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Koga v R [2006] SBHC 43; HCSI-CRAC 287of 2006 (19 September 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 287of 2006

EWAN KOGA

V

R

(Commissioner J Lewis)

Hearing: 15th September 2006
Judgment: 19th September 2006

Ms. Titiulu for the Appellant (Mr. Koga present)
Mr. Ronald Bei Talasasa for Respondent

JUDGMENT

Commissioner Lewis: The appellant was convicted of the offence (to put it shortly) of driving without due care and attention in breach of section 40)1) of the Traffic Act, by a Magistrate in July 2006. The conviction was recorded in the face of the appellant’s plea of not guilty.

The appellant now appeals against the conviction on the following grounds:

1. that the Appellant’s conviction was against the evidence and the weight of the evidence before the Court.
2. that his worship was wrong and/or had no good reason to disregard or say that the whole of the evidence DW2 is unreliable.
3. that his Worship failed take into account inconsistencies in the prosecution’s evidence.
   

As Counsel for the Respondent reminded the Court, when one considers any appeal, particularly concerning factual matters one must remind oneself that magistrates sit as tribunals of fact and have the advantage over appellate courts of having seen, heard and assessed the witnesses to the event in question. The present matter is such as case, for I am of the view that the Learned Magistrate Judged the applicable law in this case correctly.

In her helpful outline of submissions counsel for the appellant drew the attention of this court to matters which she submitted, the Magistrate had failed to take into account in arriving at his decision.

Firstly the appellant points out that nowhere I his reasons for judgment does the Learned Magistrate appear to have dealt with the arguments placed before him concerning the relative positions of the motor vehicles on the roadway immediately after impact and since there were no findings then a failure to take them into account must mean that the Magistrate fell short in his deliberations.

When considering the submissions of both Counsel I have borne steadfastly in mind that the Magistrate was at all times required to be satisfied by the prosecutor beyond reasonable doubt from the whole of the evidence that the appellant was guilty of a want of due care and attention. It was open to the Defendant to give evidence (as he did) and to call evidence (as he did) and if at the conclusion of the evidence there was a reasonable possibility that the appellant was not guilty, then of course the Magistrate’s obligation was to have acquitted him.

True it is that the Learned Magistrate did not include in his reasons, findings about the relative vehicular positions after the collision, however it is clear that he found that a collision had occurred between the vehicle driven by the appellant and the taxi being driven by PW1 and in so doing had considered the evidence and the arguments placed before him.

Moreover, the arguments which Ms. Titiulu advanced as consequence of those relative positions of vehicles following the collision are arguments which really require expert testimony of the dynamics of vehicular collisions.

It is asking too much of a Court to draw an inference from the now stationary vehicles that any one or all of them, had been travelling for example at a particular speed or in a particular direction. If the evidence is to be relied upon by a Court, the physical significance of the evidence needs scientific explanation because the Magistrate is unlikely to be capable of forming correct verdict without the assistance of an expert as to just what physical force for example, turned the Telekom vehicle through 160 degrees. – see Clarke v Ryan [1960] HCA 42; 1960 103 CLR 486 at 491, 492.

As an illustration of the need for expert evidence to support the ‘turning 160 degrees proposition’, Counsel for the appellant in this case at page 2.5 of her submissions urged that the Magistrate ought to have found that the taxi was travelling at a much faster speed than the 25kg deposed to by PW1 since the impact turned the Telekom Suzuli through 160 degrees.

It was not within the Magistrates capacity, given the evidence, to have arrived at that conclusion. Had traffic engineers or some other appropriately qualified expert given evidence about it, then that would be quite a different matter and expert evidence would have assisted him in concluding whether there was indeed a reasonable possibility that the taxi was travelling too fast and collided so forcefully that it was beyond the appellant to have avoided the collision.

Magistrates are not required to spell out each and every piece of evidence which assists then in their arrival at a particular conclusion. However it is desirable that they give coherent intelligible and comprehensive reasons for their conclusions.

The Magistrate in this case found the fact of the collision and was left to consider what weight or otherwise he placed on the evidence of the witnesses including that of the 2 principal drivers.

Next the appellant through Counsel argued that the Learned Magistrate was in error in failing to find that if PW1 was driving his vehicle at 25kph – she said, the Magistrate ought to have found as a matter of common sense that if PW1 was driving at 25kph then he ought to have been able to avoid the accident and that the taxi would have stopped had he applied the brakes. Again there was no evidence which the magistrate could resort to about that.

Each one of the arguments advanced by the appellant concerning the dynamics of the collision becomes merely a guess and not a reasonable factual possibility consistent with innocence if there is no evidence about the basis for it – and there was none before the Magistrate.

Next the appellant says the evidence of the defendant was that he looked both ways and bearing in mind the 25kph limit "moved out slowly". The Magistrate found from the evidence that the appellant did not see the taxi. He said:

"there are two possible explanations. One is that the defendant did not see the on coming vehicle or misjudged the distance of the oncoming vehicle and abruptly took off. The other explanation is that PW1 is running at high speed. These are two opposing views and as a matter of good law, one that is supported by evidence is the one that must prevail."

The witness DW2 was rejected as a reliable witness by the Magistrate, a judgment which he was clearly entitled to make. The Magistrate explains his unpreparedness to accept the evidence of DW2 at page 2.8 of his judgment and gives reasons why he was not prepared to act on it.

Even if one accepts the witness DW2 as independent and doing his best to recount events as they happened, the magistrate had the advantage of this court he heard the evidence he saw the witness and he evaluated him and in these circumstances given the nature of his evidence it is not for this court to substitute its own point of view about DW2 except in the most unequivocal circumstances which do not exist here.

The arguments set out in ground three involve a re-examination of those arguments in grounds 1 and 2 to an extent. It is clear that His Worship did bring those inconsistencies into account and despite them concluded beyond reasonable doubt that it was the driving of the appellant which brought about the collision.

The plain fact is that, for a reason which is completely unclear, the appellant simply failed to see the oncoming taxi and collided with it and thereby became in breach of the Traffic Act and the Learned Magistrate so concluded.

The drivers of vehicles entering a busy highway, such as was the situation in this case, have a high duty of care imposed upon them to ensure that it was at all material times safe to move into the Highway as the appellant did here. The Magistrate was correct in concluding as he did that as a matter of fact and law that the appellant departed from that standard of a reasonable and prudent driver imposed upon by law.

The Appeal is dismissed.

THE COURT