JUDGMENT ON NEWTON HEARING
The defendant has pleaded
guilty to unintentionally causing the death of another through negligence,
c/s 108 (c ) Penal Code. She has also pleaded guilty to failing to stop
after a road traffic accident contrary to s 17 of the Road Traffic Control
Act.
There is a difference over the
bof fact upon which I should sentence. That difference is suis such that it
would significantly
affect the sentence.
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A �Newton Hearing� has taken
place. The prosecution must show their version of events is correct beyond
reasonable doubt.
If they fail to do this I must sentence on the defence
version.
There are four elements, the
speed of the defendant�s vehicle, its position on the road at the time of
impact, the keeping
of a lookout by the defendant and the alleged presence
of alcohol.
I have heard the evidence of
Waia Harrison, James Roty and P.C. Sogovlea for the prosecution. I have
heard the evidence
of the defendant and her husband for the defence.
It lear that all witnesses
were doing their best to tell the truth about what was a trau traumatic incident.
The central
question is one of reliability.
<
This case yet again illustrates
the importan the police having a small mall team of officers trained to deal
with serious
road traffic accidents. Several questions in this case might
have been resolved without argument had there been such a team.
I do not
criticise P.C. Sogovlea, it is the training and experience that is required.
Waia Harrison was a short
dce behind his uncle George Naio when the impact occurred. Ied. It was dark
they and a few others
were walking towards Erakor roundabout from Felix
Store. They were at the side of the road. They were looking for a bus. Waia
Harrison had consumed beer, as had his uncle, but not to excess.
He gave evidence the defendants
ehicle was speeding. In cross-examination he said this impr impression was
formed from the
distance the body of his uncle was projected. He is not a
driver.
James Roty was driving the
opposite we was emerging from the roue roundabout and saw the moment of the
accident. He described
the defendants Jeep as speeding.
Mrs. Bedford stated her speed
was normal, about 45 km/per hour. She was not in any rush.
The plan and evidence of P.C.
Sogovlea do not help. I cannot makedeductions about speed from from the
distance the body
was projected. That usually requires expert evidence and
it is not possible to say if Mr. Naio was carried on the vehicle a
few
metres. The way in which the points of impact and falling of the body were
established on the plan is not sufficiently
reliable to make any deduction.
However Waia Harrison and James
Roty did, from what they saw, say the dehe defendant was speeding. I accept their
evidence
on that. The term �speeding� can mean a range of �speeds�. There
was no suggestion of extremely high speed. I am satisfied
the defendant was
going at a speed greater than normal and great than 45k/per hour but not at
a grossly excessive speed.
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Harrison was close to the jeep,
and it would have aphed and passed Roty after tter the impact.
I also accept the evidence of
Harrihen he says his uncle was on the �white carrier�. He was lias little
more than a metre
from his uncle when he was hit. ( I don�t rely on the plan
to support this, however these is nothing inconsistent on it). James
Roty
also placed Mr. Naio as standing in the same position when struck. There is
no other evidence and I find their evidence
on this is reliable.
<
I am satisfied beyond
reasonable doubt that George Naio was standing on the white carrier when he
was struck.
Criticism was made of the
reliability of Harrison and Ro the closing address for thor the defendant. I
have examined the
detail of their evidence and also considered the way in
which they gave it. I did not find them unreliable.
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I turn to the question of lookout. This road was either dimly lit or not lit at all. all. There are street
lights; the evidence
is inconclusive as to whether they were on or not.
I have visited the scene after
darkness.lights were on. Even with tith them on the road could not be
described as other
than dimly lit. It is a straight road for a considerable
distance up to the roundabout. There are small leafy trees on the
right. The
photographs show that about a month after the accident they protruded out
further than when I viewed the scene.
However, at no place do they protrude,
even on the photographs, to the edge of the grass or over the white carrier.
The defendant states she was
driving at 45 Kph. There was no other vehicle in siin sight, nothing to draw her
attention,
no people. Mrs. Bedford said unless other cars approached she
would be on main beam headlights. There were no defects with
her vehicle
save for a crack in the top left of the windscreen. That was not in the
field of view and did not affect
vision. That crack had been caused by
someone throwing a rock or coconut at the vehicle a week earlier. It was the
memory
of this that made Mrs. Bedford think that is what happened on the
evening in question.
The deceased and those with him
were walking at the edge of the road. There is nothing to suggest they
suddenly came out
from between the trees.
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Mrs. Bedford states she sa no-one before, at the time of or after the impact. I do I do not think she is
trying to do other
than tell the truth.
However, on her evidence going
at a modest speed, she failed to see anyone, particularly the deceased at
any time. She
saw none of those at the side of the road whilst on full beam
as she approached. Even just before or at the moment of impact
she failed to
see an adult male, walking or standing a few meters away, then at the front
of the vehicle when on full
beam.
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I accept driving is diffic at night in and around Port Vila. Lighting is poor, thr, there are deceptive
shadows, people
in dark clothing and walking at the edge of roads. This is
all the more reason why drivers should slow down and take extra
care.
The road in question is
straight and there are clear lines of sight along the tarmac and up to the
grass edge of the white
carrier. A prudent driver would even move nearer to
the centre of the road in his/her carriageway, when no vehicles are
approaching in the opposite direction.
is particular case Mrs.
Bedford saw no-one at any time. At the moment of impact her rher rear side wheels
at least were
off the edge of the tarmac and running on the white carrier.
I do not find was a
momentary lapse of concentration or look-out. out. I am satisfied beyond
reasonable doubt her look-out
was grossly defective.
I consider the question of
alcohol. Apart from some crisps whe wine Mrs. Bedford had noad not eaten
since 12 to 1:30 that
day. During the 1 to 1 � hours before the accident she
consumed two glasses of wine with some crisps. It was normal strength
wine,
normal size glasses. It might be suggested that that wine on an empty
stomach might have had some effect on her
attention to her driving. I do not
know if Mrs. Bedford is used to drinking a small quantity of alcohol, a
large quantity
or none. On the evidence before me I cannot be sure the
alcohol intake had an effect upon the quality of her driving and I
disregard
it.
I have no doubt Mrs. Bedford
has gone over the events of that night in hein her mind again and again and
again. I find
she was being truthful in her evidence. I find her
recollection of speed was not reliable.
I am therefore satisfied beyond
reasonable doubt that:-
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a) &nbssp; &nbssp; &nbp; &nbs;
s Bedford was spas speeding in that she wasg fashan
reaso for oad cions ot atossly excessive speedspeed.
.
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n lang="EN-GB" style="font-size: 12.0pt">b) &nnsp;&&nsp;;&nspp;&nssp;&nsp; p;
s At the the time of impact the nearside of her vehicle wnninghe
hite er.
&bsp; ;&nbssp;&nbp; &nsp; ;&nbpp; &nnsp;&&nsp; &nbp;
Tert hok-out wout was grossly defective, this was not a momentary
lapse.
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d) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>Apcohol did not cont contribute to this accident.
;
The prosecution in this case
was not as prepared as it should have been, nor were some pertinent
questions asked without
prompting from the Court. It is not the judge�s
function when both parties are legally represented to assist either side.
Some intervention from the Court was required to obtain a clear picture of
the events and do justice for all persons concerned.
Dated at Port Vila, this 6
day of Augustugust 2002.
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R. J. COVENTRY
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JUDGE.
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