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Regina v Fioga [2016] SBMC 26; Criminal Case 368 of 2016 (13 October 2016)

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


Criminal Case No. 368 of 2016


Regina

-v-

Kurt Harry Fioga


Prosecution: Mr. D. Tepai of Police Prosecutions (PPO)
Defence: Accused in person
Hearing: October 5 - 7, 2016
Judgment: October 13, 2016


Judgment


  1. The trial for the defendant, Kurt Harry Fioga, commenced on 5th of October 2016 after he denied the charge of driving when under the influence of liquor, contrary to section 43(1) of the Road Transport Act and the charge of careless driving, contrary to section 40(1) of the same Road Transport Act.
  2. The accident occurred at about 11:00pm on the 25th of April 2016.
  3. The case for the prosecution for the first charge is that the defendant was drunk with alcohol when he drove up easterly direction towards the Saint Nicholas junction which resulted in him incapable to drive properly and resulted in the accident.
  4. For the second charge, the prosecution alleges that he was not careful or considerate with his driving. This caused him to bump into the right back of another front vehicle. Three witnesses were called. No sketch plan or any photograph was tendered.
  5. The defendant denied these allegations. First, he denied drinking any alcohol at all prior and during the accident. Second, he denied being careless and said that it was the other vehicle that was at fault. By that, he said, it was the other vehicle that made a sudden turning in front of him from a close distance of about 10 meters whilst he was traveling between 50km/h – 60km/h which resulted in the accident. The accident according to the defendant’s version occurred when he turned left to the low lane to avoid colliding with the other vehicle that turned in front of him. And whilst he was on the low lane, the other vehicle also turned to the low lane and when they on the same low lane, he again tried to avoid it by turning to the high lane but with the speed that he was traveling at, he cannot avoid colliding to its right back. He called a witness to support his case and tendered a sketch plan showing the movement of the vehicles to illustrate his side of the case.
  6. Dona Aihunu Junior (PW1)[1] is the first witness for the prosecution. He was the driver of the vehicle MA-6060. He was traveling down westerly direction when he received a call to pick up a passenger. He turned left into the Saint Nicholas feeder Road in order to turn back easterly direction. He waited at the waiting bay for about 3-4 seconds before he drove into the junction to follow the east bound lane. According to him, he looked to both sides of the traffic and he drove in when both opposite lanes were clear. As he entered the eastbound lane, he then moved to the low lane at a speed of about 20km/h. He looked at his rear mirrors and talked using his radio. This was the time he felt his vehicle was hit at the back.
  7. He said in cross examination that he looked at both rear mirrors when he entered the east bound lane.
  8. John Talao (PW2) is the second witness for the prosecution. He didn’t see the actual accident but gave evidence as to his observation of the defendant when he was brought to Kukum Police Station. He observed the defendant’s head was injured with blood. He sat close to the defendant and the distance between them was about 20-30cm. He could smell alcohol from him. His speech was slurred and his eyes were red. He formed the opinion that he was drunk at that time. Despite he suspected him to be intoxicated with alcohol, he didn’t conduct any straight line test to confirm his insobriety. There is no sketch plan or photograph taken and no explanation was given as to the failure of these important aids especially in motor traffic accidents.
  9. Later that night, he went to the scene of the accident and checked the vehicle driven by the defendant. He could smell beer from it despite no sighting of any alcohol can.
  10. Michael Lindsay (PW3) is the third and final witness for the prosecution. Also, he didn’t see the actual collision but gave evidence about his observation of the defendant when at the Kukum Police Station. He didn’t smell any alcohol from the defendant but only observed him as “tied, sick, unsettled and behaved like someone escaped from a fight.” After much questioning, he then said he suspected the defendant was drunk when he observed him at the Kukum Police Station.
  11. The Prosecution closed its case.
  12. The defendant’s cases consisted of the defendant himself (DW1)[2], Ronaldo Ruka (DW2) and a sketch plan of the scene of the accident marked as defence exhibit D1.
  13. The defendant stated that in the evening of 25th of April 2016, he went to Burnscreek and asked Ruka if he could use his vehicle (MA-2542) to go to his mother at Kaibia Heights. The reason for this was to ask for money to buy gown for his graduation. He and Ruka left in the vehicle to Kaibia. Upon arrival, he asked his mother for any money but his mother responded that she didn’t have any money.
  14. Later, he left his mother’s residence and drove back to east side of the town. He was the driver of the vehicle. He denied drinking any alcohol prior or during the course of driving the vehicle. He recalled traveling on a high lane and at a speed of between 50km/h - 60km/h as he approached the Saint Nicholas junction. He recalled the traffic was empty or light during that night. As he was very close to the junction, he saw a car travelling the opposite lane and made a sudden u-turn in front of him. That was about 8-10 meters close to him. He instantly applied a slight brake and turned his vehicle to his left to move to the low lane to avoid any collision. However, that vehicle (MA-6060) also moved to the low lane. Realizing his speed and his close proximity to that vehicle, he then said to Ruka that this would cause accident to them. Whilst on that same low lane, he again tried to drive out to the high lane to avoid colliding with the front vehicle but unfortunately, his vehicle hit the right side of the back boot of it. This resulted in the accident.
  15. When he pulled off the road, he walked across the main road intending to inform his uncle about the accident. It was at that stage that he was attacked by a group of men at the road side. He could remember they threw bottles of alcohol at him when he was attacked.
  16. He explained the movements of these two vehicles by a drawing depicting black colored vehicle as the vehicle he drove while the blue colored vehicle as the other vehicle in a sketch plan exhibited D1. He marked HF1 and HF2 to show their respective positions when he saw the other vehicle drove in front of him into the said junction road. This was estimated to be about 8-10 meters. His movement from high lane to low lane to avoid the collision started at DF1 and the collision occurred further up along the low lane before the Bahai bus stop area.
  17. It was suggested to him that he was driving at the back of a vehicle on the high lane and when he overtook it resulted in the collision with the vehicle entering the junction. He denied that suggestion. He disagreed that he was driving at a high speed which resulted in the accident. It was suggested to him that he should apply his brake to put the vehicle to a complete stop. He said that he applied his brake ½ way but could not able to put the vehicle to a complete stop because the other vehicle was too close. He denied being drunk and also denied the other vehicle made a turn at the Saint Nicholas feeder road.
  18. Ronaldo Ruka (DW2) is the second witness for the defendant. He was the person who accompanied the defendant in the vehicle from Burnscreek to Kaibia and from Kaibia to the time of the accident. He denied the defendant was drunk or even drinking any alcohol prior and during the course of the drive. He corroborated the evidence of the defendant in relation to his manner of driving when they confronted the incoming vehicle at the said junction area and said the defendant turned to the low lane to avoid colliding with the incoming vehicle but that vehicle also moved to the low lane and that was when the defendant said to him that this would cause accident to them which thereafter, they collided to the right back boot of the front vehicle.

Standard of Proof


  1. It appears quite clear that both sides are putting blame on each other as to who is at fault. Despite of these diverging views, it is well settled in all criminal trials that the prosecution carries with it the burden of proving its case beyond reasonable doubt. The defendant does not have any burden to prove his innocence. If there is any doubt as to his guilt then the defendant must be given the benefit of that doubt. Therefore, it is incumbent for the prosecution to produce evidence by means of which such high degree of probability is raised an ordinary reasonable man after mature consideration comes to the conclusion that there exists no reasonable doubt that the defendant has committed the offences as charged. The ordinary person must in other words, be morally certain of the guilt of the defendant.

Court Assessment


  1. From the evidences that were produced and not challenged, I find the following facts to be proven for both offences:
  2. In relation to the charge of driving when under the influence of liquor, only John Talao (PW2) stated he smelt alcohol from the defendant and made observation from his face and his description of how the defendant talked at the Kukum Police Station. Despite having this strong suspicion that the defendant was drunk, he didn’t conduct any straight line test to ascertain with certainty whether he in fact was so affected by alcohol immediately after the accident. This is important as reliance on observation and odor of alcohol is insufficient to make a finding that the defendant was so affected by alcohol in order to establish a nexus to his capability to drive the vehicle at the time of the accident.
  3. The question of whether or not an observation and smell of alcohol from a defendant is sufficient to prove his capability and ability to drive a motor vehicle was discussed in Matawalu v Director of Public Prosecutions[3] where Judge Pain explained it as follows:

“..it is not sufficient to merely prove that the appellant had consumed liquor. It must be proved that he was under the influence. That must be to such an extent as to be incapable of having proper control of a vehicle. In lay terms that means proof that he was so drunk as to be incapable of controlling a motor vehicle. A witness can give evidence of his or her general impression of an accused's sobriety provided that the facts are given upon which that opinion is based. It is not unusual for lay witnesses to give evidence of a person’s drunkenness based on such matters as unsteadiness, slurred speech, strong smell of alcohol, red eyes, lack of coordination, inability to communicate or perform simple tasks and the like. As a matter of practice, in drink driving cases, an examination by a doctor or experienced Police Officer is normally undertaken to enable the doctor or Police Officer to form an opinion on the degree of the suspect's insobriety.”[3]


  1. In another case of People v Thomas[4], Justice Simon of the Appellate Court of Illinios when dealing with the issue of driving a motor vehicle while under influence of intoxicating liquor stated: “Testimony that the breath of an accused smelled of liquor is not sufficient to prove that a person was intoxicated.”[5]
  2. These authorities suggested that the prosecution need to do more than just relying on mere suspicion or guesswork on the observation that a defendant is suspected of being drunk with alcohol. Preferably, a straight line test should be sufficient or determinative. The need for straight line test is crucial in the absence of a breathalyser.
  3. For this case, only John Talao stated he smelt alcohol from the defendant apart from his other observations he made of him and the smell of the alcohol in the vehicle. His colleague, Michael Linday, however denied any odour of alcohol from the defendant despite he was present at the Kukum Police Station and could see Talao and the defendant were talking to each other.
  4. By far, that is the evidence relied on by the prosecution to impute the defendant to the charge involving driving when under the influence of alcohol.
  5. The defendant on the other hand and his witness vigorously denied any consumption of liquor prior and during the course of the drive. Therefore, this comes back to the issue of whether this lone evidence from PW2 is credible, reliable and capable of proving the prosecution’s case beyond reasonable doubt.
  6. I have alluded to earlier that there is no straight line test being conducted for the defendant. Therefore, to take for granted that this observation alone is sufficient without additional test such as conducting a straight line to determine his coordination and whether or not he was staggering with his walking is an educated assumption based on loose footing. This finding is based on the fact that all the witnesses denied the defendant consumed alcohol except for PW2 whose evidence insisted to be entrenched.
  7. Base on this and due to lack of corroboration, I am not satisfied that the defendant was drinking alcohol prior to the accident. The smell of the liquor on his body could be from the bottles of alcohol that were thrown at him when he was attacked by the group of men at the road side. His evidence that he smelt alcohol inside the car is insufficient because there wasn’t any explanation whether this was made in the presence of DW2 who remained in the car after the defendant walked across the road. No evidence has been led to establish this ring of evidence. The failure of this adds another predicament to the prosecution’s case.
  8. His facial observation would be suggestive of being traumatised and unsettled as a result of being attacked and injured by a group of people near the Bahai road side that night.
  9. This this creates doubt whether he was in fact consuming alcohol at all and hence, he is to be given the benefit of this doubt. I therefore acquit him forthwith of the first charge of driving under the influence of liquor contrary to section 43 of the Road Transport Act.
  10. This brings me to the second charge of careless driving. The test as it remains to be the law in Solomon Islands in determining careless driving is an objective test and not a subjective test.
  11. There is no issue that the accident occurred as a result of the other vehicle entered into the junction in front of the defendant’s vehicle when the defendant approached the said junction on the high lane and was travelling at about 50km/h – 60km/h.
  12. According to PW1, he said he waited at the waiting bay in front of the feeder road for both traffics to clear before he drove in the junction. He drove in when both traffics were clear. When he entered the junction, he moved to the low lane and that when his vehicle was hit at the back. The evidence is silent about how far from the intersection the collision occurred. This is important because this may indicate the fault on the defendant if the accident occurred further up and far from the junction along a straight road.
  13. Without any proper explanation and any sketch plan by the prosecution, the Court is left to rely on the sketch plan produced by the defendant. From the explanation given by the defendant as the one who travelled in a straight road towards the junction combined with the version of Ruka who was with him in the vehicle, it seemed his explanations of the movement of the vehicles brings logic to this case.
  14. This is a case which the vehicle collision occurred as a result of two vehicles intersecting at the junction. One was traveling on a relatively high speed as an oncoming vehicle on the high lane along the highway while the other was intersecting or driving into the junction in order to use the east bound highway.
  15. Hence, this brings me to the issue of who has the right of way especially at a junction road in order to avoid any traffic confusion and accident.
  16. To decide this question, I will refer to section 50 (4) of the Traffic Regulations Cap 131 which states: “The driver of any vehicle which is being driven on its offside of the road shall give way to any oncoming traffic”. This section equally applies in this case where a road is intersected by a junction. In my view, the driver waiting at the junction must give way to the oncoming vehicle and only drives when the road or the traffic ahead is clear for a sufficient distance. Sufficient distance must take into account the nature of the traffic congestion and the speed of oncoming vehicles. This is more important at intersections along a highway. That must have been the reason why the need for vehicles to wait at a waiting bay before driving into a junction. Thus, the duty to ensure the traffic is clear for a sufficient distance rests on a driver who waits at the junction road.
  17. On the other hand, the need to allow timely and orderly flow of traffic rests on the oncoming vehicles using the main road other than those at the junction road. This then normally recedes at a roundabout because to allow both traffics to travel at once would inevitably confuse the traffic and would result in possible accidents and collisions.
  18. When the evidence of the defendant and DW2 is considered in its entirety, the accident was caused as a result of the defendant trying to avoid an imminent motor vehicle collision caused by the sudden intrusion of the other vehicle at the junction area. This caused him to move from HF1 position to the low lane. However, the other vehicle also moved to the low lane which made him to make a second attempt to return to the high lane to avoid any collision Unfortunately, due to his speed and close proximity of the vehicles, it somehow collided to its right back boot resulted in the accident.
  19. This situation, in my view, was caused by the vehicle in front and cannot be said to due mainly by the careless driving of the defendant. The accident cannot be said to be the fault of the defendant but occurred only because it was unavoidable given the danger or emergency situation confronted by the defendant at that material time.
  20. That situation even a prudent and competent driver would not have avoided it given the speed of the vehicle, the sudden turning into the junction road by the other vehicle and the very close distance between them. In such a case, the driver would escape conviction as authoritatively set out in Simpson v Peat,[6] where Lord Goddard CJ in an unequivocal terms echoed:

“Suppose a driver is confronted with a sudden emergency although no fault of his own; in an endeavour to avert a collision he swerves to his right – it is shown that had he swerved to the left the accident would not have happened; that is being wise after the event and, if the driver was in fact exercising the degree of care and attention which a reasonably prudent driver would exercise, he ought not be convicted, even though another and perhaps more highly skilled driver would have acted differently”[7]


  1. Having settled on this conclusion, I am also not satisfied that the prosecution has proven its case beyond reasonable in relation to the second charge of careless driving against Kurt Harry Fioga and accordingly, he is also acquitted of the charge of careless driving contrary to section 40(1) of the Road Transport Act.
  2. Aggrieved party may appeal this judgment within 14 days as of this date.

ORDERS OF THE COURT


(A) Acquit Kurt Harry Fioga of both charges.


(B) Aggrieved party may appeal this judgment within 14 from today.


BY THE COURT


.....................................................................................

Augustine Aulanga – Principal Magistrate


[1] PW refers to Prosecution Witness
[2] DW refers to Defence Witness
[1994] FJHC 27; HAT0058j.199[3]s (24 March 1994)
[3] At page 2 of the judgment
[4] 340 N.E. 2d 174 (III. App. Ct.1975)
[5] At page 3
[6] [1952] 2 QB 24
[7] Page 27-28 of the judgment

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