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State v Tobiyala [2016] PGNC 230; N6429 (20 June 2016)

N6429

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 259 (NO. 1) OF 2013

THE STATE

V

ROSE TOBIYALA

Alotau : Toliken, J.
2016: 19^th &20^th April
10^th May’ 20^th June

CRIMINAL LAW – Trial – Dangerous driving causing death – Whether accused drove dangerously – Accused left her lane and slightly crossed over to other lane – Hits child who was attempting to cross road – Crossing to other lane at a corner where school kids walking on side of road – A falling below the skill and care of competent driver – Dangerous driving - Evidence of – Verdict – Guilty – Criminal Code Ch. 262, s 328 (2)(5).

Papua New Guinea Cases Cited:
Karo Gamoga v The State [19981] PNGLR 443
R v Piane [1975] PNGLR 52
The State v Dela Tami [1977] PNGLR 57
The State v Elias Subang (No.2) [1976] PNGLR 179

Overseas Cases Cited:
R v Gosney [1971] PNGLR 2 QB 674

Texts Cited:
S Injia, Injia on Criminal Offences in PNG and the Pacific, University of Papua New Guinea Press, 2013

S Injia, Pacific and Injia on Evidence in PNG and the Pacific, University of Papua New Guinea Press, 2013
Counsel:
H Roalakona and D Sopane, for the State
S Endehipa, for the Accused

VERDICT

20^th June, 2016

1. TOLIKEN J:The accused, Rose Tobiyala, was indicted for one count of dangerous driving causing death thereby contravening Section 328(2)(5) of the Criminal Code Ch. 262 (the Code). She was charged that –

“... on the 22^nd day of October 2012 [she] drove a motor vehicle on a road, namely Charles Abel Highway dangerously thereby causing the death of one Reuel Aradina.”

2. The State’s allegations are these:

On Monday 22^nd of October 2012, at about 7.15 a.m. the accused was driving a Toyota Hilux Firth Element 4x4 Double cabin Registration No. FAB: 627 along the Charles Abel Highway. She was driving at a very high speed. At the Huluna Corner, Rabe, she was approaching a pothole, and still at high speed, she tried to negotiate and avoid the pothole but due to the high speed she was driving at she lost control of the vehicle and almost went off the road. She had to quickly turn the vehicle back to the road and in the process she did not pay attention on the road ahead, hence, she was not able to avoid hitting an Elementary school child, namely, Reuel Aradina (deceased) who was then walking to school with his brothers and school friends. After hitting the child down the car dragged him some meters away from the point of impact, during which time the car hit the deceased again and left him there.

3. The accused denied the charge, raising the defence of accident pursuant to Section 24 of the Code.
   
4. To secure a conviction the State has to prove the following elements of the charge beyond reasonable doubt:
   
   1. The accused
   2. Drove a motor vehicle
   3. On a road or public place
   4. Dangerously
   5. Causing the death of another person.
      
5. The accused does not deny that she drove the vehicle in question on the Charles Abel Highway on the date in question, nor does she deny that the deceased was by killed by the vehicle she was driving. She, however, denies that she drove dangerously.
   
6. The main issue for the court’s determination, therefore, is whether the accused drove dangerously.
   
7. The State called the following witnesses; BobonubeTeawa, Tahan Aradina, Peter Leme and Danni Kaisa. The State also tendered the following documents by consent:
   
   1. The accused’s Record of Interview (Exhibit A).
   2. Statement of Jack Geda – Investigation officer (Exhibit A1)
   3. Accident Report (Exhibit B)
   4. Sketch map of the accident scene (Exhibit C)
   5. 10 x Photographs of various sites of crime scene (Exhibit D1 – D10)
   6. Initial Report of Death to Coroner (Exhibit E)
   7. Order for Post Mortem (Exhibit F)
   8. Warrant to Bury (Exhibit G)
   9. Post Mortem Report by Dr.Mataio (H)
   10. Mechanical Inspection Report by (Exhibit I)
       
8. The accused on her part testified on oath and called Dr. Misimo Lam.
9. The undisputed facts are that on the morning of 22^nd October 2012 the accused was driving back from Gurney Airport in a white double cabin Toyota Hilux Fifth Element, owned by her employer Avis Rent-a-Car at about 7.45a.m. in bound for Alotau. Just after she negotiated the Huluna Corner at Rabe, but before the Rabe Community School her vehicle collided with the deceased child. After hitting the child the accused slowed momentarily down, however, she did not stop, but drove straight to the Police Station, reported the accident and surrendered herself.
   
10. The accused, at the time of the incident, was and still is, the current Branch Manager from Avis Rent-A-Car here in Alotau. She has held this position for the last 9 years and had been driving since 1989. Her duties require her to drive to and from the Airport at least 4 – 5 times a day. She is, therefore, very familiar with this stretch of the Charles Abel Highway.
    
11. That morning the deceased, aged 6 years at that time, was walking to school with his older brothers, Tahan (11 years old) and Phian, and other school kids. They were walking on the right side of the road from the direction of Gurney. The two older boys were attending Rabe Primary School located on the right side of the road about 130 meters or so up the road from the Huluna Corner. The deceased was attending the Elementary School on the opposite side of the road just before Rabe Primary School.
    
12. At the Huluna is a culvert over a dry creek. The children, i.e. Phian, and Tahan and the deceased had passed the culvert (where they had stopped briefly to joke about an old umbrella that was lying in the creek), and were walking along, with Phian walking ahead, followed by Tahan while the deceased followed behind about 2 ½ meters Tahan, when they heard a vehicle coming from behind them. Tahan turned around in time to see his small brother hit by the vehicle.
    
13. On the opposite side of the road were State witnesses Bobonube Teawa and Danni Kaisa. They were standing under a power pole some 42 meters from the culvert, at what is known as the Ladava Bus stop, chatting as they waited for a bus to get into town. The witnesses indicated in court that they some 10 –15 meters from Huluna corner. However, we noted on visiting the accident scene that the distance was actually some 40 meter - 42 meters to be exact to the culvert. As they stood chatting, they heard a vehicle coming from the Gurney direction. They momentarily turned to see the vehicle as it drove pass and then continued with their conversation. However, about 2 seconds later they heard a loud bang, and when they looked over they saw a child lying on the road, and the vehicle sped off towards town.
    
14. They ran over and noticed that the child was not moving and blood was flowing from his nose. Danni Kaisa attended to the child while Bobonube stopped a taxi that was bound for Gurney. Danni Kaisi picked up the motion-less child while Bobonube got into the back seat of the taxi. Danni placed the child on Bobonube’s laps and the child was driven to the Alotau general Hospital where he was confirmed dead on arrival.
    
15. The medical report indicated that, though, the child was brought in within 15 minutes of the accident, the attending officer noted that the child was not breathing and there were blood clots on his mouth and nose. There was no pulse and no heart beat could be heard, and his extremities were cold and clammy. His eyes were fixed and dilated. It was noted that the head looked deformed and felt as if fractured. Minor lacerations were noted on the lower limbs.
    
16. A Post Mortem examination was conducted by Dr. Mataio three days after the death of the deceased so rigor mortis had set in. Examination of the body revealed the following:

3a EXTERNAL EXAMINATION
The post mortem was conducted three days after death
There was rigor mortis present.

There was obvious deformity of the face and he had scattered bruise marks on the limbs

The Face: The face was deformed at the mandible on the right side. There hematoma at the lateral aspect of the right eye extending to the right frontal hairline. There was old blood noted on the nostrils and the mouth.

There was abrasion noted on the left cheek extending to the left ear.

The Skull: There were palpable fracture lines on the skull. On the right (frontal bone) was a palpable fracture line measuring 5 cm in length and extending downward to the temporal bone. There was another palpable fracture midline from the frontal bone extending posterior-lateral to the parietal bone on the right side. A third fracture was palpable from the midline of the frontal bone extending left toward the left temporal bone measuring 8cm. The fracture of the frontal bone [from] the left and right were connected at the midline.

There were other notable abrasions on the right shoulder (3 x 2 cm), the right chest (3 x 2 cm) peri-umbilical area (10 x 10 cm). There were also minor abrasions on the right hand and thumb, and the left anterior aspect of the ankle extending to the big toe.

There were no other significant findings on other regions of the body.

3b INTERNAL EXAMINATION

The external examination and findings warranted that no internal examination was required.

X-rays of the skull, chest and spine were taken (x-ray number 5208)

X-rays of the skull showed significant fractures at the frontal bone both on right and left side and both connected midline. The fracture showed displacement on the left side and extended to the temporal area.

The lateral view showed a further fracture with displacement at the posterior aspect of the parietal bone. X-rays of the chest and spine were otherwise unremarkable.

...

DISCUSSION ON CLINICAL FINDINGS

The palpable structure at the initial examination and post mortem on the suggested a major force exertion that shattered the skull with direct injury to the underlying brain tissue (in this case the frontal lobe) that resulted in intra-cerebral bleeding, raised intracranial pressure, brain swelling and herniation, thus immediately impairing and halting brain function.

The bleeding from the mouth and nose indicates direct trauma to the face or a basal skull fracture. The fracture of the right mandible also implies a significant energy force applied.

...

Cause of Death

The late Reuel Aradina died of Severe Traumatic Head injury secondary to motor vehicle accident.

...

17. The primary facts that go to the main issue in this trial - whether the accused was driving dangerously at the relevant time – are disputed. These are:
    • Whether the accused speeding.

• Whether she was avoiding a pot hole as she was turning the Huluna Corner
• When avoiding the pothole, whether she served to the right and hit the deceased?
• Where exactly on the road was the deceased hit; was it on the right lane or on the left lane?
• Was he attempting to cross the road when hit, and if so where did he cross?
  

18. What is the law in regard to dangerous driving? Dangerous driving has been held to involve a fault on the part of the driver in his manner of driving. In The State v Dela Tami [1977] PNGLR 57 it was held that :

“Fault involves a failure; a falling below the care and skill of a competent and experienced driver, in relation to the manner of driving and to the relevant circumstances of the case. If the dangerous driving occurs, however, as a result of some sudden overwhelming misfortune suffered by the driver for which he is in no way to blame – if, for example he suddenly has an epileptic fit or passes into a comma, or is attacked by a swarm of bees or stunned by a blow on the head from a stone – then he is not driving in a manner dangerous to the public.”

19. The Supreme Court in Karo Gamoga v The State [19981] PNGLR 443 adopted and followed the statement of the law by the English Criminal Court of Appeal in R v Gosney [1971] 2 QB 674 where at 680 it said:
    

“In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. ‘Fault’ certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a naturally poor driver, while straining every nerve to do the right thing, falls below the standard of a competent and careful driver. Fault involves a failure, a falling below the care or skill of a competent experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case. A fault in that sense, even though it be slight, even though, it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient. The fault need not be the sole cause of the dangerous situation. It is enough if it is, looked at sensibly, a cause. Such a fault will often be sufficiently proved as an inference from the very facts of the situation. But if the driver seeks to avoid that inference by proving some special fact, relevant to the question of fault in this sense, he may not be precluded from seeking so to do.”

20. So the prosecution must prove that there was some fault on the part of the driver. However, the driver need not have been the sole cause of the accident. He will be convicted if it is proved on the criminal standard that there was some appreciable fault on his part that fell below the care and skill of a competent and careful driver. The prosecution must, however, prove that the dangerous driving on the part of the accused was a substantial cause of death but not that it was the sole substantial cause. A substantial cause will be more than de minimis. (The State v Elias Subang (No.2) [1976] PNGLR 179)
    
21. The standard of driving is an objective one and not subjective. The State must, however, adduce evidence that goes beyond showing merely that the accused’s driving was dangerous (R v Piane [1975] PNGLR 52. The standard is also impersonal and universal. “Impersonal” because it does not vary with individuals and “universal” because it applies to all persons who drive motor vehicles. So it does not matter whether one is an experienced or an inexperienced driver. (Karo Gamoga v The State. (Supra).
    
22. Now, I move down to the disputed facts. First, was the accused speeding?
    
23. The law is clear that excessive speed, may, by itself amount to dangerous driving. What the court needs to do is to determine whether, in all the circumstances, the excessive speed was dangerous to the public, having regard to any actual or potential danger that may be posed to the public. And the prosecution must also prove the speed or the range of speeds that the accused was driving at, beyond reasonable doubt.
    
24. Speed can be observed from the speedometer of a vehicle driven by the police, or a competent driver, driving behind the vehicle driven by the accused at a constant distance over a reasonable distance, if the speedometer is functioning accurately, the use of a speed measuring devise, a legally obtained admission by the accused, or an estimation of the speed by a suitably qualified person.
    
25. If the prosecution intends to rely on the estimation of a police officer, or an experienced driver, the authors of the Texts, Injia on Criminal Offences in PNG and the Pacific and Injia on Evidence in PNG and the Pacific, suggest that the prosecution must lay the factual basis for such evidence – which really is opinion evidence – before it can be admissible.
    
26. Factors to be taken into account may include the types of vehicle driven by the witness, the period the witness had been driving and the type of licence held by the witness, and in the case of a police witness, his policing experience in detection of speeding offences.
    
27. I adopt these statements as correctly stating the law on speeding, in a country where speed measuring devises are not used, and where the police and lay persons, alike, invariably estimate speed through experience and observation.
    
28. The evidence from the State on this issue came from Bobonube Teawa, Danni Kaisa and Peter Leme.
    
29. Bobonube testified that he was chatting with Danni Kaisa at the Ladava Bus Stop when they heard a vehicle drive pass. He estimated that the vehicle was doing 70 – 80 k.p.h. as it approached and negotiated the Huluna Corner, which, he said was 12 meters from where they were standing. On inspection it was ascertained, however, that the corner was more like 42 meters from where they were.
    
30. Bobonube testified that he was able to tell the speed because he is a very experienced driver. He has been driving for some 30 years and has driven all manner of vehicles from Hilux utilities to heavy vehicles. Danni Kaisa corroborated Bobonube’s evidence but was not asked what his experience was for his estimate nor was he asked if he drove at all.
    
31. Peter Leme testified that on the day in question he was driving up from Waima village where he resided, to the main road. When he was about 30 meters from the junction he noticed a Toyota 5^th Element Utility drive pass. He got onto the main road and followed the vehicle which was by then was 60 – 70 meters in front of him. When he came to the Bitu Corner he shifted to 5^th gear and reached 75 – 80 k.ph. At that point the distance between them was 50 – 55 meters but he reduced speed slightly, maintaining a distance of 40 – 45 meters behind the utility right up to the scene of the accident.
    
32. Knowing that he was approaching a corner (Huluna Corner), Leme said he shifted to 4^th gear and slowed down to 55 – 60 k.p.h. And from a distance of 45 – 50 meters he saw the vehicle ahead try to avoid a pothole. It swerved to the right and when it tried to swerve back to the left lane it hit a child. He said he pulled to the side and watched as the vehicle drove away without stopping after it hit the child.
    
33. In cross examination, Leme said that when he came close to Huluna Corner, he slowed down, and the vehicle ahead of him was about 60 meters ahead of him. When asked where exactly the pothole was he said it was right at the corner, 20 meters from the point of impact. It was put to him that he was doing 40 – 50 k.p.h as he approached the corner, and he replied that he was doing 55 – 60 k.p.h. When pressed further as to what speed he normally does when approaching this corner, he said he normally does 55 – 60 k.p.h, but he slowed down to 45 -50k.p.h at the corner. It was further put to him that he and the vehicle in front of him were both coming to the corner at the same speed i.e. 45 – 50 k.p.h. Leme said that the vehicle ahead of him was going at the same speed. And when it was suggested to him that it was doing 45 – to 50 k.p.h, Leme said he could not tell her speed.
    
34. On re-examination, Leme was asked what his speed was just before he slowed down at the Huluna Corner. He said he was doing 55 – 60 k.p.h on 04^th gear and had been tagging the 5^th Element by 55 – 60 meters, a distance which he said he had maintained from his house to the Huluna Corner. He said he went up to 65 – 70k.p.h when he passed Bitu but never exceeded that speed after that. Instead he maintained 60 -70k.p.h. When asked how he could tell the speed of the vehicle in front of him, Leme said he could tell from his own speed because he never over-took the vehicle not did it leave him far behind. Hence, he said they were travelling on the same speed.
    
35. He said he slowed down as he approached the Huluna Corner and when asked if the vehicle ahead had slowed down he said he did not know if it did, but said he observed that it maintained the same speed. When pressed whether he was doing 70 – 80k.p.h. or 45 – 50k.p.h as he approached the corner, he said they were doing 75 – 80k.p.h as they approached the corner but then he reduced his speed to 45 -50k.p.h.
    
36. When asked if he maintained the same speed as he came to the corner, Leme said he maintained the same distance but slowed down at the corner dropping down to 55 – 60k.p.h, and the vehicle ahead may have also dropped down to that speed. When asked to explain, he said “The vehicle ahead may have slowed down, as we maintained the same distance.”
    
37. The accused testified that on the date in question, she was driving back from the Airport sometime between 7.30a.m. and 8.a.m. She was doing 40 – 50 km per hour (the company designated speed limit for Avis’ employees) as she was approaching the Huluna Corner. She noticed people on both sides of the road. As she was negotiating the corner, a child suddenly ran across the road from the right side. She applied the brakes suddenly, but said she could not avoid hitting the child as he was right in front of the vehicle. And, even if she did manage to avoid him, she said she would have run over the other people who were on the sides of the road. She panicked and lost control of the vehicle momentarily, but when she noticed bystanders shouting and running towards her, she quickly drove off from the scene.
    
38. The accused vehemently denied in cross examination that she was driving at 60 – 70 k.p.h. saying that she has never ever driven at that speed in her life. She maintained that she was driving within the company regulated speed limit of 40 – 50k.p.h.
    
39. So, whose evidence should I believe then? The truth (according to the evidence - as we cannot be sure of the absolute truth) is a toss-up between the evidence Bobonube Teawa and the accused. I cannot place any weight on the evidence of the unqualified evidence Danni Kaisa, and the evidence of Peter Leme on this crucial point.
    
40. Even though Danni Kaisa corroborated Bobonube’s estimate that the accused was doing 70 – 80 k.p.h, he did not say, nor was he asked, how he independently arrived at his estimate, and whether he drove a motor vehicle at all to qualify him to proffer an estimate of how fast the accused was driving.
    
41. Peter Leme, on the other hand, was not an impressive witness at all. His evidence was delivered in a calculated and clinical manner, and one cannot help, but suspect that he had carefully rehearsed his evidence, and along the way coloured it with a few concoctions or inventions as well. He may have been driving behind the accused, but having come onto the highways from a side road, it is expected that he would have gained the speed, or range of speeds which he said reached.
    
42. Leme’s evidence on the speed he was doing as he was approaching the corner oscillated between 55 - 60 k.p.h and 45 – 50k.p.h. This does not lend credit at all to the State’s assertion that the accused was travelling at a speed of 70 – 80k.p.h. In cross examination, it is to be noted that Leme seemed to agree that the accused was doing 45 – 50 k.p.h, but then said that he was not sure what speed the accused was doing as she approached the corner, whilst maintaining that he maintained the same distance behind the accused. But then on re-examination, he immediately said they would have been doing 55 – 60k.p.h. That would directly contradict Bobonube’s estimation of 70-80k.p.h. Bononube, I believe, only had a fleeting glance at the passing vehicle, because he was busy chatting to Kaisa, and in those circumstances, I doubt that he would have had the time and opportunity draw an educated estimate of the vehicle’s speed, which he could easily have done because of his driving experience.
    
43. The best estimation of the accused’s speed would have been that by Peter Leme. Unfortunately his evidence was unreliable and contradictory on crucial aspects on the issue of speed.
    
44. I am therefore led to accept that the accused was driving at a speed of 45 – 50 k.p.h as she approached the Huluna Corner. The absence of evidence of skid marks on the road – which would have been left there, since the accused said she suddenly applied the brakes – would also suggest that she was going much slower than what the State alleged. So, on this issue, I find that the accused was not speeding, let alone, doing 70 – 80k.p.h as alleged by the State.
    
45. The next questions are; was she trying to avoid a pothole as she approached the corner, and in the process serve to the right and hit the deceased?
    
46. Peter Leme testified that as the accused was approaching the corner, she tried to avoid a pothole, and as she served to the right she hit the deceased. He said the pothole was 20 meters away from the point of impact. The accused denied that there was a pothole on the road and that she was trying to avoid it by swerving to the right when she hit the deceased. So, was there indeed a pothole at or before the Huluna Corner?
    
47. The State tendered certain photographs of the accident scene. Exhibit D5 shows a very clear view of the road as it bends at the corner up to and past the culvert. The photograph clearly does not show any potholes around this part of the road. Peter Leme’s evidence on this point cannot therefore stand and so will his evidence that the reason the accused swerved to the right was to avoid the pothole. Peter Leme was obviously not telling the truth. No, I find that there were no potholes on the road, and it would follow that the accused did not serve to the right to avoid such potholes. If she did at all, it would have been for other reasons.
    
48. But where exactly on the road was the deceased hit? Was it on the left lane as alleged by the State or on the right lane as claimed by the accused? And what was the deceased trying to do when he was hit?
    
49. The State’s evidence on this point came from Tahan and Peter Leme. Tahan testified that he and his two brothers had left the culvert, where they had stopped for a while to look at an old umbrella and joking about it with other kids, and were walking up towards the primary school. He was walking behind Phian while the deceased followed about 2 ½ meter behind him (Tahan), when he heard the vehicle. He turned back to see the vehicle hit his brother on his back. He said the vehicle slowed down slightly, but then sped off. That the vehicle slowed down slightly, is confirmed by the accused, who said she applied the brakes suddenly when she hit the child, but then took off immediately when she heard and saw people shouting and running towards her.
    
50. The child was obviously not hit while walking along the side of the road. He was hit on the road so, obviously, at some point after they had left the culvert the child had crossed the road to get to the Elementary School which located on the other side of the road.
    
51. The point of impact is disputed. The State tendered a Sketch map (with consent (Exhibit C)) which showed the point of impact to be just on the right lane, just off the middle line markers. The accused said the point of impact was about 8.00 meters further up on the left lane about 1.5 meters from the side of the road. Peter Leme seemed to confirm the accused evidence when he said that the child was hit on the left side of the road. This directly contradicted the State’s case, and at one point, Mr. Sopane attempted to have him declared hostile, but he did not pursue his intention. The contradiction therefore remained uncorrected. The investigating officer was, however, not called to verify his sketch and photographs of the scene of the accident, particularly the point of impact.
    
52. Now, if the child was hit on the right lane as indicated by the sketch map, it is possible that the accused would have left her lane. She was not avoiding a pothole as I have already found, as there wasn’t any, so she may have momentarily left her lane for some other reason, and in the process collided with the deceased who obviously was trying to cross the road.
    
53. The accused said that the deceased crossed the road so suddenly that she did not have time to avoid him, and even if she had attempted to brake, she would have hit him any way. If that is the case, then, she would avail herself to the defence of accident under Section 24 of the Code.
    
54. I would accept this, if I were to accept and place weight on the sketch map and an accompanying photograph, which, clearly seem to show that the point of impact was on the right lane just off the centre line of the road.
    
55. However, if the point of impact was where the accused said it was, which, was 1.5 meters from the end of the bitumen on the left side of the road, then, this paints a completely different picture – one that does not auger well for her. What this means is that the deceased child had almost safely crossed over to the other side of the road. If that was so, the accused would have definitely have seen him cross because he would have been in her direct line of vision. I doubt that the child, a mere Elementary School kid, could have darted across the road with electric speed, so as to catch the accused completely by surprise.
    
56. So, even if I were to believe the accused version of the evidence, I would, nonetheless, find that she was not paying attention to the road and road users, mostly school children, whom she saw and knew, were on the road at that time. The fact that she said she was completely taken by surprise when the child crossed the road, is not possible, when we consider that the child would have left the right lane and was almost to the other side. As I said, I doubt that the child crossed with such speed so as to catch the accused completely by surprise.
    
57. It must be noted also that the point which the accused said was the point of impact, is indicated in the sketch map as the place where the deceased landed after the impact. The medical examination did not show significant abrasions on the deceased that would indicate him being dragged to that point but that does not rule out that he indeed landed there.
    
58. Of the two versions, if indeed, the accused was taken by surprise when the deceased child suddenly crossed the road, I would surmise that the State’s assertion would be more probable. I believe that the child was hit on the right lane as he was attempting to cross the road.
    
59. There nothing to throw doubt on the sketch map and photographs, so the question is, why was he hit there? Is it unreasonable to conclude or infer that the accused had cut the corner (for whatever reason) and left her lane and in the process hit the child as he was crossing the road?
    
60. I believe that the accused had momentarily left her lane and cut into the right lane and hit the child there. That, I think is a reasonable conclusion. This is despite the obviously contradictory evidence of Peter Leme, and the fact that other State witnesses, apart from Tahan, did not witness the actual impact, and the failure of the State to call the investigation officer.
    
61. But, even so, was this an accident t within the meaning of Section 24 of the Code? I do not think so. Even if the accused was not avoiding a pot hole, she obviously cut into the right lane, and in so doing hit the child. Cutting onto the right lane, for whatever reason, on a corner, where there were children walking to school, constituted a fault on her part that fell below the standard that is expected from an experienced driver who knew or ought to have known that there were kids walking to school that morning. She knew or ought to have known that there were schools on both sides of that stretch of road, and kids would be crossing from both sides to get to their school, and therefore she ought to have exercised better care. She did not and therefore hit the deceased. I find that she was driving dangerously that morning.
    
62. As we have seen, for the State to secure a conviction for dangerous driving, it does not need to prove that the accused was solely at fault. All it needs to prove was that the accused’s dangerous driving was a substantial cause of death – but not that it was the sole substantial cause. A substantial cause will be more than de minimis. (The State v Elias Subang (No.2) (supra) In this case the accused manner of driving was a substantial cause of the deceased’s death, despite the fact that she may have not been speeding.
    
63. I therefore return a verdict of GUILTY.
    

Orders accordingly.

________________________________________________________________
The Public Prosecutor: Lawyer for the State
Endehipa Lawyers : Lawyer for the Accused: