Regina v Luvena [2016] SBMC 35; Criminal Case 173 of 2016 (22 November 2016)

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

Criminal Case No. 173 of 2016

REGINA

-v-

JAMES LUVENA

Prosecution: Ms. F. Fakarii of ODPP
Defence: Mr. M. Holara of PSO
Trial: November 1-3, 2016
Date of No Case: November 22, 2016
To answer Hearing: November 3, 2016
Date of Ruling: November 22, 2016

RULING ON NO CASE TO ANSWER

1. The defendant, James Luvena, was charged for causing the death of Allen Ramolelea (deceased) by reckless or dangerous driving contrary to section 38 of the Road Transport Act. It was a broad daylight hit and run motor vehicle accident that occurred on 21^st April 2011 along the Prince Philip highway on the inner lane of the west bound traffic at Maromaro area, East Honiara.
   

ALLEGATION

2. The deceased was an employee of the Ministry of Agriculture and Livestock Development at the time of the accident. His office was situated on the side of the road where Fielders Industry Office was located at Maromaro area.
   
3. On 21^st of April 2011 between 2:00pm – 3:00pm, the deceased left his office and walked across the highway road at Maromaro to wait for his superior to pick him at the other side of the road. As he reached the high lane of the western bound traffic, he was fatally hit by a bus driven by the defendant. That bus was a public bus registered as AB-8447. According to the Crown’s allegation, he was observed to be driving at a very high speed or in a manner described by the Crown as “in a reckless or dangerous” which resulted in the vehicle inevitably hit the deceased on that part of the road.
   
4. The bus hit the deceased and threw him on the tarmac, resulting in his death on the same day. The defendant didn’t stop but continued to drive despite he had hit the deceased.

5. The Crown called four witnesses^[1] and tendered 3 exhibits^[2]. After the Crown closed its case, counsel for the defendant applied that there is no case for the defendant to answer pursuant to section 197 of the Criminal Procedure Code (CPC).
   

SUBMISSIONS FROM PROSECUTION AND DEFENCE

6. Verbal submissions were made by both counsels to suit their respective sides. I already considered and take into account the points raised. Thus, it is needless for me to regurgitate the details of the various submissions put forward by either side, save to say the defence argued there is insufficient evidence in so far as the evidence adduced by the Crown against the defendant is concerned and therefore, he is not required to make his defence. The Crown on the other hand made contrary submissions to the defence. In the Crown’s view, the evidence adduced from the witnesses and the exhibits were sufficient. Hence, the case should proceed to the defence case.
   

ISSUE FOR CONSIDERATION

7. It appears during the trial that the only contested issue is whether or not the defendant was reckless or dangerous with his driving at the material time having regard to all the circumstances of the case including the nature, condition and use of the road and the amount of traffic at that time or might be reasonably expected to be using the road at the material time, which resulted in the death of the deceased.
   
8. Deduced from this issue, the question for me to decide is whether there is sufficient evidence adduced by the Crown to the facts in issue in order to require the defendant to make his defence. If I answer it in the affirmative then, the case will proceed to the defence. Conversely, if I answer this question in the negative then, I must stop the trial at this stage.
   

LAW ON NO CASE TO ANSWER AT THE MAGISTRATE COURT

9. To begin, section 197 of the CPC is the legal regime for this application. It states:
   

“if at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused.”

10. The key word in the section is “sufficiently” which comes from the word ‘sufficient’. According to Australian Modern Oxford Dictionary,^[3] it defines the word ‘sufficient’ to mean ‘enough.’ This means, as long as prosecution produces/adduces enough evidence to the elements of the charge then, the case must proceed to the next stage - that is to the defence case.
    
11. The test to be applied at the Magistrate court is well settled and has been cited on many occasions especially the case of R v Tara.^[4] In that case, Palmer CJ, succinctly explained the test as follows:
    

“...in the Magistrates court, the test to be applied is that there is either no evidence or insufficient evidence to prove the element of the charge”.^[5]

12. The court in Tara also referred to R v Maenadi Watson, Smith Pitapio, Youngston Watson & Saro Norman^[6] and R v Lutu^[7] to help explained the law on no case to answer in the Magistrate court. The court then concluded that the case of Lutu is the authority on no case to answer at the Magistrate court.
    
13. Despite the case of Lutu, there are still some confusions about the law on no case to answer at the Magistrate court where on numerous occasions, parties seemed to refer to R v Somae^[8] and R v Tome^[9] which are authorities for no case to answer in the High court and not the Magistrate court. This distinction needs to be kept in mind because the lack of understanding of the applicable law always leads to a lot of misconceived submissions when making an application under section 197 of the CPC.
    
14. To ensure consistency with the authority on no case to answer at the Magistrate court, I am bound to follow and apply the requirements set out in Lutu’s case that issues regarding inconsistencies, honesty and credibility of the witnesses are irrelevant to consider at this stage. They are matters that should be properly considered at the end of the trial as a whole. My duty is to simply rule on the sufficiency of the prosecution’s evidence when taken its case at its highest.
    
15. From all the evidence produced by the Crown, only the evidence of Eddie Hori (PW1), Moses Misi (PW2), Duddley Seda (PW3) and the album of the photographs marked P2 are relevant to consider at this stage.
    

EVIDENCE ADDUCED BY PROSECUTION

16. Eddie Hori (PW1) is the first witness for the prosecution. His evidence revealed that on 21^st of April 2011 before the accident occurred, he was standing with the deceased and another by the name of Gilson Terea at the side of the western bound lane of the highway at Maromaro area. Whilst they were still standing, the deceased left them and walked across the main road. That time the traffic on the western bound lane was empty. As he was about to reach the island, a white bus travelled in an estimated high speed of above 80km/h hit him and caused him to fall on the road. That occurred about 9 meters from where he was standing. The bus did not stop but continued to drive down the road after it struck the deceased. He observed the bus was travelling straight along the road before it hit the deceased. He later clarified that he was not concentrating on the bus or even at the deceased at the time of the fatal impact but only realized the deceased was hit by the bus when he was lying on the road.
    
17. Moses Misi (PW2) is another witness for the prosecution. His evidence revealed that before the accident occurred, he stood inside their office and saw the deceased walked across the main road to the other side of the road. When he was about to reach the island, a bus travelling at a high speed struck him and threw him on the driveway. He described the speed of the bus as “too much.” He saw what happened while he was inside their office and therefore, except for the speed of the vehicle, he was unable to say whether the bus was travelling in a straight line or zigzag manner prior to hitting the deceased.
    
18. The evidence of Duddley Seda (PW3) revealed that immediately before the accident, he was driving his vehicle and waited at the waiting bay at the Panatina junction, intending to go to Ranadi. While he waited at the junction, he looked to his right and saw a white car travelled past Ella Motors and heading westerly direction. As the car kept on approaching, he saw an old person who was the deceased walked across the road with a brief case in a briskly manner. He crossed the road while the car still approached him. He also saw a bus followed the back of the car on the inner lane but at a high speed. That bus overtook the car after the Fielders feeder road. He marked that area where the bus overtook the car by DS3. He recalled the bus ran straight towards the deceased who was still on the road and this made him to shout since he knew the bus would hit the deceased. He saw the bus hit the deceased on the inner lane section of the road and severely knocked him down. He marked DS2 in the photograph 8 to show the place where the bus hit the deceased.
    
19. The evidence admitted in the album of photographs shows the accident occurred in an urban highway close to offices, the Fielder’s factory and few meters away from the Panatina junction road. This evidence is important because it shows the type of road, the nature of the road and the use of the road by vehicles, and also other road users that might be reasonably expected to be using the road.
    

COURT’S ASSESSMENT – IS THERE SUFFICIENT EVIDEENCE?

20. The extracts of the relevant evidence from these three witnesses including the photographs are essentially the evidences that the prosecution’s case depends on for this application. When all the evidences are considered in their entirety, the question now is; is there sufficient for the defendant to make his defence? I will answer this question in the affirmative and according ruled that there is sufficient evidence adduced by the Crown in relation to the contentious element of whether or not the defendant was reckless or dangerous with his driving at the material time having regard to all the circumstances of the case including the nature, condition and use of the road and the amount of traffic at that time or might be reasonably expected to be using the road at the material time, which as a result, he fatally hit the deceased.
    
21. The observations made by Hori, Misi and Seda are sufficient to show that he was in fact driving at a very high speed until he hit the deceased. The evidence of speeding is a relevant indicator to show that this is also a dangerous or culpable piece of driving taking into account that it may expose not only the driver but other road users to high risk of motor vehicle accident in the event an accident occurs. Despite no evidence of the exact rate of the speed, the observations made by the witnesses were enough to describe the acceleration of the bus at the material time.
    
22. I am also satisfied that there is sufficient evidence to show that the defendant had already overtaken the white car for a sufficient distance before he hit the deceased. Further, as he overtook the car, there wasn’t any vehicle in front of him to block his view as he approached the deceased.
    
23. Despite I have noted some inconsistencies regarding the observations made by these witnesses in relation to how the deceased was hit by the bus, I am obliged not to consider them or even to evaluate them at this stage since by doing so, it is not only improper but will offend the principles laid down in Lutu.
    
24. Based on those reasons alluded to, I ruled that the defendant has a case to answer and order that this matter must proceed forthwith to the defence case.
    
25. Order accordingly.
    

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

Augustine Aulanga – Principal Magistrate

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^[1] PW1 – Eddie Hori, PW2 – Moses Misi, PW3 – Duddley Seda and PW4 – Joel Donia
^[2] P1 – Police Statement of Minnie Arosi Leigh dated 20/04/2015, P2 – Album of Photographs of the Crimes Scene including the photograph of the deceased and the bus and P3 – Medical Examination Requisition Form inclusive of the Medical Hand Written Report of Dr. Bardley Ludawane dated 18/4/2012
^[3] 3^rd Edition, 2010, Oxford University Press, Victoria.
^[4] [2005] SBHC 91
^[5] At page 2 of his Lordship judgment
^[6](Unrep. Criminal Case No. 16 of 1997)
^[7] [1985/86] SILR 249
^[8] [2005] SBCA 11
^[9] [2004] SBCA 13