IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 364 of 2016

TONY TO’OGA

-V-

REGINA

(PALMER CJ)

Hearing:	25th November 2016	
Judgment	7th August 2017	

H. Lawry for the Appellant
Mr. Willie Vaiyu for the Crown

Palmer CJ.
The appellant (Tony To’oga) seeks this court’s order quashing a conviction given by the Magistrates’ Court, Honiara on the 31st May 2016. The appellant was convicted of the offence of driving without due care and consideration causing an accident on the 3rd January 2015 in the Honiara City area.
The grounds of appeal were twofold, (i) that the Magistrate erred in convicting in the absence of facts going to show S. 75 of the Road Transport Act (“the RTA”) by finding the section did not apply, and (ii) the Magistrate erred in fact and in law in his findings of facts contrary to the evidence.  
The second ground may shortly be disposed of for the Magistrate has been shown to have relied on sufficient facts to have been satisfied the elements of the offence had been made out.  The appellant had in fact reversed into another vehicle and moved it some distance when he had intended to drive forward.  The explanations given the lower court were considered by the Magistrate and this court should be very reluctant to differ from him on a question of fact when his findings of guilt were open to him.  I am not satisfied mistake or any error of law has been shown.
Section 75 of the Act provides for a warning to be given before prosecution.  On the 3 January the accident happened and on the 2 March 2016 the appellant, the driver of the vehicle was contacted and asked to go to the Kukum Police Station that day. It is uncontested that he went again on the 27 March when he was served with a notice of offence, reflecting the requirement set out in s. 75 (c) of the Act except that the section mandates a court may not convict unless the notice is served or sent within 14 days of the offence.  
The Magistrate in his reasons for conviction referred to an earlier ruling allowing the prosecution to proceed:-
“It appears to me that defence is still relying on section 75 of the RTA in his submissions to nullify the careless driving charge.  I think I have already ruled out that Section 75 does not apply in this case and the defence argument, therefore cannot stand.”
Whilst the appellant counsels submissions sought to include facts which went to the concession of the prosecutor at the commencement of the trial that a conviction was unavailable because of the absence of a timely warning required by s. 75, the Magistrate’s reasons address the issue and this court may look to the decision, not assertions of fact when coming to a decision.
It would seem from the submissions of the Crown that police attended the scene although the driver was only charged long after the accident. Further submissions presumed the reasoning of the Magistrate, but this court only is concerned with his reasons.
In the circumstances, in the absence of acceptance by the Magistrate of good reason to apply the proviso to s. 75, conviction of an offence named in the section, without a timely notice was not permissible and the conviction must be quashed.  The proviso relates to circumstances where the driver responsible cannot be found, within the limited time and such was not the case, here for he was a police officer and known to have been involved by the police who attended the scene.  The second proviso, the presumption of regularity has been displaced by the evidence accepted by the Magistrate for the driver, this appellant was not served with the notice within the 14 days.

The appropriate order is:
Allow the appeal and direct that the conviction be quashed.

The Court.