Ali v The State [2005] FJHC 473; HAA0023J.2005S (7 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0023 of 2005S

Between:

MANJULA ALI
d/o Shiu Mangal
Appellant

And:

THE STATE
Respondent

Hearing: 30th September 2005
Judgment: 7th October 2005

Counsel: Mr. A.K. Singh for Appellant
Mr. A. Rayawa for State

JUDGMENT

This appeal is in respect of conviction and sentence for one count of dangerous driving. The charge, which was filed on the 29^th of October 2002, alleged that the Appellant, on the 25^th of April 2002 at Nasinu, drove a motor vehicle on Ratu Dovi Road Nepani in a manner which was dangerous to the public, contrary to section 98(1) of the Land Transport Act 1998.

The Appellant pleaded not guilty to this charge on the 17^th of January 2003. She was represented by the same counsel who appeared on appeal. On the 10^th of February 2003, the prosecution said that “first phase disclosure” had been served on counsel. Full disclosure was effected by the 16^th of April 2003. An August date was set for the hearing at the request of defence counsel. However, on August the 6^th, the Appellant was ill. A hearing date was set for the 16^th of January 2004. On that date, the prosecution had only one witness and a new hearing date of the 7^th of March 2004 was set. On that date however defence counsel said - “May we take another date? Prosecution has just given me disclosures.” The prosecution told the court that a 4 year old child was the victim. A new hearing date was set for the 21^st of July 2004.

The trial finally proceeded on the 21^st of July. Counsel told the court that he objected to the evidence of the child (who was then 4 years old), saying that she was incompetent. The learned Magistrate nevertheless called the child, who gave very brief evidence. It seems that she gave unsworn evidence. She said:

“My mother pulled me to the drain before the car came. I fell on a grass patch.”

The evidence of her mother, Sivina Naulumatua, was that she and her daughter were walking along Ratu Dovi Road at 10am on the 25^th of April 2002, on their way to church. They were walking along the footpath, when a car climbed onto the footpath, hit her daughter and caused her to fly onto the grass patch. Under cross-examination she said that the footpath was wide, there was no truck which had stopped there. Nor did she hear any screeching sound. Later she said she did hear a screeching sound but she only wanted to see what had happened to her daughter. She said she did not pull her daughter towards the drain and that her daughter was injured on her right shoulder as a result of the collision.

Kelepi Nabainivalu was selling vakalolo on the roadside when she saw PW1 and PW2 walking along the footpath. He and PW2 greeted each other. Suddenly he heard the screeching sound of a tyre and saw the mother and daughter separate. The child flew to the grass patch. The car stopped 30 metres ahead. Under cross-examination, he said that there was no queue on the road at that time, there was no truck which stopped at the scene and that he could not say that the car had hit the pedestrians.

The prosecution then called PWC Josivini, the Investigating Officer. The defence objected, saying that her statement had not been disclosed. The prosecution said that the witness had made no statement but had simply drawn the sketch plan. Defence counsel then said he needed all the details of the police diary. He said he had authorities to support his submissions. He was given until the 22^nd of July 2004 to produce those authorities. On that date the learned Magistrate said that he was not satisfied with the authority produced and allowed WPC Josivini to give evidence.

She said that she attended the scene of the accident. She said that she saw the vehicle driven by the Appellant parked 40 metres away. She spoke to the Appellant and drew the sketch plan. The rough and fair plans were tendered. She said that PW2 had shown her the point of impact. That was the case for the prosecution.

The Appellant gave unsworn evidence. She said that at 10am she was travelling along Ratu Dovi Road at 30-35 kmph. There was a big truck in front of her vehicle. She was 10 yards behind him. He stopped suddenly. He had no brake lights. She swerved to the left to avoid an accident, and she could not control her car on the footpath. She said the pedestrians jumped and said – “if the mother and child would not have jumped I would not hit them.”

DW2, Nazia Bibi was a passenger sitting in the front passenger seat. There was heavy traffic on the road and they were travelling at 30-35 kmph. At Nepani, the truck travelling in front of them, suddenly stopped. It had no brake lights. The car moved onto the pavement and PW2 and PW1 jumped into a drain.

Defence counsel then asked to produce written submissions within 21 days. On the 29^th of August he asked for further time. He was given until the 22^nd of September. Judgment was delivered on the 3^rd of November 2004.

The learned Magistrate said in his judgment that he had accepted the evidence of PW1 on the basis that she appeared to him to be capable of giving evidence. He said that her evidence was admissible. In relation to the complaint of the defence of non-disclosure of a written statement from WPC Josivini, he said he was not satisfied with the authority he tendered and the investigating officer was allowed to give evidence. He said, referring to the case of Police v. Nimmo [1990] 3 NZLR 343, that if counsel had wanted additional material beyond that which was essential for the prosecution, they must specifically request that material and must satisfy the court that the non-disclosed material was significant to the defence case. He found that no request had been made and that non-disclosure of a written statement of the witness was not significant. He then found that if the Appellant had indeed been traveling at 30-35 kmph she would have been able to stop in time to avoid a collision with the truck. He found that she was either driving in a state of “momentary inattention” or was driving too close behind the vehicle she said was in front of her. He further found that none of the police witnesses had supported her version of the facts, and he found her explanation to be fanciful. He then correctly defined the offence of dangerous driving, saying that the accused must have driven in a way which fell far below the standard expected of a competent and careful driver or in a manner that would be considered dangerous by a competent driver. It was not necessary to show that any person or property was actually endangered. It was enough if the manner of driving was obviously dangerous in the minds of competent drivers. He then found the Appellant to have driven recklessly and attached no weight to her unsworn statement. He convicted her.

Mitigation was heard on the 1^st of December. The Appellant was a first offender, and married with two children. She was a company director of G.R. Motors and needed her licence for her job. She was fined $500 and was disqualified from driving for 3 months. She has now paid her fine and served her period of disqualification.

In her appeal against conviction and sentence, her petition is as follows:

(a) that the learned Magistrate erred in law and facts when he failed to consider the inconsistent evidence of the Prosecution witnesses.

(b) that the learned Magistrate erred in law and fact in concluding that the evidence of a four year old child is admissible as well as conclusive and sufficient without giving due consideration to the fact that at the time of the accident the child was two years old.

(c) that the learned Magistrate erred in law in allowing the evidence of the injury to be taken and admitted without any proper medical evidence or report when he should warn himself first that such evidence was prejudicial as it outweighs its probative value.

(d) that the learned Magistrate erred in law when he failed to order Police to provide the full disclosures that were not disclosed in Court or to the petitioner.

(e) that the learned trial Magistrate has erred in law when he failed to consider the witnesses’ inconsistent evidence and failed to consider evidence coming out as a result of cross-examination.

(f) that the learned Magistrate erred in law when he failed to comply with 155(1) of the Criminal Procedure Code especially the ingredients of dangerous driving and the defence raised by Appellant.

(g) that the learned Magistrate erred in law when he stated that he would put no weight on the Appellant’s unsworn evidence and or that he placed the onus on the Defendant to prove his innocence.

Ground (a)

The Appellant submits that there was inconsistent prosecution evidence and that the learned Magistrate failed to consider those inconsistencies. The only real inconsistency in the prosecution case was that PW1 said that she was pushed into the drain, and PW2 said that the Appellant’s car hit her daughter causing her to fly onto the grass patch. PW3 was not able to say whether the car collided with anyone. He was able to say that when the car climbed onto the footpath, PW1 and PW2 separated from each other and the child flew to the grass patch.

The question of whether or not the car actually hit PW1 is not one which goes to the elements of the offence. The Appellant herself did not dispute that her car climbed onto the footpath. She disputed the collision, but there was no dispute that had the car not climbed onto the footpath, a dangerous situation would not have been created, and PW1 would not have been injured. There therefore was no inconsistency which was relevant to the elements of the offence of dangerous driving. This ground fails.

Ground (b)

There is no age limit on competent witnesses. A very young child can give evidence if the court decides that he or she understands the special duty to tell the truth and the nature of the proceedings. Before a child commences giving evidence, the court has a duty to ensure that the child has an understanding of both matters. This is usually done by asking a series of questions. For the purpose of assisting the magistrates, I set out some of the questions which could be asked. The questions are not exhaustive, and much depends on the ability of the witness to understand the questions and articulate answers.

1. How old are you?
   
2. Do you go to school?
   
3. What class are you in?
   
4. Do you know why you are in court?
   
5. What do you think is your duty when you give evidence?
   
6. Do you believe in God?
   
7. Do you go to church/temple/mosque?
   
8. What is your holy book?
   
9. When you put your hand on the book and swear to tell the truth, what does that mean?
   
10. Do you understand that in giving evidence in court you have a special responsibility to tell the truth?
    

The Magistrate/Judge must then decide whether the child is competent to give sworn evidence, or unsworn evidence, or any evidence at all. The question is not one of the age of the child. The question is that of understanding the special significance of court proceedings, and, in the case of sworn evidence, the special duty to tell the truth when on oath.

The learned Magistrate did not conduct an enquiry into the competence of PW1. There can be no doubt that he should have before deciding to allow the witness to give unsworn evidence. However the witness gave very brief evidence and agreed that she was not hit by the vehicle but was pulled into the drain by her mother. There was no prejudice to the Appellant at all in her evidence. Indeed her evidence was consistent with the Appellant’s evidence.

Thus, although the learned Magistrate erred in failing to enquire into the child’s competence as a witness, there was no miscarriage of justice. Further in his judgment, the learned Magistrate made it clear that he was aware of the law on the competence of child witnesses which suggests that he had indeed concluded that PW1 was competent to give evidence. This ground fails.

Ground (c)

The Appellant says that the evidence of PW1’s injury should not have been admitted. However a perusal of the court record shows that no such evidence was given or received. This ground fails.

Ground (d)

This ground alleges a non-disclosure of the prosecution evidence. The court record shows that disclosure was effected in two phases, on the 10^th of February 2003 and the 18^th of March 2003. Counsel accepts that he received the sketch plan drawn by WPC Josivini. On the 16^th of April 2003 he was in court when the prosecution said that full disclosure had been made. He made no request for a written statement from the sketching officer. Nor did he ask for notebook entries. Almost a year later, on the 8^th of March 2004 he told the court that he had just received disclosure. The record suggests that he received disclosure in March 2003. Counsel still did not tell the court he needed further disclosure. He did not tell the court until the prosecution was about to call WPC Josivini to the stand. He then objected to her being called. He produced a judgment of this court to support his submission. In the course of this appeal hearing, he said that the judgment was that of State v. Semi Talawadua Crim. App. No. HAA0032 of 2002.

In fact, that judgment does not assist the Appellant at all. In that case the magistrate acquitted the respondent after refusing the prosecution an adjournment. At the appeal against the acquittal, both parties filed affidavits in relation to the State’s application to adduce evidence that the prosecutor had tried to serve counsel with disclosure prior to the hearing date, but that he had refused to accept it. In finding that the adducing of the evidence was not necessary to determine the appeal, I remarked that I failed to see how non-disclosure of witness statements could lead to the acquittal of the accused. I said at page 8:

“In fact, non-disclosure of statements does not prevent the prosecution from calling witnesses. The defence may seek an adjournment on the ground that witness statements were not disclosed and that there is resulting prejudice to the accused.”

Similarly, the case of Henry Ali v. The State Crim. App. No. AAU0009 of 2001S does not assist the Appellant, because in that case non-disclosure of previous statements of witnesses at a military board of enquiry was a ground of appeal against the conviction for murder by court martial to the Court of Appeal. The Court of Appeal held that the statements should have been disclosed when requested by the defence. (see also Rajnesh Rajeshwar Prasad v. State Crim. App. AAU0013 of 2002)

In this case, defence counsel had ample time to request the taking of written statements from WPC Josivini, but failed to make any such request. In Allen v. Police (1999) 1 NZLR 356 the issue was the prosecution’s failure to comply with a pre-trial request for discovery of calibration and certification details in relation to a breath-testing machine which the appellant said was not working properly. The High Court held that this failure had impeded a fair trial.

In Attorney-General v. District Court at Hamilton [2004] 3 NZLR 777, it was held by the High Court at Hamilton that the question was whether the accused was prejudiced by the failure to disclose. A failure to disclose and resulting prejudice should only lead to a permanent stay of proceedings after an evaluation of the prosecutor’s conduct, and good faith, and of the accused’s ability to nevertheless receive a fair trial. In that case the High Court held that non-disclosure of a police notebook entry of an interview was immaterial and could not have caused prejudice to the accused. Further, an adjournment could have cured any prejudice resulting from non-disclosure of medical evidence.

These authorities reinforce existing principles on the prosecution’s duty to disclose. The prosecution has a duty to disclose all relevant material but it cannot disclose what it does not have. In the case of WPC Josivini, her evidence was in relation to the drawing of the sketch plan. The plan was disclosed. Her notebook entries were never requested by the defence. I asked counsel why he wanted the entries (if they existed) and he said that he wanted her to say that there was no damage to the car, and that therefore there was no collision with the pedestrians. However, the record shows that the witness was not asked during cross-examination, whether the car was damaged. Nor did the Appellant give evidence of any damage when she made an unsworn statement. Further, the question of a collision is not relevant to the ingredients of the offence. I fail to see any prejudice to the Appellant in the fact that WPC Josivini had made no written statement beyond her sketch plan. It appears that defence counsel too saw no relevance in any damage to the car, because he asked no questions about it.

There being no prejudice to the Appellant in the non-disclosure of any written statement of WPC Josivini, or in the non-disclosure of any other material she might have had, this ground is dismissed.

Grounds e, f and g

I have already dealt with the suggestion that there was relevant inconsistent prosecution evidence. Ground (f), is that the learned Magistrate failed to consider the elements of the offence. However I find that he directed himself accurately on the elements of the offence and went on to articulate the element of fault on the part of the Appellant. Finally he did not err in putting no weight on the Appellant's unsworn evidence. It is a matter for the trial court to decide what weight to put on any evidence. In this case the only source of evidence as to the existence of a truck which stopped suddenly, was the defence case. The prosecution witnesses said they saw no truck. The learned Magistrate was entitled to accept that the Appellant lost control of her vehicle by climbing onto a footpath and that she thereby created a dangerous situation for the pedestrians on the footpath. The Appellant’s standard of driving, from an objective point of view was dangerous and the learned Magistrate was entitled to convict on the evidence.

These grounds are also dismissed.

Result

This appeal is dismissed. Counsel for the Appellant said while arguing the appeal that he was only pursuing this appeal because he wanted the law clarified on the evidence of children, and on the duty to disclose. He also said that he considered that the learned Magistrate unfairly attacked him in his judgment in relation to the alleged non-disclosure of evidence.

On this latter point, I find that the learned Magistrate did nothing more than hold that counsel’s authorities on disclosure were irrelevant. That does not constitute an attack on counsel. Indeed, the words used in the judgment are temperate and judicial.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
7^th October 2005