Lasike v State [2002] FJHC 201; HAM0017D.2002S (12 June 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM 017 OF 2002

Between:

SEMISI LASIKE
Applicant

And:

THE STATE
Respondent

Hearing: 11th June 2002
Ruling: 12th June 2002

Counsel: Mr E. Veretawatini for Applicant
Mr B. Solanki for Respondent

RULING

This is an application for bail pending appeal. The Applicant was charged with the following offences in the Nausori Magistrates’ Court:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

SEMISI LASIKE on the 27th day of June 2000 at Nausori in the Central Division drove a motor vehicle on Princess Road, Navuso in a manner, which was dangerous to the public having regards to all the circumstances of the case and thereby caused the death of AKUILA DRESA.

SECOND COUNT

Statement of Offence

DRIVING MOTOR VEHICLE UNDER THE INFLUENCE OF DRINKS/ DRUGS: Contrary to Section 39 of the Traffic Act, Cap. 176.

Particulars of offence

SEMISI LASIKE on the 27th day of June, 2000 at Nausori in the Central Division been the driver of a motor vehicle drove the said vehicle on the Princess Road, Navuso whilst under the influence of drinks/drugs to such an extent that he was incapable of being in proper control of the said vehicle.

The Applicant pleaded not guilty on both counts, and the matter proceeded to trial on the 24th of May 2001. It concluded on the 22nd of April 2002. The Applicant was convicted of dangerous driving, on the 30th of May 2002, and acquitted on Count 2. He was sentenced to 1 year imprisonment and disqualified from driving for two years.

The Applicant now applies for bail on the grounds that the sentence was wrong in principle and that he was actually being punished for causing the death of the deceased when he had been acquitted of the charge of Causing Death by Dangerous Driving.

The State opposes this application, saying that there were no exceptional grounds to justify the grant of bail. State Counsel filed the affidavit of Sergeant Muni Deo, the police prosecutor who prosecuted in the Magistrates’ Court, with a copy of the judgment and of sentence annexed to it.

Bail pending appeal may be granted in the most exceptional circumstances. A clearly meritorious appeal or an expected delay in the hearing of an appeal against a short sentence might constitute exceptional circumstances.

The facts of this case, as disclosed by the judgment in the lower court, are that the Applicant was driving a taxi on the 27th of June 2000, along the Princess Road at Navuso, when he hit two pedestrians walking on the gravel footpath on the right side of the road (towards Sawani). One witness (PW2) said that there was no other traffic on the road, the weather was fine, and the Applicant collided with the two pedestrians then drove away towards Sawani. Another witness, (PW3) said that the accident happened while the Applicant was negotiating a bend on the road. One of the pedestrians, Akuila Dresa died. He, and the other pedestrian, his de facto wife, were still alive when they were conveyed to the Nausori Health Centre.

The Applicant was later apprehended at a road block at Sawani. He smelt of alcohol. In his statement to the police, he said that he had driven past another vehicle in which the occupants were kissing. This, he said, distracted him and caused his vehicle to go off the road, and hit the pedestrians. He remained silent at the trial.

The prosecution tendered an Analyst’s report to show that the Applicant’s blood alcohol level was 103.7mg%. No doctor gave evidence to say, that in his/her opinion, the Applicant was incapable of driving, and the learned Magistrate on that basis acquitted the Applicant on Count 2. He did not consider, on the evidence, whether in his own opinion, the Applicant was capable of driving. He would have been entitled to draw his own conclusions on the matter, even in the absence of a medical opinion (DPP -v- Ben Tausia Crim. App. No. 5/84).

On Count 2, the learned Magistrate acquitted the Applicant on the basis that he was acquitted of driving whilst under the influence of alcohol and that therefore a conviction for Causing Death by Dangerous Driving was not possible.

He then went on to convict him of Dangerous Driving on the basis that the Applicant was on the gravel footpath on the wrong side of the road, was distracted by the other vehicle and therefore must have been driving dangerously. He sentenced him to 1 year imprisonment, with disqualification from driving for 2 years, saying: “As a result of his manner of driving, the late Akuila Dresa, was killed.”

It is apparent from a reading of the judgment and sentence, that the Applicant was sentenced on the basis that he had been convicted of Causing Death by Dangerous Driving. The one year sentence would have been justified if he had been convicted on Count 1. However he was not. He was convicted of the lesser offence of Dangerous Driving in respect of which the tariff is a fine and/or disqualification from driving. Further, there is no apparent factual basis for the finding that Akuila Dresa was killed as a result of the collision. There is no reference in the judgment to a post mortem report, or of any evidence linking the death with the accident. Despite the apparent absence of link between the causing death and the driving, the learned Magistrate appears to have acquitted instead on the basis that the prosecution relied on the evidence of alcohol to prove Count 1, and that because the Applicant was acquitted on Count 2, he must also be found not guilty on Count 2. In fact, it appears that the prosecution led evidence of losing control of the car at a bend, during a moment of inattention, as evidence of fault. Indeed it was on this basis that the learned Magistrate convicted the Applicant of dangerous driving. It is not clear why this evidence was not sufficient for the charge of causing death by dangerous driving, but was sufficient for dangerous driving when the test is the same for both offences. The only difference between the two offences is whether death was thereby caused.

In these circumstances, it appears that the appeal has a very good chance of success. For this reason I consider that the Applicant has shown exceptional grounds to justify the grant of bail pending appeal.

Bail is granted. The Applicant must appear in court on July 12th 2002 when this appeal will be called for Mention to set a hearing date on the availability of the record.

Nazhat Shameem
JUDGE

At Suva
12th June 2002