Regina v Luaboe [2019] SBMC 4; Criminal Case 24 of 2017 (1 April 2019)

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

Criminal Case: 24 of 2017

BETWEEN: REGINA

AND: GIDEON LUABOE

Accused
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Prosecution: Mr. Ronnie. Pisei of Police Prosecutions Office
Defence: Mr. Clifton. Meleu. Ruele of Public Solicitors Office Before : Princirincipal Magistrate – Leonard B Chite

Date of Hearing: March 18^th – 25^th, 2019: April 1^st, 2019

Defendant’s Appearance: Present in Court
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JUDGMENT AFTER TRIAL

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Introduction

1. The trial for the Defendant, Gideon Luaboe, commenced on the 18^th of March 2019 until 25^th March, 2019, this was after he denied the charges of Careless Driving contrary to section 40 (1) of the Road and Transport Act and Permitting passenger to ride in a Dangerous Position contrary to section 57 (4) (3) of the Road and Transport Act.
   
2. The two charges arise out of an incident which involved collision of two vehicles; a Hilux driven by the complainant and a Massey Ferguson Tractor, driven by the Defendant. I find that on the 17^th of February 2017, there was a collision between a dark brown Toyota Hilux, registration number, AB3827 driven by the complainant with a red Massey Ferguson Tractor, registration number, G3731 driven by the Defendant. The collision occurred on the road in front of the Chan Corporation Shop, Gizo Township, and Western Province.
   

Prosecution Case:

3. The Prosecution case is that the collision took place on 17^th of February, 2017, where the Defendant, Gideon Luaboe of Malakerava 3, Gizo, at Gizo in front of Chan Corporation Shop was driving a red Massey Ferguson Tractor, registration number, G3731, eastbound on the opposite lane without due care and attention by talking to a passenger sitting beside him, looking at shops on the roadside and wasn’t concentrating on the road.
   
4. The Prosecution says that the Complainant was driving westerly direction, saw the Defendant’s conduct of driving, hence, drove over to the opposite lane to avoid collision. However, the Defendant being startled by the complainant’s vehicle (Toyota Hilux), tried to swerve back to his lane which unfortunately, resulted to the tractor colliding onto Complainant’s vehicle.
   
5. The Prosecution say that during the collision the Defendant was permitting a person namely; Silas Ngada as a passenger to be seated at his side which was dangerous and risky that he may have sustained injury due to the absence of railings or sides as afford adequate means of hold or support.
   
6. The Defendant was arrested, charged and brought to Court. He denied these charges and allegations. Hence, the Prosecution called two (2) witnesses; Mr. Beniato Amon who is referred herein this judgment as “PW 1” and Mr. Jegre Sipakana “PW 2”. The Prosecution tendered three (3) documents by consent. The Record of Interview of the Defendant, Gideon Luaboe, marked as “PE 1”, copy of crime scene photographs, marked as “PE 2” and sketch map of the crime scene, marked as “PE 3” to prove their case against the Defendant.

Defence Case:

7. The Defendant does not dispute the date of offending and collision between the vehicle he drove and the Complainant’s vehicle. His version of events was the only difference, he says that he was driving east bound on his lane when he had to sway a distance into the opposite lane away from a 3-tonne truck parked in front of Jononi’s Shop. When he was about to travel past the 3-tonne truck, he got startled by an oncoming vehicle (Toyota Hilux) driven by the Complainant - “PW 1” which was travelling straight towards him on his lane, he clenched on the brake but it was too late as his vehicle collided with the Toyota Hilux.
   
8. The Defence relied on the Defendant himself; Mr. Gideon Luaboe as the only defence witness, who is referred herein this judgment as “DW 1”.
   
9. This case is more on the words of the complainant (PW 1) against the words of the Defendant. However, I remind myself that in such a case, it is not a matter of whether I prefer the version of the Complainant or that of the Defendant. The Defendant has no onus to prove his innocence, in fact, he has no onus to prove anything at all. It is for the Prosecution to prove each charges against the Defendant beyond reasonable doubt.
   

Issues:

10. The two-paramount issues that will determine the ultimate result are; have the prosecution made me sure that the Defendant departed from the standard of a reasonable, competent and prudent driver in those circumstances.
11. Whether the Defendant did permit a passenger to be seated on a dangerous position that was without a railing or sides as afford adequate means of hold or support.
    

The Test on Driving without care and Attention:

12. The test for “driving without care and attention” has been well enunciated in most cases in this Jurisdiction and around the world. In case of Idufo’oa v R^[1] Daly CJ, stated the following to consider when determining whether a Defendant was “Driving without due care and attention”.
    

“The question for the Magistrate was then, have the prosecution made me sure that the appellant departed from the standard of a reasonable, competent and prudent driver in those circumstances?”^[2]

13. In McCrone v Riding^[3] Lord Hewart CJ, stated the following sentiments in his Judgment: -
    

“The standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is no way related to the degree of proficiency or degree of experience attained by the individual driver.”^[4]

Evidence concerning speed and manner of driving by the Defendant:

14. The Complainant (PW 1) gave evidence that he first saw the Massey Ferguson Tractor at Hot bread area, when he was at the road in front of Chacha building. He stated that the Defendant was driving the Tractor on the opposite lane or westbound lane while heading eastward. He said he thought the Defendant would stop in front of Hot Bread area, so he steered to eastbound lane. Unfortunately, the Defendant did not stop but turned back to eastbound lane which then resulted in both vehicles collided.
    
15. “PW 1” also gave evidence that while he was at road near Chacha building, he could see the Defendant talking to a passenger sitting beside him, looking at shops on the roadside and wasn’t concentrating on the road.
    
16. During cross-examination, the complainant (PW 1) maintained his evidence and was left unchallenged or uncontradicted.
    
17. As apparent, there were two things that caused the complainant (PW1) to veered to the eastbound lane; one was that, he thought the Defendant would stop at the Hot bread area and second, he could see the Defendant driving on the opposite lane, talking to a passenger and not concentrating on the road.
    
18. Unfortunately, there is nothing before this Court to suggest that the Defendant’s tractor made a signal indicating to stop at the hot bread area, but this might clarify the reason why “PW 1” had thought the Defendant would stop at hot bread, merely saying that he thought the Defendant would stop is simply an assumption and does not give any alarm for “PW 1” or Complainant to steered to the eastbound lane. “PE 2” photograph 1, shows that he was driving oppositely way down into the eastbound lane near the 3-tonne truck, hence, does not go well with someone who simply driving out because the Defendant would stop at Hot bread, if this was correct, then the (PW 1) or Complainant’s vehicle should at least be positioned in the midway.
    
19. Further, the Prosecution did not call the passenger to give evidence to confirm the fact that the Defendant was talking to him, driving on the opposite lane and wasn’t concentrating on the road, or to even explain the manner in which the Defendant drove the tractor that day. Although, the complainant (PW 1) evidence was not tainted by any form or impaired by any external influence such as drunkenness nor affected by any inconsistencies, it would be best to hear the evidence of the passenger or any other bystanders whose evidences will be independent, when it was strongly contended by the Defence that the Defendant’s driving was prudent and that he simply drove away from the 3-tonne truck which was parked in front Chan Corporation shop and returned to his lane only to be surprised with the Toyota Hilux in front of him.
    
20. A reasonable person would conclude that if the Complainant (PW 1) was worried and feared for his safety, he would have driven off the road and stopped near the 3-tonne truck or way beforehand at Chacha building area. Instead, he saw it fit to proceed with his vehicle to the opposite eastbound lane and trying to enter in between the tractor and 3-tonne as apparent in “PE2” photograph 1.
    
21. Moreover, the prosecution did not adduce any evidence of the speed limit Defendant was driving at nor any estimated speed. Prosecution opted not to call the supposed passenger or any bystanders to explain the tractor’s speed on the date of incident. This might clarify and explain why the Complainant (PW 1) felt so afraid and worried for his safety that he had to drive quickly to the eastbound lane. It is common understanding that a tractor is much slower in its speed compared to vehicles like Toyota Hilux. So why was he so worried and quickly veered to the eastbound lane is a question remains undisclosed.

Evidence concerning the point of contact or impact by both vehicles during the collision:

22. This evidence is undisputed. Both Prosecution witnesses and Defence agreed to the point of contact or impact that is the left front light, bonnet and left cabin. The complainant (PW1) gave evidence that he did not move his vehicle after the accident. “PW2” also gave evidence that after the collision he saw the Defendant reversed the tractor to remove its bucket and parked it. These evidences were corroborated by “PE 2” photograph 1 on how both vehicles were positioned after the incident.
    
23. As apparent, the point of contact or impact demonstrates the Defendant’s tractor was travelling on a straight forward and direct movement before it collided with the Complainant (PW1) vehicle. I disagree with complainant (PW1) evidence that the Defendant was driving on opposite lane when he was alarmed with Complainant (PW1) oncoming vehicle and veered back to his lane which resulted in the accident. If that was the case, then the point of collision would be somewhere at the bonnet and the cabin would probably scraped off, plus it would not be straightforward and direct as demonstrated in (PE 2) photograph 1.
    

Evidence concerning skid marks from the Massey Ferguson Tractor’s tyres:

24. There is no evidence of skid marks from the Massey Ferguson tractor’s tyres to suggest and or point to conclude that the Defendant startled and veered back to the correct lane or eastbound lane as opened by the Prosecution.
    
25. On the other hand, the complainant (PW1) gave evidence that he did not stop until he was about to hit the tractor that is when he applied brakes but was unfortunate. “PE 2” photograph 1, seem to illustrate the same, that the Complainant (PW1) was about to drive in between the 3-tonne truck and tractor on the opposite or eastbound lane when his vehicle collided with the Defendant’s tractor.
    
26. I am in doubt as to whether the Complainant (PW1) was really avoiding collision when he went to eastbound lane or did he simply assume that the space between the tractor and the 3-tonne was wide enough so he could drive through which later resulted on the collision.
    

Law on permitting right of way:

27. All licenced drivers ought to be proactive and vigilant when driving. The common traffic rule for narrow roads and or when drivers are faced with space complications, especially when traffic is congested due to parked vehicles, is to allow the right of way for the oncoming vehicle that is to wait until it exits. Thereafter, the vehicle can enter the narrow road or space. It emanates from the basic understanding that the road is small and the only way is to evenly share to allow traffic to move both directions.
    
28. It appears that the Complainant “PW 1” did an opposite thing on the date of offending, he instead drove to the opposite lane. The complainant (PW1) stated that he observed the tractor while at Chacha building, hence, should provide sufficient time for him to slow down and wait, if he says the road is narrow but not to proceed to opposite lane.
    
29. Nonetheless, “PE 2” Photograph 1 also reveals that a Toyota corolla car like vehicle simply drove past the accident scene on the westbound lane, this only explains that there was more room or space on complainant’s (PW1) lane and had he not driven to the opposite eastbound lane, the accident would not have occurred and he would safely have driven his vehicle to his designated destination on the proper westbound lane.
    

Law on Provisional Licence:

30. This is the direct quote of Section 17 (1) (a) & (b) of the Road and Transport Regulation (Cap.131) governing holder of “Provisional Licence”: -
    

“(a) except in the case of a motor cycle or other vehicle not having a separate seat other than that provided for the driver, the holder of a provisional licence shall drive the class of vehicle for which the licence is issued only if he is accompanied in the vehicle by a person sitting next to him who holds a valid driving licence for that class of vehicle.”^[5]

“(b) at all times when the holder of a provisional licence is driving any vehicle there shall be exhibited on the front and rear of the vehicle in such a manner as to be plainly visible to any person in front of or behind the vehicle a distinguishing mark in the form prescribed in the fifth schedule, and such distinguishing mark shall not be exhibited unless the vehicle is being driven by a person holding a valid provisional licence.”

31. The complainant (PW1) conceded during cross-examination that was driving under a provisional drivers’ licence. He said that the reason for not having a driver’s licence was because the driving tests normally done at Noro, hence, he only renewed his provisional licence. The complainant (PW1) said that he was with his son during the collision and no mention of a holder of a valid driver’s licence sitting next to him. “PE 2” photograph 1, did not show any exhibited distinguishing mark at the front or behind the Toyota Hilux. Intrinsically, the Complainant (PW1) appeared to have disobeyed the law and have come to court without clean hands.
    
32. The Court is now placed in a more doubtful and questionable state as to whether the Defendant was the one driving carelessly without due care and attention or the Complainant(PW1) who has failed to adhere to the law of this country and appeared to have driven the vehicle without any knowledge and understanding on the common traffic rules.
    

Evidence concerning the Defendant permitting a passenger to be seated on dangerous and risky position:

33. The complainant (PW1) gave evidence that he saw the Defendant talking to a person seated beside him while he was at road near the Chacha building area.
    
34. There is nothing before the court to prove or justify the fact that the position of which the passenger was seated was without any adequate means of hold or support nor did the Prosecution lead the complainant (PW1) with the photographs to clarify these evidences.
    
35. A closer look at “PE 2” photograph 4 shows that there is a metal bar or iron beside the driver’s seat, prosecution did not adduce any evidence to justify whether that metal bar or iron which holds the cabin may afford adequate means of hold or support nor did they adduce evidence in relation to the passenger after the collision, whether he remained firm or sustained injury. Without such evidences this court is left with possibilities that such metal bar or iron might provide adequate means of hold or support.
    

Consideration on Complainant’s (PW1) and (PW 2) evidences:

36. Having closely assessed and examine the complainant (PW1) demeanour in court when giving evidence and the extent of evidence adduced by the prosecution. I am not satisfied that the complainant (PW1) is a truthful and credible witness. His evidence does not reconcile properly with the photographic evidences tendered in Court or alternatively, they both sung different songs. It became clear that he has invented a version to place the blame on the Defendant when all the evidences seem to question his manner of driving on the date of offending.
    
37. I find Complainant (PW1) to be an untruthful and unreliable witness, hence, accordingly, I refuse to accept his evidence to justify guilt of the Defendant.
    
38. I accept the entire evidence of “PW 2” only to explain the events after the collision. His evidence has nothing to do with the events that led to the collision.
    

Evidence of “DW1”:

39. The evidence of “DW1” is straight forward. He was travelling on eastbound lane when he had to drive away from a 3-tonne truck parked in front of Jononi’s shop. As he was coming back to his lane and approaching westerly, he was startled by the Complainant’s (PW1) vehicle which was coming straight at him on his lane so he braked but it was too late as the two vehicles collided.
    
40. Although, there appeared to be some vagueness in his evidence, partly of his hearing complications. I remind myself that this is criminal case and the burden rest entirely on the Prosecution to prove their case “beyond reasonable” and that the Defendant need not prove his innocence.
    
41. However, as apparent his version of evidence best reconcile with the photographic evidences tendered in Court and how the collision occurred plus the point of contact or impact. I find that what he did was what is required of a reasonable, competent and prudent driver, any driver faced in such circumstance would have done the same thing, hence, not careless or inconsiderate.
    

HELD:

42. I have considered thoroughly the evidences that the Prosecution relies on to prove the charge of Careless and Inconsiderate driving charge, and I found that the Prosecution did not convinced me that the Defendant had departed from the standard of a reasonable, competent and prudent driver in those circumstances on the date of 17^th February 2017.
    
43. I have also considered thoroughly the evidences the Prosecution relies on pertaining to the charge of Permitting Passenger to ride in a Dangerous Position, and I found there is insufficient evidence to suggest that the position which the passenger seated at was without any adequate means of hold or support.
    
44. Having considered all the evidences in this case, in relation to the charge of Careless and Inconsiderate driving charge, I find that the Prosecution has failed to prove its case beyond reasonable doubt, hence, I find him not guilty and accordingly acquit him of the charge.
    
45. In relation to the charge of Permitting Passenger to ride in a Dangerous Position, I find that the Prosecution has also failed to prove its case beyond reasonable doubt, hence, I find him not guilty and accordingly acquit him of the charge.
    

Orders

1. Find the Defendant not guilty of the Charge of Careless and Inconsiderate driving charge.
2. Find the Defendant not guilty of the Charge of Permitting Passenger to ride in a Dangerous Position.
3. Acquit the Defendant on both charges against him.
4. Right of Appeal applies within 14 days of this judgment.
   

THE COURT

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MR. LEONARD. B. CHITE

Principal Magistrate

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^[1] [1982] SILR 55
^[2] At Pages 55 - 56
^[3] [1938] 1 AllER 157
^[4] At page 158 of his Judgment
^[5] At Section 17 (1) (a) & (b) of the Road and Transport Regulation (Cap.131)