Home | Databases | WorldLII | Search | Feedback High Court of Kiribati

Republic v Tekabu - judgment [2004] KIHC 56; Criminal Case 36 of 2003 (24 March 2004)

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

Criminal Case No. 36 of 2003

THE REPUBLIC

vs

TETEKI TEKABU

For the Republic: Ms Pole Tebao & Ms Eveata Maata
For the Accused: Ms Jacqueline Huston

Date of Hearing: 6 March 2004

JUDGMENT

This was a hit run accident. The victim, riding a bike, was killed. The accused, the only witness of what happened, got out of his car but was afraid: he did not go to see the victim. Instead he drove home and quickly telephoned the police.

He is charged with reckless driving causing death.

Particulars of Offence

Teteki Tekabu on the 20^th September 2002 at London village on Kiritimati Island in the Republic of Kiribati drove a pick-up registration number KMA 1124 on a road recklessly and causing the death of Naburen.

In fact the accident was not at London but near Tabwakea village. The time was about 9 o'clock at night. The prosecution called two witnesses in an attempt to shew that the accused had been drinking since knocking off work at a quarter past four. The attempt failed. There is no evidence to shew that the accused was affected by alcohol.

About 7 o'clock Teteki had gone on transport to a birthday party at Terawanibakoa. For some reason he left the party about 9 o'clock, driving a left-hand drive pick-up. He was used to driving left-hand vehicles.

The accident happened as he was driving from Terawanibakoa towards London. Kimaere Kakiaman, a man of 50, has worked for 29 years as a mechanic at the Plant and Vehicle Unit. In company with his brother-in-law he was riding his bike from St Francis High School towards London:-

Saw a bike – person lying beside road. Before that, a car followed us: drove past us fast 70-80 kph – a pick-up. Between 2100 and 2200. Quite near. Not that long between see car and bike/person. Front wheel on edge, back on road. Back pushed forward as though hit from back. Person by road, lying on face, not moving.

Through Detective Corporal Terabwena, photographs of the bike after the collision were exhibited. They shewed the most extensive damage: the back wheel is not there at all: it was not found. The damage is so extreme it must have been caused by a really heavy impact from behind.

James Inatio, another mechanic at the PVU, examined the pick-up for damage and wrote a report. The relevant part:-

....bonnet was serious pend inward slightly to the right side of the car and the frame and pumber as well. The battery was also damage as it is cracked. The frame around the headlight was broken apart with the grill which fixed to it. The windscreen completely damaged. In seeing those kind of damage I could tell that the pick up KMA 1124 was high speeding which brought a mass of force and so it causes such kind of damage.

In oral evidence James summed it up by saying the front wheel was bent in on the right. He confirmed that it was left-hand drive.

Dr David Peter Langston examined the body. The victim was dead on arrival at the hospital. His report:-

Findings on body – broken spine (neck)

- broken ribs on right chest (most of ribs)
- closed fracture to the right elbow

The above died of internal chest injuries and broken neck. No evidence of alcohol smelled from victim above.

Dr Langston used the words "heavy crushing" injuries several times. I conclude that the victim's injuries were of the same magnitude as the damage to the bike and caused by the same heavy impact.

The final prosecution witness, Constable Teetea Kamare, went to the scene in company with Teteki soon after he had telephoned:-

Took Teteki with us: he reported he had run over somebody. Went to scene. Found person face down on grass ....... About 50m to junction. Bike looked as in photos. Tyre marks on grass ...... Didn't see rear wheel at scene.

A "rough sketch plan" of the area and legend admitted by consent, shews "pulled grass", a skid mark or marks in the grass off the bitumen to the left (the ocean side) and some distance to the west (that is further away from London) from the place where the bike was found. The plan also shews the bike on the extreme left of the bitumen and the body some distance off the bitumen to the left. The position of the skid marks which undoubtedly were left by the utility – it defies reason that some other vehicle made them at about that time – explains why the damage to the utility was to the right front. Teteki tried to avoid the victim but swerving to his left but did not succeed and hit him with the right front of his vehicle.

At the close of the prosecution case Ms Huston submitted her client had no case to answer. I rejected the submission for two reasons. First, the accused had "reported he had run over somebody" and went with the police to the scene, so implicating himself. Secondly the appalling injuries to the deceased and damage to the bike shewed a heavy impact from the rear.

The accused gave evidence. He is a married man aged 23:-

Party after work – left almost 2030. I drove a hired pick-up left hand drive: had had experience of left hand drive. On my left hand side of the road driving back. Headlights work. 35-40 kph. I saw someone coming out of junction ...... He came out of my right. He was making a right hand turn to ride in same direction as I was driving. He just suddenly came. I hit bike and it jumped up. He fell. No light. When I saw it, quite near, 8m. My lights on high beam. Lights in working order – reached 40-50m. I could see ahead: both headlights working. I saw it but it was very close to my car. I didn't have much time. Riding fast. Bike landed on left hand side of road. I saw rider – he flew up: didn't see where he landed. Rider hit windscreen and landed on left hand side of road. Car hit back part of bike – front of car on right. I passed other bike riders. I tried (to avoid). Didn't have time to apply brakes. I slowed down. I swerved to the left. I applied brakes slowly after I'd hit bike..... No one else about. (Examination in chief).

I admit I hit the bike from behind. I tried to avoid by swerving left. Sure I was driving at 40 kph. I wasn't speeding. (Cross examination).

After the accused's evidence I took a view. I wanted to see what the road was like before and after the point of impact. At the view, the prosecution and defence did not agree exactly on the point of impact – the defence put it about 40m closer to London. It does not matter. Both Ms Tebao and Ms Huston agreed that the road is straight for one half to three quarters of a kilometre in both directions. This is a main road, sealed and still in good condition even though built in the late '50s/early 60's of last century for the bomb tests. It is an open two lane road with some side roads or tracks coming in on both the ocean and the lagoon sides: not much traffic. I take judicial notice of these and other things as I have been driven up and down the road many times.

To drive on that stretch of road at 40 kph as Teteki said he was, is painfully slow: there is no point in driving so slowly.

Timaere said the vehicle which passed him was driving fast. I have hesitation about relying on his evidence. I do not know how long before the collision the vehicle passed him. As well Timaere could only identify it as a pick-up: naturally so: a bike rider being passed at night by a vehicle going fast would find it next to impossible to see what it looks like. All Timaere could say was that it was a pick-up. So was the vehicle the accused was driving. No other vehicle has been mentioned. Timaere admits he passed other bike riders. The pick-up which passed Timaere was probably the same pick-up as hit the victim but I cannot be satisfied of that beyond reasonable. I disregard this evidence.

The best evidence of speed are the inferences which I confidently draw from the damage to the bike and the injuries described by Dr Langston. Both damage and injury shewed the most violent impact, an indication of the high speed of the vehicle.

In any case the accused is in a bind: the slower his speed the more opportunity he had to see and avoid the victim on his bike.

Teteki said his lights were working and on high beam. He could see 40 to 50 metres ahead. With his lights on high beam he should have seen much further ahead than that and been able to see his left and right as well as straight ahead. Even though the bike had no lights, Teteki should have been able to see the victim in the beam of his own lights. He said the bike came out "fast" on his right. I doubt either that it was going fast or that it came out from his right. Looking at the photo of that bike it is not built for speed. The impact, the accused acknowledged, was directly from behind the bike. This means that the bike was going in the same direction as the vehicle, straight down the road towards London. All the evidence points to the bike being well on the left hand side of the road: where it should have been. If the victim made a right hand turn out of a side road the manoeuvre had been completed well before the impact.

I was not much impressed by Teteki's evidence. He had felt guilt as soon as the accident happened. I had the strong impression that he was telling a story which put the tragedy in too good a light for him.

Teteki did not have to prove anything. I need say only that considering all the evidence I am satisfied beyond reasonable doubt that he was driving fast and although he had ample opportunity, simply failed in time to see the victim ahead of him: smashed into the back of the bike going in the same direction as he was. Every cyclist's nightmare.

Either he was not driving within his lights: that is he was not driving at such a speed as to allow him to see and avoid anything in his path, picked up by the beam of his lights. Or he was going fast and not keeping a proper look out.

Does this amount to "reckless" driving?

"Reckless" is defined in the Concise Oxford as "disregarding the consequences or danger: lacking caution: rash".

Since returning to Tarawa I have looked again at the speech in the House of Lords decision of R v Lawrence ((1981) 1 All ER 974). Lord Diplock gives the test for reckless driving:

In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things: first, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and, second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had none the less gone on to take it (@ 982).

I consider the accused's manner of driving by reference both to the definition in the Concise Oxford and the test in the R v Lawrence.

His manner of driving comes within the definition. He was guilty of the grossest carelessness amounting to recklessness. He was "lacking caution: rash". Applying the test in R v Lawrence: his high speed shews he was driving in such a manner as to create the risk and in driving like that he could have given no thought to the possibility of the risk of colliding with another vehicle, a cyclist or a pedestrian.

The accused is guilty of reckless driving causing death.

Dated the 24^th day of March 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice