The matter was dealt with on
trial on 19th Or, 20th October (morning only) and 21 October (afternoon
on
only). I deliver
an oral verdict today because in the course of the trial I
have noted the attendance of the members of relatives both of the
deceased
person's and the Defendant's and the anxiety they have for an urgent
decision of the Court. The Prosecution
has called about seven witnesses.
Their evidence was summarised by Mr Tangwata yesterday and I need not repeat
them.
The standard of proof required in criminal cases is proof beyond
reasonable double. Section 8 of the Act is specific on that.
The Defence
called three witnesses including the Defendant himself. Their evidence is
such that the Court has found it
difficult to judge whether or not the
Defendant is guilty of the charge of unintentional harm causing death. I
likened
the trial to a boxing match of two very good experienced boxers.
They both put up such a good fight that it is difficult for
the referee to
announce the winner but in the end announces the winner on a technical
point.
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So it is with this case. Had it
not beenthe technicality of the Law, I would acquit the Defendant
ant
today. Defence
Counsel has referred the Court to some important English
cases on the matter which are contained in his written submissions.
I do not
propose to deal with them. I instead look at what our law says. The law
which the Defendant is charged with
is section 108(c) of the Act. It reads:
"No person shall
intentionally cause damage to the body of another person, through
recklessness or negligence, or failure to observe any
law.
Penalty: (a)
....................,
(b) ....................,
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Criminal inten
recklessness are defined by section 6 of the Act which reads:-
"6(1) No person shall be y
of a criminal offence unless he intentionally does does an act which is
prohibited by
the Criminal law and for which is 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 shhat he intended to do the vthe 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 ifpan>
(a) &nnbsp; Knowing that thet there
is a risk that an event may result from his conduct or that a circumstance
may exist, he takes
that risk, and
(b) &nnbsp;; ispis u is unreasoreasonable
for him to take it having regard to the degree and nature of the risk which
he knows to be present.
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(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 would exercise
......" (emphasis added).
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The elements of the offence
under sectionof the Act and the issues of recklessness, negligence and
and
failure to observe
any law were dealt with by me in the case of Public
Prosecutor -v- Silas Robert, unreported Judgement dated 15th December,
1997. I read the following passages from page 10 fifth paragraph.:-
"From the prosecutions
submissions it seems to me they are saying that recklessklessness means
negligence as they
have not attempted to distinguish to two. That is not
correct. From the legal provisions referred to above, it is clear to
this
Court that the two terms 'reckless' and 'negligence' are different and are
separate elements that they have to prove.
I do not that the
prosecution has to prove all three elements of recklessness, negligence or e or
failure to observe a
law as required by section 108(c) in order to prove
guilt under that section. No, they can prove only one or all but it's wrong
to say that one element is the same as the other.
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The ordinary meaning of the word 'reckless' in the English language is 'careless', 'h', 'heedless',
'inattention to duty'.
Literally it means 'without reck'. 'Reck' is an old
English word meaning 'heed', 'concern' or 'care' (see R -v- Bates
[1952] 2All ER. 842, per Donovan, J at pp.845-846)."
From page 11, I read the
following passages:-
"The 'recklessly' means
something more than mere negligence or inadvertence.
/p>
nk it means deliberately
running an unjustifiable risk (see Reed (Albert E.rt E. J& Co. Ltd -v-
London and Rochester Trading Co. Ltd [1954] 2 Lloyds Rep. 463 per
Devlin, J at p.475).
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The term 'recklessly' means
grossly careless. Recklessness is gross carelessness inss in the doing of
something which
in fact involves a risk being such having regard to all the
circumstances, that the taking of that risk would be described
as
'reckless'.
In describing the test, Megan,
J said:
"The oest, in my view, is
an objective one. Would a reasonaasonable man knowing all the facts and
circumstances which
the doer of the act as 'reckless' in the ordinary
meaning of the word in ordinary speech? As I have said, my understanding
of
the ordinary meaning of that word is high degree of carelessness. I, do not
say 'negligence' because ' negligence'
connotes a legal duty" (see
Shawnigan Ltd -v- Vokins & Co Ltd [1961] 3 all ER 396, per Magaw J, at
p.403.
I accept these definitions as
correct as this reflects the position as far as Vanuatu law is concerned as
clearly provided
in section 6(3) of the Act. 'Recklessness' therefore
involves a risk, knowing the risk and the consequences and yet taking
that
risk."
Applying these to the facts as
given in evidence before the C there is no doubt that thet the Defendant
knew he was driving
a vehicle with a defective foot brake. Indeed he
admitted in his own evidence when questioned by the Court that his hand
brake was not in working condition. He admits that his vehicle is about 9-10
years old and that he is still driving it
today. The Defendant is a highly
experienced mechanic. He knows all these defects and yet chooses to drive
such a vehicle,
knowing the risk and the consequences of having an accident.
In my judgement the Defendant was reckless.
Section 11 of the Road Traffic
(Control) Act CAP.29 makes ioffence for any person to d to drive, or who
being the owner of a vehicle permits another to drive a vehicle
which is or
any part thereof is being a danger to the public. Under Section 6(2) of the
Act the Defendant having driven
such a vehicle was reckless and his action
is equivalent to intention. That is the technicality of the law which the
Defendant is caught by. Notwithstanding that he did not intend to cause the
death of the victim, he must be made liable because
he was reckless. That is
the reason why Parliament enacted a law which includes liability for actions
done without intention
but with recklessness.
On that technical point I find
the Defendant guilty of unintentional harm causing death under section
108(c) of the Act.
Further I find the Defendant guilty of driving a vehicle
with a defective footbrake contrary to section 31 of the Road Traffic
(Control) Act. I accordingly convict the Defendant as charged.
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In sentencing I into
account what Mr Naliel has said in mitigating sentence on behalf of the
D Defendant. In particular
the fact that the Defendant did stop and picked up
the victim in his own truck to the hospital in an attempt to save his life.
That it was he himself who summoned the doctor and he assisted in carrying
the victim onto the hospital bed. I appreciate
his attempts at paying
compensation to the relatives of the late William Moli, victim. The issue of
compensation will
be left entirely to the Chiefs. What the Defendant did to
the victim at the end of the accident to save his life is an act
of charity,
love, compassion and mercy. He could have escaped from the scene but he did
not. This is an example to be
followed by others who face similar
situations. We need more drivers of such character on our roads. This earn
the Defendant
a lot of credit.
This is a case very much like
the case of Silas Robert except that the Defendancharged only
with twoh two offences, while Silas Robert was charged with four offences.
Further
Silas Robert left the scene of the accident. This Defendant stopped
and assisted the victim he had accidentally hit. As I have
said before this
earns the Defendant credit.
For those reasons I consider
that it is appropriate that only a fine should be imposs I did with
Silas Roas Robert by
imposing a fine under section 12 of the Road Traffic
(Control) Act, so I do in sentencing the Defendant.
<
I now sentence the Defendant to
pay a fine of VT100,000 and I order that he pays prosecution costs in the
sum of vt60,000.
Under section 94 of the
Criminal Procedure Code Act [CAP.136] you have a right to appealnst
this conviction aion and sentence.
DATED at Luganville this 22 day
of October, 1998.
Sealedh October, 1998.
BY THE COURT
OLIVER A SAKSAK
Judge of the Supreme Court
