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Mafi v R [2024] TOCA 24; AC 26 of 2024 (20 November 2024)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
[AC 26 /2024]
[CR 69/2023]

BETWEEN
KEPUELI CHRISTOPHER MAFI
Appellant

AND
REX
Respondent

Hearing: 11 November 2024
Court: Randerson J, Harrison J and Dalton J
Counsel: William Edwards for the Appellant
: Tupou Vainikolo for the Respondent
Judgment: 20 November 2024

JUDGMENT OF THE COURT

Introduction

[1] Kepueli Mafi appeals against his conviction following a trial before Justice Cooper sitting alone without a jury on a charge of dangerous driving causing the death of ‘Ahotau Taufu’i. Mr. Mafi does not appeal against his sentence of four and a half years imprisonment, the last year suspended on conditions, or against his disqualification from driving for a period of three years.

[2] The primary ground of appeal as originally framed by Mr. Edwards SC was that the Crown had failed to prove that Mr.Mafi’s driving was the sole cause of Mr.Taufu’i’s death. This ground was advanced on the basis that the Judge’s finding that Mr.Taufu’i’s actions did not contribute to his own death was unsupported by the evidence. However, in argument Mr. Edwards’ contribution proposition evolved into a submission that the evidence about Mr.Taufu’i’s conduct immediately before the fatal accident raised a reasonable doubt about whether Mr. Mafi was driving at a speed and in a manner which was dangerous in the circumstances. We shall address the appeal on that revised basis accordingly.
Facts
[3] Many of the material facts are not in dispute. We synthesize these facts from an agreed summary presented at trial as follows:

(1) At about 4.00 am on 22 November 2022 Mr. Mafi was driving his motor vehicle on Taufa’ahau Road in an easterly direction. He was alone in the car and was on his way home after earlier being with relatives caring for the children of his wife’s ill sister.

(2) At around the same time Mr.Taufu’i was walking west on the left-hand side of the same road near Nualei. He was on his way home having earlier argued with his father about being drunk.

(3) Mr. Mafi fell asleep while driving his vehicle. He had not seen Mr.Taufu’i. He was awoken by a feeling that his car had hit something. In fact his vehicle had struck Mr.Taufu’i. He did not stop to check and drove on for some distance.

(4) Several witnesses reported hearing a loud bang at about that time. They went to investigate and found Mr.Taufu’i lying face down in the middle of the left hand side of the east bound lane of the road. They saw a lot of blood on the road;

(5) The bystanders were able to flag down a vehicle whose driver took Mr.Taufu’i to a nearby hospital. However, his injuries were unsurvivable and he died of massive blood loss within a couple of hours;

(6) Mr. Mafi drove his vehicle away from the area after striking Mr. Taufu’i. However, one witness, who noted part of the number plate of Mr.Mafi’s vehicle, saw him speeding away from the scene but later stopped and banged the front left part of the car’s bumper.

(7) The Police inspected the scene where they found the front plastic cover of a tyre (the front left inner fender);

(8) Sometime later the police seized Mr.Mafi’s vehicle but did not arrest him in reliance on his exculpatory statement that at the time of the accident he was on another island and that his brother, who had since left for Japan, was using his car that day, and had returned it in a damaged condition. However, when confronted by the police the following day with advice that his alibi was false, Mr. Mafi admitted that he had been driving his vehicle at the time it struck Mr. Taufu’i; that he had dozed off beforehand and continued to doze off before falling asleep but was awoken by the feeling that his vehicle had hit what he thought was rock; and that he later stopped his car because he felt something was dragging it and noticed that its front left wheel cover had come off or was loose and there was a crack in the middle bottom of the front bumper. The police had confirmed that the front left inner tyre fender found at the accident scene belonged to Mr.Mafi’s vehicle.

[4] Dr. Eileen Tupou gave undisputed medical evidence that Mr. Taufu’i died from major blood loss. In particular, he had suffered poly trauma from multiple right side pelvic bleeding, fractures of the left femur and his ribs. He also likely suffered a basal skull fracture. In her opinion, the injuries were consistent with a “high energy, high speed” impact.

[5] Based on these facts, Mr. Mafi was charged with driving his motor vehicle at a speed and in a manner which, having regard to all the circumstances, might be dangerous to the public, when while speeding and driving while tired, he fell asleep and struck Mr. Taufu’i who was walking on the left hand side, causing his death.

Supreme Court

[6] The reasons for verdict delivered by Cooper J are long and discursive, and confusing due to their full, unedited repetition of Mr. Edward’s comprehensive written submissions.

[7] However, we have distilled the Judge’s primary factual findings on the principal elements of the charge as follows:

(1) The Judge was satisfied that the vehicle was being driven at some speed at the time of the accident, given Dr.Tupou’s opinion that the injuries were caused by an impact of high energy, at high speed^[1];

(2) The Judge was satisfied that Mr. Taufu’i’s actions did not contribute towards the accident^[2]. He noted that it was common for people to walk on roads even at night given the absence of pavements. He rejected evidence from a witness that Mr.Taufu’i was drunk before the impact. He preferred the contrary evidence of a security guard who took a particular interest in Mr.Taufu’i’s behaviour. The security guard observed him cross the road and walk normally on the right side of the road towards the town until he disappeared. He heard a bang about four to five minutes later, then saw what transpired to be Mr.Mafi’s car travelling towards him at speed. Other witnesses living nearby were awoken by the sound of a bang and found a body lying on the road.

(3) The Judge found that Mr. Taufu’i was standing and walking on the right hand side of the road when he was struck^[3]. Mr. Edwards had placed considerable weight on Dr. Tupou’s affirmative answer to his proposition that it was “...hard to say...” whether Mr. Taufu’i might have been lying on the road when struck. The Judge considered that Mr. Edwards’ phrase was tagged onto a question and was unhelpful. He relied on the doctor’s earlier, well-structured opinion that Mr. Taufu’i was hit from behind at waist height based on the bruising to his buttocks, the open book fracture to his pelvis and its severity which would require the application of considerable force, and the associated injuries to his rectum and bladder. Dr.Tupou’s opinion suggested, of course, that Mr.Taufu’i was facing in the same direction as the line of travel of Mr.Mafi’s vehicle, not walking towards the car.

(4) The Judge also accepted evidence from a panel beater, Mr.Ma’u, called by the prosecutor who rejected Mr. Edwards’ proposition in cross examination that he would have expected the whole front bumper to have broken, not just the bottom portion, if Mr.Mafi’s vehicle had struck Me Taufu’i when he was upright.^[4]

(5) In rejecting the defence submission that Mr. Taufu’i may have been lying on the road, the Judge found that the lighting conditions did not play a part in causing the accident^[5]. While it was common ground that the area was poorly lit, this factor placed an onus on Mr. Mafi to be extra careful. The lights of Mr. Mafi’s vehicle when tested were in good condition. On a dipped beam, not highlighted, the lights would illuminate 45 metres ahead.

(6) The Judge found that Mr.Mafi’s use of the phrase “tulemohe” when interviewed by the police to describe his state of consciousness immediately before the accident referred to dozing off, rejecting Mr. Edwards’ submission that he was referring to sleepiness^[6]. The Judge later found Mr. Mafi was confessing to falling asleep while he was driving, which happened as he drove over something^[7]

[8] In reliance on these findings Cooper J found the charge proved. The Judge took account of the time of day, the poor lighting, and the length of time Mr. Mafi was awake before driving. He concluded that Mr.Mafi’s decision to drive while in a tired or drowsy condition posed a real danger to the public; and that while in that condition and driving at significant speed his vehicle hit and killed Mr.Taufu’i ^[8].

Decision

[9] Before and when the appeal was called Mr. Edwards made a preliminary application for an adjournment of the hearing. That is because the Supreme Court is unable to produce a reliable evidential transcript from the audio recording at the trial. He says that the state of the audio requires further examination overseas. The result will not be available in time for the current Court of Appeal sessions in Tonga.

[10] We dismiss this application. We are satisfied that production of the transcript is not necessary for us to determine the appeal and that its absence will not prejudice Mr Mafi’s rights. The parties produced an extensive agreed statement of facts at trial. The key facts were not in dispute. To the extent that facts might have been contentious, the evidence relevant to them was recited in the equally extensive written submissions made by counsel at trial. Moreover, the contested factual findings made by the Judge which are relevant to the issues raised by Mr. Edwards do not require us to determine evidential differences.

[11] As noted, in argument Mr. Edwards did not pursue his primary, or what he had described as his sole, ground of appeal that Mr. Mafi’s driving did not cause Mr. Taufu’i’s death. This revision was appropriate, indeed inevitable. Mr. Edwards expressly accepted that on the uncontested evidence Mr. Taufu’i’s driving was the operative causative factor. He drove his vehicle into Mr. Taufu’i who died as a result of the severe injuries he sustained from the impact. The physical placement of Mr.Taufu’i’s body at that point of contact, whether facing in the same or opposing direction as Mr.Mafi’s vehicle, or whether upright or prone, was immaterial.

[12] The apparent purpose of Mr. Edwards challenges to the Judge’s factual findings was to establish that Mr.Taufu’i’s actions immediately before the accident were such as to raise a reasonable doubt that the speed and manner of Mr.Mafi’s driving was dangerous, the two central components of the first element of the charge. We repeat that the second element of causation is not now in dispute.

[13] We are satisfied that Mr. Edwards’ submission is answered by two of the Judge’s factual findings which we are satisfied were well founded on the evidence. First, to address them in reverse order, the manner of Mr.Mafi’s driving was of itself dangerous in circumstances where he had been awake for many hours before getting into his vehicle; he continued to drive while feeling himself dozing off at the wheel; and it was dark and the road was poorly lit, requiring him to keep a careful lookout. He posed a real danger to the public while driving in that condition and ought to have pulled over and stopped when he realized this. Mr.Taufu’i’s actions or omissions were immaterial to this finding and Mr. Edwards does not contest this it.

[14] Second, the Judge found that on Dr.Tupou’s evidence Mr.Taufu’i’s injuries were consistent with a high speed, high force impact. Her opinion was supported by the evidence of witnesses who heard a loud bang and the sound of a vehicle travelling at speed. Mr. Edwards submits that the doctor was not qualified to give evidence on speed. He says that she cannot opine on whether Mr.Mafi’s vehicle was travelling at 30kph or 50kph. Dr.Tupou did not purport to give a professional view on that point. The Judge was entitled to draw the inference from her evidence that the speed at which Mr. Mafi was driving must have been considerable to cause the degree of injuries suffered by Mr. Taufu’i and when coupled with the manner of Mr.Mafi’s driving - his first finding - posed a danger to the public in all the circumstances. Mr.Taufu’i’s conduct or behaviour was irrelevant to this finding also.

[14] To the extent that it might have had some possible relevance, we record our satisfaction that the Judge had an adequate evidential basis for his factual finding that Mr. Taufu’i was standing when he was struck and that he was struck from behind. Mr. Edwards’ complaint was that there were no eyewitnesses to the accident, and nobody can say with certainty what happened. That is true of all circumstantial cases. Judges must resort to the conventional method of drawing inferences from proven facts. The Judge was entitled to rely on Dr.Tupou’s evidence.

[15] In this respect, Mr. Edwards complains that the Judge erred in ruling the evidence of Mr. Krishna Hansen, a prosecution witness, to be inadmissible. Mr. Hansen is an automotive engineer in the Department of Infrastructure who inspected Mr.Mafi’s vehicle. In cross examination Mr. Edwards had elicited Mr. Hansen’s opinion that the location of the damage to the vehicle was consistent to running over a body. While the Judge may have erred in ruling this evidence inadmissible, he was entitled to prefer the contrary opinion to which we have referred of Mr.Ma’u, an experienced panel beater also called by the prosecution. We emphasize, however, that this evidence was largely irrelevant to the Judge’s verdict.

[16] We are not satisfied that Mr. Mafi has made out his grounds and his appeal must fail.

Result

[17] Mr.Mafi’s application for an adjournment of the hearing of his appeal is dismissed.

[18] Mr.Mafi’s appeal against conviction is dismissed.

______________________

Randerson J

______________________

Harrison J

_______________________

Dalton J

^[1] At para 162

^[2] At paras 163 to 171

^[3] At paras 172 to 180 & 242 - 244

^[4] At paras 196 - 200

^[5] At paras

^[6] At para 201

^[7] At paras 214 & 253

^[8] At paras 253- 258, following McBride v R (1996) CL Rat at 49- 50