Idufo'oa v R [1982] SBHC 11; [1982] SILR 55 (5 May 1982)

1982 SILR 55

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 6 of 1982

IDUFO'OA

v

R

High Court of Solomon Islands
(Daly C.J.)
Criminal Appeal Case No.6 of 1982

5th May 1982

Driving without due care and attention - test to be applied

Facts:

The appellant was driving a police vehicle when another vehicle reversed into the road and blocked his path. The appellant sounded his horn and slowed down but an impact occurred. The magistrate convicted the appellant on the basis that he sounded his horn "and drove on".

Held:

The question for the magistrate to answer was "have the prosecution made me sure that the appellant departed from the standard of a reasonable, competent and prudent driver in those circumstances"? As there was evidence that the appellant slowed down simultaneously with sounding his horn the finding of fact by the magistrate was not supported by the evidence. Appeal allowed.

For the Appellant: K. Brown, Public Solicitor
For the Respondent: F. Mwanesalua

Daly CJ: This appellant Lawrence IDUFO'OA appeals against a conviction recorded against him by a magistrate sitting in Honiara on 3rd March, 1982. The conviction was of the offence of driving without due care and attention contrary to section 39(1) of the Traffic Act. The charge sheet shows that the appellant was originally jointly charged with one George NOKIA of committing the offence upon 16th May 1981 at Honiara. The substance of the appeal is that the conviction is not supported by the evidence.

The facts of the case can be put in short compass. The appellant was driving a police landrover along a road which forked right and left. George NOKIA was manoeuvring his pickup truck in the road just before the junction. As the landrover approached NOKIA reversed his vehicle across the road blocking the path of the landrover. When he saw the manoeuvre, the Appellant sounded his horn and braked. However an impact occurred.

The question for the magistrate was then, have the prosecution made me sure that the appellant departed from the standard of a reasonable, competent and prudent driver in those circumstances?

The magistrate decided that the answer to that question was 'yes'. His findings of fact were that the pickup could have been seen by the appellant from 175 feet away; that at some distance less than that the appellant saw the manoeuvre of the pickup; that at that stage he gave three blasts on his horn which were not heard by the other driver; that "it appears that the Defendant would have still maintained the speed at which he was travelling"; and that seeing the manoeuvre continue the Appellant applied his brakes at 37 feet from the point of impact.

The finding of the magistrate was expressed as follows:-

"I accept that Defendant applied the skill he derived from his 11 years experience as a driver. He gave signal by the blast of horn then applied his brake. I also accept that Def. saw George's pickup from the bend at some 175' away.

In Sorrie -v- Robertson (1944) SC (J) 95 it is held that "the driver's duty is not confined to making signals; he must see, so far as he can, that they have been understood and he may be guilty of careless driving if he drives on after making one without so seeing"

This renders that if Def. sees the likelihood of a collision made the signal and drove on then the charge against him is proved. Accordingly I so prove and find the Def. guilty as charged".

On this basis the crucial finding was that after sounding his horn the appellant "maintained the speed at which he was travelling". No one, I think, would suggest that the only course in these circumstances which a reasonable, competent and prudent driver would adopt was to stop altogether. If followed, such a suggestion would bring traffic in Honiara to a standstill.

The evidence on this point is that when the landrover was about 20 metres away the pickup reversed and thereupon the appellant sounded his horn and applied his brakes (PW1). In answer the court this witness said the appellant slowed down after sounding his horn. PW 2 put the distance at 15 yards and spoke of the horn sounding and brakes being applied at the same time. The third prosecution witness George NOKIA neither saw nor heard the police vehicle.

Counsel for the appellant puts his case crisply when he says, what more could the appellant have done? He sounded his horn and applied his brakes. There was no escape route for him to take.

This point is in most cases one which should be made to the tribunal of fact. Normally this court will not interfere with that tribunal's decision on facts. But in this case the vital finding of fact, that the appellant sounded his horn and then drove on, is not, if I can say so with great respect to the magistrate, supported by any evidence at all. Indeed the evidence was that the sounding of the horn and the braking were virtually at the same time. The only direct evidence on the point is that there was in fact a reduction in speed. Without evidence against the Appellant on this point, I have reached the conclusion that it would not be right to allow this conviction to stand.

Appeal allowed and conviction quashed.