Chand v The State [1990] FJHC 10; Haa0067j.89s (2 February 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 67 OF 1989

Between:

HARI CHAND
s/o Brij Lal
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. S. Seneratne for the Respondent

JUDGMENT

The appellant was convicted after trial by the Suva Magistrate Court for an offence of Careless Driving and was fined $50 in default 50 days imprisonment.

The prosecution's case was that on the day in question during peak hour traffic a Police motor cyclist who was on 'points-duty' at the Laucala Bay Road/Rewa Street/Bau Street intersection at the Flagstaff Shopping Centre saw the appellant's van approaching the junction on Laucala Bay Road.

Before reaching the junction the appellant's van was seen suddenly pulling out into the left lane in front of other approaching vehicles which would have caused an accident but for the quick evasive action of the driver in front of whom the appellant had pulled out.

At the junction the appellant was stopped and booked by the police officer on duty.

In cross-examination by the appellant the police officer denied giving confusing signals or indeed signalling the appellant to move at all when he reached the junction.

At the close of the prosecution's case the appellant gave sworn evidence that when he stopped at the junction the police officer gave confusing signals and because he was slow in obeying them the police officer booked him.

The learned trial magistrate in a short judgment believed the police officer and found as a fact that the appellant: "....... was impatient to turn into Rewa Street and without waiting for (a) signal from (the police officer) moved ahead and nearly caused (an) accident."

The appellant appeals against his conviction on no less than 6 grounds but most of them are not proper grounds of appeal being more in the nature of factual assertions. In arguing his appeal the appellant also suggested that he was booked only because he had delayed in complying with the constable's signals and not because of any carelessness in his driving.

There is one ground however that bears examination and that is ground (4) which reads:

"I didn't cross (to) the left (lane) and there is no reason for me to cross to (the) left lane as I was going to Samabula through Rewa Street."

In this regard it is common ground that the appellant intended to go to Samabula through Rewa Street and whilst the assertion made in ground (4) is a reasonable one the learned trial magistrate believed the evidence of the police officer which was to the effect that the appellant had driven carelessly in "jumping-the-queue" just prior to arriving at the intersection.

The test of whether a driver is guilty of careless driving is an objective one based on the standard of a reasonable, prudent and competent driver in all the circumstances of the case. This is primarily a question of fact for the determination of the tribunal of fact which in this instance was the learned trial magistrate.

In this case the learned trial magistrate has determined that in attempting to cross at a controlled intersection without receiving a signal to do so and thereby nearly causing an accident, the appellant's driving had failed to conform to the standard required of him by the law in the circumstances then prevailing.

It is well-settled that an appellate court will not as a rule interfere with the findings of fact of a trial court in the absence of a clear misdirection or either because the reasons given by the trial magistrate are not satisfactory, or because it unmistakeably so appears from the evidence.

As was said by Lord Reid in Benmax v. Austin Motor Company Limited [1955] 1 All E.R. at p. 329:

"........ in cases where the point in dispute is the proper inference to be drawn from proved facts, an Appellate Court is generally in as good a position to evaluate the evidence as the trial magistrate, and ought not to shrink from that task, though it ought, of course to give weight to his opinion."

Having carefully considered the learned trial magistrate's judgment in the context of the evidence led in the case I am unable to conclude that his decision was wrong or unsatisfactory. In the circumstances the appellant's appeal against conviction is dismissed.

As for sentence however learned Counsel for the State concedes that the fine imposed was the maximum penalty that could have been imposed by the magistrate on the appellant for an offence of Careless Driving under Section 85 of the Traffic Act. Additionally his licence was ordered to be endorsed pursuant to the learned magistrate's powers under Section 29 of the Traffic Act Cap. 176.

Having considered the circumstances of the case and mindful that no accident actually occurred and more particularly the appellant's clean driving record of 40 years, I consider that the magistrate was unduly harsh in his sentence which erred in principle. Accordingly the total sentence is quashed and in substitution thereof I impose a fine of $30 in default 30 days imprisonment.

Since the fine of $50 has already been paid I order that the sum of $20 be refunded to the appellant and I further order that the appellant's licence if already endorsed be cancelled and a new driving licence free from endorsement be issued to the appellant upon payment of the requisite fee.

(D.V. Fatiaki)
JUDGE

At Suva,
2nd February, 1990

HAA0067J.89S