Justice Wiltens said the two prosecution witnesses gave evidence about seeing the deceased jumping from or falling out of a yellow bus driven by Iaruel on the road to Etas.
He said the first witness said Iaruel had driven over the deceased while the second testified that the deceased hit her head on the bottom of the bus before she was allegedly run over.
“A third eyewitness was too far away from the actual event to be able to clearly see what had occurred,” he said.
“Contrary to that, and completely undermining that evidence, was the medical evidence, tendered by consent, which revealed that the deceased’s head, ears, eyes, mouth and neck were ‘…clear of any mark of external injury’”.
Justice Wiltens said the medical evidence completely excluded the possibility of the deceased having been run over by the bus.
He accepted that the two witnesses believed they saw the deceased being run over, but the medical evidence compelled him to the view that they must be mistaken – the driver, as he should have been concentrating on the road; and the passenger standing in the back, due to the difficulty of maintaining his balance.
He said that further, any observation was made at speed, with the back of the bus impeding their view to some degree at least.
He said the prosecution was given the opportunity of submitting to the contrary, that there was insufficient evidence before him for a case to answer to be made out.
The judge said that in the event, the prosecution agreed with his analysis therefore dismissed the first charge.
In respect of the second charge related to driving under the influence of alcohol, the court said that the first witness who spoke to Iaruel immediately after the accident, and who smelled alcohol.
“The third witness was an innocent bystander who knew the defendant and asked if he was alright and who opined she thought he was drunk,” he said.
“A statement was given by the defendant to the police three days after the event during which he admitted that he had consumed a few drinks; and finally, the evidence of the first, second and third witnesses that after the accident the defendant had removed bottles or cans of Tusker and VB from his bus prior to taking the deceased to hospital.
“There was clear evidence that the deceased had purchased some alcohol from ABM earlier that morning and there was no evidence the defendant had consumed any of her alcohol or anyone else’s while driving; or that he had his own alcohol on board”.
He said that the admission to the police officer is insufficient to establish this offence.
He said that equally the opinions of the other witnesses as to whether the defendant was drunk or smelled of alcohol did not carry much weight.
Justice Wiltens said there was also clear evidence that the defendant had been driving at 20-30kph for some time, without any concerns being raised about the manner of his driving.
The prosecution agreed that Iaruel did not lost control of his bus at the time.
He said the particulars of the charge went further than that, and alleged such incapacity ‘…when you ran on top of the victim…’, he did not accept the bus had run over the deceased.
“In the circumstances, I was not satisfied the prosecution had established a prima facie case in relation to the second charge either, and I therefore dismissed that charge as well,” he said.