IN THE CENTRAL MAGISTRATES COURT
OF SOLOMON ISLANDS AT HONIARA
(Criminal Jurisdiction)

Criminal Case No. 256 of 2015

REGINA

-v-

ISTA WILLIAM

Prosecution: Moses Reani of Police Prosecutions Office
Defence: Accused represented himself
Hearing: September 28 – October 1, 2015
Judgment: October 7, 2015

Judgment

The charge

1.	The Accused, Ista William was charged with one count of careless and inconsiderate riding contrary to section 40 (1) of the Road Transport Act. According to the charge, it was alleged that on 30th of September 2014, he rode his motorcycle registration number MA-2377 along White River road and without reasonable consideration for other persons using the road, failed to give any signal light and drove out from a feeder road and collided to a police vehicle which drove pass along the drive way at that time. 

2.	The prosecution's case as gleaned from its verbal submission is that the Accused decision for not waiting to allow the police vehicle to go pass before riding on the road or his decision to ride on a wrong lane resulting in the accident showed that the Accused was careless and inconsiderate in his riding. The accident occurred as a result of his-own fault. The prosecution's case premised on either of these or the combination of them. 

3.	The Accused on the other hand denied the allegation and said that it was the driver of the police vehicle who was careless for not concentrating on his driving. He said that he was already riding his motorcycle on the road when he saw the police vehicle travelled east bound direction on his same lane. When he saw that, he then moved to the opposite lane to avoid colliding with the police vehicle. It was when he was on the opposite lane that the police vehicle turned towards him and with its left bumper, hit his left leg and caused him to fall on the road. His left leg was fracture as a result of the careless driving of the police driver. 

Elements of careless riding

On a charge of careless and inconsiderate riding, the prosecution must prove beyond reasonable the following elements:

(a)	The identity of the Accused;
(b)	Place of the incident;
(c)	The date of the incident;
(d)	The Accused ride a motorcycle;
(e)	On the Road; and
(f)	Without due care and attention or without reasonable consideration for other persons using the road. 

4.	In the present case, there was not any dispute that Ista William was the person who involved in the accident when he rode his motorcycle, the place of the accident was along the road opposite White River Clinic, the accident occurred on 30th of September 2014. Accordingly, those undisputed facts in relation to the elements of the offence are admitted pursuant to section 21 (1) of the Evidence Act 2009. Therefore, I am satisfied that the facts pertaining to elements (a) – (e) are proved beyond reasonable doubt. The only contested element is (f), that is – whether Ista William was without due care and attention or without reasonable consideration for other persons using the road when he rode his motorcycle at time that resulted in the accident.

Issue for the trial 

5.	Since elements (a) – (e) of the charge are not in dispute, the only issue for me to decide is whether the accused was without due care and attention or without reasonable consideration for other persons using the road when he rode his motorcycle at the material time that resulted in the accident. 

Prosecution case

6.	The prosecution called two witnesses for its case. They were Mr. Patrict Pambo (PW1) and Leslie Awasi (PW2). 

7.	PW1 is a police officer. He stated that he has been driving for police for about 9 years. He recalled on 30th of September 2014, he and other police officers were on patrol in a police vehicle registration number G3582. He was the driver of it. Between 5-6pm of that day, he left White River Police Station with other police officers intending to go to Central Police Station. When he was at some point near the White River Clinic travelling at about 5km/h, he heard a noise in front of the vehicle indicting something collide or hit the vehicle. He stopped the vehicle, walked out and saw a person lying on the road with a motorcycle. That person was identified as Ista William or the Accused in other words. The Accused didn't wear any helmet but only a long pant. He asked him to take him to hospital but the Accused responded that he was ok. He stated that the Accused hit the left bumper of the vehicle. He saw his left leg was injured. He told the Court that he didn't see the Accused gave any signal because the side of the road where the Accused came out from was bushy. 

8.	In cross examination, he said that he didn't see the Accused gave any signal or gave way. He denied the suggestion that he was not concentrating and that was why he hit the Accused left leg. He further denied that he was busy telling story with another police officer who sat in the front of the vehicle. 

9.	PW2 Mr. Leslie Awasi is also a police officer. He was also in the vehicle at the time of the accident. He recalled about 5:55pm of that evening, he and the other police officers left White River Police Station in the police vehicle driven by PW1. He was sitting with others on the left side of the main cabin of the vehicle. When they turned and approached the White River Clinic, he saw the Accused rode his motorcycle along a footpath, straight towards the police vehicle and collided with it. That person did not stop to give way or signal for turning. He stated that he was shocked to know that something hit the vehicle. He looked outside of the vehicle and saw the Accused lied down on the road. The Accused did not wear any helmet but only a long pant. He and the other police officers got off the vehicle, picked up the Accused and transported him to the National Referral Hospital. He said that there were no potholes at the place where the accident occurred. He also stated that according to his recollection, they were traveling about 5km/h when the accident occurred. 

10.	In cross examination, he said that he did not see the Accused gave signal. He maintained that he saw the Accused riding from that footpath towards the vehicle and collided with it. He stated that the driver was not busy talking with another front passenger. 

11.	The prosecution urged the Court that the accident occurred as a result of the Accused's wrong decision or judgment. His failure not to allow the police vehicle to drive past resulted in the accident. The injury suffered by the Accused is consistent with his speeding and careless riding at that time not the police vehicle. 

12.	The prosecution closed its case. 

13.	This matter proceeded to defence case after I ruled a case to answer pursuant to section 197 of the Criminal Procedure Code. 

Defence case

14.	The Accused DW1 gave sworn statement and called his wife in support of his case. He stated that earlier on that day, he went to his workplace to fix motorcycles owned by Willies Electronics. Later, he took one of them to his house purposely to fix a knocking sound it has. He was busy fixing that motor cycle that day and later in the evening, he decided to go to buy food for his family from the shops close to the White River Bridge. Before he left, his uncle named Meme was with him at his residence. He preferred not to wear a helmet since he wanted to hear the knocking sound from that motorcycle whilst riding it on the road. He stated that he rode along the footpath leading towards the driveway and saw a police vehicle traveling towards him eastbound direction. He gave signal and turned in the driveway and rode on the left lane. He looked to the vehicle and saw it was occupying his same lane. He looked to the driver and saw him talking to another front passenger and was not concentrating with his driving. Because of that he then moved to the opposite lane to avoid hitting the vehicle. When he was on the opposite lane, the police vehicle moved to him. When the vehicle reached him, the driver accelerated its speed and caused its bumper to hit his leg. This caused him to fall on the road. The vehicle stop and those police officers came out of it. He tried to stand but later realized that his left leg was broken. Later he was taken to the National Referral Hospital. He also stated that few days after the incident he sent his wife to report the matter to Kukum Police Station but was advised that a case has already been lodged against him. 

15.	During cross examination, he agreed to the need for wearing of the helmet but explained that he intended not to wear helmet because he wanted to hear the knocking sound since he would not detect that sound if he wear a helmet. He agreed that he could see the police vehicle even from his house. He first saw the police vehicle from a distance of about 15 meters. He agreed that the police vehicle was still far and that was why he rode straight onto the main road. He disagreed that he collided with the vehicle in front of the footpath but maintained that the vehicle hit him few meters away from the end of the footpath that connected to the driveway. He denied that he was not speeding and was making a wrong decision. He maintained that it was the driver of the police vehicle who was careless but not him. He explained to the Court that if the driver of the police vehicle saw him then he would do these two things:

(i)	He should step on the break when he saw him moved to the other lane to avoid any collision, or 

(ii)	He should continue to drive using his lane to avoid colliding with him. 

16.	He denied that he was drunk at that time.

17.	DW2, Ms. Surina Pollin William is the wife of the Accused. At the time of the accident, she was at White River market and did not see what happened. Since she did not see what happened, most of her evidence simply narrated events occurred after the accident. However, she stated after her husband was hospitalized at the National Referral Hospital, she went to Kukum Police Station and White River Police Station to enquire about reporting this case but was advised by Kukum police that a case has already been opened against her husband. She also stated that her husband was not drunk before the time of the accident. 

Crime scene visit

18.	The crime scene was conducted on 29th of September 2015 starting from the footpath that led to the Accused previous residence up to the position where the Accused fell on the road. I noted this important finding that the distance from the end of the footpath to where the Accused lied down indicting the collision area was about 8-10 meters. That distance was agreed by both the prosecution and the Accused. I also noted that the road was not a tarmac but only an ordinary smooth graveled road. 

The law

19.	 In all criminal trials it is the prosecution that has the burden of proving the guilt of an accused beyond reasonable doubt. That burden remains with the prosecution throughout the trial. In R v Bolea, Pallaras J, neatly stated that:

"The case is not to be decided by a quantitative evaluation of the number of witnesses giving the varying accounts, nor is it to be decided by which account is preferred by the Court. It is not a question of preference or a numerical accounting of the versions given. The onus on this case as in all criminal cases, is on the prosecution to prove beyond reasonable doubt the elements of the offence as charged. The defence do not have to prove that their version is preferable, they have no burden to prove anything at all. It is upon the prosecution to prove their case and to prove it to the criminal standard of beyond reasonable doubt."

20.	If the prosecution does not satisfy me of each of the elements of the offence of careless and inconsiderate riding to that high standard and any reasonable doubt remains as to his guilt, the accused is to be given the benefit of that doubt and is to be acquitted. This is his legal right.

21.	The test to be applied for careless and inconsiderate riding is an objective test – same as ordinary careless and inconsiderate driving offences. That is the court is required to objectively determine whether the accused person's riding was below the standard of a reasonable, prudent and competent motorcyclist at the time of this alleged offence committed. 

22.	 In Idufoa v R, Daly CJ clearly laid down the test to be applied that "The question for the Magistrate was then, have the prosecution made sure that the appellant departed from the standard of a reasonable, competent and prudent driver in those circumstances." In Milton v Director of Public Prosecution, Smith L.J, succinctly outlined the test for careless driving as follows: 

"the test should be fully objective. The court would be looking at the quality of driving (was it really bad?) and not at what the driver himself thought about its possible outcome. Second, the offence was to contain a statement of the standard of 'badness'. The test should be whether the driving fell well below the standard of driving to be expected to the competent and careful driver. This was to avoid catching cases of trivial incompetence. Third, it was said that the court should be directed by the definition to consider the quality of the driving directly in relation to the particular circumstances in which it occurred. How would the competent and careful driver have behaved in these circumstances? It was said that the court should have to consider whether even a competent and careful driver would have driven in this way. This would enable the driver to give an explanation as to why he had driven as he had. Examples were suggested. The driver might have been responding to an emergency or he might have encountered an unusual and unexpected road condition. In such circumstances, the driver might escape conviction" 

23.	It is clear in this trial that there are varying accounts from both sides, each blaming the other as the one who was at fault. In this case, it is for the prosecution to prove beyond reasonable whether the accused was without due care and attention or without reasonable consideration for other persons using the road when he rode his motorcycle at the material time that resulted in the accident. This is not a matter of preference but the conventional burden that in every criminal case rests squarely on the prosecution. 

24.	In deciding whether the Accused is careless and inconsiderate with his riding, the Court must look objectively at the facts that show the circumstances about the manner in which the Accused rode his motorcycle that led to the accident. Those facts can be established from:

•	whether the Accused was speeding at that time, 
•	his manner of riding, 
•	evidence from the site of impact whether it be from the vehicle or the motorcycle to show how the collision occurred,
•	failure to adhere to right of way for an oncoming vehicle 
•	the nature of the road, and
•	 any injuries sustained by those involved in the accident. 

25.	From those findings, it will provide the basis to this Court to find whether the prosecution has proven its case beyond reasonable doubt. I now turn to the evidence in relation to the findings on each of those crucial areas. 

Findings of the Court

•	Whether the Accused was speeding at that time 

26.	 PW1 and PW2 did not give any evidence about the speeding of the Accused. PW2 only stated that he saw the Accused rode along his footpath and collided with the vehicle. He didn't describe his speed at that time. PW1 evidence is that he only heard a noise of something hit the front of the vehicle on its left side. Apart from that, he recalled that he was driving at about 5km/h. I am mindful of the fact that both witnesses gave evidence from a view of a person inside of a moving vehicle compared to a bystander or onlooker near the road. The fact that they were inside a moving vehicle does not prevent especially PW1 who was in a driver's position to describe the manner of speeding by another road user such as the Accused in this case. He has a better view of the road in front of him compared to other passengers at the back of the vehicle. 

•	His manner of driving 

27.	PW1 stated that he was travelling at a speed of 5km/h when he realised something hit the left front of the vehicle. He didn't see the motorcycle approaching him the opposite direction. His reason for not seeing the Accused was that because the side of the road was not clear or there were bushes along the side of the road. The effect of his evidence is that he didn't see the Accused riding his motorcycle from a pathway or the opposite lane but only heard the sound of the collision. Therefore it must also mean that he was not aware whether the Accused had put on his signal. Only PW2 saw the Accused rode from the footpath and straight collided with the vehicle. 

28.	Unfortunately, the picture of the motorcycle or the vehicle was not produced in Court. However, I took judicial notice that at least the size of the motorcycle was bigger than an ordinary bicycle. Unless the road was obstructed with grasses or overhang of branches from the trees besides the road (which in this case there wasn't), given the size of the motorcycle, it would be easy for any driver to see clearly a moving motorcycle when approaching the opposite direction especially from a non-congested traffic like in front of the White River Clinic. The absence of it means that the Accused was not riding in the opposite direction or the Accused was in fact riding on the road but the driver was the one who was not concentrating with his driving. 

29.	The crime scene visit clearly established that the location where the Accused fell on the road was not in front of the walkway but further down along the right side of the road westbound direction about a distance of about 8-10 meters. This was the finding which places much doubt on PW2's version of evidence. PW2 would be correct if the location where the Accused fell down was at the meeting point of the walkway to the driveway or perhaps within that exact location. In my view, this distance of 8-10 meters means that Accused was already riding on the driveway towards the vehicle as opposed to the evidence given by PW2. This varying account of his evidence is significant in assessing his credibility. Having reached this finding, I am therefore of the view that although he is an honest witness, unfortunately he is not reliable witness. I accordingly reject him as a reliable witness whom this Court will safely and comfortably rely on. 

30.	The next question is whether or not the driver was concentrating with his driving. PW1 stated that he didn't see the motorcycle coming in the opposite direction but only heard the noise of collision to the front of the vehicle. This piece of evidence is crucial as it reflected that he did not look to the front of the vehicle to see the Accused riding in the opposite direction immediately before the accident. An adult person riding a motorcycle on a clear road would no doubt visible in the eyes of a driver who is concentrating and constantly look to the front of the vehicle. 

31.	The Accused version of evidence was that he had initially travelled on his lane but moved to the opposite lane when he saw the driver of the vehicle was not concentrating and was occupying his lane. He moved to the other lane because he feared he would collide with the vehicle. He said that he didn't press his horn because he feared the vehicle would accelerate and cause him to fall under the vehicle. 

32.	When one looks at this case objectively and sees the accused act of moving to the opposite lane to avoid colliding with the oncoming police vehicle which occupied his lane, the ultimate question is whether the Accused departed from the standard of a reasonable, competent and prudent driver in those circumstances? as stated in Idufoa v R. In my view, the answer to this must be in the negative. In Simpson v Peat Lord Goddard CJ stated:

"Suppose a driver is confronted with a sudden emergency although no fault of his own; in an endeavour to avert a collision he swerves to his right – it is shown that had he swerved to the left the accident would not have happened; that is being wise after the event and, if the driver was in fact exercising the degree of care and attention which a reasonably prudent driver would exercise, he ought not be convicted, even though another and perhaps more highly skilled driver would have acted differently."

33.	I find that the Accused decision to move to the opposite lane is to avoid collision with the oncoming vehicle was reasonable in that circumstance. He acted reasonably as a competent and prudent motorcyclist. 

•	evidence from the site of impact whether it be from the vehicle or the motorcycle to indicate how the collision might have occurred

34.	There was no evidence or exhibits produced by the prosecution as to the site of the impact either from the motorcycle or the vehicle. In traffic cases, it is prudent to assist the Court with other supportive evidence to enable the Court to draw from those supportive evidences how the collision occurred. For example, a collision caused by direct hitting of the front of motorcycle with a vehicle would be suggestive of broken front lights, broken or smashed steering arms, smashed front wheel or punctured tyre by either the motorcycle or the vehicle or both.

35.	The Accused explained that if he was careless with his riding the following would occur to him:

•	His left hand would break since his left hand had popped out along the frame of the steer towards the left side of the vehicle

•	The front wheel of his motorcycle would smash indicating direct hitting of the front of the motorcycle with the vehicle.

36.	He further explained since only his left leg was broken, this indicated that his left leg was hit by the acute turning of the vehicle causing its bumper to hit his left leg. This explanation in my view makes sense since only his left leg was broken but not the other parts of his body or even the other parts of the motorcycle. I accept that explanation in the absence of any counter explanation by the prosecution.

•	failure to adhere to right of way for an oncoming vehicle 

37.	 Section 50 (4) of the Traffic Regulations Cap 131 states "The driver of any vehicle which is being driven on its offside of the road shall give way to any oncoming traffic". This section equally applies in this case where a motorcyclist is using a footpath connected to a driveway. In my view, a motorcyclist must give way to the oncoming vehicle and only rides in when the road and the traffic ahead is clear for a sufficient distance to enable him/her unless at the discretion of the oncoming vehicle. Sufficient distance must take into account the nature of the speed of an oncoming vehicle and the amount of traffic using the road. That must have been the reason why the need for motorcyclist to give priority to an oncoming vehicles. The duty to ensure the traffic is clear for a sufficient distance rests on the motorcyclist who waits at the waiting road or footpath. 

38.	The Accused stated that he was already on the road when the police vehicle was approaching him in the opposite direction. Since the accident did not occur in front of the walkway or as a result of the sudden turning of the motorcyclist onto the driveway, this section has little or no application in determining the carelessness of the Accused. This finding is based on the fact that the accident occurred when both the motorcycle and the vehicle were already on the driveway about 8-10 meters away from the front of the walkway. 
 
•	the nature of the road

39.	There is no issue about the accident occurred at White River road. I also took judicial notice during the site visit that the road was not a highway road but as a feeder road leading towards the main tarmac road either at 01 or 02 bus-stops at White River area. The evidence unfolded in Court showed the road was not jammed at the time prior to the accident. There were no potholes on the road. The speed of 5km/h in reality is very slow. Hence, from a distance of about 15 meters is still sufficient distance for a motorcyclist to move from a footpath to the driveway.

•	any injuries sustained by those involved in the accident. 

40.	The accused was the only one who suffered injury to his broken left leg. It is interesting to note that only his leg is broken but not his left arm or other parts of his body. I have reached the conclusion that the fact that only his left leg was broken but not his left hand is indicative of an acute turning by the vehicle towards the centre of the motorcycle. This is reflected by the fact that the site of the injury was on the side of the leg indicating the part of his leg which the vehicle hit. Taking the size of the vehicle and the opposite movement of the motorcycle, the nature of the injury is clearly expected. It does not need for an over speeding vehicle to cause such injury since human bones are fragile compared to iron or steel. 

Conclusion

41.	Based on those findings, the flaws and defects contained in the prosecution's evidence, I have in my mind serious doubts as to whether the Accused was careless or inconsiderate with his riding at the material time that resulted in the accident. Therefore the Accused must be given the benefit of that doubt. I find that the prosecution does not prove its case beyond reasonable doubt and accordingly, I must acquit the Accused of the charge of careless and inconsiderate riding contrary to section 40(1) of the Road Transport Act.

42.	On that same note, since there is no submission by the prosecution whether I should convict the Accused for any traffic offence relating to riding without a helmet or riding on a different lane, the absence of it means that the Accused must also be given the benefit of that omission. 

………………………………
THE COURT
Augustine Aulanga (Mr)
(Magistrate of the First Class)