Public Prosecutor v Tubbs Julia Elizabeth

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 06 August 2001
• Neutral Citation: [2001] SGHC 212
• Docket Number: Magistrate's Appeal No 42 of 2001
• Date: 06 August 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: Hamidul Haq, Mohamed Nasser Ismail and Francis Ng (Deputy Public Prosecutors)
• Citation: [2001] SGHC 212
• Defendant Counsel: Sant Singh and Foo Cheow Ming (Sant Singh Partnership), Dhamendra Kunjuraman Nair (Haridass Ho & Partners)
• Court: High Court (Singapore)
• Subject Matter: Road accident,Whether fatalities avoidable by reasonable and prudent driver,Whether respondent negligent in failing to detect pedestrians early enough,Criminal Procedure and Sentencing,Failure to keep proper lookout,Criminal Law,Trial judge's findings of fact made in heavy reliance on expert evidence,Offences,s 304A Penal Code (Cap 224),Whether inferences rightly drawn,Appeal,Whether heavy reliance on expert evidence of any special significance,Whether early detection makes a difference under the circumstances,Standard of care of reasonable and prudent driver under prevailing conditions at accident,Causing death by negligent act,Inferences drawn from expert evidence,Whether doctrine of res ipsa loquitur applicable to infer negligence

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Introduction

The respondent was charged under s 304A of the Penal Code (Cap 224) for causing the death of three persons in a motor accident on the evening of 3 February 2000 by doing a negligent act. The charge read as follows:

that you, on or about the 3rd day of Feb 2000, at about 8.57 p.m., along Alexandra Road in the direction of Commonwealth Avenue infront of The Anchorage on the left, Singapore, being the driver of motor car SCA 6965K, did cause the deaths of 3 deceased persons namely, Shyn Ji Yun, M/2 (1st deceased), Oh Eun Sook, F/35 (2nd deceased) and Shyn Hong Wook, M/5, (3rd deceased) by doing a negligent act not amounting to culpable homicide, to wit, by failing to keep a proper lookout infront and simultaneously collided onto the said 3 deceased persons where the 1st deceased was seated inside a baby stroller and was pushed by the 2nd deceased together with the 3rd deceased crossing the road along Alexandra Road from the centre road divider from your right to the left of your motor car and consequently causing their deaths and you have thereby committed an offence punishable under section 304A of the Penal Code, Chapter 224.

District Judge Audrey Lim acquitted the respondent of the charge on 30 January 2001. The prosecution appealed against the acquittal on the grounds that the judge erred in finding that it had failed to prove its case beyond reasonable doubt. I dismissed the appeal and now give my reasons.

The facts

The respondent was a British national with 20 years of driving experience in the United Kingdom, Australia and New Zealand. On 3 February 2000, at about 9pm, she was driving a motor car registered as SCA 6965K (`the SAAB`) along the right lane of Alexandra Road in the northbound direction towards Commonwealth Avenue. The weather that night was fair and dry.

The stretch of Alexandra Road in question was a dual carriageway with three lanes on each side. The speed limit was 60km/h, and the road was lit by street lamps on both sides. Separating the carriageways was a centre divider (`the median strip`) of about 2.3m in width, consisting of a grass strip raised 0.9m above ground level and separated from the road by a kerb. A railing on this median strip extended from the traffic light junction of Queensway and Alexandra Road (`the traffic junction`) all the way to about the entrance to the Anchorage Condominium (`the Anchorage`), which was on the left-hand side of the road from the point of view of the respondent. This railing was intended to prevent pedestrians from crossing the road, channelling them instead to the overhead bridge. Along the median strip, trees were planted at intervals of approximately 10 to 12 metres apart. The trees had a trunk diameter of about 20cm and had a high crown and unobstrusive foliage. From the traffic junction to the scene of accident was a stretch of road of approximately 200m in length, of which the last 120m leading to the point of impact was straight. The right lane on which the respondent was travelling was darker in colour than the centre and left lanes, as it had just been retarred.

On the fateful night, the respondent was driving the SAAB and her husband Simon Briscoe (`Simon`) was the front seat passenger. They were on their way to attend the birthday party of a friend, and were considerably late by over an hour. They stopped at the traffic junction en route, and the SAAB was the first car on the right lane. At the junction, the respondent asked Simon to telephone their maid Olivia and instruct her not to answer their home doorbell as they had recently been subject to nuisance calls. Simon made this call and had ended it by the time the respondent pulled away from the traffic junction. She estimated her driving speed to have been around 50 to 55km/h. There was no traffic in front of her at the material time.

A pedestrian group consisting of the three deceased, a mother and her two children, all of whom were Korean nationals, were standing on the median strip, about 17m from the end of the railing. The mother, who was wearing a white dress, was pushing a stroller with an aluminium frame and white wheels in which was seated her two-year-old daughter. She was accompanied by her five-year-old son and was carrying a transparent laundry bag. From a driver`s viewpoint, the width of the pedestrian group would have been about 80cm wide. They were attempting to cross from the median strip to the Anchorage, where they lived, when they impacted with the respondent`s vehicle roughly in the centre of the right lane. The mother and her son were flung across the median strip by the impact, and the stroller with the daughter was dragged some 30m with the daughter inside before the vehicle came to a rest. They succumbed to their injuries and passed away later that night.

The respondent admitted that she had initially failed to notice the pedestrian group, and had only seen them when they stepped off the kerb of the median strip. She estimated them to be about 12 to 18 feet (4 to 6 metres) away at that point, but qualified that she was not sure of the distance. When she saw them, she jammed on the brakes very hard and swerved the car to the left, but the impact was almost instantaneous with her actions and she could not avoid the collision. The automatic braking system (`ABS`) of the car was not activated by her braking, nor were there brake or skid marks indicating heavy braking at the scene of the accident.

The respondent explained in her defence that several factors hindered her view of the pedestrians while they were standing on the median strip. Firstly, the visual clutter presented by the trees and railing on the median strip had partially obscured the pedestrian group standing on the median strip. Secondly, a large shadow was cast by trees covering Lamp 112, which was the lamppost nearest to the collision point, located on the left-hand side of the road just beyond the entrance to the Anchorage. This shadow likewise hindered her observation of the pedestrian group. Finally, the respondent explained that her attention was divided among various legitimate driver tasks expected of any prudent driver; such as the checking of car mirrors, as well as scanning to the left and right to generally survey the entire road. This was necessary, explained the respondent, as this stretch of Alexandra Road was particularly hazardous with cars exiting from the Anchorage and switching to the right lane to turn to the opposite direction. Furthermore, she added that the presence of commercial and residential properties as well as bus stops on both sides of the road meant that there was further increased pedestrian and vehicular activity at the accident scene.

The issue of the extent and effect of the lighting of the scene was of particular concern to both parties. Notably, there was some discrepancy as to whether the shadow cast by the trees extended to the right lane. The investigating officer, SI Shariff, made a sketch in her field diary which showed that the shadowy area extended to only the left and middle lanes of Alexandra Road. This contrasted with the testimony of Cheah Wi Kwong (`Cheah`), an electrical engineer from Power Grid, who said that the right lane was affected by the shadows cast by trees, although the actual level of lighting in the right lane satisfied international standards. The fact that the shadow extended to the right lane was also supported by Charlie Chua, the chairman of the management committee at the Anchorage. Finally, photographs taken by a professional photographer, David Lee (`David`), tendered by the defence, showed that the shadow covered the right lane, although it fell short of the median strip itself. David`s photographs managed to depict night lighting conditions as they were taken with high-speed film and without a flash. In contrast, the photographs taken by the police employed flash photography and were less useful, as they had a `bleached` effect which obscured the lighting conditions.

The photographic evidence was particularly important as the lighting conditions were altered sometime in April 2000. In response to a request from the management of the Anchorage, the Land Transport Authority re-sited two lampposts and added an additional one sometime in April 2000, giving a total nett effect of one additional lamppost and brighter surroundings.

Finally, there were no independent eyewitnesses of the accident itself. At the material time, a motorist, one Cheng Keen Boon (`Cheng`), was driving in the middle lane of Alexandra Road about 4m behind the SAAB. However, Cheng said he had merely heard a thud, which was followed by the SAAB swerving a little into his lane. He had not realised that an accident had occurred and had simply continued on his way.

The expert evidence

Both prosecution and defence called two experts each to reconstruct the events leading up to the accident. Significantly, these four experts came to agreement during the course of the trial on several key facts:

(1) the SAAB was driven at a speed of about 50km/h;

(2) the average walking speed of the pedestrian group was about 1m/s;

(3) the five-year-old boy was on the right of the mother;

(4) the normal `perception and reaction time` (`PRT`) of a driver under the circumstances would have been between 1.5 to 2 seconds;

(5) the point of impact between the SAAB and the pedestrian group was approximately 2m from the kerb of the median strip;

(6) although it was possible to have observed the pedestrian group at various approach distances, the point at which an approaching driver would be put on notice of the pedestrian group as an impending hazard would be when the centre of the group was at or about the western kerb of the median strip, and onward into the roadway lane;

(7) based on the above, the pedestrian group would have taken approximately 2s to move from the western kerb to the area of impact. Given the approach...