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Regina v Hunikira [2016] SBMC 11; Criminal Case 360 of 2015 (5 May 2016)

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


Criminal Case No. 360 of 2015


REGINA


v


DANIEL HUNIKIRA


Prosecution: Mr. J. Anisi of the Office of the Director of Public Prosecutions (ODPP)
Defence: Mr. G. Gray of Public Solicitors Office (PSO)
Hearing: November 9-13, 2015 and April 26, 2016
Judgement: May 5, 2016


JUDGMENT


  1. Daniel Hunikira (defendant)is charged with one count of driving or being in charge when the under the influence of drink or drugs contrary to section 43(1) of the Road Transport Act and one count of careless and inconsiderate driving contrary to section 40(1) of the same Road Transport Act.
  2. The allegation is that on 14th of February 2015 between 5:00am -6:00am, the defendant was under the influence of alcohol when he drove the vehicle G-3634 and veered off the road and into the vegetation along the Alligator Creek main road near Henderson.
  3. The Crown contended that he drank alcohol prior to the accident and was intoxicated. This made him unable to control the vehicle and resulted in the vehicle veered off the main road and into the vegetation. This shows that he was unfit to drive because of drinking alcohol and also was careless and inconsiderate with his driving.
  4. The defence on the other hand denied the allegation and argued that the accident occurred because the defendant swerved from the road to avoid hitting a black dog that ran in front of the vehicle on the main road. Because of that, the fault cannot be attributed to the defendant.
  5. Having denied the two charges, the Crown is put to the test of proving its case beyond reasonable doubt for the two charges.
  6. The Crown called 5 witnesses and tendered 5 exhibits. The defence on the other hand called 2 witnesses including the defendant himself.

AGREED AND ADMITTED FACTS


  1. The following are the facts agreed to by both the prosecution and defence:
  2. Consequent to the tendering of the 5 exhibits by consent and the evidence not challenged during the trial, I further admitted the following facts:
  3. These facts together with the agreed facts were admitted pursuant to section 21 of the Evidence Act 2009. By admission, I am satisfied that the facts regarding the non-contested elements for both charges are proven beyond reasonable doubt.

ISSUES FOR DETERMINATION


  1. For this trial, the issues for the Court to decide are:

FINDINGS BY THE COURT


  1. Relevant to the first issue, the Court considered the evidences of Heles Hosea (PW1),Patson Dani (PW2), Franklyn Ramofolo (PW3) and Churchill Koikim (PW5).
  2. The evidence of Heles Hosea showed her observation of the defendant after he got out of the vehicle at the scene of the accident. She observed the defendant appeared drunk when he got out of the vehicle. When the defendant approached them he said “iufala no wari, me oraetnomoaia.” She described his walking as unbalanced or staggering in like a drunken person.
  3. She was with Churchill who together had observed the defendant’s conduct and appearance at that time. That piece of evidence was maintained throughout the trial.
  4. Hosea’s evidence was corroborated by Churchill Koikim (PW5) who first came to the scene of the accident. He saw the defendant came out of the vehicle and admitted that he was wrong and if they could assist to transport him to police since he would finish from his job. When he came close to the defendant, he asked him why he ended up in his area. The defendant then responded that he was stressed because he was demoted from his position following a meeting so he just wanted to refresh his mind.
  5. While they were still talking, some drunkard boys came and wanted to demand the defendant because he had caused that accident in that area. Koikim saw those boys removed about 2 or 3 SB cans from the back of the vehicle. He could smell alcohol from the defendant when he continued to talk with him. He also observed the defendant appeared drunk at that time.
  6. He was questioned about some peripheral issues about the content of his statement and the allegations that he made up those statements in Court. He ably explained them to the Court.
  7. Having observed his entire demeanor and the way he gave his evidence in Court, I find him to be a witness of truth who this Court comfortably relies on. Even if there were some contradictions in his evidence compared to his police statement, those issues are minor to render him as an unreliable witness. In reality, his evidence presented in Court is the elaboration of his observation of the defendant and what had happened after the accident despite not fully recorded by police as often occur in some criminal investigations. However, his observation of the defendant’s behavior after the accident remains firm and un-contradicted totally consistent with the evidence given by Heles Hosea.
  8. The evidence of the two police officers, Paston Dani (PW2) and Franklyn Ramofolo (PW3)who attended the scene of the accident and observed the defendant’s behavior also supported the evidence given by Hosea and Koikim. Dani stood about 1 meter close to the defendant and could smell alcohol from him. He observed him appeared drunk.
  9. Ramofolo also revealed the same thing. He checked inside the vehicle and could smell alcohol from inside that vehicle. When he came close to the defendant, he observed him drunk and could smell alcohol from his breath during their conversations.
  10. The evidence before the Court clearly and unambiguously established that there were 4 witnesses who testified about the observation of the defendant that he was drunk combined with the evidence that they smelt alcohol from him. One witness even saw the SB beers being removed from the back of the defendant’s vehicle. Only the defendant had vigorously denied consuming any beer prior to the accident.
  11. Considering the weight, consistency, corroboration and the quantum of the evidence presented by these 4 witnessesfrom the Crown as opposed to the single version of evidence of the defendant, I am satisfied beyond reasonable doubt that the defendant was drinking alcohol prior to the accident. The smelt of beer inside the vehicle and from his breath combined with the presence of the beer as seen by Koikim being removed from the back of the defendant’s vehicle supports that conclusion.
  12. This brings us to the next issue of whether or not he was unfit to drive the vehicle as a result of drinking alcohol. The question of whether a person’s ability is impaired by alcohol is a question of fact and not law. It does not involve the application of any legal standard but only through the facts that are available to the Court to decide on. Those facts can be established through a range of direct or indirect evidence.
  13. There is no issue that there wasn’t any blood test taken from the defendant to determine the amount of alcohol in his body at that material time. Also, no breathalyzer test and also straight-line test being conducted at the police station. There is also no evidence of any eye-witness to the actual accident. Only Moses Hou DW2 saw the vehicle when it started to veer off the road but then lost sight of it when it ran into the vegetation. Therefore, the Court is left only with circumstantial evidence to ascertain whether or not the defendant’s ability to drive was impairedthrough drinking alcohol.
  14. The law on circumstantial evidence is well settled in our jurisdiction and abroad. In Regina v Pongi,[1] Justice Muria explained the duty of the Court when dealing with circumstantial evidence as follows:

“The prosecution case is substantially based on circumstantial evidence. As such the Court must be very cautious when considering the case as presented against the accused. It is the duty of the Court in such a case to consider all the evidence together at the conclusion of the case, ensuring that it can only draw an inference of guilt from the totality of the facts which are proved beyond reasonable doubt.”[2]


  1. In the case of David v State,[3] the Court explained circumstantial evidence and said:

“In a case substantially dependent on circumstantial evidence the question to be asked is: do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.”[4]


  1. Having accepted that he was drinking alcohol prior to the accident, the issue now is whether the accident was caused because he was not fit to drive as a result of taking alcohol or, because of the black dog.
  2. The evidence from the defendant revealed that between 3:00am-4:00am on the 14th of February 2015, he drove the said vehicle and intended to go to Goldridge and Tetere to attend a meeting. He somehow turned back along the way because he forgot some of the documents in his office. On his way, he met some people arguing on the road near the Alligator night club so he drove to the securities of that club to inform them about that argument on the road. He spent about 10-15 minutes before heading back to his office. He recalled he was travelling between 50-60km/h on his way back. When he approached a turning leading towards the Henderson airport, he saw a black dog running across the front of the vehicle. He instantly turned the vehicle to the left side of the road to avoid hitting that dog. Asa result, the vehicle veered off the road. He could not unable to turn it to the main road. The vehicle continued to slide into the vegetation despite he applied the brake.
  3. Despite his seemingly clear recollection of the accident, his evidence when considered against the evidence adduced by the Crown through the witnesses and the exhibits raises doubt whether he is a credible and honest witness regarding the accident itself and the evidence of the black dog.
  4. First, his evidence seemed to imply that the vehicle was merely sliding until it stopped at the location shown in exhibit P3 JD2. If this was the case then theeffect of his evidence shows a stark contradiction to the accident itself and the nature of the damages sustained by the vehicle from the accident. The photographs of the vehicle shown in exhibit P4 DH10 clearly showed the roof of the vehicle was badly damaged. That shows that the vehicle had overturned and landed on its roof before it finally rested on its wheels.
  5. Second, the distance where the vehicle had veered off and overturned and continued to move until it came to a stop was 36 meters. This is a significant distance and clearly reflectedthat the vehicle had been travelling at a high speed prior to the accident.
  6. Third, if the cause of the accident was due to the defendant had tried to avoid the black dog then it is reasonably expected for him to tell Churchill Koikim or Heles Hosea or even the police officers about the black dog immediately at the spot of the scene of the accident. This will go to the fact that the accident was not his fault. This is very important because if he had informed them about the dog, it is expected that all the witnesses including the police officers who were present at that time will give favorable or supportive evidence to him during police investigations. As the most senior police officer for Guadalcanal Province, he ought to know that it is important to reveal to the witnesses or the police officers who present at the scene of the accident about the dog so that his honesty and credibility are clearly established at the beginning. He chose not to do but instead said words to the effect about his disagreement with his job and that he had refreshed his mind and asking them to transport him to the police since he involved in an accident.
  7. The evidence regarding the black dog was also given by Moses Hou (DW2), a person who knew the defendant very well for a long time prior to the accident. He said that he saw the vehicle drove into the bush when it tried to avoid hitting a big black dog that ran in front of the vehicle from the left side of the main road.That dog continued to run to the other side of the road. He stood at the side of the road for about 2 minutes observing the vehicle that involved in the accident. He didn’t see the driver came out or even any person from that settlement.
  8. Upon considering his entire evidence, unfortunately, it appeared to the Court that his evidence was limited only to the presence of the dog. But when asked about his observation of the vehicle and whether he saw any person attending to the scene, his evidence was contrary to the evidence of Hosea and Koikim. If he was standing there from a distance of 8 meters away from the vehicle as he claimed in his evidence, he would have seenor identified the damage to the roof and other parts of the vehicle. Further, he would see the defendant got out of the vehicle including and eventually, would see Hosea and Koikimas the very two persons who came to the defendant immediately after the accident. None of this was said to the Court during the course of giving his evidence.
  9. Having reached this finding, I therefore reject the evidence of the defendant and Moses Houabout the dog as inventive, clearly orchestrated, untruthful, and utterly not credible for this Court to rely on.
  10. Therefore, the question now is whether the accident was caused because of his ability to drive properly was impaired as a result of drinking alcohol.
  11. The evidence had established that the accident occurred only less than a kilometer from Alligator night club, the place where he last stopped before he drove and involved in the accident. The accident also occurred at the early hours of the morning along a main road when the traffic was light. That part of the road was a curved road leading towards the Henderson airport. The evidence also established as observed by the 4 witnesses that he appeared drunk and was smelt strong of alcohol. His walking was also unbalanced or unsteady at the scene of the accident.
  12. Section 43(5) of the Road Transport Act defines unfit to drive in relation to alcohol. It states:

“For the purposes of this section, a person shall be taken to be unfit to drive if his ability to drive properly is for the time being impaired.”


  1. The test for driving when under the influence of alcohol is found in R v Leonard Boaz[5] where Palmer J stated:

“The test as set out by the learned Author, G.S. Wilkinson in Road Traffic Offences, at page 100 is that, “his ability to drive properly is for the time being impaired”, through drink or drugs. He also points out that this can be proven by evidence that a car was being driven erratically or that an accident occurred at a spot where there was no hazard for a normal driver.”[6]


  1. Applying this test to the evidence that have been established, it is important to note the nature of that road, the accident itself and his behavior as observed by the witnesses.
  2. The portion of the road where the vehicle veered off was a tar sealed road with no visible potholes. It was perfectly maintained for road users. Considering the amount of traffic at that early hour of the morning and spot where the accident occurred, in my view, only drivers who are not careful and so affected by alcohol would end up in the vegetation like the defendant in this case. His appearance and behavior as observed by the witnesses after the accident showed he was drunk.
  3. In R v Graat,[7] the Courtwhen accepting the witness evidence in terms of his observation of an accused state of drunkenness echoed:

“An ordinary witness may give evidence of his opinion as to whether a person is drunk. This is not a matter where scientific, technical, or specialized testimony is necessary in order that the tribunal properly understands the relevant facts. Intoxication and impairment of driving ability are matters which the modern jury can intelligently resolve on the basis of common ordinary knowledge and experience. The guidance of an expert is unnecessary.”[8]


  1. I accept the evidence of their observations of the appearance and the behavior of the defendant and the smell of the alcohol to show that he was intoxicated.
  2. Combined with the nature of the accident itself, the speed that enables this type of accident to occur and the portion of the road only which only drivers who are not careful and so affected by alcohol would end up in, clearly proved his ability to drive the vehicle at that material time was impaired through alcohol. That is the only inference available to this Court after considering the cumulative effect of these evidenceswhen put together.
  3. Having reached this finding, I am satisfied that the Crown has proved its case beyond reasonable doubt and hence, the defendant is convicted for the charge of driving or being in charge when the under the influence of drink or drugs contrary to section 43(1) of the Road Transport Act.
  4. The final issue for the Court to consider is whether or not the defendant was careless and inconsiderate with his driving.
  5. The test for this case was perfectly explained in Idufoa v R[9] and Milton v Director of Public Prosecution.[10] In the case of Milton v Director of Public Prosecution, Smith L.J,conveniently outlined the test for careless driving as follows:

“the test should be fully objective. The court would be looking at the quali driving (was it r it really bad?) and not at what the drivmself thought about itst its possible outcome. Second, the offence was to contain a statement of the standard of 'badness'. The test should be whether the ng fell below the standard of driving to becexpected&#ted to&#1to theetentcand careful driverriver. This was to avoid ing cases of trivialmincompncompetence. Third, it was said that the court should be directed by the definition to&#1nsider the qy of rivinrivinectly itly in reln relation to the palar circumstances in s in which it occurred. How How would the competent and careful drive0;have behaved in these circumstances? It was said that thet the court should have to consider whethen a competenpetent and careful driver would have driven in this&w160;way. This would enable the driver to give an explanation as;to w160;why he hiven as he had. Examples were suggested. The driver mi60;might have been responding to an emergency or he might enve encounterednusua unexpected road condition. In such circumstancesances, the driver might e conviconvictionRn”[1>



  1. The evidence r on to decide whether or noor not the Crown has proven its case beyond reasonable doubt for this charge was largely considered and accepted for the first charge together with exhibits P3 and P4. Having reached the conclusion that he was not fit to drive as a result of drinking alcohol in itself is inherently linked to whether or not he was also driving as a reasonable, competent and prudent driver at that material time.
  2. I have already rejected his defence that the cause of the accident was due to the black dog. Therefore, the simple question now is whether his act of driving along the tar road and then suddenly veered off the main road for 36 meters into the vegetation is reflective of a reasonable, competent and prudent driver? Clearly, any bystander would disagree with this. That is the same objective view reached by this Court.
  3. It follows therefore that the evidence adduced by the Crown has also sufficiently proven the elements of the charge of careless and inconsiderate driving beyond reasonable doubt.

ORDERS OF THE COURT


(A) The defendant Daniel Hunikira is convicted of one count of driving or being in charge when the under the influence of drink or drugs contrary to section 43(1) of the Road Transport Act and one count of careless and inconsiderate driving contrary to section 40(1) of the Road Transport Act.

(B) Defendant has 14 days as of this date to appeal this judgement.

..................................................................
THE COURT

Augustine Aulanga - PM


[1] [2000] SBHC 64; HCSI-CRC 40 of 1999 (11 February 2000)
[2]At page 2 of the judgement
[3] [2006] PGSC 22; SC881 SCRA 74 of 2003 (22 November 2006)
[4]See ‘Held’ section of the judgement
[5]Unrep. Criminal Review Case No. 45 of 1996
[6] At paragraph 4
[7]31 C.R. (3d) 289, [1982] 2 S.C.R. 819
[8]At paragraph 54 of the judgement
[9] [1982] SILR 55
[10][2007] 4.All.E.R. 1026
[11] Referred to in State v Najum [2013] FJMC 94 at page 2

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