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Regina v Rae - Judgment [2015] SBMC 10; Criminal Case 343 of 2015 (16 November 2015)

IN THE CENTRAL MAGISTRATES COURT
OF SOLOMON ISLANDS AT HONIARA
(Criminal Jurisdiction)


Criminal Case No. 343 of 2015


REGINA


-v-


JOHN RAE


Prosecution : Moses Reani of Police Prosecutions Office
Defence : Allan Tinoni of Public Solicitors Office
Hearing : October 20 – 21, 2015
Judgment : November 16, 2015


Judgment


The charge


  1. John Rae ('defendant') was charged with one count of careless driving contrary to section 40 (1) of the Road Transport Act. The particulars of which provide that on 16th of August 2014, he drove a white Toyota hilux G-3400 along Naha 4 road and without due care and attention ditched the said vehicle in a drain close to a residential area occupied by Mr. John Akao. There were damages caused to the parts of the vehicle as a result of the accident.
  2. The case for the prosecution is that the accident occurred because the defendant was drunk and not careful with his driving. This resulted in the vehicle veered off the road and ditched in a drain near Akao's residence.
  3. The defence on the other hand conceded that the accident had occurred but stated that it occurred because the defendant tried to avoid some drunkard boys who blocked him on the road. As a result, he veered off the road and ditched in the drain.
  4. The prosecution called 3 witnesses namely; John Akao (PW1), Ephraim Kape (PW2) and Gordon Suri (PW3). The prosecution also tendered 12 exhibits as part of its case as follows: Pretrial Checklist filed on 20/10/2015 (P1), Agreed Summary of Facts (P2), police statements of Derrick Runi (P3), Gregory Laesanau (P4), George Ale (P5), William Esi Aheai (P6), Patrick Sale (P7), Chris Bwekulyi (P8), caution statement of John Rae (P9), Vehicle Damage Assessment (P10), sketch plan showing the site of the accident (P11) and photographs of the vehicle at the crime scene (P12).

Issue for trial


  1. In this trial, the only issue for me to determine is whether the defendant was at the material time was without due care and attention when he drove the vehicle reg. no. G-3400 that resulted in the accident near John Akao's residence.

Agreed facts


  1. It has been agreed by both the prosecution and the defence in exhibit P2 about the following relevant facts:
  2. The evidences in the agreed facts were admitted pursuant to section 21 of the Evidence Act 2009. I therefore admitted these facts on the basis of concession by both the prosecution and the defence.

Prosecution case

  1. John Akao (PW1) testified that about midnight or in the early hours of 16th of August 2014, he was still sitting inside his living room when he heard the sound of a collision outside the road. He heard the collision from a close distance of about 3 meters. He first ran out and saw a white hilux reg.no. G-3400 ditched inside a drain outside his residential home. He was the first person to arrive at the scene. There were no other persons there near the vehicle. When he reached the scene of the accident he saw the defendant was the driver of that vehicle and was still sitting in the driver's position. He observed the defendant was panic and smell beer. He opened the door of the vehicle and found 4 cans of solbrew beer yet to be opened. Later on Gordon Suri arrived at the scene. He stated that he didn't hear any sound of horning prior to the accident and explained that if there is any sound of horning then he would hear it.
  2. He denied that the road was slippery because it was a gravel road. He stated that during that night it was raining so no movement of people along the road. He disagreed that there were drunkard boys walking along the road before the accident occurred. He further clarified that the road in front of his house was not a steep road but a straight road.
  3. Ephraim Kape (PW2) gave evidence about the admission made to him by the defendant. He stated that he met the defendant in the evening of 17/8/2014 at their barrack. He asked the defendant how the vehicle parked like that and the defendant admitted to him that he drove it and collided with it. He further admitted to him that he was drunk and asleep that was why he had an accident with the vehicle at Akao's area. He maintained his evidence during cross-examination.
  4. Gordon Suri (PW3) evidence is similar to John Akao. He also ran to the site of the accident immediately when he heard the sound of the vehicle accident near John Akao's residence. When he reached the vehicle, John Akao was already there standing beside the vehicle. Apart from John Akao and the defendant, there was nobody there. The defendant didn't say anything to them at that time. When the defendant came out of the vehicle and walked past him, he could smell beer from him. He stated that he didn't hear any horning of the vehicle prior to the accident and stated that if there is any horning then he could hear it. He confirmed that it was raining during that night. That road is a straight road and has a width of about 10 meters.
  5. He maintained his evidence during cross examination. He agreed to the general proposition that road can be used by people at night. Unfortunately, there wasn't any specific question being put to him that there were some drunkard boys there at that area immediately before the accident.
  6. Exhibits P3[1] and P4[2] contained evidence that there were 4 cans of solbrew beer found in the vehicle. P5[3] contained the admission of the defendant that he told George Ale that he collided in John Akao's kitchen after he tried to apply the brake of the vehicle but he could not manage to. P6[4] contained the evidence that when the defendant knock at his door and told him about the accident, he could smell alcohol from him. P10 contained the list of the parts of the vehicle damaged as a result of the accident. P11 is the sketch plan showing the accident that occurred along a straight road along Naha 4 road. P12 contained 23 pictures of the vehicle whilst at the scene of the accident.

Defence case

  1. The defendant gave sworn statement. He stated that on 16th of August 2014, he was in the barrack and about 11:00pm, his uncle by the name of Leon came to him and asked him for money. He gave him $2000 and his uncle left in his vehicle. Later he realized that he gave more than what his uncle had requested and hence, he went to Chris's house and asked him to use the vehicle. He said that Chris was drunk that night. He also knew some people were also using that vehicle that night. He then drove the vehicle along the Naha 4 road travelling at a speed of 40-45km/h to find his uncle. When he was close to John Akao's residence, he saw 3 boys on the road blocking the driveway. He gave sign for them to move out from the road but they still blocked the road. He tried to avoid them so he swung to the side of the road and as a result, he ditched in the drain in front of John Akao's residence. When he realized that the vehicle was inside the drain, he tried to reverse it but could not able to move the vehicle. He then turned off the engine and left the vehicle to the barrack. He said that the reason why he escaped to the barrack was because he was threatened by the people who came to the scene of the accident. He later in that night went to hide at one of his brother's house at Kombavatu. He went to Kukum Police Station on Sunday 17th of August 2014. Due to no police officer available for questioning, he returned back to Naha and advised Police to see him at the barrack. He denied he was drunk that night when the accident occurred.
  2. He denied talking to Ephraim Kape on the 17th of August 2014 but said it was on 18th of August 2014 that he talked with him at the barrack. He denied admitting to Kape that the accident occurred because he was drunk and asleep. Instead, he said that he told Kape that he tried to avoid the drunkard boys and that was why the vehicle ditched in the drain.
  3. He said that he had put on the horn 3 times before the accident. He said that he had applied the break but unfortunately, the truck still moving and ended up in the drain. Not only that but since the side of the drain was sloppy, he could not able to put the vehicle to a complete stop. He disagreed that only Akao and Suri arrived first at the scene suggesting that there were other people there as well. He stated that the damage caused to the vehicle was minor.

Law and test for careless driving

  1. It is trite law that in all criminal trials it is the prosecution that has the burden of proving the guilt of an accused beyond reasonable doubt. That burden remains with the prosecution throughout the trial[5].If the prosecution does not satisfy me of each of the elements of the offence of careless driving to that high standard and any reasonable doubt remains as to his guilt, the defendant is to be given the benefit of that doubt and is to be acquitted.
  2. The test to be applied for careless and inconsiderate driving is an objective test. Meaning that what the driver of the vehicle thought about his conduct or its outcome is irrelevant because that would be a subjective test. Unless for some reasons it amount to any specific defence available for traffic offences. But what matters is the court is required to stand back and consider whether the accused person's driving was below the standard of a reasonable, prudent and competent driver at
  3. In Idufoa v R[6], Daly CJ clearly laid down the test to be applied that "The question for the Magistrate was then, have the prosecution made sure that the appellant departed from the standard of a reasonable, competent and prudent driver in those circumstances."[7]

Findings of the Court

  1. For purposes of my findings and given the defence raised by the defendant, I will start with the defence case.
  2. The defendant conceded that he involved in the accident but asserted in his defence that it only occurred because he tried to avoid 3 drunkard boys who blocked him in front of John Akao's residence. The question now is whether there any evidence whether direct or circumstantial that supports this assertion that he was in fact avoiding the drunkard boys who blocked him on the road that was why he veered off the road resulting in the accident. This would place him in an emergency situation or danger situation which even a prudent and competent driver would have acted in that way and would excuse him from any liability. The absence of it would mean that it is just a mere invention or a made up story in Court.
  3. In order to find whether the defendant's assertion was founded on evidence, I made the following findings on whether there is evidence of the presence of the drunkard boys on the road on the following sequence:
(1) Hours or minutes before the accident
  1. The evidence of Akao established that his dwelling house as shown in exhibit P12 bottom right photograph on the second page and the last photograph of page 6 was only few meters away from the site of the accident. A careful observation of those photographs established that the yard outside his dwelling house facing the driveway was clear making it very easy to identify any person either inside the area or from the road. There is a small bridge leading to his yard. This even enhanced the view of an observer from both locations.
  2. Mr. Akao stated that he was sitting in his living room until the time of the accident. He denied the suggestion that there were other people present at the site of the accident area immediately prior to the accident. He also revealed that it was raining that night and no people were moving around that area. He didn't see or hear noises of any people there before the accident. This meant that given the closeness of his house to the road, he would have seen or heard noise especially from drunkard boys if they were in fact present in front of his house where the vehicle ditched in the drain. In such an odd hour of the night, it would be easy to hear noises of people more so from drunkard boys from the house of Akao. The absence of meant that there were no drunkard boys present on the road near his house before the accident occurred. That is the finding I reached in this case.
  3. Another aspect of Akao's evidence also said that if there is any horning of the vehicle he would have heard it that night. He only stated that he heard sounds of vehicle moving up and down but no sound of horning. This evidence was corroborated by Suri's version of evidence who also stated that he didn't hear any sound of horning and if there was any horning then he could able to hear it. Contrary to this, the defendant said that he put the horn three times during that night.
  4. I find the evidence given by the Defendant regarding the horning is not supported by any witness and against the grain of the evidence of Akao and Suri. If he had put on his horn 3 times that night no doubt this would be easily heard by Akao given his house was only few meters from the road and taking into account he was still awake that night. Further, if there is any such horning in the morning part of the night, it would no doubt prompt Akao's attention and presence. This did not occur but as the evidence unfolded that Akao only came running outside of his house when he heard the sound of collision but not horning as claimed by the defendant.
  5. Surprisingly, the defendant didn't inform Akao or Suri or his other colleagues or the prosecution's witness whose statements were tendered by consent about his assertion that he put on the horn that night because of the road block. I have noted that there wasn't any question being put to Akao or Suri that the defendant put the horn that night. Perhaps this might because of the failure to instruct counsel or an oversight or a mere invention in Court. This is an important piece of evidence which should be put to these prosecution witnesses. Based on these finding, I accordingly put less weight on the evidence given by the defendant pursuant to section 57 (b) of the Evidence Act 2009 that he had put the horn 3 times that night because it is unsupported by any witnesses whether from admission or from those whose house were close to the main road. I further conclude that if there was any horning by the defendant that would be easily heard by John Akao and Gordon Suri given their proximity of their houses to the site of the accident.
(2) During and after accident
  1. There is overwhelming and un-contradicted evidence given by Akao and Suri that it was only the defendant who was present at the scene. There were no other persons there. More importantly, he didn't tell them at the site of the accident that he was blocked by 3 drunkard boys and when he tried to avoid them it resulted in the accident. The only thing observed of him was he was panic and smelt of beer. He didn't say any word but only escaped away from the vehicle.
  2. I find the conduct of the defendant was contrary to a person confronting a danger or emergency situation if he was ever blocked by the drunkard boys. It would be reasonably expected that he would immediately tell Akao and Suri at the scene that he tried to avoid the drunkard boys and that was why he had the accident. He had the opportunity but did not make use of it. I find it quite unusual since any person who in his right mind would genuinely and honestly explain to Akao and Suri that the accident was not his fault but he was attributed by other persons.
  3. Further he didn't even tell his colleagues at the barrack about this. Even Ephraim Kape denied this. I noted that apart from Akao, Suri and Kape, he had the opportunity to talk to George Ale and William Esi Aheia after the accident. None of this was revealed to them days after the accident except to police in his caution statement on 11th of February 2015, a period of more than 5 months after the accident. In other words, there was nothing in the tendered statements of the witnesses to show that he had informed them about the road block by those drunkard boys. All along he was silent about this. Based on that findings, I conclude that his line of defence that the accident occurred because he tried to avoid the boys who blocked him that night was fanciful, clearly orchestrated and a mere invention in Court. I accordingly reject his defence.
  4. I now turned to the issue of whether the defendant was without due care and attention when he ditched the said vehicle in a drain close to the residential area of Mr. John Akao. I noted that there was no eye witness who saw the actual movement of the vehicle when it veered off the road and into the drain. However, it was agreed that the accident had occurred involving the defendant. Having rejected his defence, the next question now is whether his act of driving along the straight road and suddenly veered off in the drain is reflective of a reasonable, competent and prudent driver? Exhibit P11 showed the road the defendant was driving along that night was a straight road – the common road in the valley at Naha 4 area. Interestingly, it showed the direction of the vehicle making an acute turning off the road and into the drain. If one has to stand back and judge the defendant's act of driving along a straight road and instantly veered off the road into the drain, is that reflective of a reasonable, competent and prudent driver? I don't think so and that must mean the opposite of it. That is, the defendant's driving was clearly without due care and attention. This can be described as a gross erratic piece of driving not even come near the definite of a reasonable, competent and prudent driver.
  5. I noted that there is no issue that the vehicle had ditched in the drain, a position where it should not belong to. Not only that but the damages caused to its front as recorded in P10 showed that the vehicle was at least speeding at that time of the accident. I accepted the admission he made to Kape that he was drunk and asleep combined with the evidence that he was smelt of beer and presence of the beer in the vehicle further established that he was drinking alcohol before the accident occurred. Despite no eye witness about the actual accident, it is agreed that he was the person in control of the vehicle when it ditched in the drain near John Akao's residence. Based on those proven facts, the only inference[8] from his conduct is that he was without due care and attention when he ditched the said vehicle in a drain close to residential area occupied by Mr. John Akao. That is the finding reached by this Court.
  6. I have earlier on clearly outlined my findings of the prosecution's evidence in paragraphs 6-13. I have carefully assessed them and accept its evidences as credible, reliable and truthful. Even if there were some inconsistencies, those inconsistencies are only on peripheral matters and were minor to render them unreliable.

Conclusion

  1. Based on those findings, I reject the evidence of the defendant. He is not credible and clearly untruthful witness. I accept the evidence of the prosecution as truthful, coherent, logical, un-contradicted and inherently clear. Thus, its evidence demonstrated beyond reasonable doubt that the defendant Mr. John Rae was without due care and attention when he drove the said vehicle and ditched in a drain close to residential area occupied by Mr. John Akao.
  2. Accordingly, I convict him for one count of careless driving contrary to section 40 (1) of the Road and Transport Act.

....................................
THE COURT
Augustine Aulanga (Mr)
(Magistrate of the First Class)

[1] Police statement of Derrik Runi dated 17/08/2014
[2] Police statement of Gregory Laesanau dated 17/08/2015
[3] Police statement of George Ale dated 20/10/2015
[4] Police statement of William Esi Aheia dated 13/03/2015
[5]Woolmington v DPP [1935] AC 462
[6] [1982] SILR 55
[7] At page1
[8] R v Dudley Pongi (unrep. Criminal case no. 40 of 1999

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