Dr. Tupou this question:
96. He could have been on the ground, it’s hard to say ?
97. Dr. Tupou replied “It’s hard to say”

‘Otenili Ma’u

98. He is a panel beater for Ministry Infrastructure.
99. His report on the motor vehicle C 27580, dated 12 January 2023 relates to a fender found at the scene of the accident and his opinion that it belongs to the car in question.
100. In fact agreed fact 23 and the photographs at Tab 1, a bundle 14 pages and in my Court Book, the first booklet of images concerning the vehicle in question all demonstrate the point Mr. Ma’u gave evidence upon.
101. He stated the damage to the fender could have been caused by the vehicle hitting a person lying down or standing up.

Cross-examination

102. He was asked if he would not in fact have expected damage to head light and bumper if contact head been with a person standing.
103. Then he was asked to consider that since it was just the bottom part of the bumper that was cracked as opposed to the whole front of the bumper that demonstrated it could not have been contact with a person standing.
104. He stated that was not what he believed the damage indicated. He explained that because the bottom of the bumper was weak and the upper part strong, it was perfectly possible for the car to have struck a person standing and only the bottom part become damage.

Police Officer Lea’aemanu

105. He gave evidence of taking over the investigation. He retrieved video footage from Nualei Cargo Warehouse. He had been given a witness statement with a partial number plate that was tied to a vehicle suspected of involvement in this fatal accident.
106. His investigations took him to the records department of Ministry Infrastruture.
107. That was the reason that on 29 December 2022, as he happened to pass a funeral and see the Blue Toyota Ractis C27580, he knew he had found the vehicle he believed was responsible.
108. He then gave evidence of speaking to Mr. Mafi and the two statements made to the police 29 and 30 December 2022.
109. There was then the arrest and police interview 1 January 2023.
110. He also gave evidence that the CCTV from the Warehouse showed Mr. Taufu’i walking past on his way to town at 04.0:52 hrs (agreed fact 4).
111. That at 04.09:32 hrs the blue car drove past.
112. He had measured the distance from Warehouse to accient site and it was 374 meters (agreed fact 35).
113. It is a fact that is the only blue car to drive past within the credible parameters in this case.
114. He gave evidence that a car travelling at 40 KPH would take 1 minute and 30 seconds to cover that distance, as that was what he timed it took.

Cross-examination

115. It is important to note that the cross-examination and indeed the whole of Mr Edwards case at trial was put on a particular basis. This is where “agreed” fact 8 is relevant. That stated fact was not agreed. It was highlighted in red. This was because Mr. Edwards case,. At trial was the word used by Mr. Mafi to the police “tulemohe” did not mean, as the Crown claimed, “dozed off”, but it meant “sleepy.”
116. The officer was asked about this repeatedly and could only say that his understanding was that “tulemohe” meant to “doze off”.
117. The officer was asked about the statement that Mr. Mafi gave on 29 December 2022. He explained the statement was not given in reply to a series of questions. At that stage the police did not know the identity of the person who had driven the vehicle they determined was likely responsible for the accident.
118. The meeting between Mr. Mafi and police next day, 30 December was entirely voluntary on his part.
119. He asked the officer why he had not questioned Mr. Mafi about the state of his driving ?
120. “Because when he stated he dozed off, that in itself was reckless” was the officer’s reply.
121. Mr. Edwards asked the officer if, when Mr. Mafi had replied “Yes it’s true” on being charged, Mr. Mafi was merely accepting the fact that he acknowledged he was being charged.
122. The Officer accepted this.
123. Officer Lea’aemanu that the voluntary statement Mr. Mafi made after being charged was Mr. Mafi’s expression of remorse and noted that Mr. Mafi had written it out himself.
124. There was no further evidence for the Crown and they closed their case.
125. No evidence was called on behalf of the Defence.

The Law

126. Both parties agree on the elements as set out at the start of this Ruling.
127. The Crown referred to two cases in respect of the standard of driving and how the Court should approach that.
128. But, starting at the beginning.
129. Section 27 (5) Traffic Act

(5) Every person who drives a motor vehicle on a road recklessly, or at a speed and in a manner which, having regard to all the circumstances, is or might be dangerous to the public, and who causes death to any person whilst so driving, commits the offence of reckless driving causing death and is liable on conviction to imprisonment for not more than 15 years, and the Court may order that the convicted person be permanently disqualified from holding or obtaining a driver’s licence.

130. After some minor amendments were given leave to be made the indictment was framed in this way

“Kepueli Christopher Mafi of Ha’asini, on or about 20 November 2022, at Nualei, you drove a motor vehicle C 27580 heading east on Taufa’ahau Road, at a speed and in a manner which, having regard to all the circumstances, might be dangerous to the public, when whilst speeding driving at a speed and driving while you were tired, you fell asleep dozed off and hit and drove over ‘Ahotau Taufu’i who was walking on the left side of the road, causing his death.”

131. The Crown submitted that the Court ought approach the question of what was to be considered dangerous driving in line with R v Gosney (1971) 55 CrAppR 502.
132. In making that submission they noted case had been approved in the Solomon Islands comprehensive guide to Criminal Law at chapter 45^[2]
133. In R v Gosney Megaw LJ stated :

In order to justify a conviction, there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. ‘Fault’ certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an inexperience or a naturally poor driver, while straining every nerve to do the right thing, falls below the standard of a competent and careful driver...

Fault involves a failure, a falling below the care or skill of a competent experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case. A fault in that sense, even though it be slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient. The fault need not be the sole cause of the dangerous driving. It is enough if it is, looked at sensibly, a cause. Such a fault will often be sufficiently proved as an inference from the very facts of the situation. But if the driver seeks to avoid that inference by proving some special fact, relevant to the question of fault in this sense, he may not be precluded from seeking so to do

134. In relation to the question of speed, the Crown’s submissions were these :

The former LCJ Whitten in Rex v Tonga Leha’uli, CR 129 of 2023, at paragraph 50, regarding the magnitude of ‘speed’ in relation to a dangerous driving causing death case –

“Speed is also not to be viewed solely by reference to the prevailing speed limit in a given area, but also other features of the road in question and users of it. For instance, in a situation where an accident has occurred and vehicle debris and people attending those who may be injured create potential danger to themselves and others on the roadway, a following vehicle cannot automatically expect to maintain the speed limit and drive right through or around the accident site without due regard to the safety of others and the risks posed by the situation. That will normally require a reasonable and prudent driver to exercise greater care including by reducing his speed. Similarly, where a very young child comes out near the edge of a roadway, a motorist in the position of the Defendant is reasonably expected to exercise caution, which at the very least will usually require reducing his speed and braking heavily, if necessary; and/or, if safe to do so, to steer closer to the centre of the carriageway. That, of course, assumes the driver is keeping a proper look out and sees the child at a distance which permits those precautions to be taken in a safe manner.”

135. The Crown in their submissions referred to a number of witnesses’ evidence in respect of the speed the vehicle Mr. Mafi was said to be driving.
136. They also note that there were no eye witnesses at the scene to give evidence of the speed at the moment of the accident.
137. The essence of their submission is quite simple; Mr. Mafi was driving at a significant speed, that combined with his falling asleep at the wheel when he drove into and so killed Mr. Taufu’i makes him guilty of the offence.
138. The Crown also refer to the case Jiminez v R [1992] HCA 14 :

“for a driver to be found guilty of culpable driving, he had to be driving consciously and voluntarily. The court ruled that the actions of the driver who fell asleep at the wheel were not conscious or voluntary and therefore the driver could not be criminally responsible for driving the car in a manner dangerous to the public”

Defence submissions

139. Amongst the points particularly relied on are:

That Mr. Mafi was not stating that he had fallen asleep/dozed off at the moment of the crash.

There was no evidence where Mr. Taufu’i was at the moment of the crash.

Mr. Taufu’i could have been lying on the ground at the time and the Crown had not ruled out that possibility.

If he was lying down at the time then he had contributed then the prosecution had failed to prove that it was the manner of driving that had caused the death of Mr. Taufu’i.

The defence note that any evidence of alcohol consumption that the Crown suggest was a factor to take into account must be rejected by the Court.

The Crown’s case was circumstantial and

Critically speaking the Crown will not admit that they failed to introduce compelling and corroborative evidence to eliminate any argument as to the sole cause of the death of the Deceased ‘Ahotau Taufu’i. ^[3]

140. It is helpful to set out how the Defence developed their key points :

EVIDENCE:

4.1 Turning to the evidence or lack thereof, the Crown seeks to draw inferences and relies upon circumstantial evidence to draw a picture for the Court, where the Crown hopes that such inferences can be drawn. Critically speaking the Crown will not admit that they failed to introduce compelling and corroborative evidence to eliminate any argument as to the sole cause of the death of the Deceased ‘Ahotau Taufu’i.

4.2 However, the Defendant seeks to address the evidence in the following manner set out below.

Evidence – prior to the incident

4.3 The Crown called the following witnesses to set the scene prior to the incident – the death of ‘Ahotau Taufu’i and the actual accident:

(a) Kevini Penitani

• - Mr Penitani was driving East early Sunday morning;
• - Mr Penitani came across the Deceased, who at that time was walking the opposite direction toward town;
• - Mr Penitani stated that the Deceased was wearing shorts and black t-shirt;
• - Mr Penitani came across the Deceased outside Sione Valita’s residence;
• - He also stated that the road was not well lit;
• - Mr Penitani stated that he could see this person was drunk;
• - Mr Penitani stated that the Deceased was walking in the middle of the road;
• - The security video as shown to Mr Penitani and he confirmed again that the Deceased was walking in the middle of the road;

(b) Solomone Kaumatule

• - This was the security guard who witnessed the Deceased walk past the restaurant that Mr Kaumatule was acting as security;
• - He saw the Deceased walk on the other side of the road past the restaurant;
• - He then saw him cross the road at the Chinese Shop;
• - He then said that he was walking beside the road but lost sight of him in the darkness;
• - When Mr Kaumatule was questioned about the video and asked a question whether he could see the Deceased walking toward the middle and the side of the road, where he was in the middle of the road, Mr Kaumatule could not see the video screen that was right beside him. Yet he could see the Deceased from across the road on that morning;
• - Mr Kaumatule also claims that he heard the noise from the incident, but could not see it because it was dark;
• - Mr Kaumatule’s evidence he said he saw the car after he heard the noise from the incident and his estimation of the speed was 40km/hr going on to 50km/hr;

(c) Hola Vanisi

• - Ms Hola Vanisi gave evidence that it was her brother, the Deceased;
• - Ms Vanisi’s evidence was of events prior to the incident;
• - Ms Vanisi confirmed that her brother had been drinking prior to the incident.

4.4 No other witness for the Crown gave evidence of the speed of the Accused prior to the incident. Effectively there is no credible evidence introduced by the Crown that the Accused was driving at a speed that was considered dangerous at all prior to the incident.

4.5 no other witness for the Crown gave evidence as to the position of the Deceased at the time of the incident.

4.6 What we do know from the witnesses was that the area was not well lit at all – no one could see the Deceased at that time of the incident. Also the Deceased was wearing dark clothing and had been drinking.

Evidence immediately post incident

4.7 The Defence has examined the state of the evidence immediately after the incident took place. In other words, the evidence of the Ministry of Infrastructure and Police evidence is not dealt with at this juncture.

4.8 The following relevant evidence was given by the following Crown witnesses, where the Crown relies on 3 witnesses that gave evidence to support its case of speed.

(a) Sefita Tonga’uhia – was travelling as a passenger in a vehicle heading to work at the Nuku’alofa Club;

• - he said the vehicle he was driving in was travelling about 60 to 70km/hr
• - When he was asked what speed was the car he saw driving away from the accident, he said it was travelling faster than their car in his estimation;
• - he said the car that he saw driving away from the scene of the crime was silver in colour;
• - He confirmed that the area was dark and the only light in the area was from Ofisi Finau’s home [a witness for the Crown who came to their assistance];
• - He claims they noticed the body on the road about 20 meters from where it was lying, but this is the direction travelling to town;
• - He confirmed that the body was lying in the middle of the road on the left hand side of the road and they were responsible for taking the Deceased to the hospital.

(b) Timothy Pulusi - The driver of the car that took the deceased to the hospital, he was with Sefita Tonga’uhia

• – when questioned about the speed of the car leaving the scene at Nualei, he firstly said 40 to 60 km/hr, and then when questioned by the Crown counsel, he said 50 km/hr – this is the speed limit for the road;
• - He also said that the colour of the car was silver, not blue;
• - His evidence was that he noticed the Deceased lying in the middle of the road at about 4-5 car lengths away;
• - He took the Deceased to the hospital with Sefita Tonga’uhia.

(c) Ofisi Finau – lives at Nualei

• - He heard a noise, a bang early on Sunday morning and went outside to see about the noise;
• - He saw the body lying in the middle of the road;
• - Mr Finau went to assist those persons who had lifted the body and placed it in Mr Pulusi and Mr Tonga’uhia’s vehicle;
• - He gave evidence that the area was dark and it was not well lit at all;

4.9 From that evidence and Mr Solomone Kaumatule, these witnesses were called to give evidence of vehicles travelling away from the scene of the crime. Mr Pulusi and Mr Tonga’uhia gave evidence that they saw a silver car leaving the scene. Mr Kaumatule saw a blue car leaving the scene. Mr Kaumatule’s estimation of speed of the blue car was 40 to 50km/hr, which is within the speed limit of the road. This is consistent with Mr Pulusi’s evidence, however, it is contradicted by the evidence of Mr Tonga’uhia who claimed that the silver car was going much faster than their own vehicle.

4.10 In that regard speed is not corroborated by compelling witness evidence for 2 major reasons: (1) firstly the evidence was for vehicles that were driving away from the accident scene – there was no evidence of speed prior to impact and at impact of the Deceased; (2) the witnesses did not give evidence as to how they could give an accurate account of speed, where there was no device to measure speed for the vehicles seen leaving the accident scene.

4.11 Further, the Crown states in their submissions at paragraph 14: “It is accepted that there is no direct evidence to establish the Defendant’s driving speed at the time of collision...”. Where the Crown respectfully misstates the position of speed can be found at paragraph 15 of the submission, where the Crown states: “However, it is submitted that there is sufficient evidence from which this Court can draw the inference that the speed the Accused was travelling, in combination with his state of sleepiness, was dangerous under the circumstances and had contributed to the death of the Deceased.”

4.12 Respectfully, in the absence of any evidence of speed, there is serious doubt with the submission raised by the Crown where there is no evidence at all prior to the incident – as the Crown had rightfully stated in paragraph 14 of the submission, that there is no direct evidence, but they are incorrect in saying that there is sufficient evidence to draw an inference.

4.13 The Crown then seeks to rely upon the evidence of Dr Eileen Tupou regarding the injuries of the Deceased. However, with great respect to the Crown, the Doctor never gave evidence as to speed, nor did she presume to have any expert evidence as to how she could determine speed as a result of the injuries. Again, there is serious doubt as to the evidence and conclusions the Crown seeks to make in respect of speed.

The Manner in Driving

4.14 The Crown’s case is simply reliant upon the statement made by the Accused during the course of his interview. I refer to the relevant part of his interview, which the Crown has focused on, that they claim to be “reckless driving causing death”:

“A32 I drove on Taufa’ahau Road with the intention of returning to our residence in Ha’asini. Operating my vehicle C27580, in an eastward direction, I reached Nualei where I dozed off. This was directly in front of Samipeni’s residence, where buses are parked; it seems the car jumped or lifted a little. I continued driving and reached the Vaini gas station, where I heard something drag from beneath the car. (signature).”

4.15 The Accused disputes the wording of the translation given by the Crown^[4]. Clearly the Tongan wording is that when he reached Nualei the accused was ‘Tulemohe’. The Crown has given wording where they say that he dozed off in front of Samipeni Finau’s house – which is not correct at all. His words are clear and unequivocal – that when he reached Nualei he was in a state of ‘tulemohe’, which was when he reached Nualei. When reaching Nualei, the area of Nualei starts some distance before Samipeni Finau’s house. In fact, when driving from town, Samipeni Finau’s house is toward the end of the area known as Nualei.

4.16 The Crown tries to suggest that from the wording of the Accused the ‘tulemohe’ occurred directly in front of Samipeni Finau’s house – that is not what the accused said. The reference to Samipeni Finau’s house is where the buses are parked, that is where the Accused said he felt the car jump or lift a little – it is not where he ‘dozed off’ as the Crown translates.

4.17 It is respectfully submitted that the Crown’s submission and charge that the Accused dozed off when he hit ‘Ahotau Taufu’i is not correct at all. The correct statement of fact was that the Accused admitted that he was dozing off when he reached Nualei – he did not say he dozed off in front of Samipeni Finau’s house where the incident occurred at all and we say respectfully that the translation by the Crown is wrong. They are 2 different sentences given by the Accused in his statement – the sentence referring to ‘tulemohe’ is when he reached Nualei. The very next sentence is where he says he reached Samipeni Finau’s house where the car lifted or jumped, where that sentence does not say that he had dozed off at that exact time and hit the Deceased.

4.18 The Accused submits that the statement does not admit that he dozed off and hit the Deceased. For the Crown to state at paragraph 18 of their submissions that the Accused woke up as he was driving close to Samipeni Finau’s house is with great respect to the Crown a submission of fact where there is no mention of the words ‘woke up’ in the Accused’s statement at all. Further, the Accused never said that he ‘dozed off’ in front of Samipeni Finau’s house at all – another incorrect statement.

4.19 With regards to the evidence of Tu’a Tonga and Semisi Telefoni, the Crown’s reliance on their evidence should be disregarded at this part of the submission. They never saw the road without the lights shining on the body of the deceased, where the incident was drawn to their attention by the movement and commotion of people gathering at the scene and they never gave evidence as to the scene with only the Deceased. They both saw lights which drew their attention to the Deceased – in particular the car of Mr Pulusi and Mr Tonga’uhia. Mr Tonga and Mr Telefoni were both able to give evidence as to distance and how far they were able to see where the Deceased lay, because the road was lit by the vehicle of Mr Pulusi and Mr Tonga’uhia.

4.20 It is the case for the Defence that there is some doubt as to the claims of the Crown that the Accused had dozed off directly outside the house of Samipeni Finau, where the Deceased was found injured lying on the road. It is not what the Defence stated in his statement to the Police.

5.0 CONFESSION AND CONSCIOUSNESS OF GUILT:

5.1 In respect of paragraphs 37 and 38 of the Crown’s submission, the Defence does not accept that submission at all. When the Police Office Lea’aemanu was questioned, about the written statement of charge form, where the ticket sets out the charge, the Accused has written below that ticket – “Io ‘Oku mo’oni pe ia” and then signed that statement.

5.2 When the Police Officer was cross examined about this statement, he accepted that the wording meant that the Accused had accepted that the ticket was what he had been charged with. It was not an admission that he was guilty for recklessly driving causing the death of the Deceased.

5.3 Further on the final form, the Accused makes the statement:-

“I state that I am truly remorseful for I know I was responsible for the accident that caused the death. In truth is that I did not expect such a thing to happen. I apologize to all of the family, acquaintances and relatives who mourned. I thank the Police for the work they do...”

5.4 There are two important parts to that statement, which has been the case for the Accused throughout. He does not admit to reckless driving at all. He further states that he did not expect such a thing to happen. Throughout the interview he did not know that he had hit someone until much later and that he may have caused their death. Just his statements that he thought it was a rock he had hit and was only aware that it was a person later, clearly shows that he did not see the Deceased, he did not know that he had hit him and that later he forms the view that he may have been responsible for his death.

6.0 THE LACK OF EXPERT EVIDENCE:

6.1 During the course of the Crown’s case, it was evident that the Crown did not call any expert to give evidence about the position of the deceased and where was the deceased prior to impact. More importantly, what was the deceased doing prior to impact. The Crown seeks to rely upon inferences, where there is a lack of credible and expert evidence for the Court to rely upon to assist the Court in making the finding as to the deceased prior to impact.

6.2 The critical importance of such evidence and the lack of evidence, is that the Court would be in a better position to determine whether the accused and the manner in which the accused drove that night was the sole reason for the accident and the main cause of death.

6.3 If there were any other circumstances where fault could be attributed to something other than the manner of the accused’s driving, then it would impact upon the cause of death and the responsibility of the driver.

6.4 The lack of expert evidence certainly does not assist where there is a lot of doubt as to what happened that night and whether or not the Accused was solely responsible for the cause of death, and not any of the actions of the Deceased.

7.0 THE PROBLEM WITH THE CROWN’S CASE:

7.1 The Crown has tried valiantly to assert that the deceased was walking along the side of the road when he was hit by the accused, and then he fell onto the road. See paragraph 27 of the Crown’s submissions.

7.2 Further, the Crown submits that the deceased was standing upright prior to the collision.

7.3 However, the Crown’s own witness and witness evidence, in particular the Doctor gave evidence that did not support that contention at all. The Crown would have the Court believe that the deceased was walking in an upright position toward town when the accused hit the deceased. However, the evidence of the Doctor was quite clear, that the point of impact was in her opinion, the lower back of the deceased. It does not explain then, for the Crown, how the deceased was walking toward town, which is toward the accused’s vehicle, and then the accused’s vehicle is said to have hit the back of the deceased first – that was the point of impact as stated by the Doctor. The only way that could have happened is if the deceased had been walking the same way as the direction the vehicle was travelling.

7.4 Further, if the point of impact was the lower back of the deceased, then how is it that the height of the deceased would have meant that the point of impact of the vehicle would have had to be the bonnet or upper bumper of the vehicle – where there was no sign of impact on the vehicle presumably made by the deceased.

7.5 The problem with assessing the evidence is that there was no credible expert evidence to give evidence to the Court of the point of impact of the vehicle with the deceased, the position of the deceased when the vehicle had hit the deceased and how the deceased ended in the middle of the road lying across the road.

7.6 More importantly the Crown had no expert evidence to suggest where the deceased was at the time of impact – which has a significant impact upon the case for the Crown. If the deceased was walking along the side of the road at the time of impact, there was no witness evidence or expert evidence to support such a fact. If the deceased was walking in the middle of the road, there was no evidence to confirm this fact at all, but the deceased was lying in the middle of the road after impact. If the deceased was lying down across the road at the time of impact, there was no expert evidence to support this fact, nor was there any evidence to deny this fact.

7.7 It is submitted by the defence that there is no strong evidence for the Crown and this Honourable Court to determine where the deceased was prior to impact, there is no strong and credible evidence for the Crown and this Honourable Court to determine what the deceased was doing prior to impact and there can be no inference drawn or made from evidence that is just not present. The only evidence that is present was the position of the deceased after the impact that places him in the middle of the road.

7.8 Can the Crown and this Honourable Court draw the conclusion that the Crown is asking it to draw in finding guilt of the accused. We respectfully submit that it is not appropriate in circumstances that there is no evidence as to what and where the deceased was at the exact time of impact. Coupled with that fact, there is a lack of evidence to support speed and the manner in driving is not as clear as the Crown would have the Court believe. Especially where there is no eye evidence to support the notion that the Accused was driving erratically when he reached Nualei, because he stated in his statement that he was ‘tulemohe’ when he reached Nualei – not dozed off when he reached Samipeni Finau’s house as the Crown claims.

141. The Defence then relied on drew the Court’s consideration to Rex v Poasi Ngaluafe Cr 113 of 2016.
142. In this case I feel it important to set out the totality of the judgement that the defence relied on in their submissions :

[11] Whilst in the vast majority of cases involving death or injury driving above the prescribed limit will be plainly causative of death and the driver will be at fault in some way this may not always be the case. Cases come to mind where a defence in the nature of inevitable accident might arise; a child who runs out into the road without warning and is in collision with a car driven by a drunken driver; or an approaching car who suddenly crosses the centre lane into the path of a drunken driver. Once there is evidence adduced that suggests a collision was inevitable, then in the absence of the offence being characterized as one of strict liability, the prosecution will have to prove beyond reasonable doubt that the defendant was materially at fault in more than a de minimis way. In order to do this, the prosecution will have to adduce evidence that establishes beyond reasonable doubt that a sober person driving within the limits of the law would have been able to have avoided the collision.

...

[17] The Supreme Court rejected the argument that a driver, who had committed the offence of driving while uninsured which was said to be a serious matter, was guilty of the aggravated offence of driving causing death unless there was present, in his driving, some act or omission in the control of the car, which involved an element of fault, whether amounting to careless, inconsiderate driving or not and which had contributed, in some more than minimal way, to death. It was unnecessary that such act or omission be the principal cause of the death. The Court rejected the argument that merely driving the car on the road whilst uninsured was sufficient to amount to legal causation and was no more causative than setting the scene for the collision to occur. (See further, "setting the stage", an expression of Woodhouse J in the case of Kilbride v Lake [1962] NZLR 590, at 592 on fault and actus reus so well known to New Zealand students of criminal law many generations ago). The Court, in Hughes, observed...

[18] I referred Hughes to counsel prior to hearing their submissions. Mrs Langi quite properly conceded in the light of Hughes, that she was unable to maintain her argument that the offence was one of strict liability. She referred me, however, to a New Zealand case of R v Ten Bohmer [2000] NZCA 189; [2000] 3 NZLR 605(CA) per Thomas J, where a drunken driver had been convicted of driving causing death after he had taken a right turn into the path of the deceased who was on a motor bike. The appellant had argued that the Crown must prove a causative link between the excess blood alcohol level and the collision, which the trial judge and the High Court Judge had rejected. the Court of Appeal held that the lower courts were correct in dismissing this argument, and in so doing observed that causation involved linking the accused's behaviour to the prohibited result in a way which could be described as not insubstantial or not insignificant. Thomas J, however, went on to say that the requirement for causation does not import any element of fault in driving which the use of the words 'act or omission' in previous legislation, had been held to import. His Honour observed at para 30;

"The defendant, by virtue of being of or driving a motor vehicle, may cause the death of the deceased without being guilty of careless or reckless driving or the like. The question is whether the Defendants' driving caused the deceased's death, not whether any act or omission on his or her part amounting to negligent or otherwise blameworthy conduct caused the death. The element of fault is not to be reintroduced in to the provision by way of an expanded approach to causation."

Despite disclaiming fault as an feature of causation, which would suggest a strict liability approach, the Court did suggest that, in cases where a death had been caused by a pedestrian suddenly running out in front of the car, or a car being hit by a driver travelling on the wrong side of the road, the defendant's conduct could not have caused the resulting bodily injury or death and he would not be liable for causing a collision. These observations suggest that whilst dismissing fault as an element of causation, the Court, was understandably reluctant for blameless drivers to be convicted of serious driving offences and accordingly, appeared, in an appropriate case, prepared to depart from the full rigour of a strict liability approach.

...

[20] Mrs Langi, attempted to persuade me that the accused was at fault in failing to be able to avoid the deceased sitting in the road and that he had been unable to see him and do so because he had been driving too fast and was well over the legal limit. I have given close consideration to this submission, but, as I have already said, the evidence does not persuade me that the accused was travelling in excess of the speed limit and would, with his headlights on, have been able to see the deceased and stop in time to avoid him. Nor did I have any evidence before me to suggest that a sober driver travelling at a lawful speed, in all the circumstances, would have been able to detect the deceased sitting in the road and have avoided him. I am therefore unable to conclude beyond a reasonable doubt that anything errant in Mr Ngaluafe's driving caused the collision.

143. The submissions on behalf of Mr. Mafi then concluded in this way :
     • (a) That the deceased was wearing dark clothing;
     • (b) That the stretch of road where the incident took place was not well lit;
     • (c) That there is no sufficient evidence of speed from the accused;
     • (d) That there were no brake marks from the car on the road;
     • (e) That the deceased had been drinking;
     • (f) From the evidence of Kevin, the deceased was drunk, he was weaving in the middle of the road and not paying attention to traffic.

8.6 What we do not know and which there is insufficient evidence, and lack of expert evidence, to draw the following conclusions:

(a) That we do not know where the deceased was at the time of impact;
(b) That we do not know whether the deceased was lying on the road or walking on the road;
(c) That we do not know what the deceased was doing at the time of the accident.

8.7 Therefore there is insufficient evidence to draw any conclusions as to the actions of the deceased at the time of the incident. It creates significant doubt as to whether the deceased was largely responsible or was a major reason for the cause of the accident, or not. Because there is no sufficient evidence to deduce what the deceased was doing at the time of his death.

8.8 On that basis the Court cannot deduce that the significant cause of the death of the deceased was the actions of the accused, or whether or not it was the sole reason for the death of the accused. In similar circumstances to the Rex v Ngaluafe matter, the Crown has been unable to show that an ordinary driver would have seen the deceased prior to the accident and that an ordinary driver would not have hit the deceased – the doubt that persists in this matter is derived from the failure of the Crown to adduce evidence, expert evidence as to what the deceased was doing prior to the accident and where was the deceased at the time of impact.

8.9 However, the circumstances do not assist the Crown either, that being the road is poorly lit, no witness saw what the deceased was doing prior to his death, no witness saw the incident and cannot definitively say that the fault lay solely with the accused.

8.10 To compound matters for the Crown, the Crown fails to acknowledge that they do not know where the deceased was at the time he was hit. Even when an ordinary person examines the photographs taken by the police, there is no debris, nor any sign on the side of the road that shows or exhibits impact – none whatsoever. However, the Crown would ask that an inference be drawn, which cannot be done given the circumstances of the case.

9.0 CONCLUSION:

9.1 The Crown is asking for the Court to convict the Accused because it has proven its case beyond reasonable doubt that the driving of the Accused was such that it was considered reckless driving, which was the sole cause of death of the Deceased.

9.2 However, the Accused cannot accept that the manner in which the Accused was driving was with speed – where that evidence is just not there nor apparent from the witness evidence.

9.3 Further the Crown submits that the Accused had dozed off outside Samipeni Finau’s house where the Deceased was hit and later died from his injuries. However, a proper translation of the Accused’s statement shows that his state of ‘tulemohe’ began when he reached Nualei, not when he reached Samipeni Finau’s house as the Crown would have this Court believe. Further there is no statement or evidence that the Accused dozed off outside Samipeni Finau’s house and then woke up, where the words ‘woke up’ do not appear in the Accused statement at all.

9.4 In terms of the Deceased, there is a complete lack of evidence as to what the Deceased was doing at the time of the incident. The Accused certainly does not state anywhere in his statement that he saw the Deceased prior to the car lifting outside Samipeni Finau’s house, nor is there any suggestion that the Deceased was visible to any driver at the place where the accident occurred. There is too much doubt as to what took place at the scene of the incident that the Crown cannot prove its case beyond reasonable doubt that the driving and the manner in which the Accused drove was the sole cause of death of ‘Ahotau Taufu’i.

9.5 In similar circumstances to the Rex v Ngaluafe case, the actions of the Deceased play a significant role in the accident and should not be discounted at all. The Crown would fail to prove that an ordinary person would have been able to see the Deceased, when he was wearing dark clothing, he was in a state that he could not have avoided the car [he had been drinking], it was in a dark and not well lit area and he was in the road where he was not supposed to be and an ordinary driver would not have expected anyone to be there.

9.6 The Accused respectfully requests that the charge of reckless driving causing death be dismissed.

In approaching my decision

144. This is a judge-only trial. I remind myself that it is for the Crown to prove all the requisite elements of the offence. They must prove each element so as to make me sure. The defence do not have to prove anything.
145. The Crown do not have to prove every aspect of the case, only as much as is necessary for me to answer the question as to whether they have proved the allegation to the requisite standard.
146. I can draw inferences, that is to say come to common sense conclusions, but I must not speculate. Because that would be guesswork and would not be based on the evidence.
147. I guard against and put out of my mind entirely, any emotion or sympathy for any party or witness or person connected with this case and approach my analysis of the evidence on that basis.
148. Before I turn to the Discussion of the issues I will address a ruling I made at trial.

Discrete Ruling

149. The Crown applied during the course to adduce evidence from a witness that Mr. Mafi had been drinking alcohol excessively during the hours leading up to the accident.
150. I refused their application and these are my reasons why.
151. At the start of the trial and during their opening there was no mention of this being a factor that played a part in this case.
152. There was nothing on the papers hitherto to alert the defence to that being an issue.
153. Given that it had never been identified by the Crown before trial or in their opening, then the defence would not be on notice that it was an issue.
154. The primary rule of evidence is relevance. Given that the Crown were not relying on alcohol as being a contributory factor, on the papers served, or in their opening, the defence would not have tailored their trial preparation to deal with that.
155. To put it differently, any case preparation by the defence that may have had to take into account alcohol consumption as a factor would be irrelevant.
156. No doubt had that issue been in the Crown’s opening or how they argued their case, the defence would have wished to consider finding their own witnesses to take proofs of evidence from. They would have wanted to take steps to deal with that issue.
157. I am quite sure in my view that to put the case on a new and different footing mid-trial would be so prejudicial that I refused that application.

Discussion

Speed

158. There were no eye witnesses as to what speed Mr. Mafi was travelling at the time of the accident. There is nothing before me from which I can draw an inference there was anything about the speed he was travelling that was, of itself, dangerous.
159. That is why I have not summarised the evidence given by the witnesses of the speed they thought the vehicle in question was travelling.
160. From the point of view of what the Crown had to prove, the speed Mr. Mafi was driving was significant.
161. Dr. Tupou’s evidence was the injury to the pelvis was it was caused by “high energy, high speed”.
162. That being so, I conclude that the fact the vehicle was obviously moving and that the injury was caused by “high energy and high speed” the Crown have proved that the car was driven “at speed”, so that I can, in due course, go on to consider the manner and circumstances of the driving.

Whether Mr. Taufu’i’s conduct was contributory ?

163. First thing to note is that in Tonga very few roads outside of Nuku’alofa have pavements. As two witnesses noted, it is common for people to walk along roads, even at night and in that area.
164. There were two competing accounts of how Mr. Taufu’i was walking along the road that night.
165. Mr. Penitani, described Mr. Taufu’i as drunk and walking in the middle of the road and swaying.
166. Solomone Kaumatule described Mr. Taufu’i as walking like a normal person and he watched him cross to the right, watched him walk along the road on that side and kept his eyes on him until he went out of sight.
167. In considering these different accounts I conclude that I find Mr. Kaumatule’s account more reliable for the following reasons:
     • Mr. Penitani had been drinking alcohol for several hours the evening.
     • He had consumed what he called ‘beer’ and punch
     • The “beer” turned out to be Woodstock, he admitted. That is not beer, but a mixture of whisky and cola.
     • He gave no explanation why he believed he thought Mr. Taufu’i was “very drunk”; he did not elaborate nor explained what made him conclude this. I acknowledge that he later stated he was swaying. Yet, there may be any number of reasons why someone might sway if one were on, or close to a road and car drove past.
     • He gave no explanation as for how long he observed him.
     • His assessment of himself as having been fit to drive after drinking, over the length of time he had, was highly questionable.
     • Mr. Kaumatule was working as a security guard outside the Nualei Cargo Warehouse when he saw Mr. Taufu’i.
     • There was no evidence that Mr. Kaumatule had been consuming any alcohol at all or was anything but sober.
     • He paid close attention to Mr. Taufu’i because his job required him to be vigilant.
     • He watched him and was quite sure of his demeanour, that is that Mr. Taufu’i was walking normally.
     • He watched him walk along the side of the road, on the right, heading into town until he disappeared from sight. This he did because he was working as a security guard and no doubt was to assure himself this person was not going to pose any issues to him or the property he was guarding.
     • Approximately 4 to 5 minutes later he heard a bang. Then he saw the lights of what transpired to be a mini car, light blue in colour as it approached the area where he was.
168. It is on this basis, when weighing these factors, I conclude that Mr. Kaumatule’s account of how Mr. Taufu’i was walking, normally along the road, is the more reliable.
169. I also note that just because Mr. Taufu’i’s sister earlier smelt alcohol on his breath, it does not equate to his being drunk.
170. I next turn to the medical evidence.

Expert evidence.

Expert opinion evidence is admissible in criminal proceedings at common law^[5] if:

(1) it is relevant to a matter in issue in the proceedings;

(2) it is needed to provide the court with information likely to be outside the court’s own knowledge and experience

(3) the witness is competent to give that opinion;

(4) the evidence satisfies the test set out in Reed^[6] at para 111:

“Expert evidence of a scientific nature is not admissible where the scientific basis on which it is advanced is insufficiently reliable for it to be put before the jury. There is, however, no enhanced test of admissibility for such evidence. If the reliability of the scientific basis for the evidence is challenged, the court will consider whether there is a sufficiently reliable scientific basis for that evidence to be admitted, but, if satisfied that there is a sufficiently reliable scientific basis for the evidence to be admitted, then it will leave the opposing views to be tested in the trial”

171. Therefore I remind myself that the opinion of Dr Tupou is just part of the evidence and is for me to assess in the context of all the relevant evidence.
172. Dr. Tupou was sure that Mr. Taufu’i was standing when he was struck by the car. I conclude that must be so, for the following reasons
     • There was significant bruising to Mr. Taufu’i’s buttocks
     • There was an open book fracture to the pelvis
     • It required great force to cause such an injury
     • The Doctor’s opinion was that the pelvic injury was consistent with a vehicle striking Mr. Taufu’i
     • There were injuries to his rectum and it appeared his bladder had ruptured.
     • Both the severity of the injury to the pelvis and the associated injuries to rectum and bladder strengthen the view that the impact had been at waist height.
173. If the impact was centred at waist height, as the evidence strongly supports, then Mr. Taufu’i must have been standing at the time.
174. Mr. Edwards put in cross-examination that he could have been lying down and tagged that question with the suffix “It’s hard to say?”
175. Dr. Tupou replied, “It’s hard to say”
176. It was seemingly a veiled proposition that was being made.
177. I in no way believe that Dr. Tupou, in answering as she did, was agreeing to a suggestion that supported the defence contention that Mr. Taufu’i was or may have been lying down at the time of the accident.
178. Firstly, Mr. Edwards did not explore that possibility with Dr. Tupou in clear terms, rather the objective of getting the answer “It’s hard to say” appeared to be obfuscated by a lack of well-defined questioning, leading up to a proposition the Doctor could then properly assess and answer.
179. Further, the Doctor had just given clear evidence she believed that Mr. Taufu’i was standing at the moment of impact.
180. Not only had she clearly stated that, twice, she had provided a structured appraisal of the evidence leading her to that view.
181. For all these reasons I am quite sure that the medical evidence supported the contention that Mr. Taufu’i was standing at the moment Mr. Mafi’s car struck him.
182. It would therefore be perverse for that her reply be taken to mean a form of agreement to the implied proposition. Therefore I dismiss from my mind any suggestion that it was or could have been, for the reasons I have just given.
183. The defence contention that Mr. Taufu’i was or may have been lying on the road at the time, was not supported by any evidence.
184. The defence submission :

“what was the actions of the deceased at the time of the incident and did the actions of the deceased contribute to the ‘cause’ of the accident or not ?”^[7]

185. That submission was made after setting out sections of R v Ngaluafe.
186. The ratio of that case, that a victim may have played a part in his or her own death is predicated on an crucial point :
187. This is there needs to be some “evidence adduced” on the point before the court can consider that as a possible defence.
188. In this case
     • The defence called no evidence.
     • The medical evidence rejected any suggestion Mr. Taufu’i was doing anything other than standing at the time of the accident
     • There were no eye witnesses.
189. Therefore I am quite sure that there has been no evidence adduced to support any defence contention predicated on the ratio of R v Ngaluafe.

Expert evidence generally and the cross-examination of two particular Crown witnesses.

Krishna Ayla Hansen.

190. He was cross-examined and asked about what impact damage he would expect a person standing, hit by the vehicle Mr. Mafi drove, to have caused to that car.
191. Mr. Edwards put it to Mr. Hansen that impact with a person standing would cause damage to the bonnet, front and smashed the windscreen, to which Mr. Hansen agreed.
192. Mr. Hansen is a Land Transport Officer . There was no evidence that he has been involved in
     • Scientific tests on the damage caused by a vehicles impacting a person.
     • There was no evidence he has studied the subject.
     • There was no evidence he had any scientific training that might help him to understand consequential damage to vehicles in these circumstances.
     • Nor was there any evidence that he had written any papers on the subject.
     • He had been involved in two other death by driving cases. What his involvement was in those cases was never explored, nor what his finding were. What type of vehicles were involved was not asked of him.
193. For the above reasons I am quite sure that Mr. Hansen was being asked to give an opinion on a matter outside the Court’s general knowledge.
194. There was no evidence that Mr. Hansen had any qualifications or specialised knowledge in that area he was being cross-examined on.
195. Therefore his opinion was inadmissible and so I discount those answers he gave, because only a person with expertise in matter outside the Court’s knowledge may be allowed to give opinion evidence.
     

Mr. Ma’u

196. He is a Panel Beater who works for the Ministry of infrastructure. Mr. Edwards asked him in cross-examination if he would not in fact have expected the whole of the front of the bumper to have broken had the collision been with a person standing. That is opposed to just the bottom portion as can be seen in photographs at tab 1.
197. Mr. Ma’u answered that he would not necessarily have expected that because in fact, the upper part of the bumper was harder than the bottom.
198. This was an answer given in precisely the area of Mr. Ma’u specialisation.
199. It was on a matter that was outside the Court’s knowledge.
200. I therefore accept his answer, albeit that it was an opinion, because it was based on matters within his specialised knowledge.

“Tulemohe” and the defence case

201. By the time of their closing submissions this is what the defence contention was :

Further the Crown submits that the Accused had dozed off outside Samipeni Finau’s house where the Deceased was hit and later died from his injuries. However, a proper translation of the Accused’s statement shows that his state of ‘tulemohe’ began when he reached Nualei, not when he reached Samipeni Finau’s house as the Crown would have this Court believe. Further there is no statement or evidence that the Accused dozed off outside Samipeni Finau’s house and then woke up, where the words ‘woke up’ do not appear in the Accused statement at all.

202. Firstly I will deal with this. As Mr. Edwards quite properly conceded^[8], his submissions to the use of the word “tulemohe” by Mr. Mafi was a complete change from how he had run the case at trial.
203. At trial Mr. Edwards repeatedly stated and claimed that the word “tulemohe” meant ‘sleepy’ and he insisted it did not mean “dozed off”.
204. This submission was entirely without any material to support it. It was a rather striking submission, since no dictionary was referred to and every Tongan person in Court asked (The Court Interpreter, Prosecutrix) all only knew it to mean “dozed off”.
205. Churchward’s Tongan/English dictionary at page 510 defines it to mean

To nod (with doziness) and go to sleep, to doze.

(emphasis added)

206. But, as I have indicated Mr. Edwards pursued his case and cross-examination (for example of Officer Lea’aemanu.) during the whole of the trial on that basis.
207. That is a basis he has not only dispensed with but also completely changed when he came to make his submissions.
208. His closing submissions on this point are that :

However, a proper translation of the Accused’s statement shows that his state of ‘tulemohe’ began when he reached Nualei, not when he reached Samipeni Finau’s house as the Crown would have this Court believe. Further there is no statement or evidence that the Accused dozed off outside Samipeni Finau’s house and then woke up, where the words ‘woke up’ do not appear in the Accused statement at all.

209. Compare that with Mr. Mafi’s statement 30 December 2022

When I drove on the road to return to Ha'asini I dozed off while I was driving and I continued to doze off when I was driving at the bend at Nualei forefront of the little church close to Sampeni's bus parking area. I fell asleep when all a sudden I felt the car was climbing over something in the middle of the road. When I woke up I was driving close to where Samipeni's home was.

(emphasis added)

210. And, compare the submission with Mr. Mafi’s police interview 1 January 2023

I drove on Taufa'ahau Road with the intention of returning to our residence in Ha'asini. Operating my vehicle C27580, in an eastward direction, I reached Nualei where I dozed off. This was directly in front of Samipeni's residence, where buses are parked; it seems the car jumped or lifted a little. I continued driving and reached the Vaini gas station, where I heard something drag from beneath the car.

211. The residence of Samipeni being referred to, is opposite where Mr. Taufu’i’s body was found, very shortly after Mr. Mafi drove into him.
212. Mr. Mafi did not give evidence.
213. Therefore, there is no evidential basis upon which Mr. Edwards can submit that the plain, natural and obvious meaning to the words Mr. Mafi used, 30 December 2022 and 1 January 223 could be anything else than what he meant.
214. I am quite sure from the words Mr. Mafi used on both those days, he was confessing to falling asleep at the wheel of the car he was driving and, as that happened, he drove over something.
215. That ‘something’, he conceded in his voluntary statement^[9], had to have been Mr. Taufu’i

The Charge

216. Mr. Edwards put it to Officer Lea’aemanu that Mr. Mafi on being charged replied

Yes its true

217. In cross-examination the Officer agreed with Mr. Edwards’ suggestion. that Mr. Mafi was only accepting the fact that he had been charged. By implication what Mr. Edwards was suggesting was that those words were not an admission.
218. In analysing that part of the evidence I note this :
     • Officer Lea’aemanu could not possibly say what was in the mind of Mr. Mafi at the time.
     • Only Mr. Mafi could say what was in his mind at that time.
     • Had Mr. Mafi meant something other than the plain and obvious words he used in his reply, there would need to be some evidence of this or supportive for that contention.
     • Mr. Mafi did not give evidence.
219. The words that Mr. Mafi used in reply to the charge were not spoken in English but in fact in Tongan and they were these

Io oku mo’oni pe ia

220. The English translation tends not to reflect the force with which Mr. Mafi was assenting ,in replying to the words of the charge.

‘Io’ means yes

‘Oku m’oni’ may be said to mean ‘that is true’

‘Pe’ is a term to emphasis the previous word

‘Ia’ is a further term to stress and accentuate the meaning of the last word or words.

221. The Tongan words Mr. Mafi used in his reply to charge tend to suggest in very clear terms that Mr. Mafi was totally accepting the charge against him was true.
222. In any event, the plain sense of the words as translated into English have that same meaning and lead me to draw the same conclusion that he was accepting the charge against him was true.

Lighting conditions

223. The defence have made a number of submissions that the area of the accident was poorly lit, so that contributed to the accident and makes Mr. Mafi less culpable.
224. As we shall see from the case of McBride v. The Queen (1966) 115 CLR, below, that if anything, it imposed on him a duty to be extra careful.
225. That the area where the accident happened was poorly lit appears to be uncontentious. The Crown do not argue against that.
226. So what is the relevance of that point in the context of this case ?
227. The defence submission is not that Mr. Mafi hit Mr. Taufu’i because he could not see him because the road was not sufficiently well lit.
228. The defence submissions is that Mr. Mafi could have been lying on the road. The defence submit that because

“...there is no direct evidence to support the indictment, that the deceased was ‘walking’ at the time of the incident, or was lying in the middle of the road...”^[10]

229. It is noteworthy that the lights to Mr. Mafi’s car were tested. That test was done at 10 pm at night. The lights were in “good condition”.
230. That meant on a dipped beam (not a highlight) his car lights would illuminate objects 150 feet away/ 45 meters away.
231. Given my finding that Mr. Taufu’i was standing at the moment of impact, and that Mr. Mafi’s car lights were working properly, there can be no issue that lighting conditions at that part of Taufa’ahau road played a part so as to mitigate or reduce Mr. Mafi’s culpability in the accident.

Clothing

232. A submission was made that Mr. Taufu’i was wearing “dark clothing”.
233. The first photograph at tab 1 of the Court Book shows Mr. Taufu’i lying on the road, what must have been moments after he was struck by Mr. Mafi’s car.
234. He was wearing a red or brown coloured T shirt and light beige shorts, as far as I can tell looking at that photograph.
235. I therefore reject completely the suggestion he was wearing dark clothing.

Lack of brake marks

236. This was referred to several times by the defence.^[11]
237. If anything it tends to support the Crown’s allegation because it tends to demonstrate that Mr. Mafi did not see Mr. Taufu’i on the road. If he had, he would have tried to avoid him or braked or both. But, because he was distracted through fatigue to the point of dozing off; as he admitted he did, he did not see him at all.

The Particulars of the offence

238. The Crown particularised the offence to plead that Mr. Taufu’i was walking on the right side of the road at the time of the accident.
239. I called parties back for further submissions on whether I should use my powers under Clause 48 of The Constitution to direct the form of the indictment be amended to state that Mr. Taufu’i was walking “in the vicinity of the Taufa’ahau road” . Those circumstances could have arisen if I came to the conclusion that Mr. Mafi had killed Mr. Taufu’i through dangerous driving, but I was unsure where on the road Mr. Taufu’i was at the moment of impact.
240. In my review of the case I have re-read all my notes, considered the CCTV, along with all the submissions. I have come to the clear view Mr. Taufu’i was walking on the right side of the road at the material time.
241. The Crown have also assisted in noting that since Mr. Taufu’i had walked from Pele’hake and got as far as Nualei, he was walking west.
242. That means ‘the right side of the road’ is a reference to his having been on the road on the east-bound carriageway at the moment he was driven into.
243. With that all in mind and having carefully considered all the evidence, especially
     • The evidence of Solomone Kaumatule, who watched Mr. Taufu’i walk up the road on the right side until he saw him no more.
     • That he then heard the noise of what must have been his being hit by Mr. Mafi’s car some 4-5 minutes later
     • Having considered the photographic evidence showing Mr. Taufu’i body on the east-bound carriageway of the Taufa’ahau road.
244. I am therefore quite sure that I can safely adduce that he was struck by Mr. Mafi’s car whilst he was on the right side of the road, as particularised by the Crown in the indictment.

The statement of 29 December 2022

245. I draw no particular conclusion adverse to Mr. Mafi in respect of this statement. Whereas it may be thought by some that lied to the police in that account, he also, the next day, voluntarily contacted them and gave his further account.
246. Thus I do not draw any adverse inferences against Mr. Mafi in respect of the statement 29 December 2022.
247. In drawing the threads of this case together and addressing the elements the Crown have to prove to the requisite standard, I note the agreed facts and submissions have considerably narrowed the issues.
248. Both advocates are to be commended for their hard work and professional approach in this respect.
249. The only two elements left to be proved, were submitted to be :

(iv) In a speed and manner, having regard to all the circumstances might

be dangerous to the public; and

(v) Caused the death of ‘Ahotau Taufu’i

250. I am quite sure that Mr. Mafi was driving dozing off at the moment of the accident. That is the plain meaning of what he told police 30 December 2022 and 1 January 2023 when he said he dozed off.
251. He related that time of his dozing off to driving past the Samipeni’s residence and that “the car jumped or lifted a little”.
252. In his voluntary statement he wrote out these words

“I was responsible for the accident that caused the death.”

253. The Crown needs to prove the quality of driving was a dangerous to the public. I have gone on to consider the case of McBride v. The Queen (1966) 115 CLRat pp 49-50,

"... This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place." It follows that for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of the driving, the lighting conditions (including whether it was night or day) and the heating or ventilation of the vehicle are all relevant considerations. And, of course, it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep that may be some evidence of the degree of his tiredness. And the period of driving before the accident and the amount of sleep that he had earlier had will also bear on the degree of his tiredness. But so far as "driving in a manner dangerous" is concerned, the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public.”

• The time of day
• The lighting
• The length of time Mr. Mafi had been awake before driving

254. All three points are objective facts ,when viewed together and also when viewed in the context of his admission that he fell asleep, force me to conclude that Mr. Mafi’s driving in the condition he was in, posed a real danger to the public.
255. Whilst driving in a manner that was dangerous to the public, he hit and killed Mr. Taufu’i.
256. For the reasons set out above, I am quite sure Mr. Taufu’i was standing at the time.
257. My conclusions are not altered by the fact there was extensive bruising to the buttocks of Mr. Taufu’i.
258. Even if at the moment of impact Mr. Taufu’i had turned around to face back towards where he walked from, even fleetingly, for whatever reason; that does not change the fact that it was Mr. Mafi, driving at a significant speed and falling asleep at the wheel, causing him he drive into and kill Mr. Taufu’i; and that must amount to dangerous driving.
259. That dangerous driving was the direct cause of Mr. Mafi’s death.

Conclusion

260. I find Mr. Mafi guilty of the offence of causing death by dangerous driving.
     

SUPREME COURT	24 MAY 2024
NUKU’A LOFA	COOPER J

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^[1] Agreed fact number 6
^[2] Criminal Law in Solomon Islands - Chapter 45: Reckless or Dangerous Driving (paclii.org)
^[3] Closing Submissions for Defence, filed 12 March 2024
^[4] The Defendant did not give evidence and so can not dispute the wording as claimed.
^[5] Brecani [2021] EWCA Crim 731
^[6] [2009] EWCA Crim 2698
^[7] Paragraph 8.4 of the Defence submissions filed 12 March 2024.
^[8] Oral submissions 22 March 2024
^[9] Made at 1940 hrs 1 January 2024.
^[10] Further Defence submissions, dated 2 April 2024 at paragraph 5.2
^[11] Closing submissions, page 18 paragraph 8.5 (d)