Regina v Luvena [2017] SBMC 19; CMC-CRC 173 of 2016 (15 June 2017)

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, June 1 and 8, 2017
Judgment: June 15, 2017

JUDGMENT

1. It was a fine Thursday afternoon on 21^st April 2011, perhaps before 3:00pm, Mr. Allen Ramolelea’s life was cut-short in a nasty motor vehicle accident. Minutes before that, he was standing at the side of the road outside his office at Maromaro area - Prince Philip Highway, with his other workmates, waiting to be picked up by their Director in the office vehicle. When they were waiting along the pavement of the western bound lane, he decided to walk across to the other side of the traffic close to the seaside.
   
2. As he walked and reached the inner lane of the western bound lane, he was struck by a bus driven by James Luvena (“accused”). The impact was horrific. His body was thrown backwards and landed on the tarmac, closer to the outer lane. As a result, his head was deeply lacerated; his right arm twisted to his back and his right leg was fractured that his bones were protruding out of the skin. He was taken to the National Referral Hospital but died before arrival.
   
3. The prosecution says the accident occurred because the accused was driving recklessly or at a speed or manner dangerous to the public having regard to all the circumstance of the case including the nature, condition and use of the road, and amount of traffic which was actually at that time which might reasonably be expected to be on the road. Therefore, he should be guilty of section 38 of the Road Transport Act.
   
4. The defence on the other hand did not deny the fact that it was the accused who drove the vehicle on the Maromaro road and as a result of that driving, an accident did occur resulting in the death of Ramolelea (“deceased”). The defence however argued that the accused was driving at a reasonable speed expected of that highway but, it was the deceased who somehow walked across the road at short distance which made the accident unavoidable. Therefore, it was the deceased who was at fault and not the accused.
   
5. The prosecution’s case consists of four witnesses namely; Eddie Hori^[1], Moses Misi^[2], Duddley Seda^[3] and Joel Donia.^[4] The prosecution also tendered a police statement of Minnie Arosi Leigh^[5], album of photographs of the crime scene including photographs of the deceased taken after the accident^[6] and a medical report of the deceased produced by Dr. Bardley Ludawane^[7].
   
6. The defence case on the other hand consists of only the sworn evidence of the accused himself.
   
7. Deduced from all the evidence adduced in the trial, the issue here is rather straightforward. That is; whether the accused driving was in all the circumstances of this case, including the nature, condition and use of the road and amount of traffic which was actually at that time which might reasonably be expected to be on the road, all amount to reckless or dangerous driving which caused the death of Allen Ramolelea.
   
8. Since this is a statutory offence, the prosecution has the burden to prove beyond a reasonable doubt that death was a result of the accused’s dangerous driving or reckless driving. Failure to discharge that burden will result in the accused be given the benefit of the doubt.
   
9. Rather than to regurgitate the details of matters that are peripheral and undisputed, I decide to go straight to the assessment of the evidence offered by the prosecution and defence to resolve the contested issue.
   

Movement of the vehicle at the time of the collision.

10. The evidence shows the accused was driving from GPOL area to town. He then stopped at Grayleen bus-stop at Ranadi to drop off a passenger. After he left Greyleen, he then travelled on the inner lane down the Prince Philip Highway. He was sober and did not jump lane at any stage before the accident occurred. There were other vehicles also using the road when he drove along the Prince Philip Highway. He admitted that he was driving between 60km/h – 70km/h when he approached Maromaro area.
    
11. Apart from the accused version, three prosecution witnesses^[8] had observed and described the movement of the bus prior to the accident.
    
12. The evidence of Hori shows that on 21^st April 2011 and at about 2:00pm, he and his other colleagues including the deceased were standing outside their office at the side of western-bound lane at Maromaro area waiting for their Director to pick them in their office vehicle. When they were still waiting, the deceased decided to walk over to the opposite traffic or the eastern bound traffic near the seaside. He recalled the traffic was empty when the deceased started to walk across the road, meaning - it was only the accused’s bus that approached the deceased. When the deceased was about to step on the island, a bus came in a high speed and ran straight into him. The bus hit the deceased and threw his body backwards to the outer lane. He described the speed of the bus as “very speed”. He estimated its speed as between 80km/h – 100 km/h. The bus did not stop but continued to travel all the way down the road despite it had ran into the deceased.
    
13. The evidence of Moses Misi is more or less consistent with Hori in terms of his observation of the movement of the bus immediately before the accident occurred. In his evidence, he stated that he and the deceased were inside the office that afternoon before the accident occurred. The deceased then told him that he would go and wait for their boss on the other side of the road near the seaside. From inside his office, he looked through the window and saw the deceased walked across the road towards the island. As he nearly reached the island, he was hit by a bus that travelled at a very high speed. He described the speed as “too much” and estimated that it must have travelled between 80km/h – 100km/h. He didn’t hear any tooting from the bus to indicate warning when confronting an emergency.
    
14. The evidence given by Duddley Seda explained the position of the bus when the deceased started to walk across the road and the movement of the bus seconds before it hit the deceased. Immediately before the accident, he was inside his vehicle after been to the Panatina ATM machine and was waiting at the Panatina junction waiting-bay to travel up to Ranadi. Whilst at the waiting bay, he looked to the eastern side of the highway and saw two vehicles coming down the western bound lane. A bus traveling on the inner lane and a car on the outer lane. The bus was traveling behind the car whilst approaching the Fielders Industry area. He clearly saw the bus overtook the car before the Fielder’s turning area and was travelling at a high speed. That was the time the deceased started to walk in a fairly quick manner across the western bound lane, heading towards the seaside. As the bus came closer to the deceased, he knew it would hit him, hence, he shouted saying “seeeehhh” inside the vehicle in reaction to the anticipated scene. As a driver himself, he said that the bus was traveling at a “high speed”.
    
15. It is clear that all the prosecution witnesses are not the passengers of the bus or even the car but witnesses who observed the movement of the bus from a stationary position at the roadside. Their descriptions of the movement of the bus are very important when drawing from the views of bystanders. Despite there were some inconsistencies in their observations in terms of the number of vehicles approaching the deceased, how the bus hit the deceased and which side of the bus that struck the deceased, those inconsistencies in my view are expected when trying to recall an event more than 5 years ago. Even if those inconsistencies are present, they are minor to render their evidence unreliable. However, their respective recollections and descriptions of the speed of the bus when it hit the deceased are the important aspect of their evidence that stand out clearly. Accordingly, I am satisfied that they are sufficient to establish the accused was driving at a high speed when he ran into the deceased.
    
16. I accept their evidence as reliable to show the movement or speed of the bus, during the fatal collision. This piece of evidence is more credible taking into account the own admission of the accused that he was travelling beyond the speed of 60km/h when he approached the deceased.
    
17. However, the matter does not end there. The defence raised that it was the deceased who walked across the road at short distance which made the accident unavoidable. Therefore, the prosecution has the burden to negate that assertion in order to prove its case beyond reasonable doubt. Otherwise, the accused must be given the benefit of the doubt.
    

Whether or not the deceased walked across the road at short distance which made the accident unavoidable

18. From all the prosecution’s witnesses, only Duddley Seda’s evidence is relevant to this.
    
19. According to Seda’s evidence, he saw the bus was more or less at the Fielders area and was travelling behind a car when the deceased started to walk across the road. That bus then overtook the car at the Fielders turning area or feeder road. He then looked to the left side of his vehicle and when he looked again to where the deceased was walking, he saw the bus hit him. That bus just ran straight into him.
    
20. Against his evidence, the explanation given by the accused is that he saw the deceased from a short distance describing the distance from the witness box to the cement wall of the holding cell in Court Room 2^[9]. By estimation, this would be about 10 – 12 meters. With that close distance, he tried to avoid the deceased by driving slightly to the island but cannot avoid him so the left side of the bus unfortunately hit him. He said that he applied half-brake but decided not to stop the vehicle otherwise it would cause an accident to other vehicles travelling at the back. He also explained that he decided not to turn to the outer lane otherwise he would hit the deceased and other vehicles using the outer lane might run over him.
    
21. Before examining the evidence given by the accused, it is important to note that from Ella Motors area to the site of the accident, there are no big trees at the side of the western bound lane. Both sides of the pavement are clear since it is a straight urban public highway. It also runs through office buildings, a fish market and few residential buildings. There is not any overhead bridge and pedestrians can normally walk across at any section of the road.
    
22. The nature and use of the Maromaro road indicates the need for drivers using that road to regulate their speed, take extra care and lookout properly during the course of driving and not to treat that road as a superhighway. A failure to adhere to this is a symptom of a negligent driving.
    
23. I find the explanation of the accused orchestrated and unimpressive. He is a witness who tries to isolate him from any fault and exaggerated the facts to put blame on the deceased. The overall tenor of his evidence is nonsensical in the following manner:
    
    • 23.1 First, as seen by Seda, he had already driven past the car for a sufficient distance when approaching the deceased. Therefore, as the driver of the bus, he is under duty to look properly to the front of the vehicle and should see the deceased from a far distance if indeed he was concentrating at both sides of the road during his driving.
      
    • 23.2 Second, if the deceased had walked across the road at short distance as he claimed, it is reasonably expected that he or the car using the outer lane would toot the vehicle to indicate the late crossing and more importantly to indicate confronting an emergency situation. In this case there wasn’t any such signals from both vehicles.
      
    • 23.3 Third, his vehicle was well at the right side of the road. Hence, with the height and size of the bus, he should easily see the deceased from a far distance who was at the left side of the road.
      
    • 23.4 Fourth, if the distance the deceased walked across the road is just less than 12 meters away as claimed by the accused, any reasonable pedestrian would not that stupid to take the risk of walking across the road in front of an incoming vehicle especially on a public highway.
      
    • 23.5 Finally, if he was travelling at a reasonable speed, he would easily take reasonable steps to avoid hitting the deceased. The fact that he cannot avoid hitting the deceased is due to the speed he was travelling was extremely fast, making it difficult to avert the collision.
      
24. His evidence would be impressive or truthful if he calls the bus conductor or any passenger in the bus to verify his assertion.
    
25. The only explanation I find is the accused was travelling at a speed that is dangerous and reckless to the public taking into account the nature, condition and use of the road at the material time. His manner of driving is more or less like road-racing to quickly reach the next destination and therefore failed to see the deceased who was crossing the road. Even if he was driving at 60km/h for example, that velocity is still dangerous or unsafe and certainly creates an obvious risk to any road user who might be using the road or to avoid any collision in an event an accident occurs. By a simple mathematical calculation of that speed of 60km/h, he will cover a distance of 16.6 meters per second when driving in that manner^[10].
    
26. Therefore, even if the deceased is about 50 meters ahead of him for example, it would only take him about 3 seconds to reach him. Is that speed not dangerous or one that does not create any risk to any road user who might be using the road? I don’t think so. In my view, that is utterly dangerous, culpable and selfish piece of driving. Moreover, it is one that disregards the safety of other road users who might reasonably be expected to use that highway at the time. Hence, the accident.
    
27. Based on these resultant facts and the reasons alluded to herein, I find the accused, James Luvena, is guilty as charged.
    
28. 14 days right of appeal.
    

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

Augustine Aulanga - Principal Magistrate

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^[1] Prosecution witness 1 (PW1)
^[2] PW2
^[3] PW3
^[4] PW4
^[5] P1
^[6] P2
^[7] P3
^[8] Eddie Hori, Moses Misi and Duddley Seda
^[9] Central Magistrate’s Court
^[10] For example (60,000m) / (3600 seconds) = 16.6 m/s