Donga v Regina [1994] SBHC 55; HCSI-CRAC 16 of 1994 (24 May 1994)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No.16 of 1994

BEN DONGA

-v-

REGINA

High Court of Solomon Islands
(Palmer J.)
Criminal Appeal Case No.16 of 1994

Hearing: 17th May 1994
Appeal: 24th May 1994

J.Remobatu for Appellant
R.B.Talasasa for Regina

PALMER J: On the 8th of February 1994 the Appellant, Ben Donga, convicted on a charge of careless driving contrary to section 39 (1) of the Traffic (Cap.19) and sentenced to a fine of $200.00 and disqualified for 6 months. Appellant now appeals against conviction and sentence on the following grounds:

(i) The plea of guilty entered by the Court was equivocal in that the plea of guilty was made in relation to the occurrence of the accident but not to the ingredient of the offence which is driving without due care and attention.

(ii) That the sentence of disqualification for six months was excessive in view of the special reason relating to how the accident occurred.

The particulars of the charge read: “Mr Ben Donga on the 14th day of January 1994 at Honiara in the Guadalcanal Province drove motor vehicle No.8567 on a road without due care and attention.”

The records of the Magistrates’ Court reveal that the accused was unrepresented, and that the charge was read over and explained. What this Court does not know is what was explained, and how the charge was explained. The particulars simply stated that the accused drove without due care and attention. The words ‘due care and attention’ are technical terms. Had the accused been represented, then it could possibly be acceptable. However, in the case of this accused, how would he know that what he was being accused of fell below the minimum requirements that the law imposes upon a reasonable, prudent driver? The only way he could understand this is, if it is sufficiently made clear in the particulars of the offence, in what way his driving was careless, or without due care and attention. As worded, the particulars of the offence are inadequate and therefore bad.

Magistrates should be cautious in ensuring that there are sufficient particulars in the information to enable him to put the charge to the accused, and if necessary, to explain it to the accused. Where the particulars are inadequate, then the prosecutor should be required to amend the information and insert the necessary details. It is good practice too to ask the accused if he understood the charge before taking his plea.

If the accused says that he does not understand, then he/she should be asked what part or aspect of the offence as read out to him/her was not understood.

There is no indication in the record of proceedings of the Magistrates’ Court to show that the accused understood the charge before he pleaded to it.

The records then continue: “Written facts produced and read by the prosecutor.” The relevant part of the written facts stated that the collision was caused by a lack of concentration on the part of the accused in his driving. On one hand, had the accused been represented, then such a scant account of the facts may be acceptable. On the other, where he was unrepresented, it is my view that the learned magistrate should then enquire further as to how the lapse in concentration was caused, if there was a reason or cause for it. The accused may have experienced loss of concentration due to improper sleep, or tiredness, or he may have been busy listening to the radio, or was distracted by someone on the road, or was travelling too fast and therefore could not stop in time.

Normally, after the facts are read out, the accused should be asked if he agreed with the facts. If he does not agree, then he/she should be further asked as to what part of the facts he/she did not agree with. By doing this the court should be placed in a better position to decide if the plea of the accused was equivocal. This sort of inquiry would not be necessary where the accused is represented, as it would be safe for the court to rely on the skill of the accused's advocate to advice the accused as to the contents of the information.

There is no record in this case to show that the accused was asked if he agreed with the facts or not.

I have had the opportunity of reading the statement of the Accused as made to the Police on the 19th of January 1994. Usually, the Court should ask for a copy of the statement of the Accused in the case where the accused is unrepresented.

The usefulness of this practice in the case of an unrepresented accused is that it helps the Court to cross-check with the facts as produced by the prosecution, and to check if there may be a possible defence or matters of mitigation which the accused may have omitted to mention, either when he was asked if he agreed with the facts or when giving his mitigation.

It is unfortunate that a copy of the statement of the accused was not submitted to the Court for the perusal of the presiding Magistrate. Had that been done, then it is most likely that the learned Magistrate would have become aware of a possible defence in favour of the accused by way of a mechanical defect beyond the control of the accused.

In answer to question (11) in the Answer and Question form of statement made by the accused, he stated:

“When I drove approaching the long lines of stopping vehicles about seven (7) yards away I applied to brake, but since then I realised the brake could not work, I tried again and again but couldn't my vehicle then moved and collided head on to the rear of a car.......”

In answer to question (15), which reads, ‘what did you do when you first saw the other vehicle?’ he answered:

“I applied to brake but was not succeed to work.”

Question 18 reads: “Were you fully concentrating on your driving at that time? A. Yes me concentrate on my driving.”

There is also a Vehicle Accident Inspection Report which was done on the 14th of January 1994. That report confirmed that the foot brake was faulty. The Vehicle Inspector’s comments read: “Foot brake to (sic) low due to (Hundrelic) (sic).” It seems to me that this report too was not made available to the learned Magistrate.

The statement of the accused and the Vehicle Accident Inspection Report do not support the version as provided by the police prosecutor in the written facts submitted to the Court. That is most unfortunate. On one hand the Court has been mis-led by the facts. On the other hand, had the usual enquiries and checks been done by the Court, then most likely the equivocal guilty plea would have been picked up.

I am satisfied the guilty plea was equivocal and this is a proper case to quash the conviction and sentence, enter a not guilty plea and remit the matter to the Magistrates’ Court for trial. It is accordingly not necessary to consider the second ground of the appeal.

(A.R. Palmer)
JUDGE