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R v Finefeuiaki [2008] TOLawRp 42; [2008] Tonga LR 210 (8 August 2008)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 215/2007

R

v

Finefeuiaki

Andrew J
4-6 August 2008; 8 August 2008

Criminal law – manslaughter by negligence – not sufficient evidence – not guilty

Most of the facts in this case were undisputed. The accused was charged with one count of manslaughter by negligence contrary to section 92 of the Criminal Offences Act (Cap 18). The evidence was that around 2pm – 3pm on 7 February 2007 he was driving a police vehicle along Taufa'ahau Road at Tatakamotonga which struck a four-year-old girl causing her head injuries from which she died in hospital a few days later. The young girl had gone from her house nearby to purchase some cigarettes for her parents as well as some lollies and as she was returning home at some point on or beside the road she was struck by the vehicle driven by the accused. The Crown alleged that the accident was caused by the gross negligence of the accused in driving at an excessive speed which was well in excess of the speed limit and in failing to drive with due care and attention in that he was laughing and joking with a passenger at the time of the accident. The accident happened on a straight stretch of road. The accused claimed that he did not see the little girl until she was right in front of his vehicle and he swerved to the right but was unable to avoid her. There was an independent eyewitness who had been standing in front of the store waiting for a bus. She claimed that the child was standing beside the road waiting to cross when suddenly the vehicle came and hit her. She said that the accused's vehicle passed her speeding by and "was like a wind before it hit the girl". She also claimed that she saw the driver drinking kava and he was drunk.

Held:

1. Although section 92 does not refer to gross negligence, the onus rested on the prosecution to prove that the accused was guilty of negligence to such a degree that justified a finding of manslaughter and negligence of that degree may be described as gross negligence - see Fisi'inaua v Rex [1995] Tonga LR 62.

2. The willingness of the independent witness to say that the accused was drunk on kava when there was really no evidence of that and the fact that she said in her original statement to the police that she thought the vehicle had hit a dog caused the court to doubt the accuracy of her evidence. The court preferred the evidence of the accused and his passenger that they only saw the girl when she was right in front of the vehicle. The court could not be satisfied beyond reasonable doubt that the accused was travelling at a very excessive speed nor that he was affected by tiredness.

3. The court could not exclude the reality that the young girl walked or ran into the path of the accused's vehicle.

4. The accused was found not guilty of manslaughter and not guilty on the alternative count of reckless driving. He was acquitted and discharged.

Case considered:

Fisi'inaua v R [1995] Tonga LR 62

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown : Mr Kefu
The accused appeared in person

Judgment

The accused was charged with one count of manslaughter by Negligence, contrary to s 92 of the Criminal Offences Act (Cap 18).

The particulars of the offence are that on or about the 7th February 2007 at Tatakamotonga he did drive the motor vehicle Reg. No. P 1418 heading in the Northern direction along the Taufa'ahau Road and was grossly negligent on that he hit Seuli Seiloni Pohahau and this caused her death.

Most of the facts are undisputed. Thus it is accepted that the deceased, a 4 year old girl, had gone from her house nearly to the scene and had crossed Taufa'ahau Road in order to buy some cigarettes for her parents from the shop beside the road at Tatakamotonga as well as some lollies. After doing so she was returning home and at some point on or beside the road she was struck by the police vehicle P1418 driven by the accused. She was thrown to the side of the road where the accused and his passenger rushed her to Nuku'alofa hospital but she died of head injuries a few days later.

The particulars of the alleged grossly negligent manner of driving are:

1. Driving at an excessive speed which was well in excess of the speed limit.

2. Failing to drive with due care and attention in that he was laughing and joking with the passenger at the time of the accident.

Further it is submitted that there is an element of tiredness in that the accused had been to a Kava Party from 10pm to 1am and had resumed work next morning at 8:30 am.

It is also not in dispute that the accident happened on a straight stretch of road. The accused had been driving from Vaini to Mu'a Police Station and the accident occurred shortly before the Police station. The time of the accident was in the afternoon somewhere around 2pm or 3pm – Conditions were good and the road was dry.

The accused was driving a four wheel drive vehicle, in a relatively elevated position and he says that he did not see. The little girl until she was right in front of his vehicle and he swerved to the right but was unable to avoid her. He says she was struck on the bonnet of the vehicle and thrown into the air and landed face down on the right side of the road. He said the point of impact was approximately 1.6 meters from the left side of the road. He says he was driving at 40 kilometer per hour. The speed limit at this point was 40 kilometer per hour.

The principal eye witness for the Crown was one 'Alosi Tu'ifua. She says that on this day she was standing in front of the store waiting for a bus. She said she had seen the little girl cross the road to come to the shop; she had looked both ways and she proceeded to the shop. She says she was then standing beside the road waiting to cross and was watching for the road to clear but suddenly the vehicle came and hit her. She says she was struck as she stood on the side of the road. She said the child had not moved from the side of the road when she was hit. She said the accused's vehicle passed her speeding by and "was like a wind before it hit the girl". She said the vehicle was 2 to 3 meters away when she 1st saw it. She also said the girl was just standing beside the road and was about to eat a lolly when she was hit. She said the passenger in the accused's vehicle got out when it stopped and picked her up ; placed her in the vehicle and they rushed off to the hospital.

In cross examination the witness said that when the girl was hit her head had been hit by the bonnet and this threw her to the other side of the road.

The vehicle, she said, had swayed to the right side.

She also said that she saw the driver drinking kava and he was drunk. She then seemed to comply that he was drunk because he would not get out of the vehicle. Further, in cross examination, she agreed that she had said in her original statement that she thought that the vehicle had hit a dog. She said in evidence that she had said that because she thought it was a dog lying on the other side of the road.

I find I am in some doubt as to the accuracy of this witness's evidence for the following reasons:

1. The examination of the vehicle showed that there was a dent on the bonnet towards the middle of the vehicle but to on the left side of the middle. That is where the accused said the point of impact was. The accused's passenger, Uata Pale said the point of impact was towards the left side of the vehicle and the little girl "suddenly crossed over". She was on the road but the left side of the road.

2. Given the point of impact on the bonnet of the vehicle on its left side but towards the centre and given that both the accused and his passenger place the girl on the road at the time I find it difficult to accept Alosi Tu'ifua's evidence that the child was simply standing beside the road when she was hit. There is no other evidence to suggest that the accused's vehicle was off the side of the road. Further her willingness to say that the accused was drunk on kava when there was really no evidence of that causes me further doubt and the fact that she thought that a dog had been hit cause me to further doubt the accuracy of her evidence. No doubt these events which happened in front of her caused her a degree of shock as she has indicated.

I cannot exclude the fact that the little girl may have moved across the road and into the path of the accused's vehicle. I do not know if she may have or run. No other eye witness saw her at this time. The accused and his passenger only saw her when she was right in front of the vehicle. As stated there is evidence that at this point she was on the road and I think the accused's evidence that she was approximately 1.60 meters out into the road may be correct. The fact is that the accuseds' vehicle was high up ie an elevated 4 wheel drive and the declared was obviously small being a 4 year old girl making it all the more difficult to see her if she suddenly moved on to the road and heading for her home.

Speed

There was evidence from a bus driver Malaki Fonua that shortly before the incident the accused had overtaken him. He said "I think it was a hit fast" and then said 'I think it was about 60 kilometer per hour' of course this is the speed of overtaking before the actual accident and may not be unequivocal evidence that the vehicle was going at 60 kilometer per hour. The accused's passenger said the speed was approximately 50.55 kilometer per hour. The accused said he was going at 40 kilometer per hour.

It is difficult to make a finding of speed in these circumstances. But it does not seem to me that I could be satisfied beyond reasonable doubt that it was very excessive speed in the circumstances. It was a straight clear road and conditions were good. I should have said that the vehicle was in good mechanical condition. It does not seem to me that the speed was necessarily overly excessive or dangerous. On a consensus basis it might be in the low 50 kilometer per hours but these are only estimates.

I cannot be satisfied beyond reasonable doubt that the accused was tired at the time or somehow physically affected.

Section 92 of the Criminal Offences Act provides that homicide which does not amount to murder is manslaughter and if such homicide was caused by negligence the office is manslaughter by negligence : See Fisi'inaua v R [1995] Tonga LR 62 and further at 65 where the Court of Appeal said,

"Although the section does not refer to gross negligence, we are prepared to accept that the onus resting in the prosecution is to prove that the person is guilty of negligence to such a degree that justifies a finding of manslaughter. It may well be convenient to describe negligence of that degree as gross negligence."

Given all the circumstances of the care and the manner of the accused's driving and especially the circumstance that I cannot exclude the reality that the young girl walked or ran into the path of the accused's vehicle, I am not satisfied beyond reasonable doubt that the accused is guilty of negligence to such a degree justifying a finding of manslaughter.

I am also not satisfied that the accused is guilty of the alternative count of reckless driving.

It is true that the accused said that the victim emerged from behind a truck which was parked in front of the store. It on the preponderance of the evidence it is doubtful that there was a truck parked there in that position. I do not know if the accused is confused about this or that it is simply not correct but in any event that does not alter my finding that the accused is not guilty of manslaughter by negligence.

I return a verdict of not guilty as charged and the accused is discharged.