R v Palmer [2019] SBMC 35; Criminal Case 322 of 2018 (23 September 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT GIZO )
(Criminal Jurisdiction)

Criminal Case: 322 of 2018

REGINA
-v-AMBROSE PALMER

Date of trial: July 26^th, 2019
Date of closing submissions: July 31^st, 2019
Date of Judgment: September 23^rd, 2019

Ms. Olivia Ratu for the Crown
Mr. Clifton Meleu Ruele for the Accused

JUDGMENT

Introduction

1. On or about 13^th December, 2018, between the hours of 5 – 6pm, there was a fatal vehicle accident at the Noro – Munda snake hill road, involving Mr. Ambrose (“accused”), the victim (Deceased – “Viti Boss”) and two others. As a result of the disastrous accident, the victim’s life was called to rest or regrettably cut-short. The vehicle was driven by the accused and the victim and two others as passengers. The deceased was seated at the front-passenger seat while the two others at the back-passenger seat. This was a Toyota Hilux double cabin vehicle.
   
2. It was an impeccable day indeed, all had never foretell such an encounter would happen. The two other passengers are Albert Umea (PW1) and Steven Ngangaoa (PW2) who came to Noro that day from Wagena, Choiseul Province to attend a marriage ceremony, they are close relatives of the accused person.
   
3. The victim is a close friend of the accused person and, on that particular day of incident, he met him at the market place. Thereafter, they went and picked the two others whereby they all went to Munda in the vehicle driven by the accused person. They had made a safe trip to Munda, it was on their returned trip to Noro that they encountered this horrific vehicle accident.
   

Crown’s case

4. The Crown says the accident happened because the accused was driving a white Toyota Hilux registered number MA3778 on Noro Munda Highway road in a manner that was dangerous to the public having regard to all the circumstances including nature, condition and use of the road, and the amount of traffic which might be reasonably be expected to be, on the said road by dangerous driving. More specifically, the Crown says that the accused has failed to consider the nature of the road which made up of a last sharp bend, hence, with the speed of 40 to 50 km/hour he drove at, he could not maneuver the wheel properly, thus, caused the truck to hit the rail, lost control, flipped and rolled down the hill (known as snake-hill).
   
5. The accused was arrested and charged for offence of causing death by dangerous driving contrary to section 38 of the Road Transport Act^[1]. The crown called two witnesses, Albert Umea referred to as (PW1) and Steven Ngangaoa (PW2).
   
6. The agreed facts, statements, map sketches and photographs were tendered by consent and form part of the evidences before this Court. Agreed facts (PE 1), Michael Pitakomoki (PE2), Daison Tagale (PE3), Conley Bogi (PE4), Stanley Donner (PE5), PC Ivan Aqorau (PE6), PC Bennett Kanijama (PE7), PC Fuatina Letade (PE8), Sketch map drawing of snake hill-crime scene (PE9), Photographs of crime scene and road (PE10), Accused ROI dated 15^th December, 2018 (PE11), Pictures of deceased injuries taken at Helena Goldie Hospital theatre (PE12) and Medical Examination and Requisition Form (PE13).
   

Defence case

7. Obviously, the defence do not contest most of the elements of the offence^[2] or the victim’s death as a result of the vehicle accident. In fact, the defence conceded to all except for the manner of driving and the nature and condition of the road plus the traffic. He gave evidence that he was driving at a speed limit between 40km – 50km/hr. the entire trip and had caught off-guarded with the vehicle’s sudden tire puncture at the snake hill area. This has created complexity for him to coordinate and properly maneuver the steering wheel with the tires. As such, he could not clenched onto the brake to make a sudden halt. He tried to gradually decelerate the vehicle but was unfortunate when the vehicle hit the road-rail and suddenly flip over on the road thereby caused the death of the victim (“deceased”) and injuries to the other two passengers, who are referred to as (PW1) and (PW2) for the purposes of this judgment.
   

Burden of proof

8. I remind myself that it is not for me to decide who I should believe, the defence holds no onus of proof. It is for the crown to prove their case beyond reasonable doubt. Should they discharge their duty to the required threshold then I am bound to find the accused guilty of the offence as charged. If however, there is a slight doubt, then the accused must forthwith be acquitted.
   

Discussion

Evidence concerning the vehicle’s speed limit

9. It is undisputed that the accused person was driving at 40 to 50 km/hour on his way from Munda to Noro, until he reached the sharp-turn area at snake hill and encountered the fatal accident. This was the consistent speed limit used by the accused person till his vehicle got into the accident.
   
10. There is nothing before me to suggest that he slowed down or decelerate from the speed limit of 40 to 50 km/hour, except for the undisputed evidence that he slowed down at his former accident spot. Thereafter, he stated consistent speed limit of 40 to 50km/hour.
    
11. This evidence proves that the speed limit used by the accused person when he got into accident at snake hill sharp turn and at the hill he was driving at 40 to 50km/hour.
    

Evidence pertaining to nature and condition of the road

12. Of course, the sketch map (PE9) and photographs of the sharp bend and hill (PE10) both made clear explanation of the nature of the road. It is evidenced that the sharp turn is the entrance to a hill. It would be safe to state that such road condition demands drivers to be vigilant and cautious before entering such sharp bend by decelerating the speed. It is undisputed that the road condition is tar sealed and narrow.
    
13. This evidence confirms that the road condition has a sharp bend/turn right into a hill (snake hill) and the road is tar sealed.
    

Evidence concerning the manner of driving

14. PW 1 and PW2 both gave similar accounts that the accused driving was steady and the speed limit does not concern them. Other than his consistent speed limit at 40 to 50km/hr. as evidenced in the exhibited documents and evidence adduced from crown witnesses, his manner of driving is unchallenged.
    
15. It is the act of not decelerating when he drove into the sharp bend and hill that is highly contested. Obviously, he had driven at 40 to 50km/hr. on the sharp bend/turn and hill, which the crown strongly argues that it caused his vehicle to sway off road to the rail. Hence, created a somewhat difficult situation to bring the vehicle back to its normal direction or steadiness which thereby resulted on the vehicle lost control, flipped and rolled down the hill.
    
16. The defence strongly contends that right when the vehicle entered the sharp bend it got a tire puncture which thereby caused incoordination and complexity on properly directing the vehicle back to its steadiness or normalcy given the speed limit of 40 to 50km/hr. Further, he was reluctant to put a sudden clench on the brake as it would resulted on a serious accident. Unfortunately, it hit the rail and flipped over and rolled down the hill.
    
17. There is nothing before me to suggest that the accused change from the speed limit of the 40 – 50km/hr. other than, his own evidence to support the consistent speed limit of 40 to 50km/hr.
    
18. This evidence go to prove the crown’s case that the accused maintained the speed limit at 40 to 50km/hour until he reaches the sharp turn at snake hill and could not maneuver the steering properly, as a result caused the vehicle to flipped and rolled down the hill. Further supports the crown’s case that had he decelerate before the entrance of the sharp turn he would not have faced such an encounter or accident and would probably maneuver the vehicle properly.
    

Evidence concerning the traffic at that time of incident or which might reasonably be expected to be, on the road

19. It is evidenced from PE2, PE3, PE4 and PE5 plus the ROI (PE11) that on the date of incident, there were two vehicles passed by that particular area after the accident, the accused tried to stop the first vehicle but it went past. The second vehicle stopped and assisted them to Helena Goldie hospital.
    
20. Although, traffic is not really busy that night, given its condition (sharp turn and hill) it would be acknowledged that as drivers, total vigilance needs to be put on at all times and deceleration of speed at the sharp turn, as one would expect oncoming vehicles and preparation to travel down the hill.
    

Evidence concerning skid marks on the road

21. The photographs of the road (PE10) photo number 5 showed evidence of skid mark of tire on the tar, which explained that he applied the brake when the vehicle swayed towards the rail but then lost control when it went back into the road on the opposite direction and flipped and rolled down the hill.
    

Evidence relating to Level of sobriety

22. The accused admitted in his evidence that he drank two cans of whiskey cola before their trip to Munda. It is unclear from all the prosecution witnesses evidences whether he consumed alcohol during the journey to Munda or their return trip. There is nothing before me to suggest whether a sobriety test was conducted after the incident to test his level of intoxication, because this might assist the crown to rely on his intoxicated state of mind as a factor to cloud his judgment thereby prone to dangerous driving from misjudgment and incoordination. The onus is on the crown and they had failed to do so for this one, hence, I wish not to consider intoxication or drunkenness as a factor for reason that it will only open speculation and assumption.
    

Credibility and Demeanor of PW1 and PW2

23. I find that both PW1 and PW2 are credible and reliable witnesses. Their demeanor in court when answering questions during examination in-chief and cross-examination reflects honesty and without any adverse intention to hide evidence or being evasive. Hence, I accordingly accept their evidence to prove the allegation against the accused person.
    

HELD

24. Having carefully and exhaustively considered the evidences adduced by the crown witnesses and tendered documents relies on pertaining to charge of Causing Death by Dangerous Diving, I am satisfied that the crown has discharged its duty on the required standard, “Beyond Reasonable Doubt” that the accused person on the night of offence drove the white Toyota Hilux double cabin vehicle at a speed limit of 40 to 50km/hour through the last sharp turn road at snake hill, knowing full-well that he is driving down a hill and the nature and condition of the road. This made the vehicle to slightly veer off the road and to the rail. It was when he tried to avoid the rail that he applied the brakes, thus, caused the vehicle to lost control and it swayed rightly direction across the road, flipped and rolled down the hill.
    
25. I am satisfied that the accused manner of driving at speed limit of 40 to 50km/hour is dangerous given the nature of the road, sharp turn and that he was driving down a hill. He had failed to decelerate or slow down when he entered the sharp turn at snake hill road. A prudent driver would have reduce the speed limit to properly move pass the sharp turn and safely down the hill. He had failed to do as said when he maintained the 40 to 50km/hour speed limit.
    
26. While I might accept his version of events that he had a tire puncture during the night of incident and added to the loss or vehicle’s coordination and control, this would not lessen the fact that he was driving at 40 to 50km/hour, I find that had he decelerate the vehicle on the ingress of snake-hill’s sharp turn, he would have controllably drove the vehicle to a complete stop when he got the tire puncture. All these boils down to his constant speed limit of 40 to 50km/ hour into the sharp turn and hill, when he had anticipated the road (sharp turn) and the hill. He had failed miserably to drive properly and carefully as expected of a prudent driver thereby caused the accident and death of the victim (deceased – Viti Boss). Driving down a hill at 40 to 50km/hour would have been dangerous and careless as well.
    
27. Accordingly, I find the accused, Mr. Ambrose Palmer guilty as charged and henceforth, convict him.
    

Orders

1. Find the Accused guilty of the Charge of Causing Death by Dangerous Driving contrary to section 38 of the Road Transport Act.
2. Enter conviction accordingly.
3. Right of Appeal applies 14 days after date of sentence.
4. Order accordingly.
   

THE COURT

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MR. LEONARD. B. CHITE

Principal Magistrate

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^[1] Cap 131
^[2] Causing Death by Dangerous Driving contrary to section 38 of the Road Transport Act