|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT PORT VILACRIMINAL JURISDICTION
CRIMINAL CASE No. 33 OF 1997
ALIGN="CENTER">PER">PUBLIC PROSECUTOR
-v-
SYLVIE CUMBO
Coram: Mr Justice Oice Oliver Saksak
Counsel: Ms Kayleen Tavoa for the Public Prosecutor
Mr Mark Hurley for the DefendantJUDGMENT
This judgment is given in respect of an application by Mr Hurley made on 26th August 1997. At the close of the Prosecution Case Mr Hurley submitted to the Court that there was no evidence before the Court on which the Defendant could be convicted. This was in compliance with Section 164(1) of the Criminal Procedure Code Act [CAP 136]. Having heard Ms Tavoa in reply, I pronounced a verdict of not guilty and discharged the Defendant.
Before proceeding with the reasons for my verdict I set out briefly the facts of the Case. On 22nd July 1996 at or about 12 o’clock noon at No. 2 Lagoon, Port-Vila a car driven by the Defendant hit a little boy. The boy’s name was Ernest Kalkoa. The car was identified with a registration number 8539. It was driven by the Defendant. The victim of the accident sustained injuries to the head and skull which eventually affected the brain and caused death. The victim died on 24th July 1996 in hospital.
The charge laid against the Defendant was Unintentional Harm Causing Death under Section 108(c) of the Penal Code Act [CAP 135].
Before the Prosecution opened its case and called its witnesses, Section 81 of the Criminal Procedure Code Act [CAP 136] was read to the Defendant.
The Prosecution called four witnesses. The first witness was Mr Tasong Kalkoa the father of the deceased. He told the Court that on 22 July 1996 he and his wife and two little boys went to their garden at or about 7 o’clock in the morning. He said he heard a noise coming from the road. He realised that boy was not in the garden and he ran onto the road way. He said he waved his hands in the air in an attempt to stop the car. He said the car did not stop but went past him and hit his son. He told the Court that the accident happened at 12 o’clock. Asked how he knew this, the witness said he listened to the midday news on radio. He said that after the car had hit his son the witness held his son. He saw blood. He said that they had stopped a TVL truck and took his son to the hospital. In examination in chief Mr Kalkoa said his son’s name was Ernest Kalkoa. He said while he held his son a certain Michael Hoctene came to the scene. He said Mr Hoctene came in his car.
The second Prosecution witness was Mr Michael Hoctene. He said he came to the scene because he had heard a woman crying on the road. He said that the time was 11.30 o’clock. He said he saw the Defendant drive pass but he did not see how the actual accident occurred. He said he saw the father carrying his son and was crying. The boy was still breathing. He told the Court that they stopped a Hi-Lux which was a Public transport vehicle which took the boy to the hospital. On cross-examination the witness was asked how he came to the scene and in response Mr Hoctene said he walked. He emphasised that he did not go to the scene in a car but he walked.
The third Prosecution witness was Police Constable Elvis Kalfau. He told the Court that it was he who went to the scene on 22nd July 1996 and took measurements. He said there was no-one at the scene when he arrived but that Mr Hoctene and some boys came around. He said on the information related to him by Mr Hoctene he took a rough sketch plan and then returned to the Police Headquarters and produced a clear sketch plan. The sketch plan was tendered as Exhibit P3.
The sketch map shows skid marks measuring 19.90m. Further it shows the position of the father and the boy’s position before and after the accident.
The fourth Prosecution witness was Corporal Tom Lan Daniel, a traffic officer. He said he went to the scene with Constable Kalfau. He said he assisted with taking measurements. He said there was no-one at the scene. He said he saw skit marks and blood on the road. Asked what skit marks imply, the witness said it indicates that the driver had applied the brakes.
The doctor’s medical report was agreed to by the defence and was tendered into evidence under Section 84 of the Criminal Procedure Code Act [CAP. 136].
Mr Hurley then made a no-case submission. He argued that the Prosecution had not made out a prima facie case against the Defendant as they had failed to establish all the elements of the offence. He referred to the case of R. v. Jacobson [1931] App. Case 466 at 478.
Mr Hurley further argued that the Prosecution had failed to establish the element of recklessness or negligence as required by Section 108 of the Penal Code Act. He referred the Court to the definition of "recklessness" as defined in Section 6(3) of the Penal Code Act which reads:
"6.(3) A person shall be considered to be reckless if -
(a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes the risk, and
(b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present..."
Further, Mr Hurley argued that reckless driving is not defined. He referred to R. v. Lawrence [1981] 1 All ER 974 and in particular the speech of Lord Diplock at p.981 which reads:
"So actus reus of the offence ..... is no simply a motor vehicle on a road, but driving in a manner which in fact creates a real risk of harmful consequences resulting from it ....."
Mr Hurley submitted that there was no evidence of speeding. The skit marks indicate that the defendant had applied her brakes after she had seen something on the road. He submitted therefore that there was no actus reus and no mens rea.
The Prosecution conceded that there was no recklessness but argued that the defendant was negligent. "Negligent" is defined by Section 6(4) which reads:-
"6(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 are, skill or foresight as a reasonable man in his situation should exercise."
I was persuaded by the submissions of Mr Hurley and found that the prosecution had not made out a prima facie case against the Defendant . Accordingly the charge against the Defendant was dismissed and the Defendant was discharged.
The onus of proof in Criminal Cases is on the Prosecution to prove the Accused’s guilt beyond all reasonable doubt. In my view this onus was not discharged by the Prosecution by the evidence before the Court.
There were may inconsistencies. Firstly, the deceased’s father told the Court that the time of accident was 12 o’clock midday. Mr Hoctene told the Court that the event occurred at 11.30 o’clock. The Police Constable told the Court that he took the measurements at 13.00 hours.
Secondly the deceased’s father told the Court that the truck which took his son to hospital was a TVL vehicle. Mr Hoctene told the Court that the boy was taken to hospital on a public transport vehicle.
Thirdly, the deceased’s father told the Court that Mr Hoctene came to the scene by his car. Mr Hoctene told the Court that he did not come in his car but that he walked.
Finally, in examining the Medical Report I find that the name of the boy is spelt "ERNES" at the front page. Overleaf the medical officer referred to the victim as "HENIS TASSO". The boy’s father told the Court that his son’s name was "Ernest Kalkoa". There is no evidence that the boy’s name was Henis Tasso.
These inconsistencies may be small but they create doubt in a Judge’s mind and when that happens the Accused must always be given the benefit of such doubt.
It is regrettable that the accident caused the tragic death of a little boy. It was a road traffic accident and a traffic offence alleging negligence would in my view have been more appropriate. It is also regrettable that his trial has been held more than one year after the accident. With such a gap in time memories often fade away and it is to the disadvantage of the Prosecution. In cases of this nature it is necessary for the Police to act on the spur of the moment. Trial of cases of this nature should take priority and should be dealt with by the Court in not later than six months after the event occurred. I am not here making any hard and fast rules. I am merely expressing my thoughts in the hope that appropriate authorities would be guided to take further necessary and appropriate steps. This is to ensure that in future offenders would not easily walk away.
I was therefore satisfied that on the evidence before me there was no recklessness or negligence by the Defendant as required by Section 108 of the Penal Code Act. For those reasons the charge was dismissed and the Defendant was discharged.
DATED AT PORT VILA, this 4th DAY of SEPTEMBER, 1997
BY THE COURT
OLIVER A. SAKSAK
JUDGE
PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/vu/cases/VUSC/1997/32.html