Supreme Court Justice, Leiataualesa Darryl Clarke, has dismissed a manslaughter charge against Chinese man, Keiji Li, whose vehicle exploded when it slammed into a bus killing an elderly man.
The ruling by Justice Leiataualesa follows a weeklong trial.
Li is represented by Leota Raymond Schuster while Prosecuting is Leone Su’a-Mailo of the Attorney General’s Office.
Police had charged Keiji Li with manslaughter and negligent driving causing death.
However during the course of closing submissions, Leota applied for leave to vacate Keiji Li’s not guilty plea to the charge of negligent driving causing death. He pleaded guilty instead.
The only charge left to be determined then was one of manslaughter.
According to Justice Leiataualesa’s ruling, in order to prove the charge of manslaughter against the accused, the prosecution must prove the following ingredients of the offence beyond reasonable doubt.
“That the accused was in charge of or had under his control or operates anything whatever which in the absence of precaution or care may endanger human life; and
“That the accused had a legal duty to take reasonable precautions against and to use reasonable care to avoid the danger; and
“That the accused breached that legal duty in that the breach by 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; and
“The omission or neglect caused the death of the deceased.”
According to Justice Leiataulesa, it is not disputed that on the afternoon of the 11th March 2017 at approximately 2.00pm, the accused was the driver of a Toyota Estima Minivan registration number R 719 on the West Coast Road.
“The collision between the minivan and the bus caused damage to the right front and side of the bus.”
He said the evidence was that the exterior metal side of the bus had been jutting out following the accident.
“When the exterior right side of the bus was ripped open, the deceased fell from the bus together with the baby that he was holding.
“From the deceased’s fall from the bus, he was seriously injured and from those injuries, he subsequently died.”
According to Leiataualesa the question for determination is whether the prosecution has proven beyond a reasonable doubt that the driving of the minivan by the accused was a major departure from the standard of care expected of a reasonable person.
Wolfgang Haist was an expert witness called by prosecution. He is a New Zealand crash investigations expert with 16 years Police experience and his qualifications include traffic crash investigations for trucks, motorcycles and vehicles.
Mr Haist assessed the speed of the bus at the time of collision as approximately 28 mph, equating to 12.5 metres per second.
“He opined in his report that given the location of the fluid spill and the measured track width of the bus, the left wheels of the bus would have been travelling off the sealed roadway and on the gravel/grass shoulder.
“On the available information, he could not determine the speed of the minivan.
“He described the collision as a “relatively low speed offset impact” in terms of the bus.”
According to Leiataualesa the eye witnesses on the bus called by the prosecution said that the minivan was speeding.
However the bus driver Samuelu Te’evao described the minivan speed in far less dramatic terms.
“I do not accept at all that the accused was driving at 80, 90 or 100 kilometres per hour. “It is simply not supported by the evidence.
Justice Leiataualesa pointed out he does not find that the prosecution has proven that the speed the accused driving constituted “a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances”.
He said the accused minivan was behind 10 or more other vehicles which were in front of him.
“Accordingly, the speed the accused could travel was no more than those cars in front of him.
“Furthermore, if the accused was speeding or driving at a speed that was a “major departure from the standard of care expected of a reasonable person.”
Justice Leiataualesa noted that motor vehicle manslaughter “is reserved for very bad cases” or the “worst cases” with a high level of culpability.
“The ‘major departure’ test was expressly adopted with the view to avoid circumstances where, for example, “a motorist who kills a pedestrian crossing the road while the motorist's attention is diverted for a few seconds by an advertising hoarding...”
He said based on the evidence of Constable Ioapo, it appeared that the accused was looking for something between him and the door.
“He was looking downwards, left hand on the steering wheel and right hand searching.
“The minivan crossed into the bus lane and then collided with the bus.
“The collision occurred about a second after Constable Ioapo stopped his motor bike.
“Based on the evidence, I am left in real doubt that the accused crossing into the west bound lane constituted “a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances”.
“ Based on the evidence, the accused crossing of the centreline was apparently the result of momentary inattention, perhaps over a few seconds, as he drove along the Westcoast road.
“Tragically, it resulted in the death of the deceased.
“The evidence in this case in my respectful view falls well short of establishing manslaughter and is the type of case in which the New Zealand equivalent of section 83 was expressly legislated to avoid,” said Leiataualesa.
“For the reasons that I have set out, Prosecution has failed to prove the charge beyond a reasonable doubt.
“Accordingly, the charge of manslaughter is dismissed.
The accused has pleaded guilty to the charge of negligent driving causing death.
“That plea was appropriately entered by the accused as the evidence satisfies me that this charge was proven beyond a reasonable doubt.”
Sentencing has been scheduled on October 18, 2017.