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R v Naupoto [1997] TOLawRp 2; [1998] Tonga LR 1 (3 December 1997)

IN THE SUPREME COURT OF TONGA
Supreme Court, Vava’u

Cr 465/1997

R

v

Naupoto

Lewis CJ
1, 2, 3 December 1997; 3 December 1997

Criminal law — manslaughter by negligence — driving while intoxicated Criminal law — driving taxi without correct licence Sentencing — not guilty plea — no reduction in sentence Practice and procedure — declaration of hostile witnesses

On 29 March 1997 the defendant drove his father’s taxi and hit a van. This caused the death of a young boy. The defendant was charged with manslaughter by negligence and driving without a licence. The prosecution relied upon a combination of negligent acts as constituting the failure of a duty of care: driving while intoxicated, the use of excessive speed, and failure to keep a proper lookout. Two witnesses were declared to be hostile. The defendant was driving a taxi without a taxi licence. However, the taxi was not being used as a taxi.

Held:

1. The driving of the intoxicated defendant speeding as he was on the incorrect side of the road for his direction of travel was the proximate 20 cause of the collision and the cause therefore of the death of the child.

2. The defendant breached the duty of care he owed to other road users. The degree of negligence was of the highest order.

3. The defendant was driving a vehicle registered as a taxi but it was not being used as a taxi in that there were no fare paying passengers.

4. Manslaughter: imprisonment for four years.

5. Disqualified from holding or obtaining a driving licence for seven years.

Cases considered:

Andrews v Director of Public Prosecutions [1937] AC 576; [1937] 2 All ER 552

R v Bateman (1925) 19 Cr App R 8; [1925] All ER Rep 45

Statutes considered:

Criminal Offences Act Cap 18

Evidence Act Cap 15

Traffic Act Cap 156

Counsel for prosecution: Mr Cauchi
Counsel for defendant: Mr Vaipulu

Judgment

The accused has pleaded not guilty to charges of manslaughter by negligence and driving without a licence. The particulars of the offending alleged against him in count 1 in the indictment are that he on or about 29 March 1997 drove a vehicle number T278 on the road at Ha’alaufuli and without due care hit vehicle no. L325 and thereby caused the death of ‘Emosi Hefa. The taxi licence plate no. was amended to T272 at trial.

In count 2 the particulars allege that he on 29 March 1997 drove vehicle no. T278 on the road at Ha’alaufuli without having been licenced to drive that class of vehicle.

This has been a trial by Judge sitting alone and the verdicts and reasons for them I now set out.

In a case such as this one the prosecutor carries the burden of proving the guilt of the accused beyond any reasonable doubt from beginning to end. The accused person carries no such burden. He is if he so chooses entitled to give evidence and call evidence and if he does it is the duty of the Court to consider the evidence he has led. The Court must then ask whether, having regard to the whole of the evidence, what the defendant has said about the matter is a reasonable possibility. If it is a reasonable possibility that what the accused says in his defence is true then it will mean that the prosecution has not proved its case beyond a reasonable doubt and the accused must be acquitted and discharged. If the defence raised by the accused is not a reasonable possibility from the whole of the evidence then in those circumstances the finding will be one of guilty as charged beyond any reasonable doubt and a verdict entered accordingly. In this the accused neither gave nor called evidence and relied upon the submissions of his counsel in his defence.

The elements of the offence of manslaughter by negligence are derived from the provisions of s 86(1)(b) and s 92 of the Criminal Offences Act Cap 18 which provide as follows:

86(1)(b). Culpable homicide consists of the killing of any person ... by omission without lawful excuse to perform or observe towards such person any legal duty ...

92. Culpable homicide which does not amount to murder is manslaughter and if such homicide was caused by negligence the offence is only manslaughter by negligence.

The elements of the offence of manslaughter by negligent driving are therefore that the prosecution must prove beyond any reasonable doubt that:

— the accused

— on or about the 29 March 1997 near the road at Ha’alaufuli

— was the driver of a motor vehicle

— and by reason of his negligent driving

— by breaching the duty of care owed by him to the other persons using the road

— directly caused the death of another person using the road.

Intention is not a requisite element of the offence. Intention to cause harm or injury or death is not relevant to the proof of a charge under s 86(1)(b).

Negligent driving means negligence arising by a failure of the driver to exercise the duty of care owed by him toward other people using the road. In order to secure a conviction the Crown must prove a very high degree of negligence.

In R v Bateman (1925) 19 Cr App R 8; [1925] All ER Rep 45, it was said, “... in order to establish criminal liability the facts must be such that, in the opinion of the Jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment”.

The degree of negligence is not necessarily the same as that which is required for proof of the offence of dangerous driving. On the one hand there are acts which are unlawful irrespective of the manner in which they have been performed, on the other hand there are acts such as driving a motor car which are only unlawful when they are performed in a particular manner, when they are performed negligently.

Andrews v Director of Public Prosecutions [1937] AC 576; [1937] 2 All ER 552 establishes the proposition that where the act is of a class unlawful only when performed negligently then if a person dies as the result of the performance of such an act the question whether the accused has committed the crime of manslaughter shall be considered exclusively on the basis of the negligent manslaughter doctrine.

As Lord Atkin said in Andrews, “Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established”.

The Facts

Turning to the facts of the present case. The prosecution rely upon a combination of negligent acts as constituting the failure of duty of care owed by the accused to the deceased namely, the use of excessive speed, failure to keep any proper lookout and finally most seriously dangerous driving by driving at a time when the accused was so much affected by intoxicating liquor or a drug so as to be incapable of exercising effective control over the motor vehicle which he was driving. The particulars of the charge accompanying count 1 in the indictment do not spell out the case with such particularity but neither were further and better particulars sought by the defendant and the negligent omissions appeared from the evidence.

The Crown allege that the defendant in company with three others, Uilisoni Taufa, Lemaki Fainga’a and one Mele Moa, were travelling in a motor vehicle owned by the father of the accused. It bore a taxi registration plate T272. I so find.

The evidence is that the three men, Ului, Uilisoni and Lemaki had consumed a large amount of whisky. The volume consumed between them seems to have been about 2.5 litres. It had been consumed between about 1.30 am on the morning of the day of the collision [Exhibit P7 A. 11]. It was consumed on the accused’s account of things by himself and four others. I so find. There is no doubt that the defendant was very drunk when he was first seen by Police Corporal Tonga. I will consider that late in this judgment.

The Witnesses’ Uilisoni Taufa and Mele Moa Finding of Hostile Witness.

Moa and Taufa for a reason or reasons, which have not become apparent, both changed the account of events, which they had given to Police very soon after the accident. The Crown Prosecutor applied to have them declared to be hostile witnesses within the meaning of the Evidence Act Cap 15, s 147, which provides:

147(1) a witness may neither be cross examined nor his credit impeached by the party calling him except by permission of the Court which permission shall only be granted when in the opinion of the Court the witness has shown himself to be a hostile witness.

(2) A hostile witness for the purpose of this and the following section shall mean a witness who from the manner in which he gives his evidence, shows that he is not desirous of telling the truth to the Court.

I made the declaration sought in each case. I did so on the undertaking of the Crown Prosecutor who assured the Court that their evidence was at serious variance on highly material issues with the signed witness statement, which was in his possession.

The prosecutor then impeached their credit pursuant to s 148 of the Act. Both witnesses were cross-examined on their earlier statement. Both then reverted to the account, which they had given following the collision.

In departing from their witness statements given to Police shortly after the accident each witness demonstrated a capacity to mislead the Court and to tell untruths on their oath. They therefore became inherently untrustworthy witnesses about this very serious matter. Therefore I make it clear that I have only relied upon the evidence which they gave about any matter when evidence co-exists from some other witness whom I have found to be reliable which confirms the evidence of Moa and Taufa in a material particular about any issue.

Intoxication

The prosecution has alleged that a cause if not the main cause of the collision which brought about the death of the child ‘Emosi Hefa (the death of the child being a fact I find proved beyond any reasonable doubt [Exhibit P12]), was intoxication from the effects of alcohol being experienced by the accused both leading up to and at the moment of the collision.

Strict proof of intoxication is required of the prosecution. I am satisfied beyond any reasonable doubt that at the time of impact and at the time of events leading up to the impact that the accused was so much affected by alcohol that he was incapable of exercising effective control of the motor vehicle of which he had charge.

I am so satisfied because apart from the fact that the accused admitted the fact that he was drunk [Exhibit P7 Q & A 17 and Q & A 34] and further in the confession statement [Exhibit P10] “... I was drunk when I was driving”, there is the evidence of Police Corporal Tonga albeit that the Police officer’s observation was some time after the collision. Tonga says:

“... from my working experience I knew the accused was very drunk ... the accused was drunk. He was swaying and his eyes were red and there was an odour of liquor from him ... ”

Tonga saw the accused at the Police station after viewing the body of the deceased child and before going to the scene. There are no times given. While it may have been more helpful had the timing been related to the court, the inescapable inference is that the intoxication of the accused at some intensity persisted from his having consumed whisky from about 1.30 am right up until the moment of impact and the degree of intoxication grew as he consumed more whisky.

The accused through his counsel made the observation that it cannot be known what volume of the liquor was consumed since there were four persons (on the evidence) drinking the same 2.5 litres. The argument cannot hold. It is not quantity consumed which is the measure of intoxication for present purposes rather it is the observations of others and the confession of the accused which will prove his condition just before and at the moment of collision.

180 The witnesses Moa and Taufa gave evidence that the accused had been consuming alcohol as he drove the vehicle to a point quite near to impact. I so find. Taufa said in addition “we were all drunk and we were speeding” and added (albeit after some cross-examination by Mr Cauchi who had had him declared hostile) — “I wanted ‘Ului to keep to his lane I knew he was drunk”.

There are other passages but the passages I have quoted are sufficient to persuade me that at all material times the accused was incapable of properly controlling the taxi he was driving.

Speed

The Crown case consists of the further allegation that the accused breached his duty of care to others using the road by driving at speeds which were excessive in the circumstances. I am satisfied that he did. The witnesses who were passengers in the vehicle being driven by the accused speak of it. Moa says that she “noticed he was speeding and as we passed Ha’alaufuli village he accelerated”. The accused told Tonga that he was travelling at 65 kph [Exhibit P7 Q & A 19]. The speed of the vehicle just before impact cannot be properly determined. But I am satisfied that it was an excessive speed and the accused owed to motorists not to be on the road at all in his condition leaving aside driving at 65 kph.

The Vehicle of the Accused on the Incorrect Side of the Road for Travel

During the interview with Tonga [Exhibit P7 Q & A 18] the accused said:

“We are driving on the (Eastern road) I was uncertain of the side of the road we were driving on because I was very drunk and as we were going uphill I dodged a van which was driving the opposite direction and I ran into this van.”

If one commences with the assertion of the accused of his uncertainty of which side of the road he was on by reason of his drunkenness and then considers the evidence of the driver of the van, ‘Inoke Taulani and the evidence of the witness Haitelenisia Hefa, it is compelling evidence of the fact that the car driven by Naupoto was on the incorrect side of the road for travel almost immediately before the impact.

It is true that the evidence of the two witnesses differs about whether the van driver Taulani had been distracted by the mother of the child Haitelenisia immediately before impact but that is not to the point, both place the car on the incorrect side of the road for lawful travel. It is true that Haitelenisia when asked in re-examination said that the van in which she was passenger was on the right hand side of the road before the van moved to the right, however she appears to have altered her evidence to that which it was in examination in chief, namely on the left hand side of the road before impact, later in re-examination.

I find that at all material times but in particular during the period leading up to impact with the van, the car driven by the accused was travelling on the incorrect side of the road for its travel and just before impact moved to its left and came into collision with the rear right hand side of the van causing the van to turn on its side thereby causing the death of the child ‘Emosi who died as a result of head injuries sustained by him in the collision.

I find that the driving of the intoxicated accused speeding as he was on the incorrect side of the road for his direction of travel was the proximate cause of the collision and the cause therefore of the death of the child.

From the whole of the evidence before the Court I am satisfied that the accused breached the duty of care in the driving of the car which he owed to others who used the road. I am satisfied that the degree of negligence was of the highest order. It is difficult to imagine a higher degree of negligence. The accused was very drunk during the period which led up to the collision and for a considerable time beforehand. The degree of his reckless driving, not caring who was on the road or whether they would be injured by him, is of the highest order.

He had been warned to stay on the correct side of the road and to take care but he continued to aggravate his intoxication by consuming alcoholic liquor right up to the impact on his own account of things.

I enter a verdict of guilty of manslaughter by negligence in respect of count 1 in the indictment.

As to the second count namely driving without a licence. The Crown case is that he had no taxi licence [Exhibit P7 Q & A 23]. Mr Vaipulu submits that the offence is not proved and that while the accused is demonstrated to have been driving a vehicle which was registered as a taxi it was not being used as a taxi as there were no fare paying passengers. I so find.

I am of the opinion that the Legislature intended by the passage of Traffic Act Cap 156 to regulate for the necessity of the registration of vehicles intended to be used as taxicabs in the commercial sense. The Act does contemplate the banning of the vehicle for recreational use and insisting upon its exclusive use as a taxi. Therefore when the vehicle is used for recreation as compared with commercial use no offence is contemplated. I would add that I would urge that this matter be considered by the LA LRC and considered so that prosecution can be made plain. I so rule. I enter a verdict of not guilty of the charge in count 2 in the indictment.

Sentence

Ului Leakona Naupoto:

You are a young man with no previous convictions alleged against you.

Its encouraging to hear that you and the family of the deceased have resolved some differences and grief. Unfortunately for you it is not as simple as extending leniency to resolve the circumstances of this office.

You may have been entitled to have as much as two-thirds of the sentence imposed upon you reduced had you acknowledged your guilt at the earliest time. However, you did not do so. I cannot bring that into account.

Your driving was so atrocious. The drunkenness so serious that a clear warning must go out from this Court to all the people who would behave in the way in which you have done. The behaviour will not be allowed to pass unnoticed. The offending calls for a severe penalty.

I have listened for three days. I have heard an awful story of your reckless self-indulgence which brought about the death of an innocent young boy. I have brought into account all that has been said in your counsel’s submissions on your behalf. I am accepting of your previous good record. If driving like your driving is allowed to continue in this community, none of us are safe.

1. Manslaughter: Imprisonment for a period of 4 years.

2. Disqualified from holding or obtaining a licence to drive a motor vehicle for a period of 7 years commencing forthwith.