IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
AC 19 of 2013
NUKU'ALOFA REGISTRY [CR 310 of 2011]

BETWEEN:

VATULELE TUPUTUPU
Appellant

AND:

REX
Respondent

Coram : Salmon J
Blanchard J 
Ward J

Counsel : Mr Niu, SC for the Appellant
Mr Sisifa for the Respondent

Date of Hearing : 31 March 2014
Date of Judgment : 9 April, 2014

JUDGMENT OF THE COURT

[1] 	The appellant was tried by judge and jury in the Supreme Court on an indictment containing alternative counts stated to be causing death while driving under the influence of alcohol and manslaughter by negligence. He was found guilty on the first count and sentenced to imprisonment for one year and ten months of which the final twelve months were to be suspended. No verdict was taken on the second count. He appeals against conviction and sentence.

[2] 	The brief facts of the prosecution case were that the accused was driving his vehicle having consumed a number of alcoholic drinks earlier in the day. It was dark and he struck a road making machine which, it was accepted, had been parked on the left side of the road well out towards the centre line and without any lights or other signs to give advance warning of the obstruction to other road users. The crash resulted in the death of the lady sitting on the left of the rear seat. There was evidence from witnesses that the appellant was driving at a speed noticeably above the 40 kph limit imposed on that stretch of road. After the accident, he accompanied the victim to hospital from where he was invited by the police to accompany them to the police station. Two evidentiary breath tests were then administered to him and gave readings of alcohol nearly double the permissible level.

[3] 	The appeal against the conviction is on three grounds which, in summary, are:

1.	The count in the indictment upon which the appellant was convicted by the jury was defective and did not disclose any offence under the law. Despite submissions to the trial judge, the count was left to the jury.

2.	One of the two certificates of breath test produced in evidence bore a different date and time to that at which the test had been administered and the trial judge erred in directing the jury to accept it as valid. 

3.	The trial judge erred in holding and directing the jury that the prosecution does not have to prove that the appellant's driving was the sole cause of the accident, or even a substantial or major cause and that it is sufficient if it is a material cause and not one that is inconsequential.

Ground One

[4] 	The first count in the indictment was stated to be:

STATEMENT OF OFFENCE
(Count 1)
CAUSING DEATH WHILE DRIVING UNDER INFLUENCE OF ALCOHOL, contrary to section 26A(1) & (2) of the Traffic Act (Cap 156)

PARTICULARS OF OFFENCE

Vatulele Tuputupu of Niutoua, on or about 1 August 2011, at Lapaha, you did drive motor vehicle registration number P1513 whilst under the influence of alcohol and you hit a parked backhoe loader on the side of the road causing the death of 'Ana Toki.

The second count was a charge of manslaughter by negligence about which there is no challenge and to which no verdict was taken.

[5] 	Before the judge summed up the case, Mr Niu, for the defendant, submitted that the first count was defective. The judge rejected the submission. It is unfortunate that the typed transcript of the judge's ruling in the appeal book has clearly never been checked and has so many typographical errors as to be largely incomprehensible. It would be helpful to know the basis of his decision at that stage of the trial but, fortunately, the record of his summing up to the jury is generally properly transcribed and we will rely on his directions as reflecting his ruling.

[6] 	MrNiu submits that the wording of the first count on the indictment does not reveal any offence known to the law. Although there is reference to section 26A (1) & (2) of the Traffic Act, the details of the charge in both the Statement and Particulars of Offence bear no relationship to the offence created by that section.

[7] 	Counsel points out that causing the death of another when driving under the influence of alcohol is not an offence. The Traffic (Amendment) Act 2010, which added the present section 26A, also repealed the previous sections 25(2)(b) and 26 of the Traffic Act which had made it an offence to drive, attempt to drive or to be in charge of a motor vehicle "while under the influence of drink … to such an extent as to be incapable of having proper control of the vehicle". The present sections 26 and 26A create offences respectively of being in charge and of driving when the level of alcohol in the driver, as ascertained by a breath test, is over the prescribed limit. Unfortunately, the new offences have, in the heading to the sections, retained the reference, from the repealed sections, to being under the influence of alcohol.

[8] 	The present section 26A(1), under the heading; "Causing bodily injury or death while driving under the influence of alcohol" provides:

(1)	Any person who drives a motor vehicle and causes bodily injury or death of a person while the proportion of alcohol in such person, as ascertained by breath test subsequently undergone by that person under section 25B, exceeds 250 micrograms of alcohol per litre of breath, commits an offence…

Subsection (2) deals with the court's power to order disqualification following conviction.

[9] 	Despite the heading, it is clear the offence is driving with an alcohol level above the limit. It is not necessary to prove the effect of that alcohol level on the driver neither, apart from the heading, is there any reference to being under its influence. Any person charged with an offence has the right to know precisely what charge he faces. The charge in the indictment in the present case, despite being identified as section 26A (1), makes no mention whatsoever of the ingredients of the offence under that section and falls into further error by adopting the incorrect terminology from the heading.

[10] 	In his summing up, the learned judge continued to refer to the offence as causing death by driving whilst under the influence of alcohol and tried to define the meaning of that phrase. He explained to the jury:

"For the purposes of the prosecution, driving whilst under the influence of alcohol, this means that the accused drove the vehicle while the proportion of alcohol in him ascertained by breath test subsequently undergone by the accused exceeds 250 micrograms of alcohol per litre of breath. That's what the prosecution has to prove beyond a reasonable doubt."

[11]This reliance on the results of the breath tests to prove the appellant was under the influence of alcohol was a repeated theme in the summing up. As we have said, the offence under section 26A is made out if the prosecution proves the driver is above the limit prescribed under the Act. The indictment failed to mention anything of the sort and the judge continued the error by directing the jury to determine, from the evidence as a whole, whether the appellant, when driving, was under the influence of alcohol.

[12] 	Clearly, the verdict of guilty to count one could be seen as suggesting the jury accepted the evidence of the breath tests. However, the judge also directed them that, in reaching a verdict on the first count, they should also consider such issues as speed and the failure to avoid the back hoe in order to determine whether the appellant was under the influence of alcohol. Such matters are irrelevant to a determination of guilt under section 26A and the direction resulted in a guilty verdict to a charge which disclosed no offence. This was a serious misdirection.

[13] 	That, in itself, is sufficient to allow the appeal. However we consider it may be instructive still to deal with the other two grounds.

Ground Two 

[14] 	It is clear that, if there had been a properly worded charge under section 26A, it would have required satisfactory evidence of the details of the breath tests. As has been stated, the appellant was taken, under section 25B(1)(c), from the hospital to the police station without a breath screening test having been taken. 

[15] 	Once at the police station, two evidential breath tests were administered in accordance with the procedure prescribed in paragraph 9 of the Traffic (Alcohol Breath Tests) Notice, 2010. That provision requires two tests to be taken, each on a different testing machine and allows for a variation in the two readings of up to 20% of the higher figure. The figures on the printouts presented by the police officer showed figures of 420 and 450 - a variation well within the permissible range.

[16] 	Those printouts are capable, in themselves, of proving the level of alcohol in the driver's breath and the results of the two tests were exhibited. However, a difficulty, noticed by the prosecutor at the trial and brought to the attention of the court, was that, whilst the printout from the device with a figure of 450 correctly showed the date and time for the test as 1 August 2011, 22.37, the other was recorded as having been taken on 26 July 2011 at 20.25.

[18] 	We were advised from the bar table that the officer's explanation in the trial was that the machine had been calibrated incorrectly but, in a case under section 26A, the evidence of the sequence of events and the procedures applied in order to obtain evidence of the amount of alcohol in the driver's breath must be strictly proved. The result was that the jury only had one reading and the appellant was deprived of the safeguards provided under paragraph 9 of the Notice. 

[18] 	The learned judge correctly advised the jury to examine the evidence with care. "You need" he explained, "to be careful that the evidence really does lead to the conclusion, beyond reasonable doubt that the prosecution invites you to reach." As has been stated, the judge then repeatedly applied his directions to an offence of causing death while driving under the influence of alcohol:

"The Crown has to prove the following elements, one: the accused did drive a motor vehicle P1513 on or about 1st August 2011 at Lapaha, and secondly he did cause the death of 'Ana Toki by colliding with the parked back motor or plough as we know it parked on the side of the road, and thirdly did so whilst he was under the influence of alcohol. For the purposes of this prosecution driving whilst under the influence of alcohol, this means that the accused drove the vehicle whilst the proportion of alcohol in him ascertained by a breath test subsequently undergone by the accused exceeds 250 micrograms of alcohol per litre of breath. That is what the prosecution has to prove beyond a reasonable doubt."

[19] 	Dealing with the defence case, he directed the jury:

"Mr Niu submits accurate calibration is required. It is not accurate as to date and time and you should reject that evidence consequently and does not establish beyond reasonable doubt that in fact Mr Tuputupu was under the influence meaning he had in excess of 250 micrograms per litre of blood[sic]. In other words he says the calibration being wrong as the date is something material something which you should look at as casting real doubt on the reliability of what happened at the police station that night."

[20] 	Passing to the prosecution case, he stated:

"So Mr. Sisifa submitted contrary to Mr Niu's submission that reading was reliable and was a safe basis for you to find that not only was driving the material cause of the accident and consequent death but also he was beyond any reasonable doubt over the legal limit of 250 micrograms per one litre of breath"

[21] 	Having summarised the defence and prosecution cases on this issue, the learned judge gave no further directions on the importance of the statutory procedures or the significance of the incorrect printout. Offences created by statute which require the application of procedures by which an accused person must provide evidence which might incriminate himself or herself must be strictly applied. A failure to follow such statutory procedures may be fatal to the prosecution and, had the proper offence under section 26A been charged, it could have been the basis of a successful submission of no case.

Ground Three

[22] 	The learned judge gave the following direction on the issue of causing death:

"Now I must direct you in relation to [the first] count, causing the death of 'Ana Toki means this, that his driving was the cause of the accident by which she died. The prosecution does not have to prove beyond reasonable doubt that his driving was the sole cause of the accident or even a substantial or major cause. It is sufficient if it is a cause and that cause is a material cause and not one that is inconsequential. I will repeat that again. Causing the death of 'Ana Toki means that his driving was the cause of the accident from which she died. The prosecution does not have to prove beyond a reasonable doubt that it was the sole cause of the accident or even a substantial or major one. It is sufficient if it is a cause and that cause is a material cause and not one that is inconsequential."

[23] 	Mr Niu submits that was an incorrect statement of the law. It was necessary, he submits, to satisfy the jury that then appellant's driving was the sole cause of 'Ana Toki's death. That submission ignores the authorities, in particular the case of R v Vi [2005] Tonga LR 276 in which Webster J accepted and applied the dictum in R v Hennigan [1971] 3 All ER133 (CA):

"As a matter of law an accused is still criminally liable if he hit a blow which was a cause of death – meaning something more than a minor cause; the incident need not be the sole cause of death, nor even a substantial cause but it must be one of the causes and something more than de minimis."

[24] 	That correctly states the law and this ground of appeal fails.

Conclusion

The appeal against conviction must be allowed on both the first and second grounds and the conviction quashed. We have considered the question of a retrial but, even if he was to be tried on a properly drafted charge under section 26A, the inability of the prosecution to provide the results of two accurate breath tests would be fatal to the prosecution case and cannot, at this stage, be corrected. We therefore quash the verdict and sentence and make no further order.

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Salmon J

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Blanchard J

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Ward J