[1979] KILR 17

HIGH COURT OF THE GILBERT ISLANDS

Criminal Appeal No 4 of 1979

TUARIRAKE TEIWAKE

v

REGINAM

(O'BRIEN QUINN C.J.)

Betio: 25th January 1979

Criminal appeal - appeal against convictions and sentence - fall off motorcycle - no other evidence - "black out" pleaded - conviction - "res ipsa loquitur" - application in criminal cases - position in law - section 9 of Penal Code (Cap 8) - appeal allowed - finding of guilty and sentence set aside.

The Appellant, while riding slowly on his motor-cycle at Utiroa village on 14th December 1978, fell off and was charged with driving without due case and attention. He pleaded that he had had a black-out and relied upon section 9 of the Penal Code (Cap 8). He was found guilty and fined $30.

HELD: (1) That as there was evidence that the appellant drove without due care and attention and as the appellant gave a reasonable explanation of how he fell off the motorcycle this was not a case where "res ipsa loquitur" applied or where the only possible inference was careless driving and the prosecution did not discharge the burden of proof which lay upon it;

(2) That the appeal would be allowed and the finding of guilty and the sentence set aside.

Authorities referred to:

Woolmington v D.P.P. (1935) A.C. 462 at 481
Phipson on Evidence 12th Edition pghs 115, 117
Scott v London and St Katherine Docks Co (1865) 3 H&C 596 at 601
Wright v Wenlock (1971) R.T.R. 228 at 231
Penal Code (Cap 8) Section 9

O'BRIEN QUINN C.J.:-

The appellant was found guilty of driving without due care and attention contrary to section 23 of the Traffic Ordinance (Cap 71) by the Magistrates' Court for the Tabiteuea North Magisterial District sitting at Bakokoia on 16th January 1979 and sentenced to pay a fine of $30 or go to prison for three months in default of payment.

2. The facts as found by the Magistrates' Court were that the appellant was riding a motorcycle in Utiroa village on 14th December 1978 with a pillion passenger when, while moving slowly, he fell off the motor-cycle onto the ground.

3. In the Magistrates' Court the appellant gave evidence to the effect that he had a "black-out" as he had not eaten before he left the house. He relied on the terms of section 9 of Cap 8 where it is stated that "a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident". The police prosecutor appeared to be of the view that once an accident happened the person responsible must have committed an offence.

4. The Magistrates' Court found the appellant guilty and sentenced him to pay a fine of $30 to be paid within 3 months and the appellant has appealed against conviction and sentence, setting out six detailed grounds of appeal.

5. However, the only point which is of importance in this appeal is whether or not the prosecution proved its case that the appellant drove without due care and attention and was guilty of careless driving.

6. It is fundamental that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt (Woolmington v D.P.P. (1935) A.C. 462 at 481.). That means that the prosecution must prove the essential ingredients of the offence charged. In this case I can find no evidence that the appellant drove without due care and attention or carelessly. The only evidence was that the appellant drove slowly and that he fell off the motor-cycle.

7. The prosecution would seem to have believed that if there is a road accident someone must be charged but that is not necessarily so. There is a maxim of civil law known as "res ipsa loquitur". This maxim is explained in Phipson on Evidence 12th Edition at paragraph 115 as follows - "This maxim is most frequently used in connection with the tort of negligence. It is sufficient for the present purpose to state that while ordinarily it is for the plaintiff to prove negligence, sometimes although he will be able to prove the accident, he will be unable to prove how it occurred." However, accidents, on occasions, speak for themselves and, in such cases, the plaintiff may rely upon the maxim "res ipsa loquitur". "There must be reasonable evidence of negligence but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care (per Erle C.J. in Scott v London and St Katherine Docks Co (1865) 3 H. & C. 596 at 601).".

8. The maxim "res ipsa loquitur" applies in civil cases only as in criminal cases the presumption of the innocence of the accused casts on the prosecution the burden of proving every ingredient of the offence. However, while the maxim has no application in criminal cases, in a fairly recent driving case Lord Parker C.J. said "the facts of a particular case may be such that, in the absence of some explanation the only possible inference is careless driving" (Wright v Wenlock (1971) R.T.R. 228 at 231) (Phipson on Evidence 12th Edition paragraph 117).

9. In this present case the appellant gave a reasonable explanation of how the accident occurred and I do not consider that this case is one in which the maxim "res ipsa loquitur" or the words of Parker L.C.J. cited above ought to apply, particularly in view of the terms of section 9 of Cap 8. The burden of proof lay on the prosecution and that burden was not discharged.

10. Accordingly, I allow the appeal and set aside the finding of guilty and the sentence. If the fine has been paid it should be refunded; if not then the appellant does not have to pay it.