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Public Prosecutor v Obed [2003] VUSC 82; Criminal Case 019 of 2003 (18 August 2003)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

CRIMINAL CASE No. 19 of 2003

PUBLIC PROSECUTOR

-v-

JACK OBED

Coram: Chief Justice Vincent Lunabek

Counsels: Lent Tevi for the Public Prosecutor
Hillary Toa for the Defendant

JUDGMENT

Brief Background of the Case

The Prosecution charged the defendant with unintentional harm causing death contrary to section 108 (c) of the Penal Code Act [CAP 135]. He pleaded not guilty to the charge.

On the 7^th of February at around 11: 45 A.M., the deceased, George Bule, a little boy attending morning kinder at Vila East School, as usual waited around the gate of the Vila East School for his brother to pick him up. The deceased brother was standing on the other side of the road.

The deceased having seen his brother, wanted to cross the road. A Bus service stopped right at the entrance of the gate. The deceased was standing 3 meters in front of the bus. As the deceased was taking his first step to cross the road, the defendant’s vehicle who was coming from the Vila Central Hospital direction, hit him. The Prosecution alleged that the defendant was travelling at a very high speed. The defendant overtook a bus, travelling at a high speed, it hit the deceased. The deceased was lying under the defendant’s truck to which it skidded with the deceased in a distance of about 6 to 7 meters away.

The Evidence

The evidence are recorded in the Court’s file. The following are the summary of the evidence.

Prosecution’s Evidence

The Prosecution called four witnesses.

The first witness was Lonsdale Tahi. He is from the Island of Ambae. He is 22 years of age and he was unemployed. He said he remembered the date of 7^th February 2003. He saw the accident occurred on the said date. He was there when the accident took place.

He said it was around 11:45 A.M when a little boy was crossing the road at the Vila East entrance. The defendant’s truck hit the little boy. He said he was sitting opposite the driver’s seat on the blue bus which stopped in front of the Vila East Gate. He said he saw the little boy ran from the gate. The little boy stepped into the road. The defendant’s truck hit him.

He said he did not see the defendant’s truck. However, he heard the noise of the truck to which he described it as ‘hemi speed tumas'.

He said he saw the defendant’s truck hit the little boy. He described it as the truck ‘climb long smol boy mo ski wetem i go long saed blong road’. He said the defendant’s truck skidded with the little boy and ended for about 7 to 8 meters away. He said he recognized the defendant’s truck as it was running at a high speed.

He was also cross-examined. He maintained his evidence.

Under re examination he said he actually saw the defendant’s truck hit the little boy.

The second witness was Mr. Semu Karlyp. He is from Tanna. He is employed at the Reserve Bank as a Security. He has been driving for 10 years. He said he was driving to the Hospital when he saw the defendant’s truck heading up the Vila East School. He said the distance between him and the defendant is about 30 meters away. He said he saw that the defendant’s truck was running at a high speed. He said he estimated that the defendant’s truck was running at around 40 Km per hour. He said it took a very short period of time when he turned up to the Vila East road to find out that the defendant’s truck has already hit the little boy.

He was cross-examined. He stood by his evidence.

On re-examination he said the weight of the defendant’s truck is heavy coupled with the speed to which he was travelling at, it is highly possible that he could cause an accident.

The third witness is Mr. Edward Kalura. He is a Police Officer. He is from Santo and has worked as a Police Traffic Officer for 10 years. He said he was in the Police station during the commission of the accident. He arrived at the accident scene. The deceased body has already been taken to the Hospital. He said the defendant’s truck was still on the same position. He said the truck was positioned at 45 degrees on the road’s side.

He explained a diagram that a point of impact is a place where the defendant’s truck hit the deceased. He explained that fix point is a permanent feature during the accident. He said skid mark illustrates that the defendant’s truck has applied his brakes and the wheel skidded.

He said, ‘red coloured marking we hemi measured 50m and 30cm hemi cotton/material, (be ino blood)’ He said that as he is an experienced traffic officer, the 6.80 meters and the length of red coloured marking of 5 meters and 30 centimetres indicated that the defendant’s truck has been running at a very high speed.

The last witness was Mr. Ronnie Nango. He was a Taxi driver from Tanna. He is 31 years old. He has been driving Taxi for about 6 years now. He said he was standing right on the gate when he saw the little boy came out from the gate or the schoolyard. He said he heard the noise of the defendant’s truck. He could tell that the defendant was running at a very high speed. He said that as an experienced driver, he assessed that the defendant’s truck must have been travelling at 40 km/h.

He said the distance between him and scene of the accident is like the distance between the witness box and the main entrance door. He said he disagreed with the defendant’s contention that the defendant was travelling at 20 km/h. He said if the defendant’s contention is true, the defendant’s truck would not have climbed on the deceased and then skidded further.

He was cross-examined and he maintained his evidence.

In re-examination, he said the deceased ran in order to cross the road but the deceased did not jump as alleged by the defendant. He said there was space between the bus and the defendant’s truck. He said the defendant’s truck beat the bus and then hit the deceased.

The Defendant’s Evidence

The defence called two (2) witnesses. The first defence witness is the defendant himself. The defendant’s name is Jack Obed. He is from Paama. He has experience in driving for about 33 years. He has been driving different trucks before he drives the Hospital truck. He said he never caused an accident. He said the Hospital truck is a brand new vehicle.

He said that on the 7^th of February 2003, his employer accompanied him to the Airport. He said his boss/employer never said a word when she entered the vehicle. He said he did not know when the plane would be landed. He said his boss has mentioned some flower to buy but she did not specify which store to buy the flowers. He said he was running at 20km/h.
He said that he was in fact just about to pass the parked bus when the deceased ran out from the front of the parked bus. He said that given the very short distance between his vehicle which was undoubtedly moving and the running child he could not avoid hitting the deceased as his vehicle had already arrived, and was going to pass the parked bus at the school gate.

He said that given the obstruction view of the parked bus and the fact that the deceased was in fact running out of the school yard and into the path of the his vehicle without warning, any reasonable man could not have had the chance of avoiding an accident or a collision with the deceased. He said he was not speeding. He said the skid marks indicate the sudden intrusion by the deceased with his driving.

The second and last witness for the defendant is Leipakoa Jimmy. She was a passenger seat with the defendant in the front of the vehicle when the accident happened. She had known the defendant for about 6 years. She said during all that time she had never seen the defendant speed or overspeed the said vehicle, which caused the accident.

She said during the accident, the defendant was driving normally as before. She said the defendant was not speeding. She said neither of them saw the deceased. She said that there was a parked bus at the school gate and both were surprised to see the deceased run out so suddenly from the front of the parked bust into the pathway of the VCH vehicle. She said they left the hospital after 11.30AM. At the hospital she told the defendant/driver to take some flowers at the Tak Store. So when they passed Martinez’s house, she told the driver, “Apu mi talem you tekem flowers you forgetem”. Then they had an accident.

She said that the short space of time and the short distance between the VCH vehicle and the deceased, the sudden appearance of the deceased leaves no room for any chance to avoid a collision.

She gave evidence that the aircraft should arrive at 12.15 or 12.30PM.

Facts as found by the Court

The defendant, Jack Obed is 57 years old. He is from the Island of Paama. He has been driving for 33 years. He is married and has 4 children.

The defendant was employed in the Vila Central Hospital since 1994. He holds the position of a driver and a cleaner. He has no record of any motor vehicle accident.

On the 7^th February 2003, the defendant was doing his normal duty. He was instructed by his Manager to pick up some overseas workers from the Airport. The manager, is Mrs. Leopakoa Jimmy the defence second witness, who accompanied him to the Airport.

On their way from the Hospital, the defendant as usual has to drive on the one way traffic past the Vila East Primary School. The one way traffic enhances an easier access to the main road. The defendant said he was driving at 20km/h when he climbed the road to the Primary School.

It was 11:45 am, a lunch hour in Vanuatu. School kids were leaving the school boundary for lunch. Most kids are waiting on the school gate for their parents. A service bus was parked in front of the school gate. Two other Taxi’s were parked behind the service bus. There was no other incoming vehicle. The prosecution witness, Mr. Semu, was still making his way down the trunk of the one way. There was a space between the bus and the deceased. The bus did not at all obstruct the defendant’s view.

The deceased, George Bule was crossing the road when the defendant hit him. The wheels of the defendant’s truck climbed on the deceased and skidded with him 6 to 7 meters away to the side of the road. He was pronounced dead immediately on arrival at the hospital.

The law and its application

Section 108 (c) of the Penal Code Act [CAP 135] states that:

“No person shall unintentionally cause damage to the body of another person, through recklessness or negligence, or failure to observe any la’.

Penalty: (c) if the damage so caused results in death, imprisonment for 5 years.”

Section 6 of the Penal Code Act spells out criminal intent and recklessness.

Section 6 (1) states that:

“(1) No person shall be guilty of a criminal offence unless he intentionally does an act which is prohibited by the criminal law and for which a specific penalty is prescribed. The act may consist of an omission, or a situation which has been created intentionally.

(2) No person shall be guilty of a criminal offence unless it is shown that he intended to do the very act which the law prohibits; recklessness in doing that act shall be equivalent to intention.

(3) A person shall be considered to be reckless if-

(a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk; and

(b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.

(4) A person shall not be guilty of a criminal offence if he is merely negligent, unless the crime consists of an omission. A person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation should exercise.

(5)......”

The defendant said he was driving at the speed of 20 km/hr on the one way road at Vila East Primary School. He said he was driving slowly as usual. He said that he did not see the deceased. He said that the service bus that was parked at the school gate blocked his view that he did not actually saw the child when he was crossing the road.

The defendant said he was shocked when he hit the deceased. He said the deceased jumped into his way in a spur of a moment. He said he applied his brakes but it was too late. The wheels of the vehicle climbed on the deceased and skidded 8 meters away.

There is no evidence of grossly excessive speed on the part of the defendant. There is no evidence of reckless driving.

The issue that attracts this Court’s attention is whether the defendant was negligent is his driving on the 7^th of February 2003.

Section 6 (4) of the Penal Code Act states that:

“a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation should exercise”.

The accident occurred at around 11: 45 a.m. at the front gate of the Vila East Primary School. It is no doubt, the common understanding of a reasonable man that at such time, and at such hour, primary school kids are going for lunch. It is a normal busy hour for the traffic in Port Vila. Parents usually go to pick up their children from school. The defendant says he knew that there is a school there. He used to travel by that road.

The defendant said he was driving slowly as usual at the speed of 20km/hr. The question that needs further analysis is, if the defendant is travelling at that speed, why did the accident took place? He should have applied his brakes and stop if required to. This, he failed to consider and caused the death of the deceased.

The prosecution witnesses were around the defendant at that particular time. One was driving behind the defendant at a distance of 40 km/hr and estimated the speed of the defendant’s truck to be 30-40 km/hr. Others were right in front of the school gate. All the prosecution witnesses said ‘defendant hemi speed tumas’. I accept that the Prosecution witnesses’ evidences as reliable witness.

The defendant in fact said he was driving at 20 km/hr. I reject that evidence. The defendant was going at a speed greater than 20km/hr but not at a grossly excessive speed. That is why he caused an accident.

The defendant was carrying out a duty within a limited time. He had to pick up the overseas workers at a certain time, between 12.15 to 12.30PM. Being at the Airport at the right time followed by some directions given by his Manager to attend her requests to collect some flowers at a shop stimulated his mind to fulfil an obligation within a limited time and affect the defendant’s concentration on his driving. It is also a fact that when the defendant’s truck climbed the hill just a few meters before the accident, she asked him if he had forgotten the flowers in the shop as they passed the Martinez house. Just after that conversation, the accident occurred. This shows that the defendant was not concentrating on his driving.

The defendant knew there was a primary school there. He has a fore knowledge of the fact that he was driving near the school boundary during lunch break period and school children are likely to cross the road in such a time of the day. However, the defendant failed to slow down the speed of his truck. He failed to keep a proper look out and stop his truck before he hit the boy and the front wheel of the truck run over the boy who was declared dead after he was taken to the Hospital.

The road in question is not actually obstructed by the parked bus and Taxis. It is clear from the evidence, there was a space to which the defendant could actually see the deceased boy. The deceased was standing 3 meters in front of the bus. The defendant said the bus obstructed his view. That evidence must be rejected. It is only the defendant who was travelling at that one way road at that particular time in question.

I find that the defendant was negligent in his driving. I find the defendant guilty and convict him accordingly for negligence driving under Section 108 of the Penal Code [CAP. 135].

DATED at Port Vila, this 18^th day of August 2003

BY THE COURT

Vincent LUNABEK
Chief Justice