IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 70 OF 2014

BETWEEN :

STATE

AND :

JIMI BETE

Counsel : Mr. Niudamu for State
Mr. Aman Ravindra-Singh & Mr. Anthony for the Accused 

Date of Hearing : 26th of November to 1st of December 2015
Date of Closing Submissions : 02nd December 2015
Date of Summing Up : 04th of December 2015
Judgment : 07th of December 2015

JUDGMENT 

Introduction 

1.	The accused person is charged with one count of "manslaughter arising from breach of duty" contrary to section 240 and 241(5) of the Crimes Decree and one count of "reckless or negligent act" contrary to Section 268(b) of the Crimes Decree. The particulars of the two counts are that;
 
First Count

"Jimi Bete on the 15th day of May 2014 at Malolo in the Western Division, having a duty of care whilst in control of a boat namely Gaunavou, was in breach of that duty, in that he omitted to take reasonable precaution as to the maneuvering of the boat thereby causing the death of Mark Timothy Hardaker" 

Second Count

"Jimi Bete on the 15th of May 2014, at Malolo in the Western Division, whilst in control of a boat namely Gaunavou, was negligent as to the maneuvering of the boat thereby causing harm to Mosese Soqeta" 

2.	The accused plead not guilty for these counts, hence the matter was set down for hearing on 26th of November to 1st of December 2015. The prosecution called seven witnesses. The accused opted neither give evidence on oaths nor call any other witnesses for the defence. Subsequently the learned counsel for the prosecution and the defence made their respective closing submissions, which was followed by my summing up.

3.	Two assessors found the accused is not guilty for the first count, while one assessor found him guilty. Two assessors found the accused is guilty for the second count, while one assessor found him not guilty. The assessors' verdict was not perverse. It was open for them to reach such a conclusion on the evidence presented during the hearing. 

4.	Having carefully considered the evidence presented during the course of hearing, respective closing submissions of the counsel and the opinion of the three assessors, I now proceed to pronounce my judgment. 

Background

5.	The deceased Mr. Mark Hardaker with his friend Mr. Saiso went for a fishing tip on a fiber glass boat in the evening of 15th of May 2014, while they were vacationing at Mana Island Resort with their wives. They were accompanied by one Nicholas MacGee. Late Mosese Soqeta was the captain of the boat. On their way back to the island, they were hit by a boat that was captained by the accused. Mr. Mark Hardaker succumbed to death due to the injuries he sustained at this accident. 

6.	The prosecution presented evidence that the accused was sailing his boat against the tide. It was a bit windy evening and sea was rough and choppy. The boat was travelling fast as it was going against the tide. The accused was seated at the back of the boat beside the engine. He was seated at the right side of the engine and was holding it with his left hand. The accused had stated in his caution interview that a captain of a boat is required either to stand and hold the engine or to sit beside the engine and look at the front from the right side of the boat. He went further and stated in his caution interview that he had to sit and look at the front from his right side as it was difficult for him to stand and look forward due to condition of the sea. The front portion of the boat was lifted up and was hitting the tide, which made the boat rugged. The accused had further stated in his caution interview that he did not see any boat coming in front of him. He was not aware about the boat which eventually collided with his until his boat hit on it. 

7.	In the meantime, late Mr. Mosese, the captain of the other boat had stated in his caution interview that he saw the boat of the accused was coming towards them about 200 meters away. However, he had presumed that the captain of that boat might have seen his boat. After a while he suddenly saw the boat of the accused was very close to him and was going to hit his boat. He then accelerated his boat and tried to turn to right side to avoid the collision, but it was too late. 

8.	None of the witnesses who travelled in the boat captained by the accused had seen this fatal boat prior to the collision. Moreover, two witnesses who were in the fatal boat also had not seen the incoming boat until it hit on them.

The Law

9.	Section 240 of the Crimes Decree states that; 

"A person commits an indictable offence if-

a.	The person makes an omission; and
b.	The omission causes the death of another person; and
c.	The first mentioned person- 

i.	has a duty to the other person in accordance with Section 241,

ii.	the omission amounts to a negligent to breach of the duty; such omission is 

or is not accompanied by an intention to cause death or bodily harm" 

10.	Section 241 (5) of the Crimes Decree states that; 

"It is the duty of every person who has in his or her charge or under his or her control anything (whether living or inanimate, and whether moving or stationary) of such a nature that, in the absence of care or precaution in its use or management, the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precaution to avoid such danger; and he or she shall be deemed to have caused any consequences which adversely affect the life or health of any person by reason of any omission to perform that duty". 

11.	Accordingly, the main elements of the offence of "manslaughter arising from breach of duty" are that; 

i.	The accused person was in a duty of care towards the deceased, and

ii.	He made an omission, and

iii.	Such omission caused the death of the deceased, and
 
iv.	That omission constitutes a breach of his duty of care towards the 
deceased, and

v.	The breach of such duty of care was such as to be considered as gross 
negligence and therefore a crime, 

12.	The accused was the captain of the boat. Accordingly he was under a duty of care towards the deceased and other people at sea when he was in charge of the boat pursuant to Section 241 (5) of the Crimes Decree. 

13.	In view of the evidence adduced during the hearing and the agreed fact tendered by the parties, the main issue in dispute is that whether the accused made an omission while he was sailing his boat in that evening of 15th of May 2014 and the said omission caused the death of the deceased. If then, would that omission amount to a gross negligence that constitutes a crime and warranted a punishment. 

14.	Lord Heart CJ in R v Bateman ( 1925) 19 Cr App R 8, CCA, has discussed the applicable test of manslaughter by negligence, where his lordship held that; 

'In expounding the law to juries on the trial of indictments for manslaughter by negligence, judges have often referred to the distinction between civil and criminal liability for death by negligence. The law of criminal liability for negligence is conveniently explained in that way. If A. has caused the death of B. by alleged negligence, then, in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A. owed a duty to B. to take care, that that duty was not discharged, and that the default caused the death of B. To convict A. of manslaughter, the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A.'s negligence amounted to a crime. In the civil action, if it is proved that A. fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In a criminal Court, on the contrary, the amount and degree of negligence are the determining question. There must be mens rea … In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as "culpable," "criminal," "gross," "wicked," "clear," "complete." But, whatever epithet be used and whether an epithet be used or not, 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.'

15.	The observation made by Lord Heart CJ in Bateman (supra) has further discussed and elaborated by Lord Mackay LC in R v Adomako ( 1994) 3 ALL ER 79 at 86, where his lordship held that; 

"On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.

It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter, which is supremely a jury question, is whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission"

Analyse

16.	Bearing in mind the above discussed legal precedents, I now move to analyse the evidence presented during the course of hearing. 

17.	In view of the evidence given by the three witnesses of the prosecution, who were in the boat that was captained by the accused, the sea was bit rough and choppy. It was a bit windy and bright sunny evening as it was still the daylight. The boat was traveling fast as it was going against the tide. They have heard sound of waves hitting the front side of the boat. The boat rugged as it was hit by waves. The evidence reveals that he was seated on the right side of the engine and was looking at front from the right side of the boat as he was required. 

18.	Mr. Saso and Mr. MacGee both of them were in the other boat, had not seen the boat of the accused until it came and hit on their boat. Moreover, none of them had seen the way or the manner the boat of the accused came towards them. However, according to the caution interview of late Mr. Mosese, that he had seen the boat of the accused coming towards them some 200 meters away. He had presumed that the captain of that boat must have seen them, therefore he had not taken any steps to take his boat away from the direction of the incoming boat. When Mr. Moses had finally tried to turn the boat after seeing the boat of accused was very close and was going to hit on his, it was too late. 

19.	There is no specific evidence of what the omission the accused made in breach of his duty of care towards the deceased person. The accused was seated on the right side of the engine and was looking at the front from right side of the boat as he was required. It was established that the boat was traveling against the choppy and windy sea, obviously it was not a condition for a captain of a fibreglass boat to stand and maneuver his boat. Accordingly, it is my opinion that the prosecution has failed to establish beyond reasonable doubt that the accused failed to take necessary precautions in maneuvering his boat in that evening and his conduct amounts to a gross negligence and a crime. 

20.	I do not wish to discuss the second count in details as the second count is fundamentally founded on the gross negligent act of the accused person. In view of aforesaid opinion of mine that the prosecution has failed to establish beyond reasonable doubt that the accused failed to take necessary precautions in maneuvering his boat in that evening and his conduct amounts to a gross negligence and a crime, I further hold that the prosecution has failed to prove the accused is guilty for the second count beyond reasonable doubt. 

21.	Accordingly, I do not find there is a cogent reason to disagree with the majority opinion of the assessors in respect of the first count. However, I find there is a cogent reason to disagree with the majority opinion of the assessors in respect of the second count. 

22.	In my conclusion, I hold that the prosecution has failed to prove beyond reasonable doubt that the accused is guilty for these two counts as charged in the information. I accordingly find the accused is not guilty for the offence of "manslaughter arising from breach of duty' and the office of "reckless or negligent act" and acquit from the same. 

23.	30 days to appeal to the Fiji Court of Appeal. 

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
07th of December 2015

Solicitors : Office of the Director of Public Prosecutions 
Aman Ravindra Singh Lawyers for the Second Accused person