[1979] KILR 1

HIGH COURT OF THE GILBERT ISLANDS

Criminal Appeal No 44 of 1978

TEAROUA BAKEUA

v

REGINAM

(O'BRIEN QUINN C.J.)

Betio: 4th January 1979

Criminal appeal - appeal against conviction and sentence - careless driving - damaging property - no evidence of carelessness - no evidence of wilfully and unlawfully causing damage - appeal court in as good a position to evaluate evidence - appeal allowed - convictions and sentences set aside - fine to be refunded.

The appellant, an agricultural trainee aged 19 years, drove a tractor at a slow speed when something went wrong with one of the wheels, the tractor struck a coconut tree on the right-hand side of the road, the appellant was convicted of careless driving and of wilfully and unlawfully causing damage to property.

HELD: That as there was no evidence of careless driving, no evidence of wilfully and unlawfully causing damage to property the Magistrates were wrong to have convicted and as the decision was based on fact alone the High Court, on appeal, was in as good a position as the Magistrates' Court to evaluate the evidence, draw the correct inference that the facts did not constitute either of the offences charged, allow the appeal and set aside the convictions and sentences.

Authorities referred to:

Benmax v Austin Motor Co Ltd (1955) A.C. 370; (1955) All E.R.326

O'BRIEN QUINN C.J.: This is an appeal against the decision of the Magistrates' Court for the Tabiteuea North Magisterial District, given on 8th November 1978, in which the appellant was convicted of careless driving contrary to section 23 of the Traffic Ordinance (Cap 71) and of damaging property contrary to section 319 of the Penal Code (Cap 8) and fined $10 on the first count and $6 on the second count, or in default of payment 6 weeks' imprisonment.

2. The evidence before the Magistrates was to the effect that the appellant was a trainee in the Agricultural Division, aged 19 years, and was driving a tractor at a slow speed when something went wrong with one of the wheels and the tractor struck a coconut tree on the right hand side of the road.

3. On this evidence the appellant was found guilty of careless driving and damaging property.

4. It is not the practice of this Court to interfere with Magistrates' Courts on findings of fact but, in this particular case, the legal conclusions to which the Magistrates came on the facts before them were clearly not justified. There was no evidence whatever of any carelessness on the part of the appellant or even any evidence of momentary inattention or inadvertence that may have contributed to the accident. Likewise there was no evidence that the appellant either wilfully or unlawfully caused damage to the wheel of the tractor. The Magistrates in concluding, on the plain facts before them, that the appellant drove carelessly and wilfully and unlawfully caused damage to the tractor, were clearly wrong and, as it was held in Benmax v Austin Motor Co Ltd (1955) A.C. 370; (1955) 1 All E.R. 326, that where there is no question of the credibility of witnesses, but the point in dispute is the proper inference to be drawn from proved facts, an appeal court is in as good a position to evaluate the evidence as the trial judge and may form its own independent opinion, I am entitled to draw the correct inference namely, that the actions of the appellant did not amount to careless driving and causing damage to a motor vehicle and I, accordingly, set aside the decision of the Magistrates' Court on both conviction and sentence and allow the appeal.

5. The appellant is, therefore, acquitted on both counts and the fines, if paid, should be refunded to him at once.