Ngana ‘Alovili was acquitted of reckless driving that caused the death of a pedestrian at Ha’ateiho in 2017, after the Acting Chief Justice was left unconvinced with the evidence presented by the Crown during trial.
It was alleged that on September 23, 2017 ‘Alovili was travelling at high speed and his vehicle hit ‘Onesi Lino, a male pedestrian who was crossing Taufa’ahau Road, causing his death.
Hon Acting Chief Justice Cato in a verdict on March 29 said the essence of the Crown’s case was that the accused was travelling in a westerly direction in excess of the speed limit, which was 50kph in that area and that he had collided with the deceased as he crossed the main Taufa’ahau Road, at around 11:30pm.
There was evidence that the accused had been driving a small hire car and that the collision had caused extensive frontal damage. The deceased was a strongly built man had hit the area of the windscreen towards the driver’s right side of the vehicle.
The impact occurred on the accused’s side of the road towards the centre of the road.
Three witnesses who gave evidence said the accused was travelling at an excessive speed. But none of these witnesses were asked at what actual speed they thought he was travelling in. In his record of interview, the accused told the interviewing officer that maybe it was over 60kph, he said.
Acting Chief Justice Cato said, the evidence of the witnesses suggested the accused was driving at a speed beyond the limit of 50kph and indeed the accused admitted he was possibly driving at a speed over 60kph.
The road fronts the Silapeluua rugby field to the north and there are buildings in the vicinity on both sides of the field and on the southern side. It is a designated 50kph area and evidence was given of this.
“However, there was no reliable evidence of the actual speed at which the accused was travelling.”
“The eyewitnesses observed the accused for only short periods of time before the impact and, in my view, could only give an impression of the speed he was travelling at which they said was excessive. I was not assisted by any reconstructive evidence of breaking or skid marks that might have helped me.
“The accused’s own admission, however, suggested that he was probably travelling in excess of the speed limit and the witnesses corroborate this,” he said.
The judge was then hesitant to find beyond reasonable doubt the mere fact of his driving at an indefinite excessive speed meant that the accused was travelling in a speed or manner that was dangerous to the public.
“There was evidence that he was travelling in the middle of the road but it was not suggested that he was travelling beyond the midline or in a way that was dangerous to other vehicles on the road. Photographs of the area suggested that the road at the point of impact was not very wide so I find nothing significant in the fact that he was travelling towards the centre of the road,” he said.
In addition, on the evidence heard apart from the question of whether the accused’s speed was excessive and dangerous, he was unable to find beyond a reasonable doubt that the accused’s driving was a material cause of the impact that caused the death of this man.
The evidence revealed that the deceased had been drinking quite heavily earlier that evening and had been dropped off by his friend at the side of this main road. There was also evidence that the deceased had got out of the car and had walked quickly across the road with the impact occurring seconds after.
While, the accused said in his record of interview, he did not see the deceased before the impact because his view of him had been blocked by a passing car travelling easterly.
Left in doubt
The Acting CJ said it was probable that the deceased had crossed the road and had walked into the path the accused’s motor vehicle as he travelled on his side of the road, and accepted it was possible that the accused’s vision of the deceased crossing the road had been blocked by a vehicle passing in an easterly direction shortly before the point of impact.
“The point of impact seems to be towards the midline (there is no painted marking indicating the median) but on the accused’s side of the road.”
“I am not satisfied the evidence led by the Crown as to the absence of other vehicles travelling in an easterly direction negatives the truth of the accused’s assertion to the interviewing officer that at his view of the deceased walking across the road had been blocked by a passing car.”
He said this was an account given only by the accused about four days after the event and without any lawyer present.
“The fact that there was no evidence of skid marks suggested to me also that the accused had no opportunity to take any evasive action and thus suggested to me that the deceased probably walked out into the path of the accused’s car without pausing to look.”
“In addition, the witnesses who suggested there was no passing car were being asked to reconstruct events, that arose suddenly and I consider it most unlikely they would be able to give a reliable account on whether a vehicle had passed by the deceased in an easterly direction shortly before the impact when their attention would no thave been focused on this,” he said.
“Because I am left in a state of doubt on this point, the Crown has failed to convince that the impact was anything more than a tragic accident as the deceased crossed the road.”
Mr T. ‘Aho and Ms. ‘E ‘Etika appeared for the prosecution.
Mr Ng ‘Alovili appeared in person.