[1980-1994] Van LR 127
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
CRIMINAL JURISDICTION
Appeal Case No. 23 of 1984
  
PUBLIC PROSECUTOR
Appellant
-v-
LEDUC XAVIER
Respondent
Coram: Chief Justice Cooke
Counsel: Mr Kattan, Public Prosecutor
Mr D Hudson for Respondent
  
JUDGMENT
[CRIMINAL LAW - motor traffic offences - driving without due care and attention]
The respondent in this case on the 27th July 1984 was driving his motor vehicle along the Malapoa road when due to road maintenance taking place only half of the carriageway was open for traffic for some distance, and the presence of a large roller with two cars stationery behind it, he had to stop behind the second car.
The respondent stated that he saw the first car leave its position behind the roller, overtake it and disappear; then the second car carried out the same movement and disappear. He then said he started off and was half way round the roller when a motor cycle appeared coming up a hill, and an accident occurred. The pillion rider on the motor cycle stated that the driver of the motor cycle and himself had gone up the slope (by this I take it he means the hill) but he said I did not see the respondents car behind the roller. When the respondent came from behind the roller, he was driving towards the right side in passing the roller and could not avoid the accident.
The question that has to be decided is whether the actions of the respondent amounted to driving without due care. The learned Senior Magistrate stated that:
	"I am at a loss to see where there has been a departure from that duty i.e.: drive his vehicle with care on the part of the respondent, on the facts, of this case. In my view, he was exercising a high degree of care and due to a total lack of any traffic control, he was confronted with a sudden emergency through no fault of his own".
The learned Senior Magistrate then acquitted the respondent.
The Public Prosecutor lodged an appeal against the judgment of the learned Senior Magistrate on the grounds that "he (the Magistrate) erred in law in holding that on the facts of the case as found by him the offence of driving without due care and attention had not been established".
Mr Kattan the Public Prosecutor submitted that in the circumstances of the case the respondent departed from the action of a reasonable and prudent driver. He stated the accident took place at lunch time, the obstacle was apparent; there were other vehicles in front who slowly overtook the roller and when the respondent's turn came he submitted the respondent was aware of the danger that presented itself. He submitted the respondent should not have overtaken without being sure. He moved forward and was abreast of the roller when a motor cycle appeared and an accident occurred.
Mr Kattan submitted that his appeal was on a point of law in that the learned Senior Magistrate did not consider the first leg of his submission i.e. that the respondent should not have proceeded to pass unless satisfied that the road ahead was clear.
The question whether the learned Magistrate exercised his mind in dealing with such submission is in my opinion a point of law within the meaning of Section 200(e) of the  Criminal Procedure Code.
Mr Hudson who appeared for the respondent did submit that no point of law was involved and did refer to the case of  King v Parker  (1957) 41 Cr. Ap. Report page 134 where it was held that a momentary disregard of safety precautions or a momentary act of negligence on the part of the driver of a motor vehicle may amount to dangerous driving. In that case it was held on the facts that it did amount to dangerous driving.
Mr Hudson further submitted that he was at a loss to see what the respondent could have done - he stopped behind the roller - saw the road was clear and then proceeded to pass the roller at reasonable speed when suddenly a motor cycle came from the opposite direction and collided with his vehicle.
In my opinion the Respondent was well aware of the danger when he moved forward from a position behind the roller; he was unable to ascertain whether traffic was coming towards him uphill. The fact that two cars ahead of him were not involved in an accident could not possibly convince any careful driver that he also would be fortunate and not meet oncoming traffic. No mention was made in the evidence that the respondent sounded his horn and kept on blowing it which would have given any driver of a vehicle moving up the hill some warning of an approaching vehicle or approaching danger of some kind.
If he had done such I think I may well have been satisfied that the respondent did take utmost care. After all a horn is placed in a car to be used to give warnings to pedestrians and other road users in circumstances such as happened in this case. In my opinion a prudent driver taking care would have blasted his horn from the time he left his position behind the roller and in this case by doing so may well have alerted the driver of the motor cycle coming up the hill and prevented the accident taking place.
As driving without due care is an ingredient of the offence of dangerous driving under Section 13 of Joint Regulation No 4/1962. I am satisfied that respondent was guilty as charged.
I therefore, allow the appeal, find the respondent guilty and convict him. I sentence him to a fine of 5000VT or 10 days imprisonment.
The fine to be paid forthwith.
28 December 1984
FREDERICK G. COOKE
CHIEF JUSTICE