Kumar v State [2002] FJHC 291; HAA014.2001S (12 April 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA014 OF 2001S

BETWEEN:

AJNESH KUMAR
Appellant

AND:

THE STATE
Respondent

Counsel: Mr A.K. Singh for Appellant
Ms K. Siqila for Respondent

Hearing: 5th April 2002
Judgment: 12th April 2002

JUDGMENT

On the 13th of October 2000, the Appellant was convicted by the Suva Magistrates’ Court, of the following offence:

Statement of Offence

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

Particulars of Offence

AJNESH KUMAR s/o ASHOK KUMAR, on the 13th day of January, 1998 at Navua in the Central Division, drove a motor vehicle on the Queens Road at Nabukavesi, Namosi in a manner which was dangerous to the public having regards to all the circumstances of the case and caused the death of BRIAN GREENWOOD.

He was sentenced to 18 months imprisonment. He is currently on bail pending appeal. He was also disqualified from holding or obtaining a driver’s licence for a period of two years.

He now appeals against conviction and sentence. His grounds of appeal are:

1. That the Learned Magistrate erred in law and fact when he failed to take into consideration that accused’s vehicle’s speedometer was locked at 35 kmph that clearly confirms that he was travelling at 35 kmph before the accident.
   
2. That the Learned Magistrate erred in law and fact when he failed to consider that there was no evidence to confirm or prove that the Accused’s manner of driving was dangerous having regards to all the circumstances of the case.
   

100. That the Learned Magistrate erred in law and fact when he failed to take into consideration that the complainant admitted driving at 80 kmph at a right hand bend that could easily be the result of his vehicle going onto the accused’s lane.
     

4. That the Learned Magistrate erred in law and fact when he failed to give reasons why he believed the complainant and disbelieved the accused.
   

Additional Evidence

Before the hearing of this appeal, the Appellant also made an application firstly to adduce further evidence in the form of four photographs of vehicle No. CV624 together with the affidavits of Ajnesh Kumar and Ronald Thomas Rickman, and secondly to supplement the court record in relation to the evidence of Riaz Alam Buksh (PW1) and of the Appellant himself (DW1).

The affidavits seeking to supplement the record were forwarded to the Chief Magistrate for his comments. His response, by memorandum dated 29.10.2001 is that he stands by his record of the proceedings, and that section 190(1) of the Criminal Procedure Code only requires him to record material and relevant matters. On the basis therefore that the Appellant’s recollection of the evidence is disputed by the learned Chief Magistrate, I rely on the court record as certified by him, and disregard those paragraphs of the affidavit of Ajnesh Kumar dated 21.8.01 which purport to give a different version of the evidence. As to the application to adduce further evidence, the application is governed by section 320(1) of the Criminal Procedure Code, and common law principles governing the adducing of further evidence. In considering such an application, the court must ask why that evidence was not adduced in the lower court, whether the evidence is relevant to the appeal, whether it is admissible evidence and whether the evidence is credible.

The reason given for not adducing the evidence, is that the Appellant did not know that the photographs existed until after the trial. The affidavit of Ronald Thomas Rickman, sworn on 25th September 2001, states that the photographs were taken by him on the 14th of January 1998 on the instructions of the National Insurance Ltd. He had been instructed by the Insurance Company to investigate the accident between vehicle CX134, CV624 and CS780. He took the photographs at Navua Police Station and said that although the registration plate of CX134 was missing, the police officers confirmed that it was the vehicle CX134. He took the photographs and handed them to National Insurance Ltd. without the knowledge of the Appellant. He investigated the matter and concluded that the accident occurred because the driver of CX134 overtook CV624 and collided with the Appellant’s vehicle. He said that he had not informed the Appellant about his findings.

The State opposes the application to adduce further evidence, saying that the Appellant must have known that the car was insured and that there was an investigation, that the photographs are unreliable because the registration number of the vehicle is not shown, and that the photographs are in any event irrelevant to the appeal.

I find, on a perusal of the affidavit of Ronald Thomas Rickman, that the Appellant did know that the vehicle was insured, and that the Insurance Company had conducted an investigation into the accident. I make this finding because the affidavit has annexed to it, the report of Mr Rickman, which includes an interview by Mr Rickman of the Appellant. This interview was conducted on the 14th of January 1998. The trial did not commence until the 15th of May 2000, more than two years later. In that time, the Appellant could have, with the exercise of ordinary diligence, discovered the result of the investigation, and the contents of the investigation file, from either his employers or the insurance company. He did not do so. Further, at his trial, he had between the 16th of February 2000 to the 16th of May 2000 (when the prosecution case was closed) to inform his counsel abort the insurance investigations, so that Mr Rickman could have been called for the Defence to tender the photographs. He did not do so. The Appellant is not an illiterate, unsophisticated person who might not have understood the significance of the Insurance Company’s report and photographs. He is a person who is fluent in English and who gave a coherent account of the accident to both the police and to the court. I cannot accept that he has offered a good reason for failing to adduce this evidence during his trial.

Further, I am not satisfied that the evidence of the photographs is relevant to the appeal. The photographs show substantial damage to the right side of the vehicle which is, according to Mr Rickman, CX134. This, the Appellant says, shows that PW1 Riaz Alam Buksh must have collided with his truck whilst overtaking. That might be so. However the damage is equally consistent with PW1's account. At page 9 of the court record, PW1 said:

“There was a van coming from the opposite direction. The van was overlapping on the left side of the road. There was roadmark on the road. It was overlapping towards our side of the road. It was not far away from me.

I pulled to the left side of our road to let the van through. The van was in front. As it levelled with my car, it swerved towards my car. It then made contact with the front right side of my car. It hit my car.”

According to PW1, the Appellant’s truck collided with the front right side of the vehicle. This is also consistent with the Vehicle Examiner’s Report which shows damage to the right front side of CX134. The prosecution evidence did not suggest a full frontal collision, and the photographs the Appellant seeks to adduce, add nothing to the evidence led at the trial. They are therefore irrelevant to the argument of his appeal. For this reason also, the application to adduce them in evidence is refused.

The facts

The evidence at the trial was that Riaz Alam Buksh was driving to Suva from Nadi on 13th January 1998 in CX134 when he reached Nabukavesi at about 12.15pm. There was another car behind him. The Appellant’s truck was driving from the other side, according to Mr Buksh, on the wrong side of the road. As Mr Buksh pulled to the left, the truck swerved towards his car and collided with it. Mr Buksh’s car went into the drain on the side of the road. The Appellant’s truck then collided with CV624, driven by the deceased, which also landed in the drain. The deceased was found to be dead on arrival at the CWM Hospital. There were no other witnesses of the accident. However Umlesh Chand (PW9) saw the Appellant’s vehicle driving past Wainadoi and overtaking him half a mile before the accident occurred. Mr Chand was travelling at 60kmph and said that the Appellant was driving fast when he overtook him. The investigating officer arrived at the scene after 12.30pm and drew a sketch plan. He found the Appellant’s truck lying on its left side across the road. CV624 was on the left side of the road with its rear in the drain. The Appellant was present and pointed out the point of impact which “was on the left side of the lane towards Suva.” The Appellant’s truck was 5.4 metres from the point of impact. There were broken vehicle pieces on the left side of the road towards Suva.

The Appellant gave sworn evidence saying that as he approached the bend at Nabukvesi, he saw a car overtake another car and come towards him on his side of the road. He tried to swerve to avoid an accident but could not do so because the car was coming too fast. The car hit his truck on the truck’s right side, he lost control of his vehicle and it went to the other side of the road and hit the Nissan Sabero. He said there were two impacts. He denied being present when the sketch plan was drawn, and could not explain why the broken glass was not on the right side of the road.

His account of the accident was the same that he gave to the police, with some differences in detail that I will come to later in this judgment.

The Defence called no other witness and the learned Chief Magistrate delivered his judgment on 13th October 2000. After setting out the law and the evidence, he concluded, on the basis of the concentration of broken glass on the left side of the road towards Suva, on the basis of the Appellant’s own evidence, and on the basis of the evidence of PW1, that the Appellant had been driving dangerously and had thereby caused the death of the deceased. He said:

“In my view, the accused was travelling at such a speed that he could not negotiate the bend he was approaching. He veered off his lane onto the opposite lane. He hit the front side of car CX134. He lost control. He then collided into car CV624, resulting in the death of its driver. He was carrying cargo in his 3 ton truck. The accused in my view, drove dangerously prior to the accident, hit cars CX134 and CV624, thereby injuring the drivers and causing Mr Greenwood’s death.”

The grounds of appeal

The first ground of appeal is that the Magistrate failed to consider that the speedometer was locked at 35 kmph which “confirms that he was travelling at 35kmph before the accident.

It is true that the Vehicle Examiner’s Report shows that the Appellant’s speedometer was locked at 35kmph. However no evidence was called to explain the significance of this evidence. No expert was called to say that the locking of the speedometer meant that the Appellant had been driving at that speed before the collision. Further, the Appellant told the police under caution that he had been driving at 60 to 65kmph before the accident and that when he saw CX134 he slowed down to 50kmph. In court he said he had been driving at 40 to 45kmph before the accident and slowed down further when he approached the bend. Later in cross-examination he said he was travelling between 40 and 65kmph.

In the light of the Appellant’s own versions of his speed (none of which are consistent with the locked speedometer at 35kmph) it is not surprising that the learned Magistrate gave no weight at all to the evidence of the speedometer. Indeed, in the absence of expert evidence, he could not have drawn any inferences at all from that evidence. This ground of appeal fails.

The next ground of appeal is that there was no evidence of dangerous driving. In court, counsel submitted, that even on Mr Buksh’s version of the facts, the Appellant’s driving was only careless.

The evidence which the learned Magistrate accepted was that the Appellant was negotiating a bend at a high speed on the wrong side of the highway. He was driving a cargo truck and in going to the wrong side of the road created a dangerous situation. In R -v- Gosney (1974) 3 ALL ER 220, it was held that a charge of dangerous driving is proved when the driver drives in a way which falls below the standard of a competent and prudent driver, and thereby causes a situation, which viewed objectively, is dangerous.

The test for a charge of Dangerous Driving is an objective one, as is the test for Careless Driving. The difference between the Careless Driving and Dangerous Driving is not the manner of driving, (which has the same test) but the situation that has been caused thereby. In other words, a person who drives carelessly, also drives dangerously, if viewed objectively, his/her manner of driving creates a dangerous situation. Thus a person who drives carelessly, drives dangerously if he/she thereby causes a death. Therefore, counsel’s submission that the Appellant (on the version of the facts given by PW1) was only driving carelessly, has no validity.

In England, the offence of Causing Death by Dangerous Driving was repealed and replaced by section 50 of the Criminal Law Act 1977 which created the offence of Causing Death by Reckless Driving. The former offence of Causing Death by Dangerous Driving or at a Speed Dangerous to the Public was identical to our Penal Code provision. However, the subjective test for the offence of Reckless Driving as defined by the House of Lords in R -v- Lawrence (198T.R. 217 led to a numbenumber of motorists being convicted of the lesser offence of Careless Driving because of the higher thresfor prosecution. In 1989, a White Paper was produced, called “The Road User and the Lthe Law” which recommended a new offence of Dangerous Driving with an objective test as to the manner of driving. Section 1 of the Road Traffic Act 1991 amended the 1988 Act by abolishing the offence of Reckless Driving and replacing it with Dangerous Driving. Section 2A(1) of the Act provides that a person drives dangerously if his manner of driving falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.

In contrast the offence of Careless Driving under section 3 of the Act is committed when the manner of driving is “below the standard of a reasonable, prudent and competent driver.” In England therefore, it is the manner of driving that determines the charge which is laid, and the further below the expected standard the driving has fallen, the more likely it is that a charge of Dangerous Driving will be laid.

The new statutory provisions in the English courts, are therefore significantly different from the former English offence of Dangerous Driving and therefore from the Fiji offence of Causing Death by Dangerous Driving. Of greater assistance to the Fiji courts, are the authorities defining Dangerous Driving and Causing Death by Dangerous Driving, prior to the abolition of these offences in 1977. Indeed, the main reason why they were abolished was that there was no real distinction between Dangerous Driving and Careless Driving under the Road Traffic Act 1972.

There are many authorities which say that the test for both Dangerous Driving and Careless Driving, is whether the accused has departed from the standard of a reasonable, prudent, competent and experienced driver in all the circumstances of the case. The accused is guilty of either offence even if he committed an error of judgment (Simpson -v- Peat (1952) 1 ALL ER 441) or was an inexperienced driver (McCrone -v- Riding (1938) 1 ALL ER 157.) The difference between Careless Driving and Dangerous Driving in Fiji, is whether the manner of driving (which fell below the requisite standard expected) created a dangerous situation. Thus a careless driver is also a dangerous driver, if his careless driving caused a pile-up of vehicles on a busy motorway resulting in death and injuries. The question of what is careless as opposed to dangerous is one of fact, usually best left to the trial court to decide, on the evidence. However, on a charge of Causing Death by Dangerous Driving, it is no defence that the driver was driving carelessly and not dangerously. The only question is whether the driver’s manner of driving fell below the standard expected of a reasonable and prudent driver, and thereby caused a dangerous situation as a result of which, a person died.

As Wilkinson’s Road Traffic Offences (10th Ed. p.216) states:

“The cases on the former offences of dangerous driving established that a person could be convicted of dangerous driving even if his fault consisted only of carelessness or incompetence.”

The Appellant was charged with the Penal Code offence of Causing Death by Dangerous Driving. There was ample evidence on which the learned Magistrate could rely, to conclude that the Appellant had caused death by his manner of driving. He lists that evidence in his judgment.

This ground also fails.

The next ground of appeal is that the complainant admitted driving at 80kmph. This ground can be disposed of quickly. The Magistrate might have concluded from the evidence of PW1 that it was PW1 who was at fault, and had caused the accident. However he did not. Instead (irrespective of PW1's speed) he decided that the accident was caused because the Appellant was negotiating the bend in a dangerous way, and because it was the Appellant who was on the wrong side of the road. He was entitled to conclude this from the evidence. It was held in R -v- Curphy (1957) Crim. L. R. 191 that a jury may convict of Causing Death by Dangerous Driving if they considered the defendant’s driving to be the substantial cause of death. In R -v- Gould (1963) 2 ALL ER 847, the jury were directed that they might convict if the defendant’s dangerous driving was a substantial cause. The latter was approved by the English Court of Appeal in R -v- Hennigan (1971) 3 ALL ER 133, Lord Parker CJ saying at p.135:

“The court would like to emphasise that there is nothing in the statute which requires the manner of driving to be a substantial cause of death or a major cause or any other description of cause, of the accident. So long as the dangerous driving is a cause and something more than de minimus, the statute operates.”

This ground also fails.

The last ground of appeal is that the Magistrate failed to explain his reasons for preferring the version of PW1. However at pages 61 and 62 of the record, the learned Magistrate did give his reasons. He said that PW1's version was consistent with the point of impact pointed out by the Appellant, and with the broken glass on the left side of the road. He further said that the Appellant’s version of the accident was not consistent with the speed at which he said he was travelling. The learned Magistrate’s reasons for accepting PW1's evidence, are perfectly clear. Indeed there are a number of other matters he might have referred to which he did not. One was the Appellant’s inconsistent accounts as to his speed, in his police statements and in his evidence. Another was the failure to dispute the evidence of the investigating officer as to the point of impact as pointed out by the Appellant, or as to the location of the broken glass. In his sworn evidence he said he did not point out the point of impact, and that he disputed the location of the glass. All these matters could have been mentioned by the learned Chief Magistrate as affecting the Appellant’s credibility.

The learned Magistrate’s judgment therefore adequately gives reasons for the Magistrate’s conclusions, and this ground of appeal also fails.

Counsel, in the course of argument suggested that the Appellant had been defended by an inexperienced solicitor who failed to put the Appellant’s case competently. However, on a perusal of the court record, I do not agree that the Appellant was incompetently defended. The record discloses his defence, and the cross-examination of the witnesses similarly disclose the Appellant’s version of the facts. The Appellant does not appear to have fared well under cross-examination but that is not the fault of his counsel.

Conclusion

The appeal against conviction fails. The appeal against sentence will be heard forthwith.

Nazhat Shameem
JUDGE

At Suva
12th April 2002