R v Palmer [2021] SBHC 28; HCSI-CRC 33 of 2020 (16 February 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Palmer
Citation:
Date of decision:	16 February 2021
Parties:	Regina v Ambrose Palmer
Date of hearing:
Court file number(s):	33 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	The appeal is upheld The charge is dismiss and the Appellant is acquitted The sentence of two years’ imprisonment is also quashed
Representation:	Asa for Appellant (For Larry H, as was then) Belapitu D for Regina/Respondent
Catchwords:
Words and phrases:
Legislation cited:	Road and Transport Act section 38,
Cases cited:	Regina v Lawrence [1981] All ER 974

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 33 of 2020

AMBROSE PALMER

V

REGINA

Sitting: Circuit Gizo, Western Province

Date of Ruling: 16 February 2021

Asa for Appellant (For Larry H, as was then)
Belapitu D for Regina/Respondent

RULING ON AN APPEAL

Maina PJ:

The Appellant Ambrose Palmer appealed against his conviction and sentence of 2 years imprisonment by the Magistrate Court on a charge of causing death of another person by the driving of a motor vehicle on a road recklessly contrary to section 38 of the Road and Transport Act.

Grounds of appeal

1. The learned magistrate erred in finding the driving reckless when the preponderance of the evidence was that the appellant was not driving reckless,
2. There was no evidence before the learned magistrate that prudent driver would had reduced their speed below 40 – 50 km/hour when taking the snake hill turn and
3. The sentence of two years imprisonment imposed by the learned magistrate is manifestly excessive, fail to consider the suffering by the appellant of his own action.

Facts

On the 13^th December 2019 the appellant Palmer drove a Toyota Hilux V/Registered no. MA7378 on a Munda-Noro highway road. In the vehicle with him there were three passengers, the deceased and two others.

On their way along the road and at the turn known as Snake-Hill, the vehicle driven by the defendant hit the rail, lost control, flipped and rolled down the hill. The deceased who was a passenger on the vehicle, then died at the accident. The two other passengers gave evidences as the prosecution witnesses (PW1 and PW2).

The Issues

1. Whether the appellant drove the vehicle (Toyota Hilux V/Registered no. MA7378) along Munda-Noro highway road and or as it entered the turn at the snake hill recklessly?
2. Whether the sentence of two years imprisonment imposed by the learned magistrate is manifestly excessive?

A Preliminary Matter

Defence Counsel Lawry H (as was then) for appellant in his submission raised a somewhat preliminary matter or an issue that relate to Ground one of the appeal.

I noted in his submission when he said that section 38 of the Road Transport Act allows or permits the charging of person with different alternatives. The defendant was charged by causing death by the driving of the motor vehicle on a road recklessly being the first one.

The other two alternatives (a) causing the death of a person by driving a motor vehicle on a road at a high speed which is dangerous to the public or (b) causing the death of a person by driving a motor vehicle on a road in a manner which is which is dangerous to the public. He said with all they require assessment of the circumstances of the case, including the nature, condition and use of the road, the amount of traffic which is on the road or might reasonably to be on the road.

Counsel said that it is obvious the appellant was charged with the first one, “...... did cause the death of a person namely Viti Boss by driving of a motor vehicle ............. on a road namely Noro Munda Road recklessly ..........”

Counsel stated the charge then continued after “recklessly” with or adding the following the wording in the charge:

“........ which dangerously to the public having regards to the circumstances of the case which including the nature condition an use for the said roads and amount of traffic which was actually at the time or which might have reasonably expected to be on the road by careless driving”

Counsel submitted that the above words when it is added to “recklessly” in the particular of the offence do not make sense.

The law under Road Transport Act in section 38 provide the offence or charge of causing death by reckless or dangerous driving and reads as:

“38. A person who causes the death of another person by the driving of a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, shall be guilty of an offence and liable to imprisonment for five years”.

I noted the concern raised by the counsel and this provision appears to provide two main alternatives particulars i.e. causing death by the driving of the motor vehicle on a road recklessly and causing the death of a person by driving a motor vehicle on a road at a high speed which is dangerous to the public. All require assessment of the circumstances of the case, including the nature, condition and use of the road, the amount of traffic which is on the road or might reasonably to be on the road.

With the particulars as noted from the charge it is ambiguous when it tries to the state in the particulars on the case of causing death by reckless of what should be the require assessment of the circumstances of the case. The honest is on the prosecution to proof by evidence.

Issue 1

The Crown’s case before the magistrate at the trail was the appellant failed to consider the nature of the road which made up of a last sharp bend when he was driving at the speed of 40 to 50 km/hour. He was not able to manoeuvre the wheel properly and as a result, the truck hit the rail, lost control, flipped and rolled down the hill (known as snake-hill). A passenger in the vehicle dead.

The Crown said the presiding magistrate did take into account the manner in which the appellant was driving at that time that it was dangerous and careless.

Both the PW1 and PW2 gave evidences and stated that appellant’s driving was steady but they were not concerned about the speed limit of the vehicle. Beside that there was no direct evidences except the exhibits on sketch map (PE9) and photos of the sharp bend and hill road (PE10). According to the magistrate in his judgment that these sketch map and photos made a clear explanation of the nature of the road with sharp turn at the hill.

And in his judgment, the magistrate said he is satisfied the appellant was driving at the speed of 40 to 50km/hour which was dangerous as by the nature of the road, sharp turn and driving down a hill. The appellant failed to slow down when he entered the sharp turn at snake hill road.

In his view, a prudent driver would have reduce the speed limit to properly move pass the sharp turn and safely down the hill. He had failed to do as said when he maintained the 40 to 50km/hour speed limit as the magistrate summed it his judgment at paragraph 26 in line 2.

The appellant said he drove at a speed limit between 40km – 50km/hour during the trip. But at the snake hill area he was off-guarded when the vehicle’s tire sudden puncture. This situation then created difficulty for him to control or properly coordinate the vehicle’s steering and the tiers. He was not able to clench onto the brake to slow down or make a sudden halt. As a result the vehicle hit the road-rail and suddenly flip over on the road thereby caused the death of the victim (“deceased”), injuries to himself and the other two passengers (PW1 and PW2).

The charge is causing death by reckless driving and the onus and standard of proof is on the Crown to prove beyond reasonable doubt that the appellant drove recklessly and caused the death of the deceased.

Beside the circumstantial evidences, the sketch map and photos of the sharp bend and hill road, the direct evidences were from the two passengers who were also travelling in the truck when they stated that the appellant’s driving was steady when this incident occurred which resulted the death of another passenger of the vehicle.

The test for reckless driving is stated in the case Regina v Lawrence [1981] All ER 974 when Lord Diplock set out the test:

“First, that the defendant was in fact driving the vehicle in such manner as to create an obvious and serious risk of causing physical injury to some other person who might happened to be using the road or of doing substantial damage to property; and secondly, that the driving in the manner the defendant did so without having given any thought to the possibility of there being any such risk, or, having recognized that there was some risk involved had nonetheless gone on to take it”

Under this test, there must be serious manner to create obvious serious risk and to cause injuries to other persons and on that act of the defendant have not given thought of such risk even there was he continued to drive. Such should be proof by direct evidences and in particular the creation of such serious risk that resulted to injuries or death than the circumstantial evidences. In this case the evidences from the witnesses is that the driving by the appellant was steady or stable. However the magistrate used or relied on tendered sketch map and photos of the road to conclude and determine that the appellant had failed miserably to drive properly and carefully as expected of a prudent driver thereby caused the accident and the death of the victim. An expectation from a prudent driver cannot be used to proof the case beyond reasonable doubt unless a direct evidence is there to support that appellant was driving the vehicle in a reckless manner.

There is no evidences from the PW1 and PW2 that the appellant was driving recklessly than relying on the maps and photos tendered to the court and the magistrate is therefore erred to convict the appellant of the charge of reckless driving that cause the death of the victim.

Therefore the appeal by the appellant is upheld.

Orders of the Court

1. The appeal is upheld,
2. The charge is dismiss and the Appellant is acquitted,
3. The sentence of two years’ imprisonment is also quashed.

The Court
Hon. Justice Leonard R Maina
Puisne Judge