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Police v Maiava [2023] WSSC 68 (13 October 2023)
SUPREME COURT OF SAMOA
Police v Maiava & Anor [2023] WSSC 68 (13 October 2023)
Case name: | Police v Maiava & Anor |
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Citation: | |
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Decision date: | 13 October 2023 |
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Parties: | POLICE (Prosecution) AND MIKAELE MAIAVA, male of Moamoa. (First Defendant) AND TALOSAGATUUFAATASI FAATAGI of Leulumoega. (Second Defendant) |
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Hearing date(s): | 26, 27 & 28 June 2023 |
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File number(s): | charging document dated 16 March 2020, S238/20, S239/20, S240/20 |
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Jurisdiction: | Criminal |
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Place of delivery: | Supreme Court of Samoa, Mulinuu |
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Judge(s): | Justice Nelson |
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On appeal from: | |
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Order: | - |
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Representation: | L. Taimalelagi for prosecution M. Lui for first defendant L. Sio-Ofoia for second defendant |
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Catchwords: | - Vehicular or Motor manslaughter – breach of duty – major departure – gross negligence |
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Words and phrases: |
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Legislation cited: | |
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Cases cited: | |
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Summary of decision: |
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IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN:
POLICE
Prosecution
AND:
MIKAELE MAIAVA, male of Moamoa.
First Defendant
AND:
TALOSAGATUUFAATASI FAATAGI of Leulumoega.
Second Defendant
Counsel:
L. Taimalelagi for the prosecution
M. Lui for the first defendant
L. Sio-Ofoia for the second defendant
Hearing: 26, 27 & 28 June 2023
Submissions: 23 August 2023
Decision: 13 October 2023
DECISION OF THE COURT
- By charging document dated 16 March 2020, the defendants are charged as follows: in respect of the first defendant Mikaele Maiava,
information S238/20 alleges that at Leulumoega Tuai on 09 November 2019 he had under his charge or control a red Ford Ranger pickup
registration number 27557 and while in control thereof without due precaution or care he endangered human life and failed to perform
his legal duty to take reasonable precautions and use reasonable care thereby causing the death of Aniseko Sagato a male 23 years
of age from Vaiusu committing the crime of vehicular or motor manslaughter in breach of section 83 of the Crimes Act 2013.
- The first defendant is also charged in the alternative by information S239/20 that at the same place and on the same date he did drive
the said Ford Ranger negligently causing the death of the said Aniseko Sagato in violation of section 39 of the Road Traffic Ordinance 1960.
- A further charge is S240/20 which charges the first defendant at the same place and time with reckless and dangerous driving.
- And lastly that the same date and place the first defendant did negligently drive the said Ford Ranger in a manner causing injury
to Pueata Aimainu a male of Samata.
- The second defendant Talosagatuufaatasi Faatagi the pulenuu of Leulumoega village faces identical charges in relation to his use of
a white Toyota Hilux pickup registration number 26143 at Leulumoega Tuai.
- The prosecution alleges that on 9 November 2019 the defendants were engaged in a road race or at least in dangerous overtaking manoeuvres
on the Leulumoega to Lefaga Cross Island Road – resulting in the fatal road accident.
- There is no dispute the defendants had current drivers licenses and were at all material times driving their respective vehicles.
Or that a motor vehicle accident involving both vehicles occurred at Leulumoega Tuai on the afternoon of 09 November 2019 on the
strait of road viewed by the court and the parties.
- The deceased Aniseko and the allegedly injured Pueata were passengers in the first defendant’s vehicle. Aniseko sat behind the
first defendant driver and Pueata beside him in the front passenger’s seat, while the second defendant was alone in his vehicle.
The dispute relates to how the accident was caused and who was responsible for it
Relevant law
- The Police do not often prosecute persons for motor manslaughter. But section 92(5) of the Crimes Act 2013 now allows them to do so by providing:
“92. Culpable homicide –
(5) Where an act or omission constitutes an offence under the Road Traffic Ordinance 1960 or any other Act other than this Act, nothing in the Road Traffic Ordinance 1960 or any other Act prevents the prosecution and punishment of an offender under this Act for murder or manslaughter.”
- The Police however seem to reserve such a charge only for cases where the breach of a drivers duty of care to persons likely to be
affected by his actions is serious enough and can be said in the terms of the statute to amount to “a major departure from
the standard care expected of a reasonable person to whom that legal duty applies in those circumstances”: section 83(2)(b).
As noted by the Court of Appeal in R v Fenton [2003] NZCA 409; [2003] 3 NZLR 439 per Blanchard, J:
“In the hierarchy of negligent driving, motor manslaughter is now reserved for very bad cases.” i.e. for cases of at least
gross negligence.
- To this end, section 83 of the Crimes Act says:
“83. Standard of care required of persons under legal duties – (1) This section applies in respect of the legal duties specified in any of sections 84 to 89.
(2) For the purposes of this Part, a person is criminally responsible for:
(a) omitting to discharge or perform a legal duty to which this section applies; or
(b) neglecting a legal duty to which this section applies,–
only if, in the circumstances of the particular case, the omission or neglect is a major departure from the standard of care expected
of a reasonable person to whom that legal duty applies in those circumstances.”
- The relevant legal duty is laid down by section 88:
“88. Duty of persons-in-charge of dangerous things – A person who has in his or her charge or under his or her control anything whatever, whether animate or inanimate, or who
erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is:
(a) under a legal duty to take reasonable precautions against and to use reasonable care to avoid the danger; and
(b) criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.”
- Elevation of the breach of duty to the level of a criminal homicide is achieved by sections 90 and 92 which relevantly provide:
“90. Homicide defined – Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.”
“92. Culpable homicide – (1) Homicide may be either culpable or not culpable.
(2) Homicide is culpable when it consists in the killing of any person by:
(a) an unlawful act; or
(b) an omission without lawful excuse to perform or observe any legal duty; or
(c) both (a) and (b) combined.
(3) Except as provided in section 110, culpable homicide is either murder or manslaughter.
(4) Homicide that is not culpable is not an offence.
(5) Where an act or omission constitutes an offence under the Road Traffic Ordinance 1960 or any other Act other than this Act, nothing in the Road Traffic Ordinance 1960 or any other Act prevents the prosecution and punishment of an offender under this Act for murder or manslaughter.”
Facts
- To establish its case, the prosecution called a number of eye witnesses. Beginning with Petelo Samaila a resident of Leulumoega Tuai
– who was playing pool between 3:00 and 4:00 pm on the afternoon of Saturday 09 November 2019 at a Fale-piliati (pool parlour)
situated beside the Leulumoega to Lefaga Cross Island Road. He testified about two vehicles. A red Ford Ranger and a white pickup
racing side by side at speed passing the pool parlour heading inland. He said it was a fleeting glance of less than a minute but
was sufficient for him to identify the vehicles. He also referred several times to “le ūū mai o afi o taavale”.
The loud noise generated by the car engines, an indicator of speed.
- Another witness Soloi Mafaufau who lives some 100m further up the road opposite the Leulumoega Primary School testified how at the
hump in-front of the School, the pickup slowed down but was overtaken by the Ford Ranger. He described it as “luga lea o le
taavale pa’epa’e i le patupatu ae tipi loa e le taavale mūmū”.
- This evidence is corroborated by the evidence of the passengers in the Ford Ranger: Pueata Aimainu who worked for the first defendant
and was seated in the front seat and Mikaele Matulino the then 16 year old cousin of the first defendant seated in the back seat
behind Pueata. Both agreed the Ford Ranger “tipi” the pickup at the hump, with Pueata also saying that pre-hump, the
pickup had overtaken their vehicle. Mikaele added that at the hump, the first defendant made the humorous comment - “Makua
palau kele le kaavale” in reference to the second defendant’s pickup.
- The vehicles continued on to overtake the van of one Moresby Okesene a former Police officer who was driving a palagi tourist from
Faleolo Airport to Lalomanu Beach. Moresbys evidence was the Ford Ranger overtook him first closely followed by the pickup. He said
they had to do so at speed because his passenger was tired so he was travelling at 45 to 50 mph. He also said the overtaking maneuvers
caused the freshly mown grass on the roadside to fly around - “felelei o vao i le autafa o le auala”. Again, indicators
of high speed.
- Both vehicles quickly vanished from view until at a point around a corner of the road, he came upon the overturned cars on the side
of the road. In the positions shown in Exhibit “P-3” for the prosecution, the police photographs of the accident scene.
He stopped to render aid and it was he who called the Faleolo Police Post for assistance.
- As to the circumstances immediately prior to the accident, the key witnesses are the surviving occupants of the first defendants vehicle
Pueata and Mikaele and the independent witness Maselino Alai a planter from the area viewing what was unfolding from the top of the
long hill at the accident scene.
- Pueatas evidence was that the first defendant and a carpentry crew went to Savaii on Thursday 07 November 2019 to do a job at Safai.
They finished Friday 08 November and left to catch the 2:00 pm ferry from Salelologa to Mulifanua on Saturday 09 November. The first
defendant drove while he sat in the front passenger seat. Mikaele was behind him and the deceased behind the first defendant. They
took the long way to Salelologa via Asau and stopped at Falealupo where the first defendant bought 6 large Taula Strong beers. The
first defendant consumed two (2) bottles. There was a further stopover at his family in Samata for lunch. Their journey continued
to Salelologa wharf. Their vehicle stopped at the Jetover Hotel, Salelologa where they bought three (3) small beers. He had one,
the first defendant had one and deceased had one. There was no further alcohol purchased or consumed by the group
- They disembarked from the Ferry and turned into the Leulumoega to Lefaga Cross Island Road. Where they were first overtaken by the
white Hilux. At the hump by the School, they “tipi” the Hilux. He did not hear any comment made by the first defendant
and does not recall them overtaking Moresby’s van. He did recall seeing in his side mirror the white pickup again coming to
try and overtake them. And that was the last thing he remembered until waking up in the National Hospital.
- Mikaeles evidence as to the trip from Savaii and the other events was essentially the same. Except he referred to the first defendants
comment at the hump about the “palau” of the second defendants pickup. And unlike Pueata, he remembered them overtaking
Moresbys vehicle. He maintained that the pickup pursued them which he drew to the first defendant’s attention. The first defendant’s
response was to slow down and say “kuu ga ia e faamuamua”. However, as the pickup passed them, it hit the front of their
car, causing the accident and him to black out. He went on to testify about injuries to his head and feet and being detained in
Motootua Hospital for three days to recover.
- The last witness to the accident was Maselino Alai a planter from Leulumoega Tuai who was standing on top of the long hill waiting
for a lift as it was a hot day. He said he had a clear view of the vehicles which were ascending a small hill on the road. From his
evidence in cross examination on page 46 of the transcript:
“Mo le faamalamalamaga i lau susuga pei ona e faafofoga i la’u ka’ua akuga e kilia lelei la’u kilokilo aga
foi e maualuga le mea lea ou te kilokilo mai ai. E matuai kilia, pe alu a la i lalo a faapea o se kamai omo a i lalo e kilia laga
e maualuga la’u kilokilo. E maualuga kele le mea lea ou ke ku mai ai.”
- Maselinos evidence was the red Ford Ranger was in front and the white pickup behind it. Both were speeding. He estimates their speed
at 100 to 120 mph which is probably an exaggeration and would also be affected by his POV of being front on facing the oncoming vehicles,
a position from which speed estimates are notoriously difficult. But in his view they were racing (“o kuuga mea ia e fai mai”).
- Maselino was adamant the accident occurred because the pickup pulled out to overtake the red car and the red car swerved back inside
into the path of the oncoming pickup causing the pickup to veer off the road followed by the red car. He said if the red car had
not done this, there would have been no accident. From page 42 of the transcript:
“O le taimi lea na ou malaga ifo ou te fia agai i tai. Sa faatali sa’u taavale ou te lifi ai i le aasa lea o le la. O
luga kogu o le a’ega lea sa ou ku ai.......
Sa ou kilokilo e kilia la’u kilokilo agai mai lalo, kau mai i le a’ega laikiki lea i luga aku lea e kupu ai le faalavelave
e kilia ma akoakoa la’u vaai. Sa ou vaaia ai kaavale o loo o aku. Ga a’e aku loa i luga o le a’ega laikiki faakafa
loa le pa’epa’e e kikipi le kaavale mūmū. O igā la ga kupu ai le faalavelave ua me’i i kokogu le
kaavale mūmū sulu loa le kaavale pa’epa’e, kupu ai loa ma le faalavelave.”
- In addition to all this there is also the cautioned statement of the first defendant given to Police on 20 January 2020 after his
return from New Zealand for treatment of the injuries he sustained in the accident. As well as the location of debris from the accident
as testified to by Corporal Valerie Leala, the Senior Police Officer attending the accident scene.
- The first defendant’s cautioned statement says they were being pursued by the white pickup they had previously overtaken. And
he saw in his “inside mirror” (which must be his rear-vision mirror) the speeding pickup closing in on them to overtake.
In an effort to avoid an accident he sped up but the pickup struck their car causing the accident.
- The location of the accident debris on the road was marked on the Police photographs by Corporal Leala and is consistent with an impact
occurring mid-road in line with where the white pickup went off the road.
- The defendants invoked their Constitutional right to silence and neither did they call any witnesses.
Discussion:
- In assessing the entirety of the evidence adduced, I have come to the following conclusions:
- (i) While there is evidence of consumption of alcohol by the first defendant pre-accident, there is no evidence he was intoxicated
at the time of the accident. No witnesses testified as much and no blood samples appear to have been taken from either defendant
post-accident in order to establish sobriety or otherwise. Something I would have thought to be a routine measure when as was the
case here, empty beer bottles were found in and by the first defendants vehicle – see the evidence of Moresby who was first
on the scene post-accident, as well as the photos Exhibit “P-6” and evidence of Corporal Valerie Leala the Senior Police
Officer who attended the accident scene. I am also mindful of the quantity of alcohol consumed by the first defendant and the time
lapse to the accident which occurred after at least a one (1) to one and a half (1½) hour ferry trip, depending on the vessel
the group caught from Savaii. Accordingly it has not been established to the courts satisfaction that the first defendant was at
accident time under the influence of alcohol or any other substances.
- (ii) The defendants were clearly engaged in a road race or at least in reckless and dangerous overtaking maneuvers given the narrow
width of the road and the proximity of residential houses, at least in the early stages of the Leulumoega Cross Island Road. The
prosecution evidence establishes beyond reasonable doubt that the defendants race began at or immediately before the fale-piliaki,
continued on past the Primary School and over the School Hump, and carried on some distance after overtaking Moresby’s van,
onto the long straight of road and the two hills where they were observed by Maselino Alai from the top of the long hill. A distance
of someone and half (1½) miles according to the Police plans produced: Exhibits “P-1” and “P-2”.
- (iii) Maselino was the best witness to the accident being not only independent of the parties but having a clear and unobstructed
view of the unfolding tragedy. Of the other witnesses the witness Pueata could only recall particular parts of the journey. And
the evidence of the other occupant of the Ford Ranger Mikaele was unsatisfactory in many respects. In particular his concession
in cross examination that some of his oral evidence contradicted his statement to the Police given one week post-accident.
- (iv) There were other issues with Mikaele’s evidence. He testified via Audio Visual Link from American Samoa where he presently
resides and there were technical difficulties throughout with his evidence, to the point where it had to be concluded via mobile
telephone. In addition his evidence like that of the first defendant via his cautioned statement was that it was the overtaking pickup
which struck the Ford Ranger which necessarily means the Ford Ranger veered off the road first and should have ended up on the Apia
side of the road. The clear positioning of the vehicles post-accident was both were on the Faleolo side of the road and the pickup
was seaward of the Ranger indicating that it left the road first. I cannot therefore accept his or the first defendants version of
how this accident occurred.
- (v) In terms of reliability of evidence, I was also impressed by Maselinos demeanour as a witness. He was articulate, firm and did
not waiver under cross examination on the essential points. He is not from Clapham but certainly fits the mold of the ordinary,
reasonable, unbiased observer.
- (vi) Maselinos account was the accident occurred because the red car appeared to turn inwards (“me’i i kokogu”)
thus striking the overtaking white pickup causing the pickup and then the red vehicle to plunge off the road. It is not clear from
this or any other evidence why the Ford Ranger “turned inwards” towards the pickup. It may have been inadvertence, momentary
loss of control, a shock reaction to the overtaking action of the pickup. Or maybe Mikaele is correct and it was initially the pickup
that struck the Ranger a glancing blow and the “turning inwards” was in fact the first defendants attempt to restore
control of his vehicle, something that Maselino would not necessarily have seen from his vantage point.
- (vii) Whatever the case, the actual cause or reason for this maneuver is unclear. The first defendant himself told the Police he
was in fact speeding up in order to avoid an accident. I take note that there is no evidence the first defendant was angry or deliberately
trying to ram or hinder the overtaking pickup. But Maselinos evidence is consistent with the location of the accident debris and
positioning of both vehicles post-accident. Based on the evidence adduced, I am therefore left in reasonable doubt as to whether
the first defendant’s action was deliberate or otherwise.
- (viii) There is no question in my mind that the deceased died from injuries sustained in the accident. The evidence of the ex-cop
Moresby was that the first person he encountered was the second defendant walking along the side of the road picking up pieces of
his damaged pickup. The vehicle itself was on an incline on the side of the road. He then heard someone moaning (“oi”)
from the red car which was further up the road in a banana patch. Lying beside the drivers door was the badly injured first defendant.
He also met a young man nursing an injured neck who said he was a passenger in the vehicle. He told him of another passenger who
was dead and took him to a deceased young man lying further inland beside the vehicle. Moresby noted the deceaseds face was all
black - at page 81 of the transcript he said “a’o a’u na’o lo’u tu ma tilotilo iai ua ululi uma foliga.”
There is no evidence the people in the Ranger were wearing seatbelts.
- (ix) This evidence is consistent with the evidence of the Police officers who attended the scene, in particular Constable Mautofu
Aiono who marked the position of the deceased on Exhibit “P-3” as being to the right of the Ford Ranger and to the left
of a dry forked tree stump. It is also consistent with evidence of the Police officers of transportation of the deceased and the
injured by ambulance to Leulumoega District Hospital and then the National Hospital where a dead on arrival body identified as the
deceased arrived at 6:00 pm on 09 November 2019. It was received by Dr Jancey Noaese who noted in her report to the Coroner (Exhibit
“P-4” for prosecution) the body was dead on arrival at the District Hospital at Leulumoega. There is no evidence suggesting
there were any other dead bodies admitted that day to either Hospital from a motor vehicle accident at Leulumoega or elsewhere although
I accept there is some discrepancy as to the correct date of birth of the deceased. The Coroners Form records it as 01 November
1987 whereas the deceaseds mother testified he was born on 22 March 1996. As the deceased was described by many witnesses as a young
man, it is highly probable the date given in the Coroners Form is the result of incorrect information provided by relatives as noted
by Dr. Jancey in her testimony. Nothing turns on this.
Conclusions:
- As stated in numerous decisions of the District Court:
“As to the test for determining negligent driving, His Honour Judge Vaai, in an unreported decision of this Court in Police v Ata Suluape (1 October 2010), states at page 4:
“The test for the standard of care is whether or not in the circumstances, the defendant drove in a reasonable and prudent manner.
If on the evidence he did not, he is considered to have negligently driven at the time. But if he did, then the police case must
fail as it has not satisfied the Court regarding proof of one of the elements of negligence.”
In Police v Yvette Kerslake (11 April 2014), Her Honour Judge Tuala-Warren, as she then was, relies on the following passage from a New South Wales Supreme Court
decision in Director of Public Prosecution v Yeo and Anor [2008] NSWSC 953, paragraph 27:
“Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in
a manner involving a departure from the standard of care for other uses of the road to be expected of the ordinary prudent driver
in the circumstances.””
- It needs to be clarified that the duty is owed not only to other road-users but extends to passengers in vehicles affected by the
defendants actions. They do not necessarily all fall within a strict application of the term “road-users”. I prefer
the more specific formulation of Roma, DCJ as he then was in Police v Ieremia [2016] WSDC 44 when at paragraph 23 he stated about negligent driving causing injury:
“To prove the charge therefore, the prosecution must satisfy the Court beyond reasonable doubt that (i) the accused driver owed
the victim a duty of care; (ii) the accused was in breach of the standard of care imposed by such duty and (iii) the breach resulted
in bodily injury to the victim.”
For “bodily injury” substitute “death”.
- In this case based on the evidence adduced, I am satisfied beyond reasonable doubt that both defendants owed a duty of care to the
occupants of the first defendants vehicle and that by engaging in their road race and these dangerous and reckless manoeuvres, they
breached that duty. They are accordingly guilty of reckless and dangerous driving and negligent driving causing death in that their
actions caused the death of the said Aniseko Sagato.
- In relation to the charge of negligent driving causing injury to Pueata Aimainu, defence defence counsel are quite correct there is
no evidence as to any injuries suffered by Pueata. I decline to draw the general inferences suggested by the prosecution as more
specific and better evidence should have been and could have been adduced. That charge is accordingly dismissed.
- The real question for determination in this matter is whether the evidence establishes the primary charge of motor or vehicular manslaughter
beyond reasonable doubt. In that there was a “major departure from the standard of care expected of a reasonable person in
the circumstances”. That is a more difficult issue.
- There can be no dispute the speed limit on the road in question is as a matter of judicial notice 35mph. There is substantial evidence
indicating the defendants were racing probably well in excess of that limit. Judicial notice can further be taken of the fact that
while there are residential houses in the early part of the Leulumoega Cross Island Road, there are virtually none fronting the long
strait where the accident happened. But that is not to detract from the duty of care owed to the first defendants passengers and
indeed by the defendants to each other as road users. It is also apparent that apart from Moresby’s van, there was no other
traffic on the road when the vehicles entered the long strait with the two hills.
- A useful discussion of the ‘major departure’ test by my brother Justice Clarke can be found in Police v Li [2017] WSSC 136. I accept for present purposes the principles laid down therein that “a major departure from the standard of care expected
of a reasonable person” requires more than carelessness or negligence, it requires at least gross negligence. And that motor
manslaughter charges are saved for “very bad or the worst cases”.
- This is similar to the position under English law: see R v Adomako [1994] UKHL 6; [1994] 3 All ER 79 where the Lord Chancellor in delivering the judgment of the House of Lords said:
“In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient direction to the jury to adopt
the gross negligence test set out by the Court of Appeal in the present case following R v Bateman (1925) 19 Cr App R 8 and Andrews v DPP [1973] 2 All ER 552, [1937] AC 576 and it is not necessary to refer to the definition of recklessness in R v Lawrence [1981] 1 All ER 974, [1982] AC 510, although it is perfectly open to the trial judge to use the word “reckless” in its ordinary meaning as part of his exposition
of the law if he deems it appropriate in the circumstances of the particular case.”
- It should not be overlooked that the statutory test in this country is one of ‘major departure’ from the expected standard
of care, not ‘gross negligence’. Of this test, the court in JF v Police [2013] NZHC 2729 said:
“In R v McKie, William Young J noted:
‘Although there is no single form of words employed by High court judges in New Zealand when summing up to juries on the application
of s.150A, my impression is that juries are given guidance as to what amounts to a ‘major departure’ by reference to
concepts which were acted on in Adomako. In other words, judges are likely to refer to the concept of gross negligence and tell jurors that they should only convict if
satisfied that, having regard to the risk of death involved, the conduct of the accused was so bad as to amount, in the judgment
of the jury, to a crime.’
The approach to determining whether the conduct amounts to a “major departure” is therefore a two-step process. The first
step is to consider whether there has been a departure from the standard of care expected from a reasonable person. But this in
itself is not sufficient and the second step is to consider whether such a departure was “major” by reference to community
standards. In determining the second step, the seriousness of the appellant’s breach of duty and the circumstances in which
the appellant was in when it occurred are highly relevant and, when looked at as a whole, the conduct must be so bad as to justifiably
be considered criminal.”
- I have no doubt the behaviour of the defendants can easily be categorized as a “departure from the standard of care expected
of a reasonable person in the circumstances”. But I am left in reasonable doubt as to whether it extends to being grossly
negligent or amounts to a “major departure” from such a standard. That the defendants were reckless and dangerous is
beyond doubt, that they were grossly so is an entirely different proposition.
- Had there been evidence that either defendant was intoxicated or under the influence of alcohol at the time of the accident, the outcome
may well have been different. But as noted earlier, there was no such evidence or any attempt by the Police to investigate that possibility,
despite empty beer bottles being present at the accident scene.
- It would also have been different if the evidence indicated that the first defendant’s action of veering back into the roadway
into the path of the overtaking vehicle as described by the witness Maselino was deliberate, malicious or intentional. As observed
earlier, such an inference however could not in my view be drawn from the evidence.
- The charge of motor or vehicular manslaughter has not been proven to the required standard, it is dismissed.
- And the defendants will be remanded to a date for sentence on the two charges upon which they have been found guilty.
JUSTICE NELSON
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