SUPREME COURT OF SAMOA
Police v Maiava & Anor [2023] WSSC 68 (13 October 2023)

Case name: 	Police v Maiava & Anor	
		
Citation: 	[2023] WSSC 68	
		
Decision date: 	13 October 2023	
		
Parties: 	POLICE (Prosecution) AND MIKAELE MAIAVA, male of Moamoa. (First Defendant) AND TALOSAGATUUFAATASI FAATAGI of Leulumoega. (Second Defendant)	
		
Hearing date(s): 	26, 27 & 28 June 2023	
		
File number(s): 	charging document dated 16 March 2020, S238/20, S239/20, S240/20	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:	 	
		
Order:	-		
		
Representation: 	L. Taimalelagi for prosecution
M. Lui for first defendant
L. Sio-Ofoia for second defendant	
		
Catchwords: 	-	Vehicular or Motor manslaughter – breach of duty – major departure – gross negligence	
		
Words and phrases:		
		
Legislation cited:	 Crimes Act 2013, s. 92(5) 
Road Traffic Ordinance 1960, s.39 	
		
Cases cited:	R v Fenton [2003] 3 NZLR 439
Police v Li [2017] WSSC 136
R v Adomako [1994] 3 All ER 79
JF v Police [2013] NZHC 2729	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

MIKAELE MAIAVA, male of Moamoa.
First Defendant

AND:

TALOSAGATUUFAATASI FAATAGI of Leulumoega.
Second Defendant

Counsel:	
L. Taimalelagi for the prosecution 
M. Lui for the first defendant
L. Sio-Ofoia for the second defendant
Hearing:	 26, 27 & 28 June 2023
Submissions:	23 August 2023
Decision:	13 October 2023

DECISION OF THE COURT
1.	By charging document dated 16 March 2020, the defendants are charged as follows: in respect of the first defendant Mikaele Maiava, information S238/20 alleges that at Leulumoega Tuai on 09 November 2019 he had under his charge or control a red Ford Ranger pickup registration number 27557 and while in control thereof without due precaution or care he endangered human life and failed to perform his legal duty to take reasonable precautions and use reasonable care thereby causing the death of Aniseko Sagato a male 23 years of age from Vaiusu committing the crime of vehicular or motor manslaughter in breach of section 83 of the Crimes Act 2013. 
2.	The first defendant is also charged in the alternative by information S239/20 that at the same place and on the same date he did drive the said Ford Ranger negligently causing the death of the said Aniseko Sagato in violation of section 39 of the Road Traffic Ordinance 1960. 
3.	A further charge is S240/20 which charges the first defendant at the same place and time with reckless and dangerous driving. 
4.	And lastly that the same date and place the first defendant did negligently drive the said Ford Ranger in a manner causing injury to Pueata Aimainu a male of Samata.
5.	The second defendant Talosagatuufaatasi Faatagi the pulenuu of Leulumoega village faces identical charges in relation to his use of a white Toyota Hilux pickup registration number 26143 at Leulumoega Tuai.  
6.	The prosecution alleges that on 9 November 2019 the defendants were engaged in a road race or at least in dangerous overtaking manoeuvres on the Leulumoega to Lefaga Cross Island Road – resulting in the fatal road accident.
7.	There is no dispute the defendants had current drivers licenses and were at all material times driving their respective vehicles. Or that a motor vehicle accident involving both vehicles occurred at Leulumoega Tuai on the afternoon of 09 November 2019 on the strait of road viewed by the court and the parties. 
8.	The deceased Aniseko and the allegedly injured Pueata were passengers in the first defendant’s vehicle. Aniseko sat behind the first defendant driver and Pueata beside him in the front passenger’s seat, while the second defendant was alone in his vehicle. The dispute relates to how the accident was caused and who was responsible for it 
Relevant law
9.	The Police do not often prosecute persons for motor manslaughter. But section 92(5) of the Crimes Act 2013 now allows them to do so by providing:
“92. Culpable homicide – 
(5) Where an act or omission constitutes an offence under the Road Traffic Ordinance 1960 or any other Act other than this Act, nothing in the Road Traffic Ordinance 1960 or any other Act prevents the prosecution and punishment of an offender under this Act for murder or manslaughter.”
10.	The Police however seem to reserve such a charge only for cases where the breach of a drivers duty of care to persons likely to be affected by his actions is serious enough and can be said in the terms of the statute to amount to “a major departure from the standard care expected of a reasonable person to whom that legal duty applies in those circumstances”: section 83(2)(b). As noted by the Court of Appeal in R v Fenton [2003] 3 NZLR 439 per Blanchard, J: 
“In the hierarchy of negligent driving, motor manslaughter is now reserved for very bad cases.” i.e. for cases of at least gross negligence. 
11.	To this end, section 83 of the Crimes Act says:
“83. Standard of care required of persons under legal duties – (1) This section applies in respect of the legal duties specified in any of sections 84 to 89. 
(2) For the purposes of this Part, a person is criminally responsible for: 
(a) omitting to discharge or perform a legal duty to which this section applies; or 
(b) neglecting a legal duty to which this section applies,– 
only if, in the circumstances of the particular case, the omission or neglect is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances.”
12.	The relevant legal duty is laid down by section 88:
“88. Duty of persons-in-charge of dangerous things – A person who has in his or her charge or under his or her control anything whatever, whether animate or inanimate, or who erects, makes, operates, or maintains anything whatever, which, in the absence of precaution or care, may endanger human life is: 
(a) 	under a legal duty to take reasonable precautions against and to use reasonable care to avoid the danger; and 
(b) criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.”
13.	Elevation of the breach of duty to the level of a criminal homicide is achieved by sections 90 and 92 which relevantly provide:
“90. Homicide defined – Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.”

“92. Culpable homicide – (1) Homicide may be either culpable or not culpable. 
(2) 	Homicide is culpable when it consists in the killing of any person by: 
(a) 	an unlawful act; or 
(b) 	an omission without lawful excuse to perform or observe any legal duty; or 
(c) 	both (a) and (b) combined. 
(3) 	Except as provided in section 110, culpable homicide is either murder or manslaughter. 
(4)	Homicide that is not culpable is not an offence. 
(5) 	Where an act or omission constitutes an offence under the Road Traffic Ordinance 1960 or any other Act other than this Act, nothing in the Road Traffic Ordinance 1960 or any other Act prevents the prosecution and punishment of an offender under this Act for murder or manslaughter.”
Facts
14.	To establish its case, the prosecution called a number of eye witnesses. Beginning with Petelo Samaila a resident of Leulumoega Tuai – who was playing pool between 3:00 and 4:00 pm on the afternoon of Saturday 09 November 2019 at a Fale-piliati (pool parlour) situated beside the Leulumoega to Lefaga Cross Island Road. He testified about two vehicles. A red Ford Ranger and a white pickup racing side by side at speed passing the pool parlour heading inland. He said it was a fleeting glance of less than a minute but was sufficient for him to identify the vehicles.  He also referred several times to “le ūū mai o afi o taavale”.  The loud noise generated by the car engines, an indicator of speed. 
15.	Another witness Soloi Mafaufau who lives some 100m further up the road opposite the Leulumoega Primary School testified how at the hump in-front of the School, the pickup slowed down but was overtaken by the Ford Ranger. He described it as “luga lea o le taavale pa’epa’e i le patupatu ae tipi loa e le taavale mūmū”.
16.	This evidence is corroborated by the evidence of the passengers in the Ford Ranger: Pueata Aimainu who worked for the first defendant and was seated in the front seat and Mikaele Matulino the then 16 year old cousin of the first defendant seated in the back seat behind Pueata. Both agreed the Ford Ranger “tipi” the pickup at the hump, with Pueata also saying that pre-hump, the pickup had overtaken their vehicle. Mikaele added that at the hump, the first defendant made the humorous comment - “Makua palau kele le kaavale” in reference to the second defendant’s pickup.
17.	The vehicles continued on to overtake the van of one Moresby Okesene a former Police officer who was driving a palagi tourist from Faleolo Airport to Lalomanu Beach. Moresbys evidence was the Ford Ranger overtook him first closely followed by the pickup.  He said they had to do so at speed because his passenger was tired so he was travelling at 45 to 50 mph. He also said the overtaking maneuvers caused the freshly mown grass on the roadside to fly around - “felelei o vao i le autafa o le auala”.  Again, indicators of high speed.
18.	Both vehicles quickly vanished from view until at a point around a corner of the road, he came upon the overturned cars on the side of the road. In the positions shown in Exhibit “P-3” for the prosecution, the police photographs of the accident scene. He stopped to render aid and it was he who called the Faleolo Police Post for assistance.
19.	As to the circumstances immediately prior to the accident, the key witnesses are the surviving occupants of the first defendants vehicle Pueata and Mikaele and the independent witness Maselino Alai a planter from the area viewing what was unfolding from the top of the long hill at the accident scene. 
20.	Pueatas evidence was that the first defendant and a carpentry crew went to Savaii on Thursday 07 November 2019 to do a job at Safai. They finished Friday 08 November and left to catch the 2:00 pm ferry from Salelologa to Mulifanua on Saturday 09 November.  The first defendant drove while he sat in the front passenger seat.  Mikaele was behind him and the deceased behind the first defendant. They took the long way to Salelologa via Asau and stopped at Falealupo where the first defendant bought 6 large Taula Strong beers. The first defendant consumed two (2) bottles. There was a further stopover at his family in Samata for lunch. Their journey continued to Salelologa wharf. Their vehicle stopped at the Jetover Hotel, Salelologa where they bought three (3) small beers.  He had one, the first defendant had one and deceased had one. There was no further alcohol purchased or consumed by the group
21.	They disembarked from the Ferry and turned into the Leulumoega to Lefaga Cross Island Road. Where they were first overtaken by the white Hilux. At the hump by the School, they “tipi” the Hilux. He did not hear any comment made by the first defendant and does not recall them overtaking Moresby’s van. He did recall seeing in his side mirror the white pickup again coming to try and overtake them. And that was the last thing he remembered until waking up in the National Hospital.
22.	Mikaeles evidence as to the trip from Savaii and the other events was essentially the same. Except he referred to the first defendants comment at the hump about the “palau” of the second defendants pickup. And unlike Pueata, he remembered them overtaking Moresbys vehicle. He maintained that the pickup pursued them which he drew to the first defendant’s attention. The first defendant’s response was to slow down and say “kuu ga ia e faamuamua”.  However, as the pickup passed them, it hit the front of their car, causing the accident and him to black out.  He went on to testify about injuries to his head and feet and being detained in Motootua Hospital for three days to recover.
23.	The last witness to the accident was Maselino Alai a planter from Leulumoega Tuai who was standing on top of the long hill waiting for a lift as it was a hot day. He said he had a clear view of the vehicles which were ascending a small hill on the road. From his evidence in cross examination on page 46 of the transcript:
“Mo le faamalamalamaga i lau susuga pei ona e faafofoga i la’u ka’ua akuga e kilia lelei la’u kilokilo aga foi e maualuga le mea lea ou te kilokilo mai ai. E matuai kilia, pe alu a la i lalo a faapea o se kamai omo a i lalo e kilia laga e maualuga la’u kilokilo.  E maualuga kele le mea lea ou ke ku mai ai.”
24.	Maselinos evidence was the red Ford Ranger was in front and the white pickup behind it.  Both were speeding. He estimates their speed at 100 to 120 mph which is probably an exaggeration and would also be affected by his POV of being front on facing the oncoming vehicles, a position from which speed estimates are notoriously difficult. But in his view they were racing (“o kuuga mea ia e fai mai”). 
25.	Maselino was adamant the accident occurred because the pickup pulled out to overtake the red car and the red car swerved back inside into the path of the oncoming pickup causing the pickup to veer off the road followed by the red car. He said if the red car had not done this, there would have been no accident. From page 42 of the transcript:
“O le taimi lea na ou malaga ifo ou te fia agai i tai. Sa faatali sa’u taavale ou te lifi ai i le aasa lea o le la. O luga kogu o le a’ega lea sa ou ku ai..….. 

Sa ou kilokilo e kilia la’u kilokilo agai mai lalo, kau mai i le a’ega laikiki lea i luga aku lea e kupu ai le faalavelave e kilia ma akoakoa la’u vaai. Sa ou vaaia ai kaavale o loo o aku. Ga a’e aku loa i luga o le a’ega laikiki faakafa loa le pa’epa’e e kikipi le kaavale mūmū. O igā la ga kupu ai le faalavelave ua me’i i kokogu le kaavale mūmū sulu loa le kaavale pa’epa’e, kupu ai loa ma le faalavelave.”
26.	In addition to all this there is also the cautioned statement of the first defendant given to Police on 20 January 2020 after his return from New Zealand for treatment of the injuries he sustained in the accident.  As well as the location of debris from the accident as testified to by Corporal Valerie Leala, the Senior Police Officer attending the accident scene.
27.	The first defendant’s cautioned statement says they were being pursued by the white pickup they had previously overtaken.  And he saw in his “inside mirror” (which must be his rear-vision mirror) the speeding pickup closing in on them to overtake.  In an effort to avoid an accident he sped up but the pickup struck their car causing the accident.
28.	The location of the accident debris on the road was marked on the Police photographs by Corporal Leala and is consistent with an impact occurring mid-road in line with where the white pickup went off the road.
29.	The defendants invoked their Constitutional right to silence and neither did they call any witnesses.
Discussion:
30.	In assessing the entirety of the evidence adduced, I have come to the following conclusions:
(i)	While there is evidence of consumption of alcohol by the first defendant pre-accident, there is no evidence he was intoxicated at the time of the accident.  No witnesses testified as much and no blood samples appear to have been taken from either defendant post-accident in order to establish sobriety or otherwise. Something I would have thought to be a routine measure when as was the case here, empty beer bottles were found in and by the first defendants vehicle – see the evidence of Moresby who was first on the scene post-accident, as well as the photos Exhibit “P-6” and evidence of Corporal Valerie Leala the Senior Police Officer who attended the accident scene. I am also mindful of the quantity of alcohol consumed by the first defendant and the time lapse to the accident which occurred after at least a one (1) to one and a half (1½) hour ferry trip, depending on the vessel the group caught from Savaii.  Accordingly it has not been established to the courts satisfaction that the first defendant was at accident time under the influence of alcohol or any other substances.
(ii)	The defendants were clearly engaged in a road race or at least in reckless and dangerous overtaking maneuvers given the narrow width of the road and the proximity of residential houses, at least in the early stages of the Leulumoega Cross Island Road. The prosecution evidence establishes beyond reasonable doubt that the defendants race began at or immediately before the fale-piliaki, continued on past the Primary School and over the School Hump, and carried on some distance after overtaking Moresby’s van, onto the long straight of road and the two hills where they were observed by Maselino Alai from the top of the long hill.  A distance of someone and half (1½) miles according to the Police plans produced: Exhibits “P-1” and “P-2”.  
(iii)	Maselino was the best witness to the accident being not only independent of the parties but having a clear and unobstructed view of the unfolding tragedy.  Of the other witnesses the witness Pueata could only recall particular parts of the journey. And the evidence of the other occupant of the Ford Ranger Mikaele was unsatisfactory in many respects.  In particular his concession in cross examination that some of his oral evidence contradicted his statement to the Police given one week post-accident.
(iv)	There were other issues with Mikaele’s evidence. He testified via Audio Visual Link from American Samoa where he presently resides and there were technical difficulties throughout with his evidence, to the point where it had to be concluded via mobile telephone. In addition his evidence like that of the first defendant via his cautioned statement was that it was the overtaking pickup which struck the Ford Ranger which necessarily means the Ford Ranger veered off the road first and should have ended up on the Apia side of the road.  The clear positioning of the vehicles post-accident was both were on the Faleolo side of the road and the pickup was seaward of the Ranger indicating that it left the road first. I cannot therefore accept his or the first defendants version of how this accident occurred.
(v)	In terms of reliability of evidence, I was also impressed by Maselinos demeanour as a witness. He was articulate, firm and did not waiver under cross examination on the essential points.  He is not from Clapham but certainly fits the mold of the ordinary, reasonable, unbiased observer.
(vi)	Maselinos account was the accident occurred because the red car appeared to turn inwards (“me’i i kokogu”) thus striking the overtaking white pickup causing the pickup and then the red vehicle to plunge off the road.  It is not clear from this or any other evidence why the Ford Ranger “turned inwards” towards the pickup.  It may have been inadvertence, momentary loss of control, a shock reaction to the overtaking action of the pickup. Or maybe Mikaele is correct and it was initially the pickup that struck the Ranger a glancing blow and the “turning inwards” was in fact the first defendants attempt to restore control of his vehicle, something that Maselino would not necessarily have seen from his vantage point. 
(vii)	Whatever the case, the actual cause or reason for this maneuver is unclear.  The first defendant himself told the Police he was in fact speeding up in order to avoid an accident. I take note that there is no evidence the first defendant was angry or deliberately trying to ram or hinder the overtaking pickup.  But Maselinos evidence is consistent with the location of the accident debris and positioning of both vehicles post-accident. Based on the evidence adduced, I am therefore left in reasonable doubt as to whether the first defendant’s action was deliberate or otherwise.
(viii)	There is no question in my mind that the deceased died from injuries sustained in the accident. The evidence of the ex-cop Moresby was that the first person he encountered was the second defendant walking along the side of the road picking up pieces of his damaged pickup.  The vehicle itself was on an incline on the side of the road.  He then heard someone moaning (“oi”) from the red car which was further up the road in a banana patch.  Lying beside the drivers door was the badly injured first defendant. He also met a young man nursing an injured neck who said he was a passenger in the vehicle.  He told him of another passenger who was dead and took him to a deceased young man lying further inland beside the vehicle.  Moresby noted the deceaseds face was all black - at page 81 of the transcript he said “a’o a’u na’o lo’u tu ma tilotilo iai ua ululi uma foliga.” There is no evidence the people in the Ranger were wearing seatbelts. 
(ix)	This evidence is consistent with the evidence of the Police officers who attended the scene, in particular Constable Mautofu Aiono who marked the position of the deceased on Exhibit “P-3” as being to the right of the Ford Ranger and to the left of a dry forked tree stump. It is also consistent with evidence of the Police officers of transportation of the deceased and the injured by ambulance to Leulumoega District Hospital and then the National Hospital where a dead on arrival body identified as the deceased arrived at 6:00 pm on 09 November 2019.  It was received by Dr Jancey Noaese who noted in her report to the Coroner (Exhibit “P-4” for prosecution) the body was dead on arrival at the District Hospital at Leulumoega.  There is no evidence suggesting there were any other dead bodies admitted that day to either Hospital from a motor vehicle accident at Leulumoega or elsewhere although I accept there is some discrepancy as to the correct date of birth of the deceased.  The Coroners Form records it as 01 November 1987 whereas the deceaseds mother testified he was born on 22 March 1996.  As the deceased was described by many witnesses as a young man, it is highly probable the date given in the Coroners Form is the result of incorrect information provided by relatives as noted by Dr. Jancey in her testimony. Nothing turns on this. 
Conclusions:
31.	As stated in numerous decisions of the District Court: 
“As to the test for determining negligent driving, His Honour Judge Vaai, in an unreported decision of this Court in Police v Ata Suluape (1 October 2010), states at page 4:

“The test for the standard of care is whether or not in the circumstances, the defendant drove in a reasonable and prudent manner. If on the evidence he did not, he is considered to have negligently driven at the time.  But if he did, then the police case must fail as it has not satisfied the Court regarding proof of one of the elements of negligence.”

In Police v Yvette Kerslake (11 April 2014), Her Honour Judge Tuala-Warren, as she then was, relies on the following passage from a New South Wales Supreme Court decision in Director of Public Prosecution v Yeo and Anor [2008] NSWSC 953, paragraph 27:

“Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other uses of the road to be expected of the ordinary prudent driver in the circumstances.””
32. 	It needs to be clarified that the duty is owed not only to other road-users but extends to passengers in vehicles affected by the defendants actions.  They do not necessarily all fall within a strict application of the term “road-users”. I prefer the more specific formulation of Roma, DCJ as he then was in Police v Ieremia [2016] WSDC 44 when at paragraph 23 he stated about negligent driving causing injury:
“To prove the charge therefore, the prosecution must satisfy the Court beyond reasonable doubt that (i) the accused driver owed the victim a duty of care; (ii) the accused was in breach of the standard of care imposed by such duty and (iii) the breach resulted in bodily injury to the victim.” 
For “bodily injury” substitute “death”.
33.	In this case based on the evidence adduced, I am satisfied beyond reasonable doubt that both defendants owed a duty of care to the occupants of the first defendants vehicle and that by engaging in their road race and these dangerous and reckless manoeuvres, they breached that duty.  They are accordingly guilty of reckless and dangerous driving and negligent driving causing death in that their actions caused the death of the said Aniseko Sagato. 
34.	In relation to the charge of negligent driving causing injury to Pueata Aimainu, defence defence counsel are quite correct there is no evidence as to any injuries suffered by Pueata. I decline to draw the general inferences suggested by the prosecution as more specific and better evidence should have been and could have been adduced. That charge is accordingly dismissed.
35.	The real question for determination in this matter is whether the evidence establishes the primary charge of motor or vehicular manslaughter beyond reasonable doubt. In that there was a “major departure from the standard of care expected of a reasonable person in the circumstances”. That is a more difficult issue.
36.	There can be no dispute the speed limit on the road in question is as a matter of judicial notice 35mph.  There is substantial evidence indicating the defendants were racing probably well in excess of that limit.  Judicial notice can further be taken of the fact that while there are residential houses in the early part of the Leulumoega Cross Island Road, there are virtually none fronting the long strait where the accident happened.  But that is not to detract from the duty of care owed to the first defendants passengers and indeed by the defendants to each other as road users.  It is also apparent that apart from Moresby’s van, there was no other traffic on the road when the vehicles entered the long strait with the two hills.
37.	A useful discussion of the ‘major departure’ test by my brother Justice Clarke can be found in Police v Li [2017] WSSC 136.  I accept for present purposes the principles laid down therein that “a major departure from the standard of care expected of a reasonable person” requires more than carelessness or negligence, it requires at least gross negligence.  And that motor manslaughter charges are saved for “very bad or the worst cases”.  
38.	This is similar to the position under English law: see R v Adomako [1994] 3 All ER 79 where the Lord Chancellor in delivering the judgment of the House of Lords said: 
“In cases of manslaughter by criminal negligence involving a breach of  duty, it is a sufficient direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the present case following R v Bateman (1925) 19 Cr App R 8 and Andrews v DPP [1973] 2 All ER 552, [1937] AC 576 and it is not necessary to refer to the definition of recklessness in R v Lawrence [1981] 1 All ER 974, [1982] AC 510, although it is perfectly open to the trial judge to use the word “reckless” in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case.”
39.	It should not be overlooked that the statutory test in this country is one of ‘major departure’ from the expected standard of care, not ‘gross negligence’.  Of this test, the court in JF v Police [2013] NZHC 2729 said:
“In R v McKie, William Young J noted:

‘Although there is no single form of words employed by High court judges in New Zealand when summing up to juries on the application of s.150A, my impression is that juries are given guidance as to what amounts to a ‘major departure’ by reference to concepts which were acted on in Adomako.  In other words, judges are likely to refer to the concept of gross negligence and tell jurors that they should only convict if satisfied that, having regard to the risk of death involved, the conduct of the accused was so bad as to amount, in the judgment of the jury, to a crime.’

The approach to determining whether the conduct amounts to a “major departure” is therefore a two-step process.  The first step is to consider whether there has been a departure from the standard of care expected from a reasonable person.  But this in itself is not sufficient and the second step is to consider whether such a departure was “major” by reference to community standards.  In determining the second step, the seriousness of the appellant’s breach of duty and the circumstances in which the appellant was in when it occurred are highly relevant and, when looked at as a whole, the conduct must be so bad as to justifiably be considered criminal.”
40.	I have no doubt the behaviour of the defendants can easily be categorized as a “departure from the standard of care expected of a reasonable person in the circumstances”.  But I am left in reasonable doubt as to whether it extends to being grossly negligent or amounts to a “major departure” from such a standard.  That the defendants were reckless and dangerous is beyond doubt, that they were grossly so is an entirely different proposition. 
41.	Had there been evidence that either defendant was intoxicated or under the influence of alcohol at the time of the accident, the outcome may well have been different. But as noted earlier, there was no such evidence or any attempt by the Police to investigate that possibility, despite empty beer bottles being present at the accident scene. 
42.	It would also have been different if the evidence indicated that the first defendant’s action of veering back into the roadway into the path of the overtaking vehicle as described by the witness Maselino was deliberate, malicious or intentional. As observed earlier, such an inference however could not in my view be drawn from the evidence.  
43.	The charge of motor or vehicular manslaughter has not been proven to the required standard, it is dismissed.
44.	And the defendants will be remanded to a date for sentence on the two charges upon which they have been found guilty.

  JUSTICE NELSON