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Regina v Foasi [1996] SBHC 109; HCSI-CRC 44 of 1996 (14 November 1996)

CRC, 44, 96.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.44 of 1996

REGINA

-v-

GODFREY FOASI

High Court of Solomon Islands
(Palmer J.)
Criminal Review Case No. 44 of 1996

Hearing: 14th November, 1996
Judgment: 14th November, 1996

Palmer J: This case was initially brought up for review under section 50(1) of the Magistrates’ Court Act on the ground that the learned Magistrate had committed an error of law in not imposing a mandatory disqualification order against the defendant for the statutory period of twelve months. During the hearing however, the court raised a discrepancy observed in the record of proceedings which appeared to be relevant to the question as to the correct plea to be entered against the accused.

The accused was unrepresented in the lower court. He had been charged with the offence of driving whilst unfit to drive through drink contrary to section 42(1) of the Traffic Act. The records showed that he first came before the Magistrates’ Court on 28th November, 1995. The plea recorded was a guilty plea. When the facts however were read out to him, he stated:

“I was not fully drunk. I was then taken to the police. They said we were driving zigzagging-I denied that. I also denied that I was unfit to drive”

Nothing could be any clearer. The learned Magistrate appropriately changed the plea of the accused to one of not guilty and adjourned the case to 19th December, 1995 for mention so that a trial date could be fixed. The next relevant records on the file were for the 27th August, 1996, when this matter was heard and dealt with by the Magistrates’ Court. The first entry made in the record of proceedings read:

“Ct: Do you still maintain your G.P.?

Df: Yes I do.

Ct: Guilty plea re-recorded.”

From the records available before this court, it is not clear how the question above came to be asked The only records available before this court showed that from the last relevant hearing date, (28/11/95), it was the Magistrate presiding then who had entered a not guilty plea after hearing the accused. The case was then adjourned so that a trial date could be fixed. The prime objective therefore of the learned Magistrate on 27th August, 1996 should have been for the court to fix a suitable date for trial; and not to ask the inappropriate question “Do you still maintain your guilty plea?” because that plea had been changed by the previous presiding Magistrate to not guilty. According to the records before this court therefore, there was no guilty plea to be maintained; unless there were other records available but which had not been included in the file for this review.

After the facts were read out and explained to the accused, his response was recorded as follows:

“I u/std facts... I do not agree with “zig zag” Everything else is true.”

The court then went on to make the following finding:

“I find the df guilty after I find his dispute does not constitute a defence, and I convict him.”

It is interesting to note that the accused repeated his claim earlier made (see record of proceedings for 28 November, 1995), that he denied he was driving in a zig zag manner. If the facts presented to the court on 27 August, 1996 are considered, it will be noted that the crucial evidence which prosecution appears to be relying on is contained in the following excerpts:

“On their way and when they passed the L.D.A. Mamara, they sighted a motor vehicle coming from the west heading eastward direction and was zig zag when approaching them and later took their lane. On seeing this, their driver swing left to avlid (sic) head on collision.”(Emphasis added)

The crucial evidence on the issue of unfitness of the accused to drive was primarily based on the allegations of Police witnesses that the driving of the accused was erratic. The accused’s denial of that observation therefore is directly relevant to the issue of his fitness to drive or not, and subsequently to the plea entered against him. Indirectly, he is saying that he may have taken some drink, but he denies that his driving was as claimed in the particulars of the facts. The learned Magistrate accordingly committed an error of law when he ruled that what the accused had said about the facts did not amount to any defence. The defence of the accused is that he was not unfit to drive as alleged by the Police. The presiding Magistrate on the 28th of November, 1995 actually did the right thing in entering a not guilty plea and adjourning this case for tri al.

ORDERS OF THE COURT:

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

2) Enter a not guilty plea against the charge.

3) Order that the Magistrates Court to fix a trial date and to hear this case.

Albert R. Palmer
Judge