IN THE HIGH COURT OF TUVALU
IN FUNAFUTI
Criminal Appeal Jurisdiction

Case No: 6/05

Between:

Teleke Teagai
Appellant

v

Regina
Respondent

BEFORE THE CHIEF JUSTICE

Barlow for appellant
Malalau for respondent

Hearing: 10 October 2005
Judgment: 14 October 2005

Judgment

The appellant appeared before the Senior Magistrate’s Court on 15 April 2005 and pleaded not guilty to a charge of causing the death of Ana Tavita by reckless driving on 24 December 2004, contrary to section 21 (2) of the Traffic Act, Cap 71. The trial extended over some days and judgment was given on 24 June 2005. The appellant was convicted and sentenced to 12 months imprisonment and disqualified from holding a driving licence for one year from the date of release from prison.

The grounds of appeal against conviction are:

1.	that the learned Senior Magistrate failed properly to consider, or consider at all, the evidence of witness Sini Tuaga;
2.	that the learned Senior Magistrate erred by failing to allow the prosecution to call witness Sini Tuaga and effectively forcing the defence to call that witness;
3.	that the learned Senior Magistrate erred by accepting the evidence of witness Moli Timo on the basis that her credit or character was not challenged;
4.	that the evidence of witness Moli Timo was unreliable and therefore insufficient to support the findings of fact made in relation to the speed of the appellant’s motor vehicle;
5.	that the learned Senior Magistrate erred in fact and law by finding that the appellant’s driving amounted to reckless driving; and
6.	that the verdict was unsafe and unsatisfactory.

The prosecution case was that the appellant had been drinking since the middle of the day and, in opening, counsel for the Crown advised the court that five of the witnesses would give evidence to prove that the appellant was drunk. I do not go into that evidence but it is clear that it was never enough to support that allegation; as the court correctly found. It is right he had been drinking but the evidence as a whole suggested he had only consumed three or maybe four beers over the whole period. Apart from the fact of the accident there was no evidence that his ability was impaired by drink.

The accident occurred in the evening at approximately 6.3pm and most witnesses agreed that it was dark enough for the vehicles to be using headlights but was not yet fully dark.

The appellant was driving a van and a little distance the accident, he overtook a police car. The evidence of one of the officers was that he was speeding. The appellant, in his evidence estimated his speed when the accident occurred was about 40 – 50 kph. He was driving his van at Lofeagai towards the village which meant the lagoon was on his offside.

The deceased had also been drinking with friends and there was strong evidence that he was probably drunk although some of his erstwhile companions did not agree that he was. He told his drinking companions that he wanted to go to see his wife and children and at least two of them questioned whether he was fit to drive his motorcycle. Notwithstanding, he went to his cycle and was struck by the van on the lagoon side of the road. The motorcycle was caught under the van and dragged a short distance along the road estimated by one of the witnesses to be 4 to 5 metres. After the accident the van ended up a short way off the road on the lagoon side.

The deceased was rushed to hospital where he later died.

Actual distances are uncertain. A sketch plan was prepared by a police officer but is worthless from an evidential point of view as it records no measurements although the officer has marked a fixed point from which to make them.

Although a very large number of witnesses were called, only two actually saw the accident besides the appellant. One was the witness Moli Timo who was called during the prosecution case. The other was Sini Tuaga who, it appears, was a prosecution witness but who was not called by the Crown. At the end of the prosecution case, counsel for the defence asked that he should be called but was told that if he wanted him called he could be called as a defence witness. Later, following the appellant’s evidence, counsel for the Crown asked to re-open her case in order to call Sini Tuaga but the learned Senior Magistrate refused. The witness was then called for the defence. 

The first four grounds of appeal relate to the evidence of those two eyewitnesses.

Moli Timo was riding a motorcycle along the road at Lofeagai when she saw the appellant’s van coming towards her. She tried to stop her motorcycle on the lagoon side of the road because the "oncoming vehicle was travelling very fast". She explained that she "heard the engine of the van coming in very high speed and the lights, so I decided to stop because I was afraid that I might get injured." She further stated, 

"The van was travelling very fast because of the sound of the engine was very loud and the lights very bright". 

Whilst stopped at the side of the road after the van passed, she saw the deceased was trying to start his motorcycle. She continued, "Ana was going to the lagoon side of the road and not later I heard the crash, the collision. … I did not see Ana driving his motorcycle to Lofeagai. I only saw him on the lagoon side of the road parked his motorcycle. I saw the van coming and then collided." In cross-examination she agreed that she had seen the deceased go from the ocean side to the lagoon side of the road.

One other witness spoke of the deceased trying to start his motorcycle after he reached the lagoon side of the road. A number of witnesses described drinking with the deceased and of his insisting on leaving to see his wife and children. A number of witnesses referred to the motorcycle being by the house on the ocean side of the road before he took it. One described seeing the motorcycle "going to the lagoon side".

The other eyewitness, Sini, was a pupil at Motofoua and the case had to be adjourned to allow him to come to give evidence. As has been said, he was called by the defence.

He described seeing the appellant’s van approaching and he 

"saw a motor bike on the other side of the road where the van was coming – ocean side of the road. On the ocean side of the road the van was facing towards the road. The van turned to the right side on our way. The motorcycle was on the normal speed. The motor cycle was going to the other side of the road."

The accused also gave evidence. He told the court of his movements prior to the accident and continued:

"… when arriving at Fatoga’s house, I saw a motor cycle near Ilai’s hose. I was at Fatoga’s house when I first saw the motorcycle. When I got close to Ilai’s house the motorcycle was on the main road heading to the lagoon side. I drove the van to the other lane of the road to free the motorcycle. I felt that the motorcycle would wait and allow me to pass. … I was shocked that the motorcycle drove to the other side of the road. The motorcycle was about 3 to 4 metres away when he drove in. The motorcycle was a bit fast. … I could not save the victim by turning to the left so I decided to drive to the right of the road. My attempt was not successful …"

In summing up the case the court dealt extensively with the account given by Moli Timo. He then referred to the evidence of the appellant in similar detail and concluded,

"The accused assumes that the victim who was using the same road at the time thought that the victim would wait and allow him to pass but the accused himself failed totally to do his own part before the collision, by not giving any warning or to apply the brake of his van to reduce its speed."

He then went into some detail of the evidence of the speed of the appellant’s vehicle although it is not clear whether he accepts or rejects the contention that it was too fast. He then summarises his conclusions:

"…the court accepts the evidence by the prosecution witness Timo because the credibility and character of the witness was never raised as an issue when she gave her evidence before the court, to enable the court to treat her evidence with suspicion.
So the court concludes that the evidence of the prosecution witness Timo is acceptable and reliable.

Therefore the court is of the view that the accused has deliberately taken no notice of his duty to drive properly, as the risk is so obvious and serious at the time and the accused decided to go ahead and as the result, the collision took place."

In this case the court had to analyse the evidence of a large number of witnesses. Many gave evidence only of peripheral matters and some, dealing with the accused’s drinking were hardly relevant. He was correct to look closely at the evidence of the eyewitness, Moli Timo, but he only at one point mentions that there was another eyewitness and never considered his evidence. He was, as has been stated, called by the defence and was an equal witness to the prosecution witnesses and should have been considered in the same way.

The only proper way to analyse the evidence of Moli Timo was to compare it with that of Sini Tuaga and then with the evidence of the accused. Simply to describe the evidence of one of two independent eyewitnesses, ignore the other, set out the accused’s account and then state a conclusion gives no indication of a proper analysis of the case.

The appellant’s account is not clear from the notes of evidence but it appears he was saying that he saw the deceased on his motorcycle on the nearside of the road. He drove on thinking the motorcycle would wait for the appellant to pass. As the appellant passed, however, the deceased drove his motorcycle across the road in front of the appellant’s van towards the lagoon side, which was the appellant’s right side. This happened when he was 3 to 4 metres away and the only thing the appellant could do by then was to pull further to the right.

Whether that might be true or not, and the burden lay on the prosecution to prove it was not, which required a careful scrutiny of both eye witnesses’ accounts. Instead the court simply set out Moli Timo’s account followed by that of the appellant and then concluded that Moli Timo is credible because her credibility and character were never raised as an issue. That is not correct. The appellant’s evidence clearly challenged the accuracy of her account and therefore her credibility. Her character is unlikely to be relevant in a case such as this and it is hard to understand why the failure to attack it was considered relevant. It is clear that the evidence given by Sini Tuaga supported the account of the appellant in some significant matters. What the court was required to do was to compare her evidence with that of Sini Tuaga and then determine their relative credibility but that, apparently, was never done.

In a case where the accused gives an account which, if credible, may absolve him, he cannot be convicted unless the court is satisfied beyond reasonable doubt that he is not speaking the truth. Nowhere does the judgment indicate whether the court accepted his account or not and, if not, why. 

An appellate court will not interfere with a trial court’s finding of fact unless it is satisfied that there is no reasonable evidence to support the finding or that the verdict was clearly unsafe. In the present case, I am satisfied that the failure of the court to consider one of the two independent eye witnesses and equally the failure properly to analyse the evidence against the appellant’s account means the conviction is manifestly unsafe and cannot stand.

Although that means it is not necessary to deal with the fifth ground of appeal, I feel it should be referred to briefly.

The court properly directed itself on the meaning of reckless driving by adopting the test in R v Lawrence [1981] 1 AllER 974;

"… what is meant by reckless driving is that [the court] must be satisfied of two things: first, that the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property; and second, that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it."

Although the court concluded that "the accused has deliberately taken no notice of his duty to drive properly, as the risk is so obvious and serious at the time and the accused decided to go ahead and as a result the collision took place", it is not at all clear which aspect of the driving he is describing. If he had accepted that the appellant simply drove to the wrong side of the road and struck the deceased, that could amount to reckless driving. Equally, if he was satisfied the deceased was pulling across his path in such a way that the appellant could have avoided the collision by slowing or puling left, the decision to put to the right could amount to reckless driving. On the other hand, if he accepts that the accused’s account that he had to pull to the right because the deceased was pulling across the road three to four metres in front of him and it was too late to pull left might be true then the driving was not reckless.

Whilst he clearly accepts the account of Moli Timo as reliable, it is not certain whether she was saying the deceased did or did not cross the road. Earlier in the judgment, the court appears to be suggesting the only failure by the appellant "to do his own part" was to fail to give any warning or reduce speed. Whilst there are circumstances where they may be significant elements of reckless driving, they are not on the suggested facts of this case.

When a driver is faced with a possible collision, he should normally pull to his left. To pull right when there is no reason to do so is undoubtedly reckless driving. The facts in this case turned on the question of whether the appellant possibly had a good reason to pull right instead of left. Yet the court does not decide that issue and, curiously, stated:

"The court is of the view the evidence by the accused and the defence witness [the only reference to Sini Tuaga] that the accused turned his van to his right side to avoid the collision, is not an appropriate evidence under the charge of reckless driving. It is the evidence of the offence of careless driving."

For the reasons I have just stated, I cannot agree.

The appeal against conviction is allowed and the conviction is quashed. 

Dated: 14th day of October 2005

CHIEF JUSTICE