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Regina v Pentani [2017] SBMC 53; Criminal Case 259 of 2017 (25 October 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )


CRIMINAL JURISDICTION


Criminal Case No. 259 of 2017


REGINA


-V-


PITSON PENTANI


Trial dates: July 25, 27-28, 31, September 27, 2017

Date of closing submission: Dispensed with, parties just handed in their electronic written submissions through the clerks
Date of Decision: October 25, 2017


Mr. L. Adifaka for the prosecution
Mr. M. Pitakaka for the defendant


JUDGMENT


  1. In this trial, the Court is to decide whether or not the defendant, Pitson Pentani, (“defendant”) was careless in his driving in relation to a broad-day light motor vehicle accident that occurred on the 18th of January 2017 at the Chinatown area in Honiara. Following the accident, he was charged with careless driving, contrary to section 40 (1) of the Road Transport Act.
  2. Section 40 (1) makes careless driving an offence. The offence is committed when a driver of a motor vehicle drives without due care and attention or without reasonable considerations for other road users. Either of these two limbs are sufficed to establish the ingredients needed for this offence.

The case for the prosecution


  1. The prosecution opened its case in its opening submission that the defendant was driving carelessly when he made a U-Turn on the same road the complainant was driving, resulting in the motor vehicle collision. It becomes apparent during the trial that the U-Turn meant herein by the prosecution is the act of the defendant when he drove out of the shops in front the John Tom and Sons building and turned west bound direction on the driveway other than an instant turning to the opposite lane whilst driving along the main driveway.

Defence’s case


  1. The defence raised the contrary view and said that he never made any U-Turn at all as described by the prosecution in its opening address. In fact, he drove into the main road from one of the shops from the John Tom and Sons building as opposed to what has been described by the prosecution.
  2. The defence instead put the blame on the complainant as the one who was driving carelessly and at a high speed, resulting in the motor vehicle collision. According to the defence’s view, the defendant decided to drive into the main road when the complainant was about 100 meters away from him and in his view, this distance was reasonable for him to drive into the main road. However, it was the complainant who was driving at a high speed and caused the two vehicles to collide. Therefore, the complainant was the one who was at fault and not the defendant.

Prosecution’s evidence


  1. The prosecution’s evidence consists of 2 witnesses and 4 exhibits.
  2. Peter Philip Maeue is the driver of the 3 ton pickup vehicle MB-4636 that collided with the defendant’s vehicle. Immediately before the collision, he was travelling at about 60km/h towards the Koloale junction, heading towards the Lawson Tama direction. There were two other persons sitting with him in the cabin. As he came closer to the junction, he could see the defendant’s vehicle started to move out from a shop on the opposite side of the road to the Chungwa School. That vehicle moved towards the main road and signalled to turn left, meaning – towards the Lawson Tama direction. He decelerated to allow the defendant’s vehicle to move to his lane on the main road so that he could follow him from behind, but instead, the defendant made a sudden contrary turn to the west bound lane. He said that the defendant made that turn from a very close distance of about 6 meters to him. Instantly, he decided to move to the opposite lane to avoid colliding with the defendant but unfortunately, the left side of his vehicle bumped into the front right side of the defendant’s vehicle.
  3. He was panic so he stepped on the accelerator and this made the vehicle continued to move until it stopped in front of one of the buildings on the right side of the road known as ‘Steven and Sons Building’.
  4. Christina Luisa is another witness who stood at the side of the road in front one of the shops in the Steven and Sons building before the two vehicles collided. She was standing outside a vehicle she came in with her family members when the motor vehicle accident occurred. That location was opposite the John Tom and Sons building. She remembered the traffic was empty when the two vehicles collided. She saw the pickup vehicle was travelling at a moderate speed before it collided with a black vehicle (the defendant’s vehicle).
  5. When asked in cross examination whether the complainant’s vehicle was the one that was travelling at a high speed, she explained that it was just travelling at a moderate speed but it was the defendant who instantly drove in the main road without giving a chance to the pickup truck, resulting in the motor vehicle collision.
  6. Exhibit P2 shows a rough sketch of the crime scene. It depicted 11.3meters as the width of the road. There were two skid marks on the tarmac road. One is 12.5 meters while the other is 2.5meters. The 12.5meters is the skid mark of the complainant’s vehicle when it moved towards the direction of the Steven and Sons building in trying to avoid the defendant’s vehicle. The 2.5meters distance mark indicated the movement of the defendant’s vehicle when it was pushed back as a result of the collision. Its front was facing the Steven and Sons building after the collision. The distance from its front to the end of the tarmac when it was in a stationary position after the accident is 1.6meters.
  7. That is essentially the case for the prosecution.

Defence’s case


  1. The defendant, Piston Pentani, is employed as a driver for the Solomonstar Company Limited at the time of the offending. He has been driving since 1983 and worked mainly as a driver during his past employments. He said that before the accident occurred, he and one of his colleagues, George Metuoli, went together in his vehicle to deliver newspapers at the shops at Kukum Shopping Centre. After been to Kukum, they drove to Chinatown for another delivery to a shop called ‘Abundant Life Shop’ located in one of the rooms of the John Tom and Sons Building. After been to the Abundant shop, they decided to go to one of their offices at the Tongs buildings at Point Cruz.
  2. He reversed the vehicle and waited at the side of the road in order to drive west bound direction. Whilst he was still waiting, he saw the 3 ton vehicle at about 100 meters away from him and so he drove into the main traffic. However, as he reached the west bound lane, his vehicle was hit by that 3 ton. He explained that the 3 ton hit the front right-side of his vehicle and twisted the front of his vehicle backwards facing the Steven and Sons building.
  3. He said before the collision, he saw the driver of the 3 ton driver seemed to be talking to other passengers who sat with him in front in the cabin and that must have been the reason why he failed to concentrate on his driving. He described the 3 ton was traveling at a high speed towards him resulting in the collision.
  4. It was asked during cross examination about the distance he saw the 3 ton and he said that he estimated it to be about 100 meters from him as the point he decided to drive in the main road. He maintained that he was concentrating with his driving when he drove in the main road.
  5. The evidence of George Metuoli corroborates the evidence given by the defendant. He was also in the vehicle during the entire course of the drive. He also said that the 3 ton pickup vehicle was about 100 meters away from them when they drove into the main road. That vehicle collided with the front right side of their vehicle and it twisted the front of their vehicle to turn 45 degrees back towards the Steven and Sons building when they were already on the west bound lane. He described the 3 ton was travelling at a high speed when it collided with them the material time. He denied seeing any vehicle parked in front of the store when the accident occurred.
  6. In cross examination, he agreed that the defendant was his work mate. He maintained his evidence that they were already on the west bound lane when the 3 ton pickup collided with them. He agreed when question by the court that he and the defendant had discussed this case but only in relation to the accident.

Court’s Assessment of the Evidence


Facts found to be uncontested


  1. I find the following facts not contested and accordingly, I admit them for purposes of my findings:
  2. As I have already alluded to at the outset, the main question herein is; whether or not the defendant is careless in his driving the material time.
  3. To decide this issue, the following are the important aspects of the case that need to be considered:
  4. I now address these pertinent aspects of the case.

The estimated distance between the two vehicles when the defendant started to drive in the main road


  1. The defendant and his witness have said in their evidence that the defendant drove in the main road when the complainant’s vehicle was about 100meters from them. The complainant on the other hand said that the defendant drove in at a very short distance of about 6meters in front of him. There is not any witness for the prosecution to confirm that except the complainant himself.
  2. I find the version of the defendant is corroborated and reflecting the distance between the two vehicles. The distance estimated by the complainant is not reliable taking into account the 12.5meters skid marks as the place where he had applied the brakes is longer/further than 6meters. There are other potential witnesses to this who should confirm this but unfortunately were not called. For example; the ones sitting with the complainant in front in the cabin. The reason why police did not obtain their statement is not known and probably, unfortunate.

The estimated speed of the oncoming vehicle or the complainant’s vehicle


  1. The complainant estimated that he was travelling at about 60km/h when he travelled towards the Koloale junction. In my view, a simple calculation of this speed will show that he will cover a distance of 16.m per second[1]. For a distance of about 100meters, he will take only about 6 seconds to cover that distance.

The site of the collision in relation to the location where the defendant drove out of from the side of the road


  1. The collision occurred at a location very close to where he left the roadside as depicted in exhibit P2. It appears that when he was on the west bound lane that he was hit by the complainant’s vehicle. The site of the accident is important because it will indicate whether the defendant had driven at short distance to the front of the oncoming vehicle. There is not any evidence that the defendant was already travelling for some meters along the west bound lane and was far from the site where he drove out from when he was hit by the 3 ton vehicle. The proximity of the site of the accident to where the defendant drove out from the roadside to me indicated that he was hit by the 3 ton as soon as he reached the west bound lane.

The nature of the impact


  1. Exhibit D4 shows the damage caused to the front of the defendant’s vehicle. The nature of the damage is substantial and also severe. The force of the impact brought upon the defendant’s vehicle was significant. In my view, the manner in which the complainant’s vehicle was travelling at was at a high speed and combined with the size of the vehicle, the nature of that damage is inevitable.

Decision


  1. In this case, one is blaming the other as the one driving at a high speed and resulted in the accident while the other said the accident was caused by driving into the main road at short distance to an oncoming vehicle as the causes of the accident herein.
  2. The facts of this case is very easy to decide. In deciding who is at fault herein, the Court will decide on who has the right of way or the priority for safe passage of the traffic especially for vehicles who were waiting at the roadside compared to oncoming vehicles using the main driveway.
  3. The answer to this lies in 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”.
  4. This section makes is obligatory for vehicles that were waiting at the side of the road to give way to the vehicles using the main driveway before driving in the main road only when the traffic is clear and safe for one to do so. The decision to drive in the main road must take into account the distance, the nature and use of the road and the speed of the oncoming vehicles since the failure to do so would result in motor vehicle collision.
  5. Even if I accept the complainant is travelling at the speed of 60km/h, as I have earlier on explained, this will take him about 6 seconds to reach the defendant. In my view, when considering that speed objectively, it is clearly not safe for the defendant to drive into the main road in front the complainant’s oncoming vehicle that was travelling at 60km/h. No sane person or a competent and careful driver would do that in that risky situation. The defendant should have waited and allow the complainant’s vehicle to pass through before he could drive into the main road. This requirement is even more stringent for him as the driver who was waiting at the side of the road as opposed to an intersection or roundabout for example.
  6. In careless driving offences, what the defendant himself thought about the possible outcome of his driving is immaterial. To him it might be correct but when adjudged objectively, it might be different and against the required legal test in motor traffic cases. It is not a subjective, but rather an objective test.
  7. The defendant’s decision to drive into the road at the material time is unfortunate. Had he paid attention to the speed of the complainant’s vehicle, he would have averted the collision. He decided not to but drove in front of the oncoming speeding vehicle.
  8. The facts of this case show that the situation resulted in collision was created by the defendant for his late driving across the road in front of the oncoming speeding vehicle. The skid marks of 12.5meters shows the complainant realises an imminent collision by the late drive-in of the defendant and hence, made a swift turn to the opposite lane in trying to avoid hitting the defendant. Had he not done that, he could have bumped right into the centre of the defendant’s vehicle and it could have been a head-on-collision.
  9. I am mindful of the fact that the complainant’s manner of driving may be considered as speeding as well. However, it is my view that it is irrelevant me for me to consider especially when determining the fault and culpability of the defendant. It might be a matter of separate criminal investigation.
  10. I find the prosecution has proved its case and accordingly convict the defendant, Pitson Pentani of one count of careless driving contrary to section 40(1) of the Road Transport Act.
  11. Order accordingly.

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THE COURT

Augustine Aulanga – Principal Magistrate


[1] For example (60,000m) / (3600 seconds) = 16.6 m/s

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