In the High Court of Kiribati
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case No. 53 of 2004

The Republic

vs

Boraing Timeon

For the Republic: Ms Eveata Maata
For the Accused: Mr Aomoro Amten

Date of Hearing: 27 August 2004

REASONS FOR FINDING NO CASE TO ANSWER ON TWO COUNTS

Boraing Timeon was originally charged with dangerous driving and driving without a licence. Last Friday, the morning of the trial, I noted a nolle prosequi on the charge of dangerous driving. The Republic amended the indictment by charging the following:-

Count 1 Negligent driving
Count 2 Driving under the influence of alcohol
Count 3 Unlicensed driving
Count 4 Speeding

The accused pleaded not guilty to count 1, negligent driving but guilty of careless driving which plea the Republic accepted, not guilty to count 2, guilty to count 3 and not guilty to count 4.

The facts were that early on the morning of Wednesday 15th October 2003 the accused was driving a truck on the main road in what was described by Ms Maata in her written opening as “the DO area of Betio”. He had a young woman, Nei Annie Etuete sitting next to him and Uere Wallace with four other women was sitting in the back. Nei Annie Etuete gave evidence for the prosecution.

The accused had been drinking sour toddy and beer from about 10 o’clock the previous evening. He was drinking from a can of VB as he drove. Driving towards the Dai Nippon Causeway he ran over two young men who were sleeping on the roadway. They were injured so badly as to die.

Besides Nei Annie and Uere Wallace the only witness was Tokia Tebakia. The young deceased men had been with him on the beach quite near to the place where the accident happened. Tokia heard a banging sound as a truck went past. The vehicle did not stop. Tokia went over and found the two young men lying injured almost in the middle of the road.

At the close of the prosecution case Mr Amten submitted that his client had no case to answer either on driving under the influence or speeding. I upheld his submissions.

There was evidence that the accused had been drinking both sour toddy and beer in the three or four hours before the tragedy but no evidence of how much he had had or of his shewing signs of intoxication. Unfortunately breathalyzers, as used in many other places to test sobriety or otherwise are not yet in use in Kiribati (or were not in October 2003). So there was no breathalyzer evidence upon which the prosecution could rely. In my experience, before breathalyzers were used it was common for there to be evidence of observations of the demeanour, behaviour and capacity of a person suspected of being under the influence of alcohol. Invariably this evidence was from either a police officer or a medical practitioner or both. A police officer would give such evidence as that the person was swaying, could not walk a straight line, could not stand on one leg, could not with eyes closed put an index finger to the tip of the nose. The police officer would depose to his long experience of testing for insobriety and then be allowed to express an opinion as to the sobriety or lack of it, of the accused. A medical practitioner used to give evidence of more precise medical tests.

It is rare (if it happens at all) for evidence of observations to be given in Kiribati: it is very difficult for the prosecution to prove beyond reasonable doubt that an accused was under the influence. Even if breathalyzers are not to be used, at least the police should make every effort to observe and test the suspect as soon as possible after an accident.

In this case the accused probably was driving under the influence of alcohol but in the state of the evidence I could not be satisfied of that beyond reasonable doubt.

As for the charge of speeding, the prosecution had two problems.

The first problem: there was no definite evidence of the speed of the truck at the time of the accident let alone any from someone qualified to express opinion on speed. Tokia said it was “speeding”. Nei Annie, sitting next to the accused said she saw the speedometer reading between 50 and 60 kph. [I must say I usually doubt such evidence: it would be most unusual for a passenger to have his or her attention on the speedometer: the more so in this case as Nei Annie said she and the accused were arguing]. Nei Annie then quite lost credibility by admitting under cross-examination by Mr Amten that she was herself “very drunk” at the time.

The second problem: absence of any evidence as to the speed limit in the area where the accident happened. In her opening Ms Maata said the speed limit was 45 kph. She did not lead evidence of that or direct me to any statute or other statutory instrument setting that speed.

Either problem was sufficient to oblige me to accept Mr Amten’s submission of no case to answer on speeding.

At the close of the prosecution, the case against an accused is assumed to be at its strongest. If at that point a prima facie case – a case upon which a jury properly instructed could convict – has not been made out, then the prosecution must fail. That was so on the charges of driving under the influence and speeding.

Dated the 31st day of August 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice