Chand v The State [1998] FJHC 62; Haa0009j.98b (30 April 1998)

Fiji Islands - Chand, M v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 9 OF 1998

BETWEEN:

MUKESH CHAND
f/n Puran
Appellant

AND:

STATE
Reent

Mr. A. Kohli fe Appe Appellant
Ms. Laisa Laveti for the Respondepondent

JUDGMENT

On 30 April 1998 I gave oral judgment in this appeal and I stated that I will give my reasons later which I now hereby do.

This is an appeal against conviction.

The appellant was on 6 December 1997 convicted of the offence of causing death by dangerous driving contrary to s.238(1) of the Penal Code Cap. 17 at the Magistrate's Court, Labasa by Resident Magistrate Moses Fernando Esq. He was sentenced to one year's imprisonment suspended for 2 years and fined $500.00 in default 9 months' imprisonment. He was also disqualified from holding or obtaining a driving licence for a period of 6 months.

The particulars of offence in the Charge reads as follows:

MUKESH CHAND s/o PURAN, on the 26th day of May, 1995, at Labasa in the Northern Division, drove a motor vehicle Reg. No. AZ 477 at the junction of Nasekula Road and Jaduram Street, in a manner which was dangerous to the public having regard to all the circumstances of the case and caused the death of SUBHASH CHAND s/o RAM DHAN.

The learned Counsel for the appellant argued the first two grounds of his Appeal and submitted that if the Court upheld him on these grounds there will not be any need to proceed with the others. The Grounds of Appeal are as follows:-

1. THAT the Learned Trial Magistrate erred in law in fact in convicting the Accused of the offence of causing death by dangerous driving in the absence of sufficient evidence that the deceased had in fact died as a result of the accident.

2. THAT the Learned Trial Magistrate erred in law and in fact in convicting the accused of causing the death of the deceased in the absence of evidence identifying the deceased as the person who had in fact been knocked down by the accused's motor vehicle.

3. THAT the Learned Trial Magistrate erred in law and in fact in convicting the accused of offence in the absence of any evidence suggesting that the manner of driving by the accused was dangerous.

4. THAT the verdict of the Learned Trial Magistrate cannot be supported having regard to all the evidence adduced.

5. THAT the Appellant reserves the right to file further Grounds of Appeal upon receipt of record from the Court.

Since the learned State Counsel has conceded the Appeal, I shall very briefly state Mr. Kohli's arguments on the first two grounds.

He submitted that there was insufficient evidence before the Court linking the deceased to the person who had been knocked down by the appellant's motor vehicle driven by him. The evidence of witnesses are that PW1 described the victim (on page 13 paragraph 2 line 8 of the record) as 'Indian man'; PW2 describes this person as the 'man' when he says at paragraph 3 line 13 on page 15 that 'he hit the man'; PW4 says on page 19 'on 1/6/95 I identified a body as that of Subhash Chand before a post mortem examination. He was my brother-in-law'; PW6, a police officer tendered the post mortem report and on page 7 in 4th paragraph said that 'victim died on 28/5/96. I attended the post mortem. I served a copy of it to counsel Mr. Kohli's Clerk accepted it.' He then tendered the post-mortem report as exhibit 5.

Mr. Kohli further argued that:

production of the report by PW6 and the acceptance of the same by the Defence does not mean that it is evidence of the contents. It is only evidence as to identification of the post mortem report. Even if it is evidence of the contents there is no evidence before the court that the post mortem report is of the person who was knocked down by the deceased's motor vehicle.

The police officer can rightly adduce the post mortem report but the contents of it cannot be relied upon by the court. It could have been marked for identification or even if produced as exhibit the doctor who made the report should have testified.

There is also a missing link between the post mortem report and the deceased. There is no evidence linking the post mortem report to the deceased.

As stated earlier the learned State Counsel concedes the Appeal. She agrees with the arguments put forward by Mr. Kohli. She says that the record does not show the description of the 'man', the clothes he wore and his condition apart from being unconscious. Police Constable No. 1469 who was present at the post mortem was not called to testify. She concedes that there is a loophole in that one must connect death with the offence.

Consideration of the Appeal

I have given a careful and thorough consideration to the submissions made by both Counsel.

This is a criminal case and it is for the prosecution to prove its case beyond all reasonable doubt. I do not wish to reiterate at length on the shortcomings in the prosecution case for they have been amply aired in the submissions made by Mr. Kohli and conceded by Ms. Laveti.

The decision in this case hinged principally on the proper identification of the alleged victim as the deceased. No doubt there is a vital missing link in the chain of events in this case and as Ms. Laveti has said there must be a connection between the death and the offence which the appellant is alleged to have committed.

No doubt there has been a serious omission on the part of the prosecution which could have been avoided had the prosecution prepared its case properly. The police officer who was present at the post mortem could have been called as a witness and he could have solved the problem of identification. One might ask why didn't the investigating officer throw some light on the subject. The evidence of PW4 does not prove any of the essential elements of the offence except to say that the deceased was his brother-in-law but not that he was the person who was hit by the vehicle driven by the appellant and died as a result of the accident. I accept Mr. Kohli's argument on the first two grounds of his appeal.

Having upheld Mr. Kohli's argument, and the State Counsel conceding the Appeal, there is no need to hear the other grounds. The conclusion reached by the learned Magistrate in these circumstances I find is not supported on the evidence adduced and in law.

For these reasons, the conviction of the appellant is quashed and sentence set aside. The fine if paid is ordered to be refunded to the appellant.

D. Pathik
JUDGE

At Labasa
30 April 1998

Haa0009j.98b