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Fosala v Reginam [1988] SBHC 12; [1988-89] SILR 139 (9 May 1988)

[1988-89] SILR 139

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No.8

CHARLES FOSALA

-v-

REGINAM

High Court of Solomon Islands
(D.J. Jeremiah Commissioner)
Criminal Appeal Case No.8 of 1988

Hearing: 4 May 1988
Judgement: 9 May 1988

Appeal against sentence - offences under sections 43(1) and 45(1) of Traffic Act - whether offender liable to disqualification - continuing duty to maintain under s.43 (1).

Facts:

The Appellant was disqualified from driving for twelve months for an offence of permitting a motor vehicle to be used on a road in a dangerous condition, contrary to section 43(1) and 45(1) of the Traffic Act. The vehicle had been involved in a road accident in which a child had been killed. The major cause of the accident was the defective brake. He appealed against the twelve months disqualification on the grounds that he was not the driver at the time of the accident, that his vehicle was mechanically checked and tested by Ministry of Transport, Works and Utilities and had a current test certificate and vehicle licence and further that the driver at the time of the accident was legally qualified to drive.

Held:

(1) A person who causes or permits a vehicle to be driven with defective brakes, contrary to sections 43(1) and 45(1) of the Traffic Act is as liable to disqualification as the driver is. The mere fact that he was not the driver at the time of the accident does not afford any defence.

(2) Section 43(1) of the Traffic Act emphasises the continuing duty to maintain a vehicle so that its condition does not render it dangerous and this duty does not go into abeyance for the twelve months following the grant of a test certificate. Thus the fact that the vehicle was the subject of a valid test certificate at the time of the accident was not itself a good reason why the appellant should not be disqualified.

(3) The learned Magistrate had found that the vehicle had defective brakes, and further that its stop lights, tail lights and one signal light at the front were not working. The learned Magistrate had rightly found that there was a lack of maintenance of the vehicle which had caused an accident in which a child was killed. He had found that overall responsibility for maintaining the vehicle lay with the appellant who permitted its use on the road in such conditions. In such circumstances the sentence of twelve months disqualification was neither wrong in principle nor manifestly excessive.

Appeal against sentence dismissed.

Appellant in person.
J Apaniai for DPP

D.J. JEREMIAH. COMMISSIONER: This is an appeal against a sentence of twelve months disqualification for an offence of permitting a motor vehicle to be used on a road in a dangerous condition contrary to section 43(1) and section 45(1) of the Traffic Act.

The appellant is not represented in this Court although he did have the assistance of Mr John Muria, of the Public Solicitor’s Office, in the lower court. His grounds of appeal state:

"I disagree with verdict of the Magistrate to bound my driving licence for one year on the following grounds:

(1) In passing his verdict on 14.3.88, Magistrate Michael Lodge fails to see the fact that I Was not driving my vehicle registered No. 9439 at the time of accident to which Magistrate should bound my driving licence for one year.

(2) My vehicle registered No. 9439 was valid for 12 months to run on road when it was mechanically checked and tested by the appropriate authority (MTWU) and my driver was legally qualified to drive my vehicle registered No. 9439. Since the Magistrate had convicted me for three months imprisonment for one reason or another and because I was not driving during the time of the accident my driving licence should not be bound for 12 months."

In fact, this case was not heard by Mr Lodge but by another Principal Magistrate.

Section 43(1) of the Traffic Act provides:

"No vehicle shall be used on a road unless such vehicle and all parts and equipment thereof, including lights and tyres comply with the requirements of this Act and are at all times maintained in such a condition that the driving of the vehicle is not likely to be a danger to other users of the road or the persons travelling on the vehicle."

Section 45(1) provides:

"Any person who drives or uses or causes or permits to be used on a road a vehicle in

Contravention of the provisions of section shall be guilty of an offence and liable to a fine of one hundred and fifty dollars or to imprisonment for four months or to both such fine and such imprisonment."

The Schedule to the Act, Part II, provides that such an offence carries discretionary disqualification where it is attributable to "breach of a requirement as to brakes...." This was the defect found proved in the present case.

It will be immediately obvious from the above, that a person who causes or permits a vehicle to be driven with defective brakes, contrary to section 43(1) and section 45(1) is as liable to disqualification as the driver is. Thus, the point made by the applicant that he was not the driver of the vehicle at the time of the accident which caused his own offence to come to light does not of itself assist him.

Nor does the fact that the vehicle was the subject of a valid test certificate at the time of the offence provide in itself a reason why the learned magistrate should not have disqualified the applicant. The wording of section 43(1) emphasises the continuing duty to maintain a vehicle so that its condition does not render it dangerous. That duty does not go into abeyance for the twelve months following the grant of a test certificate.

The tragic background to this case was that a child was killed in a traffic accident in Honiara. The learned magistrate’s judgment makes it clear that he found the defective brakes on the relevant vehicle to be the major cause of the accident. He also found it "clear" that this appellant had overall control of the vehicle although he had delegated such control to his driver on the day of the accident. Although this appellant gave no evidence in the trial, which the learned magistrate quite properly passed no comment on, the learned magistrate found from such evidence that he did hear that the vehicle had not been properly serviced. Apart from the evidence of the co-accused it was open to him, as he did, to draw this inference from the state of the vehicle on the day of the accident. As well as having a defective brake, its stop lights, taillights and one signal light at the front, were not working.

In his reference, in the grounds of appeal, to his driver being legally qualified to drive, the appellant is I think, drawing this Court’s attention to adverse comment made by the learned magistrate as to the appellant’s choice and supervision of his driver. These factors had no direct bearing on this particular charge but formed part of the learned magistrate’s overall assessment of the manner in which the appellant carried out his duties. Taken in context, there is no indication that the learned Magistrate strayed beyond dealing with the appellant for the particular offence of which he was convicted.

The question for this Court is not what order it might have made in the circumstances. This Court may only allow an appeal against sentence if such sentence is wrong in principle or manifestly excessive. The learned magistrate found there to have been lack of maintenance of a vehicle the brakes of which did not work, causing a fatal accident. He found that overall responsibility for maintaining the vehicle lay with the appellant who permitted its use in this condition.

I have some sympathy for the position that the appellant now finds himself in as clearly a driving licence is a valuable asset to him. However, a period of disqualification of twelve months, on the facts of this case, was neither wrong in principle nor manifestly excessive.

This appeal is dismissed.