Public Prosecutor v Robert [1997] VUSC 50; Criminal Case No 051 of 1997 (15 December 1997)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT PORT VILA

CRIMINAL JURISDICTION

Criminal Case No. 51 of 1997

PUBLIC CUTOR

-v-

SILAS ROBERT

Coram: Mr Justice Oliver A. SA/p>

Counsel: Miss Kayleen TAVOA for the Public Prosecutor
Ms Susan Bothmanthmann Barlow for the Defendant

JUDGMENT

The Defendant appeared before this Court on 23rd, 24th, 28th and 31st October 1997 respectively to be tried on four charges as follows:-

(a) Ineffective Hand-brake on a vehicle using a public road contrary to Section 31 of the Road Traffic (Control) Act [CAP. 29] (the Act).

(b) Bald Tyres contrary to Section 22 of the Act.

(c) Unintentional harm causing death contrary to section 108(c) of the Penal Code Act [CAP. 135].

(d) Failing to stop after an accident contrary to Section 17 of the Act.

On his arraignment on 8th September 1997, the Defendant pleaded guilty to the charge of defective hand-brake but pleaded not guilty to the other three remaining charges.

The brief facts of the case are that the defendant in the early hours of 1st June 1997 had driven a bus Reg. No. 1688 loaded with bread from Ah Pow Bakery at Nambatu, Port Vila. He drove past the l’Houstalet Night Club at or about 3 o’clock am to deliver bread at Blacksands and Mele area. Driving along the Kumul Highway into the city he met a group of people on the road. Trying to avoid hitting some, the Defendant swings his vehicle to the left but hit a man who he alleges jumped in front of his vehicle. The impact of the collision was such that the man flew and landed his head on a pile of stone wall on the left hand side of the road. The man was taken to hospital and died some hours later the same day. The Defendant drove straight to the Police Station and reported the accident. The Police Officers on duty went to the scene of the accident at or about 4 o’clock in the morning and took rough sketch plans showing skit marks and other things.

Firstly it is alleged that the Defendant was in control of a vehicle on a public road which had a defective hand-brake.

Prosecution witness, a Police Officer by the name of Benson Willie gave evidence that among other things, he tested the hand brake and confirmed in evidence that they were defective. Indeed the Defendant himself admitted this allegation in his pleas and confirmed it in his evidence.

Secondly it is alleged that the Defendant was in control of a vehicle which had bald tyres. Again the evidence of Police Officer Benson Willie confirms that the vehicle driven by the Defendant had worn out tyres at the front left and at the rear right. The Police Officer took photographs of these bald tyres which were tendered into evidence as exhibits. Having seen the photographs and having heard the evidence in support of this allegation I am satisfied beyond reasonable doubt that this charge is proved and will accordingly enter a conviction against the Defendant for this charge.

Counsel for the Defendant submitted to the Court that these two charges are traffic infringements which would normally be dealt with by a Magistrate. She submitted that the evidence was clear that a defective hand-brake and bald tyres were not factors that contributed to the accident at all. She told the Court that the Defendant does not own the vehicle and that he is not the only driver of the vehicle. Further, Counsel told the Court that although the Defendant did bring these defects to the attention of his employer, nothing was done about them. Counsel then submitted that if the Court finds the Defendant guilty on these charges that the Court should isolate the circumstances of the accident and not carry over the penalty from one to the other. Finally Counsel submitted that as the Defendant had no control over the situation he is entitled to be acquitted.

I find these submissions hard to accept. He may not have had control of the situation but there can be no doubt that he knew the hand-brake was defective. There can be no doubt the Defendant knew the tyres were not up to the required legal standard. Having told his employer about these defects and finding his employer not taking any action, the Defendant should have known that it was risky to drive such a vehicle particularly in the business in which he was engaged, where food has to be delivered to far-off destinations and which required a fast service. Yet the Defendant chose to drive the vehicle. He could simply have refused to drive in the circumstances but he did not. He drove the vehicle with a defective hand-brake and bald tyres on that day having known the risk. It is therefore impossible to isolate these charges as separate. In my Judgment these factors contributed to the cause of the accident which resulted in death. It cannot be open to the Defendant to tell the Court that he did not know the law or facts. For by virtue of Section 11(1) of the Penal Code Act [CAP. 135], "Ignorance of the Law shall be no defence to a criminal charge."

Thirdly the Defendant is alleged to not have complied with Section 17 of the Road Traffic (Control) Act. This section requires that every driver involved in an accident causing personal injury or damage to property must immediately stop his vehicle.

The evidence of three prosecution witnesses namely of Michel Lewawa, Frederick Lewawa and Jack Lewawa show that the Defendant did not stop his vehicle although they did say they saw his brake lights. The Defendant himself said he had stopped his vehicle but his two defence witnesses confirmed in their evidence that the Defendant did not actually stop although he tried to. Evidence from both sides indicate that due to much shouting from the men who had accompanied the deceased obviously showing their anger, the Defendant took off and went directly to the Police Station.

Counsel for the defendant made submissions in respect of Section 17 of the Road Traffic (Control) Act [CAP. 29] which reads:-

"Every driver involved in an accident causing personal injury or damage to property must immediately stop his vehicle. If the accident involves personal injury, the driver must advice the police authorities within 24 hours. Damage to property must be reported to the police authorities within 5 days ..."

Counsel for the defendant urged the Court to read the Section in its entirety. She submitted that failure to report to the police is the essence and not the stopping. She submitted that on a strict technical interpretation the defendant had complied with Section 17 by going directly to the Police Station and reporting the accident. She submitted therefore that in these circumstances there can be no culpability on the part of the defendant.

The Court disagrees. It would be dangerous to accept such reasoning because the obvious consequences is that there would be many hit and run accidents in which drivers would deny liability or culpability because of the absence of real evidence which the prosecution on whom the burden of proof rests, would need to provide the Court with. The reason for the requirement for stopping is to allow real evidence to be recorded. Police officers would be able to take more accurate measurements which can be used in evidence to prove guilt. Stopping therefore is an essence and here the Court is satisfied that the defendant did not stop his vehicle to comply with Section 17. He however does receive credit for fulfilling the second requirement but in failing the first requirement he had concealed essential part of real evidence which was necessary to have been preserved for the purpose of deciding the issue of criminal liability. It would be so easy for Courts to be misled if the Court accepted the interpretation of Section 17 of the Act in the way submitted by Counsel for the defendant. Offenders would find pleasure in telling lies in Court by making false statements or fabricating evidence because they know that no hard and real evidence is in place to substantiate an allegation of culpability for a traffic accident. Indeed in my view running away from a scene of accident is as good as destroying evidence if the driver does it wilfully. This would be contrary to Section 78 of the Penal Code Act [CAP. 135]. The Court therefore finds the defendant guilty of the charge.

Finally it is alleged against the defendant that in the course of his driving a vehicle with defective hand-brake and bald tyres and in careless, reckless and negligent manner, the defendant had caused unintentional harm which eventually caused the death of the victim of the accident. The charge was laid under the provision of Section 108(c) of the Penal Code Act [CAP. 135] which reads:-

"No person shall unintentionally cause damage to the body of another person, through recklessness or negligence, or failure to observe any law.

Penalty: (a) if the damage so caused is purely temporary , imprisonment for 3 months;

(b) if the damage so caused is permanent, imprisonment for 2 years;

(c) if the damage so caused result in death, imprisonment for 5 years."

The prosecution produced evidence from three main witnesses apart from two police officers who testified as to sketch plans and photographs taken at the site of accident. The three main witnesses are brothers of the deceased. I give a brief summary of each witness’ recollection of what happened immediately prior to the accident and after.

Firstly Michel Lewawa told the Court that he was among a group of 5 other people walking home after dancing at a night club. He told the Court that they were all walking on the right hand side of the road near the Marina Motel towards town. He told the Court that at one point the deceased had crossed the road to the left side. When asked exactly where the deceased crossed the road the witness said he could not remember well. He told the Court that he heard the noise of the vehicle’s brakes. He told the Court that the vehicle was travelling fast and on hearing the noise caused by the brakes the witness turned to look but the accident had already taken place. When asked whether he saw the accident happen the witness told the Court that he did not see how it happened. In cross-examination the witness confirmed that the deceased was holding a stereo cassette player in his hands whilst walking on the road. He also confirmed that he had drunk a bottle of wine at the dance with some friends of his.

Secondly Frederick Lewawa told the Court that prior to attending the dance he and his brothers and friends drank some beer at their home at Tebakor. After the dance had closed at or about 3 o’clock in the morning he was in a party of 5 others walking home. These were Michel, George, Jack, Stephen, Vei and himself. He told the Court that they were walking on the right side of the road and that near to Law House, he and the deceased crossed the road to the left hand side. He told the Court that it was the deceased who went ahead of him holding a stereo cassette player. He told the Court that he went to join the deceased to listen to the music and that he walked very close to the deceased.

The witness then said he heard a noise coming and that he knew it was the bread delivery service bus. At that point he told the Court that he warned the deceased to be careful. He told the Court that his brother, the deceased did not seem to take notice of his warning as he was on the left-hand side. He said that when he heard the brake noise he turned and saw the vehicle lights shinning straight at them. And then he said he saw the vehicle hit the deceased and he flew over to the other side of the road.

Thirdly Jack Lewawa told the Court that he too attended the dance and was in the party walking home when the accident took place at the entrance to the Marina Motel. He told the Court that he, Stephen, Michel, and Vei were walking on the footpath on the right side of the road towards town. The deceased and Frederick walked on the left. He said he heard brake noise and saw the vehicle roll down and hit the deceased on the extreme left side of the road. He said he heard the vehicle apply brakes behind him. He told the Court that he had drank some wine. In cross-examination he confirmed the deceased was holding a stereo cassette player and that the music was on.

I find some inconsistencies in these witnesses’ evidence which make them unreliable. It is clear that the witness and the deceased were drunk and therefore these inconsistencies may be due to that fact. On the similarities, the Court is careful to accept them due to the relationship of the witnesses to the deceased. It is clear that Michel did not see how the accident happened. He was obviously walking a good distance ahead of the others in the group and his evidence is relevant only to the issue of the defendant not stopping his vehicle after the accident.

Frederick Lewawa tends to contradict himself. First he says that the deceased had crossed the road ahead of him and he went to join him. At one point he says that he walked shoulder to shoulder with the deceased because he wanted to listen to the music. He says that when he had warned his brother to watch out the deceased did not take any notice of the warning. And when he heard the brake noise he turned and saw the vehicle coming straight at them. One wonders how and why the vehicle did not hit him as well if that was the true story.

Jack Lewawa was obviously that last person walking down on the right hand side of the road. He heard brake noise and saw the vehicle roll down and hit the deceased on the extreme left side of the road. Taking into account the length of the skit marks, there is some truth in this evidence but it cannot be accepted by the Court that the accident did in fact take place on the extreme left hand side of the road. And it is clear that this witness did not see what the deceased was doing immediately prior to the collision.

The defendant gave evidence himself and he called two other witnesses who were passengers in his vehicle during the time of accident.

I include relevant parts of the defendant’s examination-in-chief in this manner:

(a) Firstly in relation to speed-

Q: What speed did you travel at?

A: Ating 70 or 80 Km/h be mi no sua long hem.

Q: Any other traffic?

A: No.

CT: Wanem speed yu stap ron long hem oltaem?

A: Mi mas ron long gudfala speed blong mekem sua se bread istap long olgeta stoa rere blong olgeta pikinini i kakai breakfast bifo oli ko long skul.

(b) Secondly in relation to what the deceased was doing in the road-

Q: You saw some people on the road. What were they doing?

A: Mi luk samfala long raed saed mo wanfala long medel blong road hemi stap jamjam.

Q: How many people did you see?

A: Ating 5 or 6 or 7.

Q: Where were they?

A: Oli stanap long raet saed mo wan istap long medel rod wetem tape-recorder.

Q: What did you do when saw this person?

A: Mi lukim olgeta mo mi swingim trak - mi holem taet brake mo swingim trak igo long left saed.

Q: Why did you do that?

A: Mi mekem olsem blong sevem hem.

Q: Was there room for you to pass through?

A: No.

Q: Why not?

A: Nogat enaf room so mi swing long left saed.

Q: What was the man doing?

A: Danis, jamjam mo swingim hand.

Q: How was the man dancing?

A: I danis olsem long naet club.

Q: Was he carrying anything?

A: Hemi holem tape-recorder. Mi no remember long wanem hand be hemi putum hand blong hem antap long air.

Q: Did you see anyone else?

A: Olgeta fren blong hem long raet saed - man ia istap long medel so mi swing long left saed.

Q: What happened when you braked?

A: Man ia i jam long bumper.

Q: What happened when you saw the man?

A: Mi putum brake, man ia i jam long bumper, mi turn long left, man ia i jam long foret.

Q: What did the man do?

A: Taem mi swing long left, man ia tu i swing long left.

Q: What happened?

A: Hemi bangem trak antap i ben mo glass i brok.

Q: Where on the screen broke?

A: Glass i brok be ino folfoldaon mo kapa long haos antap i benben, mo man ia i foldaon iko long saed road.

Q: How long did it all take place?

A: Short taem nomo.

Q: What happened then?

A: Mi holem brake blong mi, mi wantem luk hem be ol fren blong hem i singaot mo mi no save.

In cross-examination the defendant maintained his position and consistencies. His two witnesses gave evidence which was consistent with the defendant’s evidence. The skit marks show that the collision took place on the left. It confirms that the deceased was in the middle of the road.

The photographs show broken window screen on the left and a dent on the roof. It confirms the defendant’s evidence that the deceased jumped in front of the bus on its bumper. It explains why the dent on the roof and the broken windscreen on the left. That could not have been done by a person who was simply walking along the road and a vehicle came along and hit him. Therefore on the facts, I am satisfied that the deceased was in the middle of the road and that he jumped in front of the vehicle earning a collision. Whether or not the deceased deliberately did so is important to consider. And the Court can only do this by looking again at the evidence. Let us look again at the whole picture:

"A vehicle is coming down a gentle slope at 70 to 80 km/h. It is dark with no traffic. A group of people are walking on the right side of the road. One is in the middle with a tape-recorder. The tape is on and the man in the middle is dancing and getting excited. Suddenly the vehicle comes around the corner, sees this man and applies brake. Someone shouts a warning "George luk out". Confused, the man jumps to the left thinking he was avoiding the vehicle. Indeed he jumps in the way of the vehicle. It strikes him and he falls down with severe injuries. Hours later he dies as a result of the accident."

The Court concludes that the deceased did not jump in front of the vehicle deliberately. Evidence is clear that music was on and the deceased was dancing. His concentration at that point in time was on the music and the beat of it so much so that he was enjoying himself. In the midst of it all his brother shouts a warning and his mind immediately became confused if not retarded because of alcohol. He makes the wrong decision in that state of confusion and suffers the consequences. Who is responsible here? In my Judgment, it has to be the driver as here, the defendant not-withstanding that he did not intentionally cause the damage that resulted in death.

The law is quite clear. Section 108 (c) of the Penal Code Act [CAP. 135] makes it a criminal offence where a person without intention causes damage or harm to the body of another person through recklessness or negligence or failure to observe any law. The elements of the offence are:-

1) Damage to the body of another person through

(a) recklessness;

(b) negligence or;

(c) failure to observe any law.

There can be no doubt that here there was damage of a serious nature to the body of the deceased. The issue is whether or not the driver being the defendant, was reckless, negligent or that he had failed to observe any law. The defendant says he was not. The prosecution says he was. I deal first with the question of recklessness and negligence. Section 6 of the Penal Code Act provides:-

CRIMINAL INTENT, RECKLESSNESS

"6. (1) No person shall be guilty of a criminal offence unless he intentionally does an act which is prohibited by the criminal law and for which a specific penalty is prescribed. The act may consist of an omission, or a situation which has been created intentionally.

(2) No person shall be guilty of a criminal offence unless it is shown that he intended to do the very act which the law prohibits; recklessness in doing that act shall be equivalent to intention. (emphasis, mine)

(3) A person shall be considered to be reckless if:-

(a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk; and (emphasis, mine)

(b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.

(4) A person shall not be guilty of a criminal offence if he is merely negligent, unless the crime consist of an omission. A person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise ..." (emphasis, mine)

It is interesting to note that the prosecution did not lay charges under the provisions of the Road Traffic (Control) Act [CAP. 29] which they could easily have done. I refer to relevant sections under that Act because of the word "reckless". For instance Section 12 of the Act which reads:-

CAUSING DEATH BY RECKLESS DRIVING

"12. A person who causes the death of another person by driving a motor vehicle on the road recklessly shall be guilty of an offence and shall be liable on conviction to a fine not exceeding VT500.000 or to imprisonment for a term not exceeding 5 years or to both."

Section 13 reads:-

RECKLESS DRIVING

"13. A person who drives a motor vehicle on a road recklessly shall be guilty of an offence and shall be liable on conviction to a fine not exceeding VT100.000 or to imprisonment for a term not exceeding 1 year or to both."

From the prosecutions submissions it seems to me that they are saying that recklessness means negligence as they have not attempted to distinguish the two. That is not correct. From the legal provisions referred to above, it is clear to this Court that the two terms "reckless" and "negligence" are different and are separate elements that they have to prove.

I do not mean that the prosecution have to prove all three elements of recklessness, negligence or failure to observe a law as required by Section 108 (c) in order to prove guilt under that section. No, they can prove only one or all but it’s wrong to say that one element is the same as the other.

The ordinary meaning of the word "reckless" in the English language is "careless", "heedless", "inattention to duty". Literally it means "without reck". "Reck" is an old English word meaning "heed", "concern" or "care". (See R -v- Bates [1952] 2 All ER. 842, per Donovan, J., at pp. 845, 846).

The term "recklessly" means something more than mere negligence or inadvertence. I think it means deliberately running an unjustifiable risk (see Reed (Albert E.) & Co. Ltd -v- London and Rochester Trading Co. Ltd [1954] 2 Lloyds Rep. 463, per Devlin J at p. 475).

The term "recklessly" means grossly careless. Recklessness is gross carelessness the doing of something which in fact involves a risk being such having regard to all the circumstances, that the taking of that risk would be described as "reckless". In describing the test Megan J said:

"The only test, in my own view, is an objective one. Would a reasonable man knowing all the facts and circumstances which the doer of the act as "reckless" in the ordinary meaning of the word in ordinary speech? As I have said, my understanding of the ordinary meaning of that word is high degree of carelessness. I do not say "negligence", because "negligence" connotes a legal duty". (See Shawnigan Ltd -v- Vokins & Co. Ltd. [1961] 3 All ER 396, per Magaw, J., at p.403).

I accept these definitions as correct as this reflects the position as far as Vanuatu law is concerned as clearly provided in Section 6 (3) of the Penal Code Act. "Reckless" therefore involves a risk, knowing the risk and the consequences and yet taking that risk.

Applying this to the facts as given in evidence, there is no doubt the defendant knew he was driving a vehicle with a defective hand-brake and worn-out tyres. There can be no doubt that the defendant knew the risk of driving a vehicle with such defects yet he chose to take the risk of driving it. He was "reckless". Section 11 of the Road Traffic Act [CAP. 29] reads:-

VEHICLE NOT TO CONSTITUTE OR CAUSE DANGER.

"11. No person shall drive, or being the owner, shall permit another person to drive a vehicle or any part of it there of constitutes a danger or could cause danger" (Emphasis, mine).

With that, clearly the law prohibits the driving of such a vehicle but it is clear this defendant chose to drive it. Under Section 6(2) of the Penal Code Act his action amounts to recklessness and as such it is equivalent to intention. It is not open to the defendant to plead that he did not know of such a law because under Section 11(1) of the Penal Code Act, ignorance of the law is no defence to any criminal charge. I conclude therefore that this defendant was reckless in his driving.

I now deal with the issue of negligence. Negligence connotes a legal duty. It involves a duty of care, breach of that duty and the consequences of such breach of the duty of care. The prosecution submitted that the defendant as a driver owed duty of care to the deceased as a road user and that the duty should have been exercised with great care as the standard of care required is a high one. They submit there was a breach of such duty of care and the consequences resulting therefrom is clear that the defendant must be criminally liable. They relied on Andrew -v- DPP [1937] AC 576. In that case R. -v- Bateman (Supra) was applied. Counsel for the defendant argued that the prosecution had failed to prove beyond reasonable doubt that the defendant was guilty of negligence. She made references to the photographs in exhibit before the Court in particular those which show skit marks (exhibits 1-5). The skit marks started at about 3 centimetres on the right hand side of the road. 11 centimetres from where it starts to the middle line of the road the skit marks is not visibly clear. But exactly from the middle swerving gradually onto the left hand side of the road down some 10 to 15 meters the skit marks are clearly visible.

Counsel for the defendant submitted that the skit marks showed clearly that the defendant did take care and that he could not do anymore than he did to avoid the accident. Evidence shows that the defendant could not turn his vehicle further to the right as he would risk hitting other pedestrians or risk colliding with the pavement and the edge of the road. Evidence shows that his only alternative was to turn to the left to avoid hitting the deceased.

This Court disagrees. The defendant knew there were people walking on the road at that time. During his examination in chief the defendant told the Court that near the Law House he saw 5 to 7 people walking on the right hand side of the road. This Court asked the defendant the following question:-

CT: " Yu bin luk eni man istap wokabaot betwin Asco Motors mo Cinema Hickson?"

Ans: "Yes, plante man samfala long left saed mo samfala long right saed" (Judge’s notes)

All these people including the deceased and his group had just left the dancing hall at L’Houstalet Night Club. Evidence is clear that the defendant’s vehicle gained access to the Kumul Highway through a road that passes by the Night Club. Evidence is clear that the dance closed at 3 o’clock in the morning. The defendant drove past the night club and he knew and saw many people walking on the road. Most of these people were no doubt drunk. From that moment he saw people walking on the road, whether it be close to the night club or near Cinema Hickson or Asco Motors, as a reasonable person he should have foreseen that there would be others in front of him and with that foresight he should have known that he was under a duty to drive with care and attention. In evidence it is clear that the defendant’s speed was between 70 or 80 km per hour. In evidence also it is clear that the defendant was late in his timing and therefore he was rushing in his duty. And he drove at an excessive speed. The site where the accident occurred is to me a dangerous site to travel at that speed of 70 or 80 km per hour. It is common knowledge that the speed limit in the Municipal area is 50 km per hour. Section 15 of the Road Traffic Act reads:-

SPEED LIMITS

"15 (1) Notwithstanding any other provision of this Act, it shall be unlawful to drive any motor-vehicle exceeding 2 tons in weight at a speed limit exceeding 35 kilometres per hour on any road within the town limits of Port Vila and Luganville or at a speed not exceeding 60 kilometres per hour on any other road.

(2) For the purposes of subsection (1) - "weight" includes the weight of any loads of any kind whatsoever, including persons which are carried on a motor vehicle..."

The defendant’s vehicle is a Mazda modelled convertible bus which for passenger purposes is capable of carrying 15 passengers. Here it was used as a delivery vehicle. When asked to describe what took place prior to driving out of the bakery the defendant said:-

"Mi girap long 3:45 am. Mi kam long ples blong wok long No.2 area. Plante bread blong putum long trak. Mi talem long ol boy blong putum ol bread long bus blong trip blong Melemaat, Mele mo Blacksands. 3:45 am hemi taem blong mekem wok. Bus hemi fulap. Igat 2 passenja wetem mi long foret, John mo Sandie mo igat 2 passenja bihaen. Mifala i kam daon long L’Houstalet Naet Klab i clos long 3 klok mo fulap man long rod..." (Judge’s notes)

The weight of the defendant’s vehicle was not given in evidence but the Court has obtained further information from the prosecution as regards weight which the Court takes Judicial notice of. The weight of the bus when empty (in tonnage) is 1.710 or 1.760 and when full is 2.700 or 2.750.

From evidence the bus was full and therefore its weight was in excess of 2 tonnes. By virtue of Section 15(1) of the Road Traffic Act, its speed limit should have been 35 km per hour. Clearly the defendant exceeded that speed limit which is the legal limit. Whether or not he knew does not matter because ignorance of the law can be no excuse.

Was the defendant therefore negligent? I conclude that he was.

Secondly, did the defendant fail to observe any law? I conclude that the defendant failed to observe the provision of Section 15 (1) of the road Traffic Act. His failure amounts to an omission which under Section 6 (4) of the Penal Code Act is equivalent to negligence. He failed to exercise such care and foresight which a reasonable person in his situation should have.

I am therefore satisfied beyond all reasonable doubt that the defendant Robert Silas is guilty of the charge of unintentional harm causing the death of late George Lewawa, the deceased in this case. He is accordingly convicted.

On the defendant’s defence that the deceased contributed to his own death I accept the submission of the prosecution that this can be no defence relying on R. -v- Swindall & Osbourne [1846] EngR 506; [1946] 2 C&K 230. Secondly I have earlier found that the deceased’s action was not deliberate and therefore in the circumstance no contributory negligence can be attributed to him.

Convictions are therefore recorded against the defendant on all four counts.

In sentencing the defendant on 15th December 1997 the Court after having heard pleas in mitigation by Ms Barlow and having considered the defendant’s age, family commitment, clean character, loyalty and his evidence in Court showing that the deceased had jumped in front of the defendant’s vehicle, in my Judgment a custodial sentence would not be appropriate. Circumstances warrant that only monetary penalty be imposed. Under Section 108 (c) of the Penal Code Act the offence of unintentional harm causing death carries a maximum penalty of up to five years imprisonment. The Court was of the view that the defendant could have been charged under Section 12 of the Road Traffic Act [CAP. 29] with an offence of causing death by reckless driving. This carries a maximum fine of VT500.000 or a maximum sentence of five years imprisonment.

In my Judgment the defendant will not be imprisoned but will receive a heavy monetary penalty under Section 15 of the Road Traffic Act. It will be the maximum fine of VT500.000 to cover all counts. In summary the defendant is sentenced as follows:-

(a) Count 1 - Driving a vehicle with defective handbrake - No separate sentence or penalty is imposed.

(b) Count 2 - Driving a vehicle with bald tyres - No separate sentence or penalty is imposed.

(c) Count 3 - Unintentional Harm Causing Death - A fine of VT500.000 payable by 5th March 1998. In default of the defendant paying this sum within the specified time the defendant shall suffer imprisonment for a term of 1 day for every VT50 of the fine which remains unpaid, 3 months from today. This Order is made pursuant to Section 52 of the Criminal Code Act [CAP. 136].

(d) Count 4 - Failure to stop after accident - No separate sentence or penalty is imposed.

Pursuant to Section 94 of the Criminal Procedure Code Act, the defendant is informed of his right to appeal within 14 days should he choose to do so.

There will an Order also against the defendant to pay prosecution costs in the sum of VT80.000 payable by or before 31st January 1998.

Dated at Port Vila, this 15th day of December 1997.

BY THE COURT

OLIVER A. SAKSAK
JUDGE