Director of Public Prosecutions v Halka [1988] FJHC 2; HAA0067.1987s (29 July 1988)

IN THE HIGH COURT OF FIJI
(At Suva)
Appellate Jurisdiction

Criminal Appeal No. 67 of 1987

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

-and-

SHIU PRASAD HALKA
Respondent

Mr John Semisi for the Appellant
Mr. Subhas Parshotam for the Respondent

JUDGMENT

In this case the accused was charged in the Magistrate’s Court of Suva with having driven a taxi on Thompson Street on 10^th January, 1986 without due care and attention contrary to sections 37 and 85 of the Traffic Ordinance. After trail the learned magistrate acquitted the accused.

The Director of Public Prosecutions is now appealing against the acquittal. According to Subhas Parshotam the learned magistrate was quite justified in acquitting the accused because there was not firm evidence to indicate that the accused drove the vehicle in question carelessly.

There was only one witness for the prosecution and that is the complainant. According to him when he was driving along Thompson Street the accused who was driving his taxi behind him bumped into him at one stage. Admittedly there was heavy traffic on this road at the time in question. Vehicles were following each other cheek by jowl so to say. The slightest miscalculation on the part of one who was following a vehicle in front could have caused a mishap which actually happened on that day. If any vehicle knocks into any vehicle in front it ay be even regarded as an inevitable accident in certain circumstances. The accused made a suggestion to PW2 that the vehicle driven by the complainant rolled back and that that is how the accident occurred. Admittedly the accident took place on an ascending incline. PW2 conceded the possibility of the front vehicle having rolled back. The appellant’s counsel contends that in that situation prosecution have not done so. The learned State Counsel states that it is not the duty of the prosecution to rebut every possibility. But it seems to me that the defence suggestion was not a possibility but probability considering the fact that this accident took place on an ascending incline.

Furthermore the complainant was not very firm in his evidence. In examination-in-chief itself the complainant said that he cannot remember much of the conversation he had with the accused immediately after the accident. In cross-examination he even said he cannot remember which part of his car was damaged. He also said that he cannot remember which part of the taxi was scratched. Later he said it was somewhere in the front. It is not safe to convict any one on such flimsy evidence. It was a case of “touch and go” in colloquial parlance. It cannot be said that the case has been proved beyond reasonable doubt.

The learned magistrate who saw and heard the witnesses and who was seised of the entire situation came to a particular conclusion. I do not think that this court sitting in appeal should reverse his decision in the circumstances of this case.

I therefore dismiss the appeal.

M. D. Jesuratnam
JUDGE

29^TH July, 1988

HAA0067.87S