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Republic v Biteti [2019] KIHC 58; Criminal Case 26 of 2017 (5 June 2019)

IN THE HIGH COURT OF KIRIBATI 2019

CRIMINAL CASE NO. 26 OF 2017

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[ARAWATAU BITETI ACCUSED

Before: The Hon Chief Justice Sir John Muria

8 March 2018 & 24 April 2019

Ms Tewia Tawiita for the Prosecutor
Mr Teetua Tewera for the Accused

JUDGMENT

Muria, CJ: The accused has been charged with one count of the offence of careless driving causing death contrary to section 33(1) of the Traffic Act 2002. The citation of the Act as “Traffic Act 2005” in the charge is not correct. The only Traffic Act in place at the time of the alleged commission of the offence is the “Traffic Act 2002”. The Act passed by Parliament in relation to matters on traffic in 2005 was the “Traffic (Amendment) Act 2005” to amend certain provisions, including section 33 of the Traffic Act 2002. The citation of the law in the charge should read “section 33(1) of the Traffic Act 2002 as Amended by Traffic (Amendment) Act 2005”. However, I do not think that the error in the reference to the law in this case affect the validity of the charge.

2. Section 33(1) of the Traffic Act 2002 (as amended) provides as follows:

“A person must not cause the death of another person by driving a motor vehicle on a road or elsewhere without due care and attention, or without reasonable consideration for other persons using the road or place”.

3. The allegations in the charge are that the accused, on 7 September 2016, at Teaoraereke, South Tarawa, caused the death of the deceased,
Tiaon Nanimakin, by driving his saloon car on the road or elsewhere without due care and attention or without reasonable consideration for the deceased using the road or place at the time. The accused pleaded not guilty to the charge. The prosecution called three witnesses and the accused called also three witnesses.

4. The case for the prosecution in opening is that the accused, at the time of the accident, was driving in his saloon car on the road at Teaoraereke in the Bikenibeu direction. The deceased was driving his motorbike on the road at Teaoraereke from the opposite direction. The accused is alleged to have made a turn right without giving a proper look out of the oncoming vehicles from the opposite direction. It is said that the deceased who was then about 20 metres away when the accused made a turn right, applied his brakes when he was about only 10 metres away from the accused’s car. Unfortunately the deceased fell with his motorbike towards the accused’s car which was turning right. It is alleged that the deceased’s motorbike hit the accused’s car which was still on the road causing the motorbike to spin, throwing the deceased onto the road. The deceased died from head injuries two days later.

5. The charge is one of careless driving causing death. The prosecution must prove the elements of the offence as charged. In particular the prosecution must prove by evidence that the accused was driving carelessly, that is to say, he was driving without due care and attention or without due consideration for others, in particular, the deceased, using the road. The prosecution must also prove that it was the accused who caused the death of the deceased by his manner of driving.

6. There is no dispute in this case that the accused and the deceased were driving on the road at Teaoraereke on opposite directions, on the day of the accident. There was no dispute that the road was slightly wet at the time due to some rain a little earlier in the day. There is no dispute that the deceased was making a turn-right when the deceased was about 20 metres away at the time. The question must be: what caused the accident? Since the allegations against the accused are not simply those of driving without due care and attention, or without due consideration for other road users, but that he caused the death of the deceased as a result of his driving, the prosecution must also establish other factors including the speed and the manner of driving and that he caused the death of the deceased.

7. The evidence of Ioakara Takinoa (PW2) is substantially relied upon by the prosecution, since he was the person driving right behind the accused’s car at the time of the incident. In his evidence in chief, PW2 saw the accused’s car in front of him, intending to turn right, gave his right signal and made a right turn. At that time, according to PW2, the deceased’s motorbike was about 20 metres away. The evidence of PW2 also states that the accused’s vehicle turned and it was still on the road when the deceased’s motorbike collided with the accused’s car.

8. Naturally one would have expected that some damage or at least some marks were seen on the accused’s car occasioned by the collision between the deceased’s motorbike and the accused’s car. The accused’s evidence is that there was no sign of damage to his car or being hit by anything. There is no evidence whatsoever adduced by the prosecution of any damage or dent or impact on the accused’s car. No police report on the incident was ever tendered in evidence at the trial by the prosecution.

9. The evidence of PW2 in cross examination confirmed that he saw the motorbike 20 metres away when the accused’s car was slowly turning right. From what he saw, PW2 said that at the distance of 20 metres, the deceased could have slowed down and applied his brakes to avoid the collision. Again from what he saw, PW2 said that the deceased did not slow down and only applied his brakes when he was about 10 metres away from the accused’s turning vehicle.

10. The first prosecution witness is Nanimakin Bwebwenikeaki (PW1) who was the father of the deceased (not his biological father). Most of what PW1 said about the accident were from what he was told by others. Very little reliance can be placed on what he said about the accident. The prosecution, however, sought to rely on his evidence regarding the “admission” made by the accused to him that he (the accused) collided with the deceased and that he apologised for what he did. Apart from the alleged “admission” and apology, PW2’s evidence was of little assistance to the prosecution.

11. The third witness for the prosecution is Dr Ako Millan (PW3) who attended to the deceased when he was brought to the Emergency Department at the Tungaru Central Hospital. Doctor Millan’s Medical Report on the deceased was admitted into evidence by consent. The deceased suffered the following external injuries namely, right facial abrasions, right occipital scalp laceration, deformed right forearm/wrist-fractured radius and ulna and multiple abrasions in both legs. The deceased was diagnosed with severe traumatic brain injury, fractured right forearm, scalp lacerations and multiple abrasions.

12. The medical evidence clearly shows that the deceased died from severe brain injury arising out of the accident.

13. The accused gave evidence on oath. His evidence is that on the date in question, at about 4.30 pm, he was driving in the direction of Bikenibeu, back home in his saloon car at 10-20 kmh. Upon reaching Teaoraereke, he signaled to turn right to his place of residence. He stopped and after a trailer-motorbike passed him, he made a turn right after he checked the front for oncoming vehicles, and that it was clear. He was already out from the main road and into his area when he heard a loud noise. His wife also alerted him of the loud noise. The accused stopped his vehicle and went out to see what had happened.

14. According to the accused, the deceased’s body was lying on the road at some distance further away from where he made the right-turn. There were many people there. He did not see where the deceased’s motorbike was. The accused was adamant that his car did not collide with the deceased’s motorbike and as such he did not cause the death of the deceased.

15. The accused checked his car and did not see any sign of collision or “bang with my vehicle”. As already alluded to, no evidence of damage or sign of impact on the accused’s vehicle was ever adduced by the prosecution. That clearly supports the accused’s evidence that there was no damage or sign of collision on his vehicle.

16. In his evidence in chief and in cross examination, the accused agreed that he apologised to the deceased’s family. However, he apologised, not because he caused the accident, but because he was blamed for the accident and he wanted to explain his side of the story. He was adamant that he did not cause the accident.

17. The second witness for the defence is Namoa Titaake who, at the time of the incident, was selling fish at Teaoraereke. Titaake saw the deceased’s motorbike came speeding and making loud noises. He saw the accused’s vehicle was already off the main road. He saw the motorbike slipped, fell and skidded until it came to a stop at Banuera’s store. Asked in cross examination why he came to give evidence in Court, Titaake said that he wanted to give evidence for the defence because he saw what had happened and that there was no collision between the accused’s car and deceased’s motorbike. He also confirmed that the road was wet since it rained earlier. I have no reason not to accept the evidence of this witness who was an independent by-stander witnessing the incident on that fatal day.

18. The third witness for the defence was Taara Taam, who, at the time of the incident, was also selling fish at Teaoraereke. This witness saw the deceased driving a motorbike and he was speeding. The next thing she saw was the motorbike slipped and fell. The motorbike skidded until it stopped at Banuera’s store. She did not see any collision between the deceased’s motorbike and accused’s vehicle. I accept her evidence as that of an independent by-stander watching what had happened.

19. The test to be applied as rightly put by Ms Tawiita is an objective one as laid down in the numerous cases that came before Courts. The test is aptly described in Police –v- Melisi [2010] SASC 21 where the Court (per White J) stated:

“The legal principles applicable to alleged contraventions of the obligation to drive with due care are well established. The issue is to be determined objectively. The obligation to drive with due care is the duty to exercise the standard of care which one would expect of a reasonably prudent driver in the like or similar circumstances. In the assessment of whether a particular driver has departed from that standard, it is immaterial that he or she had been unaware of, or did not advert to, the risks which the manner of driving presented to other road users. The reasonably prudent driver is expected to drive with a defensive outlook, i.e. a lookout ‘that not only sees immediate, or immediately developing, danger, but looks well ahead and searches for potential danger’.”

See also the cases of Dunsmore –v- Dawson (1981) 94 LSJS 1; Crispin –v- Rhodes (1986) 40 SASR 202; Ladlow –v- Hayes (1983) A Crim R 377; Stoekel –v- Harpas (1971) 1 SASR 172.

20. The test is universal, especially where the allegation is on the breach of the duty to drive with due care and attention. However, the test is to be applied to the accused driver in this case based on all the circumstances of the present case as pointed out in Attorney General –v- Mikaere [2017] KICA 15.

21. As I have already stated earlier in this judgment, the evidence of
Ioakara Takinoa (PW2) is the vital witness for the prosecution regarding the manner in which the accused drove his car at the time of the accident. This witness was the person immediately driving behind the accused’s car at the time of the accident. He was the eye witness of what had occurred.

22. I have gone through the evidence of Ioakara Takinoa both in chief and cross examination and found as facts the following: that the accused, upon reaching the place where he intended to turn right, he signaled and stopped; that the accused made a turn right; that when the accused had made a turn right, the deceased’s motorbike was at 20 metres away; that the deceased did not apply his brakes until it was close (about 10 metres) to the accused’s turning car; that the deceased’s motorbike skidded and the deceased fell; that the motorbike did not slow down; and that the road was wet and slippery.

23. In the absence of any evidence to the contrary, I have come to the firm conclusion that there was no collision between the deceased’s motorbike and the accused’s vehicle. One would have expected that the prosecution would have produced evidence of impacts of the collision on the accused’s vehicle. None was brought. Evidence of skid-marks of the deceased’s motorbike would be of great assistance to the prosecution case, and to the Court in the case. No photographic evidence of the scene of the accident or deceased’s motorbike or the accused’s car. There was none. Such omissions have left ‘holes in the prosecution case.

24. One of the elements of the offence under section 33(1) is driving without due care and attention or without due reasonable consideration for other people using the road. Evidence is therefore required of the prosecution to show that, although the accused, in the present case, signaled to turn right and stopped, he inexplicably felt that he could turn right when it was not clear for him to do so. In this case, there was no evidence at all, even from the eye witness (PW2) to suggest that it was not prudent for the accused to take the right turn.

25. The clear evidence from PW2 is that when the accused made the
turn-right, he saw the deceased’s motorbike some 20 metres away. Accepting as I do, that the accused’s car was at no time hit by the deceased’s motorbike, the only plausible explanation for the cause of the deceased’s motorbike slipping and skidding was that the deceased was travelling at high speed. He was only at 10 metres away when he realized that the accused’s vehicle was turning right. It was then that he applied his brakes firmly. The combination of his speed and slippery condition of the road were the major contributions to his fall. The accused did not play any part by his manner of driving in the deceased’s fatal fall.

26. The evidence of the prosecution main witness IPW2) clearly supports the proposition that the accused, in the present case, exercised the standard of care expected of a reasonable and prudent driver when he signaled, stopped and turned right when the deceased’s motorbike was still some 20 metres away. The evidence both from the prosecution and defence overwhelmingly negates the prosecution case that the accused caused the death of the deceased by careless driving.

27. The other elements of the offence in section 33(1) is causing the death of another person. The prosecution must establish by evidence beyond a reasonable doubt that the accused caused the death of the deceased. There is just no evidence produced by the prosecution that the accused caused the death of the deceased through the careless operation of his vehicle.

28. The offence under section 33(1), however, can still be committed even without actual collision between the deceased’s motorbike and the accused’s car. There are two reasons why that cannot be the case in the present case. First, there was no evidence adduced by the prosecution that the accused’s manner of driving caused the deceased to brake suddenly at 10 metres away, causing his motorbike to slip and skidded. Secondly, the prosecution case is premised on the suggestion that there was a collision between the deceased’s motorbike and the accused’s car. There is no evidence at all to demonstrate that a collision had occurred between the deceased’s motorbike and the accused’s car.

29. The evidence, including that of the doctor, points consistently to a fatal fall by the deceased as a result of his speeding on a slippery road. His sudden brake to avoid contact with the accused’s vehicle caused his motorbike to slip, fall and skidded, throwing the deceased out and falling on the road, causing severe and fatal injuries to his body. The evidence does not support any suggestion that it was the accused who caused the death of the deceased by careless driving.

30. On the evidence before the Court, I am not satisfied that the prosecution has established the guilt of the accused beyond a reasonable doubt. I find the accused not guilty and must be acquitted.

ORDER: Accused Not Guilty.
Accused Acquitted.

Dated the 5^th day of June 2019

SIR JOHN MURIA
Chief Justice