[1979] KILR 44

HIGH COURT OF THE GILBERT ISLANDS

Criminal Appeal No 12 of 1979

LOUIS KORNELIS EIKENHOUT

v

REGINAM

(O'BRIEN QUINN C.J.)

Betio: 6th April 1979

Criminal appeal - appeal against conviction - reckless driving - what constitute reckless driving - no proof speeding - conviction upheld - sentence reduced - disqualification altered to endorsement of license

This appeal is reported on the question of what constitutes reckless driving and what the sentence for that offence should be.

Held: (1) That to ride a motorcycle while carrying things in one's hands to the extent of preventing one from the full operation of the machine constitutes reckless driving and was dangerous to the public having regard to the circumstances of the case;

(2) That a fine of $100 was too high for a first offence and it would be reduced to one of $25 while the 6 months' disqualification would be altered to an endorsement of the appellant's driving license.

Authorities referred to:

R v Evans (1963) 1. Q.B. 412 at 417
Kingman v Seager (1938) 1 K.B. 397
R v Gosney (1971) 2 Q.B. 674 C.A.
Archbold's Criminal Pleading Evidence and Practice, 39th Edition, pghs 2821(b) and 2822

Appellant in person
A.S.P. Iotua Tebukei for the Crown

O'BRIEN QUINN C.J.: -

This is an appeal against the decision of the Magistrates' Court for Betio Magisterial District in which, on 19th February 1979, the appellant was found guilty of reckless driving, contrary to section 24 of the Traffic Ordinance (Cap 71), on 10th January 1979, and sentenced to pay a fine of $100 within one week or to undergo 6 months' imprisonment in default of payment and was disqualified from driving for a period of 6 months.

2. The appellant's sole ground of appeal was that he did not drive recklessly.

3. The facts, as found by the Magistrates' Court, were that at about 8 pm on the evening of 10th January 1979 a bus had halted on the left-hand side of the road near the Japanese Command Bunker and that two ladies started to cross the road behind the bus when the appellant came on his motor-cycle from the Takoronga direction, tried to swerve behind the ladies but one of them, on seeing him, stepped back and pulled the other lady with her. The motorcyclists then struck one of the ladies, causing her injuries to her leg and ribs, veered off the road and fell off his motor-cycle some distance away.

4. The appellant had been drinking earlier at the Betio Club but was acquitted on a charge of Drunken Driving. One of the ladies said in her evidence that the road was clear before they started to cross it to reach the bus and that the motor-cyclist came upon them very suddenly and was about to knock them down when she pulled the other lady, her mother, out of the way.

5. The appellant, in arguing his appeal, admitted that he had contributed to the injuries and that he was partly responsible for the accident but stressed that he was not reckless. He said that he saw the two ladies crossing the road and made up his mind to go behind them but, when they saw him so close to them, they stepped backwards and caused him to come into collision with them. He admitted that he had not hooted his horn as he was carrying a lamp and some tools in his hands at the time and could not do so.

6. I had some difficulty in reading the sketch-plan as it did not tally with the evidence as to where each of the witnesses was at the time of the accident. Further, I was not helped by the conflicts in the evidence for the prosecution. However, the evidence for the Prosecution did establish the main facts and these were not disputed by the appellant.

7. There is no doubt that the appellant did knock down one of the two ladies and that is so doing he was wrong. There is no doubt that the appellant did not hoot his horn as he should have done and that, in view of the fact that he was carrying things in his hands, he had not got full control of the motor-cycle, and that in these respects he was wrong. There was, unfortunately, no evidence as to the speed at which the appellant was cycling at the time and the Magistrates, in finding that the appellant was travelling at a speed in excess of 20 mph, were not having regard to the evidence.

8. I have looked at the law in England on these matters, in particular, R v Evans (1963) 1. Q.B. 412 at 417 as commented upon in Archbold 39th Edition at paragraph 2821(b) where the following appears "…..there is no legal definition of driving to the danger of the public……..It has sometimes been said that a very good test is for the jury to make up their minds on the evidence what actually happened……and to ask themselves this question "Had we seen this should we have said without any doubt, that was a dangerous piece of driving?" If the answer……is "Yes", then the man is guilty and if the answer is, "Oh no", or "we cannot be sure about it," then he is not guilty". Again in Kingman v Seager (1938) 1. K.B. 397 it was held that the offence is complete if potential danger to traffic which might reasonable be expected to be on the road is proved. It is also stated in Archbold, 39th Edition, at paragraph 2822, that to justify a conviction for dangerous driving, which is in the same terms as reckless or dangerous driving under section 24 of Cap 71, there must (i) a situation which viewed objectively was dangerous, (ii) some fault on the part of the driver, causing the situation. Fault, it was held in R v Gosney (1971) 2. Q.B. 674 C.A., involves a failure, a falling below the care or skill of a competent and experienced driver, in relation to the manner of the driving and the relevant circumstance of the case.

9. What have I got before me in this case? I have two ladies crossing a road at night, a motor-cyclist who although he has a lighted head lamp, does not and cannot sound his horn, the ladies reacting in a different way than was anticipated by the motorcyclist, and the motorcyclist, instead of stopping, swerving around the ladies, hitting one, and then falling off his motor-cycle some distance away.

10. I have given much thought to the circumstance and to the appellant's reactions and I have to the conclusion that that, on the law as it stands, I must uphold the decision of the Magistrates' Court and confirm the conviction on the charge of reckless driving as to ride a motor-cycle while carrying things in one's hands to the extent of preventing one from the full operation of the machine is, in my opinion, reckless and is, following the English authorities quoted above, dangerous to the public having regard to the circumstances of the case.

11. In so holding, however, I do not necessarily agree with the sentence passed by the Magistrates' Court.

12. The maximum sentence under section 24 of Cap 71 is 6 months' imprisonment and a fine of $100. In this appeal, the appellant's offence was not the gravest of its kind and warranted a sentence well below the maximum. He was reckless, but not gravely so, and it was his first offence. In these circumstances, the Magistrates' Court should have given a lot of consideration to the question of sentence. A fine of $100 or 6 months' imprisonment is a high sentence for a first offender whose main fault was not to have full control of the motor-cycle. He was not proved to have been speeding, on which point the Magistrates' Court erred, and his recklessness was not excessively grave. I consider that this case came just with in the bounds of recklessness and merited a much lower sentence than a fine of $100 and disqualification for 6 months.

13. I, therefore, set aside the fine of $100 and substitute therefor a fine of $25 and I set aside the 6 months' disqualification from driving and substitute therefor an order that his driving licence be endorsed.

14. The appeal against conviction is dismissed, the sentence reduced from a fine of $100 to one of $25, the driving disqualification set aside and the appellant's license ordered to be endorsed forthwith.