Chand v The State [1990] FJHC 46; Haa0021j.1989s (25 May 1990)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL APPEAL NO. 21 OF 1989

Between:

JAGDISH PRATAP CHAND
s/o Shiu Shai
Appellant

v.

STATE
Respondent

Mr. T. Fa for the Appellant
Mr. S. Senaratne for the Respondent

JUDGMENT

The appellant was originally charged before the Magistrate Court, Suva on the 12th of November 1986 with 2 offences, Driving Motor Vehicle under the Influence of Drinks or Drugs and Dangerous Driving. Subsequently on the 6th of February 1987 a further 3 counts were added to the charge making a total of 4 related offences under the Traffic Act and an offence of Failing to Give Name and Address to a Police Officer under the Police Act Cap. 68.

The court record reveals thereafter that the case was adjourned on several occasions owing to the absence of a prosecution witness and finally on the 6th of July 1988 the "drunken driving" count was withdrawn and the trial of the appellant commenced in respect of the remaining 4 counts namely, Dangerous Driving, Failing to Stop, Failing to Report and Failing to Give Name and Address.

At the trial the prosecution called the complainant/ driver and his passenger/daughter and the investigating officer. A sketch plan of the scene and the appellant's caution interview were also tendered as prosecution exhibits. After the learned trial magistrate rejected a submission of no case to answer the appellant gave sworn evidence in his defence.

The prosecution's case was that the appellant who was under the influence of alcohol at the time in the process of overtaking the complainant's car on Queens Road near the Western Wreckers yard at Veisari, brushed against the complainant's vehicle causing some slight damage to the right front panel. Thereafter the appellant is alleged to have committed the 3 other offences alleged against him.

The appellant in his evidence denied being involved in any accident nor was he aware of one. He confirmed his police interview answers as the truth.

The learned trial magistrate after meticulously and carefully considering all the evidence in the case and properly directing himself as to the law applicable to the case and the issues involved, concluded that the prosecution "....... has proved its case beyond reasonable doubt that it was the accused who collided with the complainant's car, that his driving under all the circumstances existing at the time was of a dangerous nature and that he failed to stop after the accident and to report it later."

Upon his conviction on the 15th of July 1988 the appellant was sentenced as follows:

- Dangerous Driving (Count 2) he was fined $150 and disqualified from driving for 4 months. His licence was also endorsed;

- Failing to Stop (Count 3) a fine of $80;

- Failing to Report (Count 4) a fine of $80; and

- Failing to Give Name and Address (Count 5) a fine of $40

making a total fine of $350 which was ordered to be paid within 28 days.

The appellant now appeals against both his convictions and sentences on several grounds which may be conveniently dealt with under the 2 general grounds submitted by his counsel namely:

"(b) The evidence before the Court would not allow a fair and reasonable tribunal to convict a person for Dangerous Driving or the other offences for that matter; and

(c) The penalties imposed were too severe and indeed excessive granted that the accused person is a first offender."

However before dealing with the appeal grounds the Magistrate Court record reveals that 6 days after the appellant's conviction and sentence, learned counsel for the appellant filed in the Magistrates Court a Notice of Motion seeking "an Order suspending the execution of the sentence given by the court below until the appeal is determined".

The application which purports to have been made pursuant to Section 315(1) of the Criminal Procedure Code Cap. 21 was granted on the 27th July 1988 by the Chief Magistrate "..... suspending the disqualification for 4 months pending the appeal in the High Court".

In so doing the learned Chief Magistrate merely considered whether or not he had jurisdiction to grant the application. No thought appears to have been given to the question of whether or not the section in terms empowered such an order.

Had the matter been considered by the learned Chief Magistrate he would have realised that he was not empowered by that section to make the order which he purportedly made.

I can do no better than to adopt the words of MacDuff C.J. in Hayat Mohammed v. R. [1963] 9 FLR 53 when he said at p.54 in dealing with the identically-worded predecessor of Section 315:

"It is clear from the wording of the Section that an order that the execution of the sentence or order against which an appeal is pending be suspended has no application in the case of a sentence of a fine or of an order of disqualification under the Traffic Ordinance. The qualification "if such person is not released on bail" restricts the suspension to a sentence or order entailing a person's detention in custody."

That is not to say however that there exists no lawful power to suspend an order of disqualification and indeed such a power is explicitly contained in Section 29(2) of the Traffic Act Cap. 178 which provides:

"(2) Any person who, by virtue of an order of a court under the provisions of this Section, is disqualified from holding or obtaining a driving licence may appeal against the order in the same manner as against a conviction, and the court may, if it thinks fit, pending the appeal, suspend the operation of the order."

Clearly then although the learned Chief Magistrate did have power in law to suspend the operation of an order of disqualification, the section which he actually invoked was the wrong one. However that is a mere technicality in the present circumstances.

Dealing then with the appeal against conviction, learned counsel for the appellant only sought to argue against the appellant's convictions for Dangerous Driving; Failing to Report an Accident; and Failing to Give his Name and Address to a Police Officer.

In particular counsel submitted that the totality of the prosecution's evidence taken at its highest only disclosed an offence of Careless Driving. Furthermore the learned trial magistrate had improperly referred to the appellant's drunkenness at the time of the accident when the prosecution had withdrawn its "drunken driving" charge.

Whilst I accept that the difference between dangerous and careless driving is often one of fact and degree, the question of what offence (if any) a particular 'piece-of-driving' amounts to, is one best left to the tribunal of fact to determine unless the evidence is such that no reasonable tribunal could possibly have convicted.

Now in order to succeed in this latter submission counsel must demonstrate that there was no evidence on which the trial magistrate could reach the conclusion which he did reach if he properly directed himself.

As mentioned earlier the learned trial magistrate considered all of the evidence in the case (including the appellant's) and properly directed himself as to the law and the ingredients of the offence. He found the manner in which the appellant over-took the complainant's vehicle gave rise to a dangerous situation and that the appellant's driving was at fault.

As for the learned trial magistrate's mention of the appellant's drunkenness in the absence of a charge of "drunken driving", the 12th edtn of Wilkinsons Road Traffic (Vol 1) contains the following relevant passage at pp.283, 284:

"Where there is no charge of driving under the influence of drink and the accused is being tried for reckless or careless driving only, evidence that he was at the time adversely affected by drink is of probative value and admissible and its admissibility is not limited to rebuttal of such a defence as that he was not in control through no fault of his own. Such evidence must tend to show that the amount of drink taken was such as adversely to affect a driver or that he was in fact adversely affected, ......"

(See also: Lenaitasi Vakatora v. R. [1974] 20 FLR 8.)

With respect to learned counsel for the appellant it has not been shown to this court that the learned trial magistrate misdirected himself in law or considered evidence that was irrelevant. Nor has it been demonstrated that the magistrate erred in preferring the evidence of the prosecution's witnesses. All grounds of appeal against the appellant's conviction for Dangerous Driving are accordingly dismissed.

The appellant also appeals against the harshness of the sentence imposed on the Dangerous Driving Count and it is convenient to consider it now. In particular complaint was made against the order of disqualification.

In sentencing the appellant the learned trial magistrate was clearly angry. His language if I may say so with respect was intemperate, emphatic and unduly harsh.

I accept that the power to order disqualification on a first conviction for Dangerous Driving is a discretionary one vested in the trial court by the terms of Section 29(1)(a) of the Traffic Act, but it is trite to have to point out that such discretion must be exercised according to judicial principles.

In this case the learned trial magistrate has made no reference to any factors that tended to indicate that the driving of the appellant was dangerous rather he appears to have been overly concerned at this appellant's behaviour after the accident.

In any event, in my view this was not such a bad case of dangerous driving as to warrant an order of disqualification.

The damage caused was slight and no pedestrians or on-coming vehicles were endangered in the accident. Nor is there any suggestion that the complainant lost control of his vehicle as a result of the impact from the "side-swipe" of his vehicle. Indeed no injuries were caused to anyone. Also the appellant was a first offender for all intents and purposes with an unblemished driving record of 12 years.

In the circumstances I am reluctantly compelled to hold that the learned trial magistrate's approach to the problem of assessment of penalty was unjudicial.

Needless to say since the suspension of the appellant's disqualification in July 1988 the appellant has continued to drive without further incident. In the event it would not be fair to insist that the appellant should now "serve" his term of disqualification for an offence committed almost 3 1/2 years ago.

The sentence is accordingly varied by setting aside the trial magistrate's order of disqualification. The fine of $150 however is upheld.

As to the offence of Failing to Report an Accident learned counsel argued that since the appellant had 24 hours within which to report the accident and since the police were informed of it by the complainant within 30 minutes of its occurrence no useful purpose could be served by the appellant reporting an accident which the police already knew about. In any event counsel argued that the sentence imposed exceeded the maximum provided by law.

In dismissing a similar argument in Bulman v. Bennett (1974) RTR 1 in which the facts bear a resemblance to the present case, Eveleigh, J. said when dealing with the English equivalent of our Section 43(2) of the Traffic Act:

"It is that subsection which calls for construction in this court, the words in particular being 'as soon as reasonably practicable and in any case within 24 hours of the occurrence thereof'.

If it had been intended to give the motorist 24 hours, no matter whether he could report it before that time or not, the Act could have said that the driver should report within 24 hours, or that the driver should report if reasonably practicable within 24 hours. It does neither."

Then the learned justice continues:

" 'As soon as reasonably practicable' means in my view, what it says. To say that in any case a driver has 24 hours is equivalent to saying that he may in some cases report later than is reasonably practicable. The Section in fact says precisely the reverse. The words 'and in any case' used in this section are equivalent to the phrase "without prejudice to the foregoing".

Therefore, there is an obligation for a driver to report as soon as reasonable practicable. There is in addition to that an over-riding limit within which he must act, and that is the limit of 24 hours."

In the present case under appeal the learned trial magistrate found as a fact that the appellant had failed to report the accident and there was more than sufficient evidence to support the appellant's conviction on this count.

Needless to say the subsection imposes the duty to report an accident upon the "offending driver" and it is no excuse for him to say that it was not reasonably practicable for him to have reported the accident since it had already been reported by someone else particularly where there is evidence that there was a police station nearby and in the same direction as the appellant was headed at the time of the accident.

The appeal against the appellant's conviction on this count is accordingly dismissed.

As for the sentence however State Counsel concedes that the learned trial magistrate exceeded his sentencing powers in imposing a fine of $80. In the circumstances the fine is reduced to $40 in default 2 months imprisonment.

Finally counsel submitted that the evidence of the prior incident involving the appellant's dog and which was attended by the police (including the present Investigating Officer) raises a reasonable doubt that the appellant was already known to the police officer concerned at the time of the present case and presumably was not obliged to give his name and address.

In this latter regard the learned trial magistrate accepted the investigating officer's evidence that the appellant failed to give his name and address when he was first asked at Vatuvia Road.

State Counsel also correctly pointed out that the "prior incident" was never put to the officer in cross-examination and was raised for the first time when the appellant himself gave evidence on oath.

In any event counsel submits that the directly conflicting versions were properly resolved by the learned trial magistrate on the basis of credibility and an appellate court should be slow to interfere with the trial court's finding.

I have carefully considered the evidence on this count and in particular the appellant's prior inconsistent answer in his interview when he was asked why he failed to give his name and address to a police officer and to which the learned trial magistrate made specific reference in his judgment.

Suffice to say that no sufficiently cogent reasons have been shown or exist for me to disturb the learned trial magistrate's finding of fact that the appellant did refuse to give his name and address when properly and lawfully asked. The appeal against conviction is dismissed as is the appeal against the sentence.

In passing I note that not only did the trial magistrate find that the appellant refused to give his name and address but in addition he was argumentative and arrogant. Accordingly although the fine of $40 imposed by the trial magistrate was the maximum permitted under the section, it was richly deserved.

In summary the following is the outcome of this appeal:

The appellant's conviction on all counts is upheld but the order of disqualification is set aside and the fine of $80 for the offence of Failing to Report is reduced to $40 in default 2 months imprisonment.

The appellant is therefore required to pay a total fine of $310 in default 12 months imprisonment. In this regard it is noteworthy that the appellant in spite of being allowed 56 days in which to pay the fines had still not paid $100 of his total fines as at the date of hearing this appeal on the 26th of January 1990.

The appellant is accordingly granted a further 2 weeks within which to pay $60 being the outstanding balance of his fines (as reduced in this judgment) to the High Court registry in default of which he is hereby ordered to be imprisoned for a period of 3 months.

(D.V. Fatiaki)
JUDGE

At Suva,
25th May, 1990.

HAA0021J.89S