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CI Times Weekly | Current Issue 276 | 11 November 2008

Mistaken identity in careless driving case?

Mistaken identity took on new meaning in the careless driving case in the High Court, with dramatic new evidence that the accused was not the driver of the car when it hit a car that had already been stopped at police checkpoint outside the Bond store.
The case is being prosecuted by Crown Law counsel, Kim Saunders and Martha Henry of the incident which occurred just after 2am on Saturday 23 June 2007.
The case for the prosecution
Police witnesses said the road block on the main road toward Avatiu was set up with the intention of checking for drink-drivers on the way from nightclubs in town. The police placed orange cones with white reflecting stripes to denote the closure of the right hand lane and 2 officers were positioned on the white centre lane with the intention of catching drink-drivers.
Another 2 officers were standing near the police van which had been parked on the yellow striped median strip (opposite the Punanga Nui market) and all the officers were wearing yellow reflective jackets with the words Police on them.
One of officers was the ‘points-man’ meaning she was holding the lighted wand the police use at night time checkpoints to indicate that you should stop
One of the first motorists stopped were two female motor cyclists who were asked whether they had been drinking etc and while the officer was speaking with the girls, another motorist driving a black car advanced slowly toward to checkpoint.
At this point, another car drove straight into the back of the black car which had slowly been advancing to the checkpoint. The impact caused the black car to plough into the motor bikes which had been stopped and caused the injury of one of the girls being questioned.
The young girl (Georgina Matutu) and the driver of the black car (Gerry) sustained minor injuries and were taken to the hospital for examination. The doctor on duty was Dr Myo Hlaing who later provided a written statement of what happened to the 2 patients as a result of the accident. The signed statement by the young girl was read out in court but did not have to appear whereas Gerry was required to appear in person to as a prosecution witness.
Police witnesses called were PC Teinangaro, Constable Makara and Senior Sergeant Inano Matapo, all of whom were officers on duty at the roadblock that morning.
Sgt Matapo told the court that she had 16 years experience in the police force and was 2-I-C in the traffic division and had taken part in many such operations (to set up roadblocks with view to check on drink driving).
As a result of the operations, she has been involved in at least 100 such cases and has a 90% success rate in convictions which has risen to 95% as a result of new ‘tools’ available to police. Based on her practical experience the officer was certain that it was the defendant who was driving the car and under cross examination, Matapo did not waiver in her testimony.
Constable Makara stated that one of the victims (Gerry, the driver of the black car hit from behind) had 3 female passengers with him, whereas Gerry had stated there were 2 men and one girl.
Probationary constable Teinangaro told the court she had been told to go and ‘stop the driver of the black car’ but which the prosecutor had described as being stationary but which Gerry the driver said he was driving ‘slow’ toward the officer in front of him.
The office was Senior Sergeant Matapo who was acting as ‘points-man’ that night and used a lighted wand to indicate that motorists needed to stop.
Gerry said his car was taken by the police and the next day he received a call from Lavinia to have the car taken to be repaired and to remove his tools in the boot. The car was repaired but he does not know who paid for the damage.
Defence submission of no case to answer
Right at the outset of the case, the defence had foreshadowed that they would make a submission based on mistaken identity and after the prosecution case had been completed, senior counsel, Kitione Vuataki made his submission as to ‘no case to answer’ because of mistaken identity.
Counsel stated unequivocally that the defendant was not the driver and that the police witnesses had made an honest mistake with the identification by the police based on a ‘fleeting glance’ at that car which had run into another car in front of it, which in turn hit one of the riders on the 2 motor bikes that had been stopped by the police already.
His client had been one of 3 people in the car and was a passenger in the car when the accident happened after which they all ‘jumped out’ of the car and stood to the side of road and watched as the police attended to 2 people who were slightly injured.
As they were standing there, an officer asked his client to move the car to the side of the road. This would account for mistake as to whether the defendant had driven the car before the accident. Counsel cited the Privy Council case of Turnbull which the prosecution also agreed was ‘the leading authority ‘on that proposition.
“Mistakes in recognition of close relatives and friends are sometimes made… and that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.”
In addition, his client’s wife had written a letter to the Police Commissioner disclosing that she was the driver of the car and not the defendant.
Kim Saunders for the prosecution put up a spirited argument against the admission of the letter from the client’s wife, as there was nothing to attest to the truth of the statement. Not only that but she argued strongly against the court accepting the submission and cautioned the judge on the various tests needed to be considered before it could discharge a defendant on the ground of mistaken identity.
After a brief adjournment to read Turnbull, Justice Weston declined the defence submission and with that ruling, the case continued with the Vuataki SC calling the first defence witness to the stand.
Continued on page 9