R v Wasi [2020] SBMC 40; Criminal Case 886 of 2020 (26 October 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 886 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: SAMSON WASI

Mr Watson Akwai for Police Prosecutions

Accused self-represented

Date of trial: 15^th of October 2020

Date of closing submissions: 19^th of October 2020

Date of judgement: 26^th of October 2020

JUDGEMENT

1. On the 21^st of August 2020, you were arrested and charged for four traffic related offences. I read the charge to you on the 29^th of September 2020, and recorded guilty pleas for the offences of presence of alcohol in a person’s blood, and drivers to be licensed. You entered not guilty pleas for the offence of careless and inconsiderate driving, and taking vehicle without authority.
2. In brief, you were said to have drove in a manner that was careless and inconsiderate and that the owner of the vehicle you were driving at the material time, did not give you the permission to drive the vehicle.
3. On the day in question, you were said to have drove the vehicle, which is a white Toyota Hiace bus, from the King George Sixth School area, down to 02 bus stop at White River. On your way from White River, you drove past a Police officer, right opposite the Central Police station, who was making his way up to the Point Cruz area from the Police married quarters at Rove. The way you drove had caught his attention, hence he decided to drive after you. As he was driving after you, he observed your speed and the number of vehicles you had drove past. He managed to catch up with you at the round-about near the Hot Bread Kitchen at Point Cruz, and told you to drive back to the Central Police Station.
4. At the Central Police Station, you were handed over to the officers of the Kukum Traffic Department for further dealings. Following that, it was found that you were under the influence of alcohol and that your driving license had already expired. It was also found that the owner of the vehicle had not given you any permission to drive the white Toyota Hiace bus. It was with this that you were charged for the offence of careless and inconsiderate, presences of alcohol in a person’s blood, driving without a valid driver’s license and taking vehicle without authority.
5. Given the fact that you have entered not guilty pleas for the offence of careless and inconsiderate driving, and taking vehicle without authority, we entered into trial for the court to make its finding.

Issues

6. The issues I must determine are as follows:

(i) Whether or not your manner of driving was careless and inconsiderate?
(ii) Whether or not you were given authority to drive the vehicle in question?

Law

7. The offence of careless and inconsiderate driving, is contrary to section 40 (1) of the Road Transport Act. This section states as follows:

If a person drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road, he shall be guilty of an offence and liable to a fine of five hundred dollars or to imprisonment for six months^[1].

8. As for the offence of taking vehicle without authority, it is against section 59 (1) of the Road Transport Act, and it states as follows:

A person who takes and drives away a vehicle without having either the consent of the owner thereof or other lawful authority shall (subject to the next following subsection) be liable^[2]—

(b) On conviction by a Magistrate's Court, to a fine of two hundred dollars or to imprisonment for three months^[3].

Elements of the offence

9. For the offence of careless and inconsiderate driving, the elements involved are as follows:
   • (a) That Samson Wasi;
   • (b) On the 21^st of August 2020;
   • (c) Along the Mendana Avenue Road, at the Round- about near the Hot Bread Kitchen at Point Cruz;
   • (d) Drove a motor vehicle, registration number MC-1536;
   • (e) Without due care and consideration to other road users.
10. For the offence of taking vehicle without authority, the elements involved are as follows:
    • (a) That Samson Wasi;
    • (b) On the 21st of August 2020;
    • (c) Along the Mendana Avenue Road, at the Round- about near the Hot Bread Kitchen at Point Cruz;
    • (d) Drove a motor vehicle, registration number MC-1536;
    • (e) Without the authority or consent of the owner, Mr Joshua Havipada Votu.

Prosecution Case

11. The prosecution case is that, on the 21^st of August 2020, you drove without due care and attention to other road users, along the Mendana Avenue Road. Further to this, the owner of the vehicle you were driving, did not give you the permission, or authority to drive the said vehicle. To support their case, three witnesses testified under oath.
12. At the end of the Prosecution evidence, I ruled that there was sufficient evidence that is highly likely to prove the prosecution case.

Defence Case

13. The defence case is that, on the 21^st of August 2020, you were not driving in a careless and inconsiderate manner, as alluded to by Prosecutions. Further to that, you stated that since you used to work for the owner of the vehicle, there was no issue with you driving the vehicle at the material time.

Prosecution Evidence

14. As mentioned earlier, Prosecutions relied on the evidence given under oath by three of their witnesses. The first witness called, was Police Constable Jasper Bonnie. The second witness, was Mr Kennedy Lokumana and the third was Mr Joshua Havipada Votu. The evidence given by each of these witnesses are as follows:

PW1: PC Jasper Bonnie

15. On the day in question, He left his residence at the Rove on board a land cruiser, and was making his way up towards the Point Cruz area. Having passed the round-about near the Central Bank, a white 15 seater bus drove past him on the outer lane. He recalls that this bus drove past him when he was opposite of the Central Police Station. He was travelling on the inner lane, while the bus was on the outer lane, or as put by him, was travelling on his left side. Since the bus was traveling fast, he then drove after it. As he was driving, he was closely observing the speed taken and the vehicles that the bus had drove past.
16. When he reached the Solomon Motor area, he saw the bus driving close to a white Toyota hilux and further described how the bus was at the verge of hitting the back of the white Toyota hilux. It was then that the bus drove on to the inner lane, to avoid the while Toyota hilux. The distance from where the land cruiser he was driving to where the bus had almost hit the back of the white Totoya hilux was estimated to be about 25 metres. I then asked him to point from where he was sitting to show the distance. He then pointed towards courtroom three which could be estimated to be approximately 22 meters.
17. Having drove onto the inner lane, he saw that the bus was still travelling very fast, as if it was intending to take over more vehicles. It continued to dive past four other vehicles in a zigzag manner. He described what he meant by zigzag with his right hand in a snaky motion and further stated that the space between each of these four vehicles can be estimated from where he was sitting to the left ulterior part of the holding cell in the courtroom. Note that the trial took place in courtroom 1, hence he was indicating that the distance was from the witness box to the left ulterior end of the holding cell. This in my view would be an estimate of 7 meters.
18. As he was horning for the bus to stop, other vehicles had started giving him space to chase after the bus. As the bus was approaching the underpass which he identified as the one near the Pro 31 area, or which I take judicial notice to be on the side near the Origin Gas, there were two more vehicles in front. One was a Grey RAV4 while the other was a Black Caldina. The Grey RAV4 was running on the outer lane whilst the Black Caldina was on the inner lane. He described that both these vehicles were almost running parallel to each other but the RAV4 was slightly ahead of the Black Caldina. By then, the bus was trying to push onto the outer lane next to the RAV4. The driver of the RAV4, having seen what the bus was doing, drove out of the outer lane and parked on the side of the road to give way for the bus.
19. All along, PW1 was behind the bus and despite not knowing what the distance was at that time, he recalled that he was very close to the bus.
20. Having drove past the RAV4, the bus then accelerated and continued to speed up. As for the speed at that time, he said that both the bus and he were travelling at a speed of 90 kilometres per hour. He was confident about this speed taken by the bus, since he had applied a standard tactic usually applied by police officers to determine the speed of a vehicle. It was at the bus stop at the opposite of the Honiara Casino that he was able to determine the speed of the bus. He maintained this speed until the Round-about next to the Point Cruz Hot Bread Kitchen. He tried warning the bus to stop but was not able to, until he drove on to the side of the bus and told the driver of the bus to turn back to the Central Police Station. By then, he came to note how there were about 6 to 7 people in the bus, including the driver.
21. Towards the end of the examination in chief, he pointed to you and identified you as the person driving the bus he had been referring to.
22. In the cross examination, you questioned PW1 about the speed taken by you and PW1 after you were said to have taken over the vehicle he was driving, and he said that he would only be able to tell the speed that he was running at. It was further put to PW1, that since he was about 25 metres away, he would not have been able to catch up with you. His response was that, since he was also travelling in a vehicle, he was capable of catching up with you.
23. Following this, you then asked if there is a law that forbids a vehicle from running on both lanes. This question in my view was made in relation to what was earlier stated about you driving in a zigzag manner. You stated that the vehicle you were driving cannot reach the speed of 90 kilometres per hour, and further state that such a speed can only be taken by cars. You also asked PW1 to make an estimate on the distance from the Central Police Station to the Hot Bread Kitchen Round-about, which he was not able to do so, given his view on how irrelevant the question was. On the question of relevance, I am not of the view that PW1 was in the position to rule on the relevance of a question unless he is the presiding Magistrate. I asked if there were any questions for re-examination but Prosecutions indicated that they will not pose any questions.

PW2: Kennedy Lokumana

24. Kennedy Lokumana was the person driving the white Hiace bus prior to the incident leading to your arrest. On the day in question, he recalls working as the bus driver or the vehicle in question. It was sometimes towards six in the evening, that he received a call from one Samo. Samo had requested that he meet him at King George, following this, he then drove up to King George. Upon reaching King George, Samo and a friend of his approached and Samo informed him that his friend will be hiring the bus for a hundred dollars, for an hour. He agreed to what Samo said and as he was about to drive the bus, Samo said that he will be driving. Samo then went and sat on the driver’s seat, by then others whom he believes to be Samo’s workmates have also entered the bus.
25. The bus then took off with Samo as the driver, despite the fact that no one had told him to drive the bus. On their way down, Samo was driving in a zigzag manner and recalled that they nearly hit a vehicle upon reaching SINU. It was not clarified as to which campus he was referring to. Instead of going up to Kobito, as initially thought, the bus continued down all the way to the 02 bus stop, at White River. At the White River 02 bus stop, some boys got off. The boys who remained told him to drive the bus so that they can return back towards the town area.
26. When he got to the driver’s seat and was reaching for the key, he could not locate the key. He then told the others that the key was not there, this was when Samo came and told him to get out since he will be the one driving the bus. PW2 then got of the driver’s seat and went and sat down. The bus then took off with Samo as the driver, heading up towards the town area. The bus then stopped at Town Ground, near the YWCA area, and Samo told PW2 to take the bus and return home. As he was staring the bus, Samo came and turned the engine off and took the key from him.
27. Samo then drove the bus again, and continued driving in a zigzag manner. He almost collided with some vehicles on their way, it was when they reached Mendana that they took over a Police vehicle that was travelling in front of them. When asked about the speed they were travelling on, he estimated that it was around 85 kilometres per hour. This estimate was reached on the basis that he himself is a driver and that he believes that the speed they were travelling on, would fall under that which was indicated. He told Samo about the Police vehicle but he did not hear him. The police vehicle horned at them to stop, but they continued speeding it was after both vehicles were parallel to each other that the person driving the police vehicle, told Samo to turn back to the Central Police Station. Samo then drove the bus back to the Central Police Station as ordered. When asked as to who this Samo is, PW2 pointed to you.
28. In terms of the cross examination, you stated that since PW2 had agreed for you to drive the bus from King George, you were of the view that you were given the permission to drive. However, PW2 replied that he never agreed for you to drive, it was you who gave yourself the permission to drive. You continued to talk about the period you have worked for the owner of the vehicle in question and how you have done things without being paid. You believed that given your history of working for the bus owner, there would be a sense of trust which I believe you thought should amount to consent or permission on the part of the bus owner. Like PW1, prosecutions did not pose any questions for re-examination.
29. From the evidence given by PW2, there was very limited information to corroborate most of what was stated by PW1. This could be due to the fact that PW2 was travelling with you in the bus. From the evidence before me, the only aspects that were in line with PW1’s evidence, it the part where you were driving in a zigzag manner to the part where you almost hit some vehicles, and being told to turn back to the Central Police Station.

PW3: Joshua Havipada Votu

30. The third witness was Joshua Havipada Votu, who is the owner of the vehicle in question. He recalls that on the day in question, the only person who was supposed to drive the vehicle in question is Mr Kennedy Lokumana. He usually expects his buses to return between 6:30 pm to 7:00 pm. Unfortunately, the one in question did not return as usual, following a few phone calls to the driver, PW2, he got on board one of his private vehicles along with some of his relatives and they proceeded from his residence to find out about what may have happened.
31. That evening, he ended up at the Kukum Traffic office to produce a statement. Unfortunately for him, his bus was involved in a traffic related incident.
32. He strongly highlighted how he did not give anyone, apart from PW2, the authority to drive the vehicle in question. He continued to state that you are very well known to him, since you were once his employee. Early this year, you informed him that you have decided to go and work someplace else.
33. In cross examination, you repeated what you mentioned earlier, that is the trust you thought was in place between you and PW3, given your previous employment history. The response was that, he could have given you the permission to drive the said vehicle on the condition that you were not under the influence of alcohol and that if you have a valid driving license. He further stated that when you were his employee, he was the one who usually pays for your driving licence. This has ceased when you were no longer working as his employee.

Analysis

34. While the evidence given by PW1 and PW2 seem to have covered your manner of driving, I believe that prosecutions have denied themselves the opportunity of having a bystander corroborate what was stated.
35. The sections pertaining to the offence of careless and inconsiderate driving, and taking vehicle without authority, have already been outlined under paragraphs 7 and 8. The words used under section 40(1) of the Road Transport Act, clearly shows the actions that amounts to being careless and inconsiderate. From this section, the catch words are: “without due care and attention or without reasonable consideration”. Unfortunately, these words are not part of those interpreted under section 2 of the Road Transport Act as well as the Interpretations and General Provisions Act. In my view, these words relates significantly to the way a person is driving a motor vehicle on the road. Further to this, I believe that the offence of careless and inconsiderate driving does not only involve those ending up in collisions or other types of severe impacts. A driver in my view, commits an offence regardless of whether he is driving very slow, fast and or in a zigzag manner.
36. The view highlighted is made with reference to the case of McCrone v Riding [1938], where the court in its judgment at page 158 stated and I quote:

“[4][4].

That srd is d is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degreeroficiency or degree of experience attained by the individuividual driver.' (Emphasis added)^[5]” end of quote.

37. The important question which this court need s to ask, is that laid down in the case of Idufo'oa v R, where Da stressed:

&>“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?' (Emphasis added)^[6]”.

38. From the questions you posed to PW1 during the cross examination, I note how you tried to justify the way you and how you have not causecaused any accident. As stated earlier, you posed a question as to the law forbidding one to drive on both lanes. You seem to have a misconceived perception with respect to what the law says about the offence of careless and inconsiderate driving.
39. In all criminal cases, the onus is always upon the Prosecution, to prove guilt beyond a reasonable doubt. In this regard, Prosecutions must provide evidence with respect to the speed taken and the manner in which the driving occurred.
40. From the evidence adduced by PW1 and PW2, I am of the view that both the speed and the manner of driving have been well covered. Further to that, this view supported by the manner in which your questions were posed to PW1. It can be inferred that you were travelling at a high speed and hoped to justify your manner of driving by asking about the law forbidding your actions. You also stated that the speed indicated by PW1 when he was applying the standard tactic to determine the speed of another vehicle, is impossible for the one he was driving at the material time. Regardless of whether or not this is true, I believe Prosecutions have proved all the requisite standards regarding the offence of careless and inconsiderate driving.
41. With regards to the offence of taking vehicle without authority, PW2 and PW3 have both stressed how consent was never given to you, to drive the vehicle in question. PW2 states that all along, it was you who gave yourself the permission to drive the said vehicle. Hence, from the elements involved, I am satisfied, that the evidence adduced by PW2 and PW3 have rose to prove guilt beyond a reasonable doubt.
42. It is with the findings before me that I now order as follows:

ORDERS

(1) For the offence of careless and inconsiderate driving, I find you Samson Wasi guilty;
(2) For the offence of taking vehicle without authority, I find you Samson Wasi guilty;
(3) I hereby convict you for the offences at hand.

Dated this 26^th day of October 2020.

__________________

THE COURT

Emily Z Vagibule

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^[1] Section 40 (1) of the Road Transport Act.
^[2] Section 59 (1) of the Road Transport Act
^[3] Section 59 (1) (b) of the Road Transport Act
^[4] [1938] 1 AllER 157
^[5] Above n 4
^[6] [1982] SILR 55