Singh v The State [2002] FJHC 200; HAM0018D.2002S (10 June 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM0018 OF 2002

Between:

VIJAY SINGH
Applicant

And:

THE STATE
Respondent

Hearing: 7^th June 2002
Ruling: 10^th June 2002

Counsel: Mr E. Veretawatini for Applicant
Ms J. Hamilton-White for Respondent

RULING

The Applicant was sentenced on the 6^th of June 2002 to one years imprisonment and five years disqualification for the following offence:

Statement of Offence

CAUSING DEATH BY DANGEROUS DRIVING: Contrary to Section 238(1) of the Penal Code, Cap. 17.

Particulars of Offence

VIJAY SINGH s/o of Nain Singh on the 6^th day of May 1999 at Nausori in the Central Division drove a motor vehicle on Kings Road, Koronivia in a manner which was dangerous to the public having regards to all the circumstances of the case and thereby caused the death of SWETAMBRA SHARMA d/o Subhash Sharma.

He has filed a petition of appeal in respect of both conviction and sentence, and applies for bail pending appeal. His grounds of appeal are:

(a) That the learned trial Magistrate erred in law and in fact in not evaluating the evidence of the Appellant and the witnesses; hence there has been a substantial miscarriage of justice;

(b) That the sentence passed by the learned trial Magistrate is inconsistent with the charge and is harsh and excessive in any event;

(c) That the learned trial Magistrate erred in law and in fact in not properly directing himself on the required standard of proof; hence there has been a substantial miscarriage of justice;

(d) That the learned trial Magistrate erred n law and in fact in not taking into account that the Appellant was a first offender;

(e) That the learned trial Magistrate erred in law and in fact in that he did not believe the Prosecution Witness 8 namely Raj Gopal Goundar who was an expert witness and in lieu thereof preferred to believe Defence Witness 3 namely Abdul Akbaar Wahid who was not an expert; hence there has been a substantial miscarriage of justice;

(f) That the learned trial Magistrate erred in law and in fact whilst he has emphasized that there was conflicting evidence by the Prosecution Witness who the expert Vehicle Examining Officer and Abdul Akbaar Wahid, he failed to give the benefit to the Appellant; hence there has been a substantial miscarriage of justice;

(g) That the learned trial Magistrate has failed to differentiate between an expert witness and a lay witness when he has referred to both of them as Aexpert witnesses@ at page 4 of his judgment.

The application is made by motion, supported by the affidavit of Reena Singh, the Applicant=s wife. The grounds for the application are that the appeal against conviction is bound to succeed, that the sentence is harsh and excessive and that the Applicant is the sole bread winner in his family, and supports aged and sick parents.

The State opposes bail, saying that no exceptional circumstances have been made out, and that the appeal in any event is not likely to succeed.

A person applying for bail pending appeal should only be granted bail in exceptional circumstances. A clearly meritorious appeal, might constitute exceptional circumstances, as might a long delay in the hearing of an appeal against a short sentence or the special circumstances of the offender. In Mark Lawrence Mutch -v- The State Crim. App. No. AAU0060 Reddy P, refused bail pending appeal in respect of an appeal against a seven year sentence, saying that although there were arguable grounds of appeal, he was not satisfied that the appeal Ahad every chance of success.@

In Amina Koya -v- The State Crim. App. No. AAU0011.1996S, Tikaram P said:

AIf an accused is likely to spend the whole or a substantial part of his or her term in prison before his or her appeal is heard then this situation may constitute a good ground for granting bail. If bail is not granted in such a case and the conviction is subsequently quashed or sentence substantially reduced then an injustice will have been done. At the same time it must be borne in mind that some delay in hearing of appeals is inevitable. Generally delay in hearing should not be looked at in isolation ..... when dealing with delay the prospects of the appeal being successful and the length of the sentence are factors that are usually taken into account.@

In this case, counsel have provided me with the judgment of the Nausori Magistrates= Court. The facts disclosed in the course of the trial, which commenced in May 1999, and concluded on 31^st May 2002, were that the Applicant was a bus driver, who at the time of the accident, was overtaking another bus ascending a hill at Koronivia, on the King=s Highway. His bus went off the road, hit an electric post and rolled down a slope. The deceased, an 18 year old student, was a passenger in the Applicant=s bus, and was killed in the accident. The prosecution evidence was that the Applicant was driving at high speed along the road and tried to overtake the bus in front when there were five other vehicles in front of the other bus. The road was busy and it was about 5.30pm. Suddenly something came in front of the Applicant=s bus and he veered to the right, hitting the electric post and tumbling down the slope to the right.

The defence was that the accident was caused by a mechanical defect caused by a broken steering draglink. In his sworn evidence the Applicant said that he overtook another bus, and while overtaking his steering became loose. He applied his brake but it was too late, and the accident occurred.

The learned Magistrate found several inconsistencies between his evidence, and his interview statement to the police, and between the Vehicle Examiner=s evidence, and the evidence of defence witness Abdul Wahid. He rejected the defence of mechanical defect, citing the case of R -v- Spurge (1961) 2 ALL ER 688 and saying that he placed no reliance on the expert witnesses, preferring to accept the evidence of the passengers on the bus. Their account was that the accident occurred whilst the Applicant was overtaking uphill, at high speed, and when there were vehicles in front, and that he lost control because Athere was something that came infront of the bus.@ He said that the guilt of the Applicant was satisfied beyond reasonable doubt.

What weight ought to be put on witnesses= evidence, is usually the prerogative of the trial court. This applies also to expert witnesses. I see nothing in the judgment in respect of this case, which shows that the appeal is bound to succeed. The learned Magistrate was clearly aware of the test for dangerous driving as defined in R -v- Henigan (1971) 3 ALL ER 133, and of the test for Amechanical defect@ in R -v- Spurge (supra). I do not accept that the appeal is therefore bound to succeed, although the Appellant may have arguable grounds of appeal when the court record is available in full.

As to length of sentence, the court record must reach this court within 28 days. The appeal can be heard within a week thereafter. This length of time is not unreasonable, and a substantial term of imprisonment will not have been served when the appeal is heard.

Further, although I accept counsel=s submissions that the Applicant is the sole breadwinner in his family, this is an old case and the Applicant had ample time before he was sentenced, to make suitable arrangements for his family. I do not accept that his family circumstances constitute exceptional circumstances.

This application for bail pending appeal is refused.

Nazhat Shameem
JUDGE

At Suva
10^th June 2002