Ram v The State [2005] FJHC 158; HAA0039.2005 (4 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0039 OF 2005

BETWEEN:

MANI RAM
Appellant

AND:

STATE
Respondent

Counsel: Mr. R. Singh – for Appellant
Mr. D. Prasad – for State

Date of Hearing & Judgment: 30th June, 2005

JUDGMENT

Background

The appellant was charged with the offence of dangerous driving occasioning grievous bodily harm.

The learned trial Magistrate dismissed that charge but convicted the appellant of a lesser offence for failing to take reasonable and proper precautions to avoid a collision under the Traffic Regulations 2000 (Regulation 8(1)(b)).

The appellant was not satisfied with that conviction and appeals.

Particulars of the Offence

The appellant drove off from a house in Nasinu on the 3rd of May 2001. He got a short distance down the road (approximately 1½ chain) and realized he had left his vodaphone behind. Rather than pull to the side of the road, turn the car around and return to the address to collect his mobile he elected instead to drive the car backwards for this considerable distance. In doing so he failed to notice the young complainant and hit and knocked him into the ground.

Decision

The appellant argued that the main ingredient for the minor offence; that he failed to take reasonable and proper precautions to avoid a collision; had not been established in the proceedings and that accordingly the learned Magistrate was not free to convict him.

Section 169(2) of the Criminal Procedure Code sets up the statutory process for conviction of a lesser offence. In cases where facts constituting a minor offence are proved an accused may be convicted of that minor offence.

The correct test for ascertaining whether an alternate minor offence conviction might be sustained is to enquire whether the minor offence may have been a necessary step towards establishing a conviction for the major offence (see Springfield (53) CR. APP. 608 at 649). In this case clearly it was essential to establish that there was some driving and accordingly in my view the entire range of offences under the Traffic Regulations 2000 are therefore available to a learned Magistrate as an alternate to a conviction of the more serious offence of dangerous driving occasioning grievous bodily harm.

The appellant submits that apart from his collision with the victim there was no evidence that he failed to take reasonable and proper precautions to avoid that collision.

I completely reject that argument. The fact of the matter is that he fell below the standard required for a prudent and diligent driver by electing to back his vehicle over such a long distance rather than proceeding to turn around, drive on the correct side of the road, stop and collect his vodaphone and then proceed on his way.

Reversing a motor vehicle always carries with it significant risks. This is for the simple reason that a driver does not have a full and complete view of the road during the manoeuvre but must assume the risk that there is nothing in the way.

It is for that reason no doubt that the Land Traffic Regulations 2002 (Regulation 8(1)) provides that no person may drive a motor vehicle backwards on a public street unless the person has taken reasonable and proper precautions to avoid a collision.

In my view the learned Magistrate was quite correct to find the appellant guilty of this lesser offence as it was unreasonable to backup such a long distance without first ascertaining that the entire intended path of travel was and would remain clear of any obstacles. It was imprudent of the appellant to fail to take proper precautions to avoid a collision with the complainant in those circumstances.

For these reasons the appeal is dismissed. This decision has been indicated to counsel in the course of the hearing. I order that it be sent to them without a need for appearance by the accused, his counsel and counsel for the State.

Gerard Winter
JUDGE

At Suva
4th July, 2005