IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.45 of 1996

REGINA

-v-

LEONARD BOAZ

High Court of Solomon Islands
(Palmer.J)
Criminal Review Case No. 45 of 1996

Hearing: 14th November, 1996
Ruling: 18th November, 1996

R.B. Talasasa for the Prosecution
S. Manetoali for the Defendant

PALMER J: This case has been brought up to this Court for review under section 50(1) of the Magistrates’ Court Act. Initially, review was to be conducted on two grounds only, namely:

(1) that the penalty imposed was inadequate; and

(2) that the accused should have been disqualified from driving for the statutory period of twelve months.

However, on closer scrutiny of the Magistrates’ Court records, a number of discrepancies were noted and these had been raised as preliminary matters during the review hearing.

The accused had been arraigned before the Magistrates’ Court on 27 August, 1996, on a charge of driving whilst unfit to drive through drink contrary to section 42(1) of the Traffic Act. He was represented by Mr Manetoali of the Public Solicitors Office in the lower court.

The first discrepancy noted relates to the plea entered by the accused. The records of the Magistrates’ Court showed that the charge was read over to the accused and explained recorded. The accused was then asked to respond and this is what he said as recorded:

“I understand charge. Partly true.”

The records continue:

“Ct: Is that in accordance with your instruction, Mr. Manetoali?

Manetoali: I have advised my client to plead guilty upon his instructions.

Ct: I enter a plea of guilty.”

After the accused had stated that he understood the charge, but then replying that it was partly true, the learned Magistrate should have enquired further as to what was meant by that response. Instead, he asked defendant’s Counsel an inappropriate question; which was, whether that was in accordance with his instructions. The response of learned Counsel did not assist the matter further, because his response related to the advice that he had given to the accused. The accused however had responded that the charge was partly true, in spite of that advice. It was incumbent therefore on the Magistrate to ascertain what was meant by that. The learned Magistrate unfortunately did not do that. Instead, after hearing learned Counsel say that he had advised his client to enter a guilty plea, he took that as the plea of the accused and entered a guilty plea. With respect, that was improper and inaccurate.

The facts were then read and explained to the accused. The next entry noted in the record of proceedings read:

“Df: I u/std facts.

Manetoali: More or less in accordance with my instructions. I am calling a witness by way of mitigation to tell the Ct why the df did what he had done.”

The second discrepancy which can be noted in the records is that, after the facts had been read out to the accused, he should have not only been asked whether he understood the facts, but whether he agreed with the facts. May be that question was asked of learned Counsel, and that may have been the reason why he had responded that it was in accordance with his instructions. That response however is still ambiguous. If the facts were correct and agreed to, why would accused’s Counsel wish to call the accused to give evidence and explain what had happened? It is possible to explain the confusion through the inexperience of learned Counsel as to the procedures in the court below, but that should have been checked by the learned Magistrate. The question that the learned Magistrate should have asked after the facts had been read out is to ask the accused or where represented, to ask his Counsel, whether the facts are agreed to or not, and if not, to indicate which parts are not agreed to etc. Where the facts are agreed to, the learned Magistrate should then go on and get the antecedents of the accused and then to hear mitigation, before passing sentence. Where the facts are not agreed to, then the presiding Magistrate would have to decide whether, evidence would need to be heard on those disputed matters and a finding made, or whether the Prosecutor wishes to amend the facts to incorporate the matters disputed by the accused.

In this case, it is not clear whether the facts as read out are agreed to or not. The records then go on to show that accused’s Counsel again requested to have his client sworn to give evidence as to the circumstances in which the accident occurred. He also indicated that he wished to have a witness called in support. Both requests however, were denied by the learned Magistrate and the reason given was that it was unprocedural.

Whilst I appreciate that what learned Counsel had requested was unusual, it was not unlawful or improper. Again what the learned Magistrate should have done is to ask learned Counsel to indicate briefly to the court what evidence would be given and for what purpose. The same should be required of the witness intended to be called. The learned Magistrate would then have been in a position to know whether it was necessary to call the accused and his witness, or whether those matters can simply be raised by way of submissions in mitigation.

There was also another matter raised in mitigation which appears to have some relevance, but is not clear exactly what part it played in the circumstances surrounding the offence. This related to the submission that the brakes of the vehicle were faulty. Again this should have been inquired into by the learned Magistrate to assist him in coming to the right sentence to pass.

In the review hearing before this Court, learned Counsel for the accused stated that the accused had told him that he was going to plead guilty as he had taken some alcohol. The offence he had been charged with however is not merely for taking alcohol, but that he was unfit to drive as a result. There are two different things involved; one is the taking of alcohol, and the other is the ability to drive as a normal driver. A person may have taken one or two cans of beer, and still be able to drive normally. Another person on the other hand, may not be in a fit position to drive. The test as set out by the learned Author, G.S.Wilkinson in Road Traffic Offences, at page l00 is that, “his ability to drive properly is for the time being impaired”, through drink or drugs. He also points out that this can be proven by evidence that a car was being driven erratically or that an accident occurred at a spot where there was no hazard for a normal driver.

Now, the facts as read out to the court below were to the effect that the accident had occurred as a direct result of the unfitness of the accused to drive; that is because he was unfit through drink, he “under-estimated the running of another vehicle” heading in the opposite direction and did not stop, when a normal driver would have done so.

The accused however had earlier indicated that the charge was partly true, and then had also referred to the condition of the brakes of the vehicle that he was driving; that they were faulty.

It was clear therefore whether the accused was actually pleading guilty to or whether he was intending to raise some sort of defence. In the circumstances not satisfied that this case had been properly dealt with according to law such can be said that justice had been done. Accordingly it should be remitted to the lower court for a fresh plea to be taken. The conviction and sentence imposed therefore should be quashed and the case remitted to the Magistrates’ Court for a fresh plea be taken.

Having so ruled, it is not necessary for me to deal with the initial matters raised in this review.

ORDERS OF THE COURT:

1) Order that the conviction and sentence imposed by the Magistrates’ Court be quashed.

2) Order that the matter be remitted to the Magistrates’ Court to be re-heard by the same or different Magistrate.

Albert R. Palmer
Judge