Tonga’s Supreme Court allowed breath test results taken at a police station to be considered as evidence in the trial of a driver who drove under the influence of alcohol and killed a woman with his vehicle on January 1, New Year's Day 2015 at Ma’ufanga.

This related to a trial against the driver Malolo 'Inia (30) who was charged with causing death and bodily injury in the death of 'Oketi Makaafi (33).

Mr Justice Cato made a ruling on 11 March on the issue of whether to admit evidential breath test results in the absence of an initial breath screening test on the driver.

He accepted evidence from three police officers that the reason the accused was not the subject to a breath test at the scene of the accident was because of their concern for his safety, as there were drunken people at this area who were trying to smash the vehicle.

The evidential breath test on the accused was carried out later by Sgt Likiliki, at the police station.

Pedestrians injured

The trial before Mr Justice Cato was held last week at the Supreme Court in Nuku'alofa, when the Crown at the end of its evidence asked to admit the evidence given by Sgt Likiliki as to the evidential breath test readings.

The court was told that in the early afternoon of January 1, 2015 the accused drove his car north on Bypass Road, Nuku’alofa. He firstly collided into two pedestrians leaving them injured. The court was told that he then crashed into the victim who was standing near her house on the same road, causing serious injuries that resulted in her death.

The driver’s breath test readings taken at the police station were considerably over the lawful limit of 250 micrograms of alcohol per litre of breath. Test one was 480 and test two was 500 giving a final result of 480 micrograms of alcohol per litre of breath.

However, usually drivers are firstly tested (breath screening) for alcohol level at the roadside with a screening device. If this produces a positive test, evidential breath testing is performed, at the police station.

Argument

Clive Edwards, who acted for the accused, submitted that the breath alcohol evidence could not be submitted because a breath-screening test had not been undergone by the accused before an evidential breath test was administered to him by Sgt Likiliki, at the police station.

The judge stated evidence was accepted that after the collision two constables Manu and Ha'apai went to the scene and found the accused at a Chinese shop across the road from where the accident took place. He was arrested for reckless driving and the accused came back to station with one officer, while the other stayed at the scene.

Concern for safety

The judge said having heard all three police officers evidence, he accepted their evidence that the reason the accused was not the subject to a breath test at the scene was because of their concern for his safety.

“I accept the officers were truthful in their evidence about this. It is not as Edwards suggested in cross-examination of Sgt Likiliki only where a screening device is unavailable that an evidential breath tests can be administered,” said the judge.

"There may as the legislative says be other reasons. So long as the reason advanced is not capricious, unreasonable or manufactured, which I find is not the case here, then an evidential breath test can be administered without the breath-screening test being done. I consider the safety of an accused or officers at the scene of an accident from reprisals is a relevant and reasonable consideration for dispensing with a breath-screening test at the scene."

Guilty

Malolo 'Inia was found guilty on March 11 of three charges, firstly of causing death under the influence of alcohol, which carries a maximum sentence of 15 years imprisonment, and two counts of causing bodily injury under the influence of alcohol. He was remanded in custody for sentencing on May 6, 2016.

The  Prosecutor for the Crown was Marina Moa.