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Republic v Nantara [2004] KIHC 205; Criminal Case 41 of 2004 (12 August 2004)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Criminal Case No. 41 of 2004

THE REPUBLIC

vs

REREIBO NANTARA

For the Republic: Ms Pole Tebao
For the Accused: Mr Banuera Berina

Date of Hearing: 11 August 2004

REASONS FOR FINDING NO CASE TO ANSWER

This trial arose out of a tragic accident which occurred on the main road at Tabaonga village outside the Red House Restaurant. A motor cyclist was riding in the direction of Nawerewere. His 4-year old son was standing on the carrier behind him, his hands on his father’s shoulders. The rider went to make a u-turn. A bus coming from behind collided with the motor bike. The little boy was killed and the rider severely injured.

Rereibo Nantara was charged with dangerous driving contrary to s.31 of the Traffic Act 2002.

Rereibo Nantara, on the 12th October 2003, at Bikenibeu, on South Tarawa, drove a motor vehicle, TUC 6709 recklessly on the Bikenibeu road and caused severe injuries to Tamaroa Teangaiti and the death of Rubeti Tamaroa.

Rereibo pleaded not guilty.

The Director of Public Prosecutions, having scrutinized evidence, had to admit that there was none linking the accused with the accident: no evidence that he was the driver of the bus. Ms Tebao argued that no point on identity had been taken: Mr Berina had not cross-examined any of the prosecution witnesses on that. The answer to Ms Tebao’s argument is that Mr Berina was taking the point by making the submission of No Case: he had been wise to leave alone identification of his client with the accident: he was under no duty to cross examine on the point: had he cross examined a witness may have given an answer identifying his client as the driver, thus closing the gap in the prosecution’s case. It was for the prosecution to prove every element of the offence including identification of the person charged.

The point was decisive and on that ground alone I was obliged to find that the accused had no case to answer and to discharge him. I gave my reasons orally and am now putting them in writing.

There had been another point in the back of my mind, leading me to doubt whether the prosecution had made out a case. The allegation against the accused was of driving too fast and thus not being able to avoid the motor cyclist making the U-turn. Opinions had been expressed that the speed of the bus was about 70 kph. They were from a bystander and by a police sergeant motor mechanic (although Mr Berina in his examination got him to admit the damage was consistent with the speed of 40 kph) relying on his observations of damage to the bus. As I said during argument on the application, such estimates of speed are unreliable and I seldom am able to use them. Perhaps I may accept that a vehicle was going “fast” or “slow” or “at a normal speed in that area” but as a rule that is as much as I can accept.

As this was not the point on which I found no case, I need not go into the facts: merely say that on the prosecution evidence I had a reasonable doubt that the bus was travelling too fast in the circumstances. Probably, subject to further argument by counsel, I would have found no case on that ground as well.

Dated the 12th day of August 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice