Rao v State [2007] FJHC 81; HAA102J.07S (6 December 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 102 of 2007

Between:

RAM KRISHNA RAO
Appellant

And:

THE STATE
Respondent

Hearing: 29th November 2007
Judgment: 6th December 2007

Counsel: Ms R. Naidu for Appellant
Ms L. Lagilevu for State

JUDGMENT

The Appellant is a 42 year old bus driver. On the 3rd of June 2005, he caused the death of Piare Lal a 57 year old pedestrian, when he ran him over on a pedestrian crossing. He was charged and convicted of aggravated dangerous driving contrary to sections 97 and 114 of the Land Transport Act 1998. He was sentenced to 12 months imprisonment suspended for 3 years and a fine of $2000. His driving licence was suspended for 24 months from the 6th of August 2007. He appeals against conviction and sentence.

He initially pleaded not guilty. There were many adjournments for a period of two years. Both prosecution and defence were responsible for the delay. On the 5th of June 2007 the defence asked for a further adjournment of the hearing. It was refused. The trial proceeded.

After the evidence of an eye-witness was heard, the Appellant asked to have a lawyer present to cross-examine. The court ordered a hearing de novo.

On the 12th of June 2007, the Appellant (who was then represented by counsel) pleaded guilty and admitted the facts. When the matter was adjourned for sentencing, the presiding magistrate disqualified herself saying that a relative of the Appellant had discussed the case with her. The guilty plea was vacated and the case placed before the first magistrate. The Appellant pleaded guilty and the facts were read again.

The facts were that on the 3rd of June 2005 at 7.20am, the deceased Piare Lal was crossing the road from Sukuna Park towards FINTEL. He was on a pedestrian crossing. The Appellant, who was driving at high speed, bumped the deceased. He fell on the ground, hitting his head on the surface. Another pedestrian who had been following the deceased, had to jump away to avoid being hit as well. The Appellant stopped his bus, and one of his passengers took the deceased to the hospital. He died of cranio-cerebral injuries at 5pm on the same day. He had a fractured skull, and abrasions on parts of his body.

These facts were admitted. The Appellant was a first offender, and in mitigation counsel said that this was a case of momentary inattention rather than reckless disregard for road users. He said that the victim had recovered financially (I assume that this means his family was) and that the Appellant earned his living as a bus driver. He was financially able to pay a fine.

Sentence was delivered on the 6th of August 2007. The learned Magistrate found that the victim’s family had received compensation against the Appellant in the civil High Court. He said that the deceased had been hit on a pedestrian crossing and that the Appellant who was a professional driver knew that there was a crossing there. He accepted that this was not a drastic case of dangerous driving but was a case of momentary inattention. He sentenced him to 12 months imprisonment suspended for 3 years, a fine of $2000, and disqualification from driving for 2 years.

The Appellant’s amended petition of appeal purports to challenge both sentence and conviction. The grounds are:

1. That the sentence is harsh and excessive in the circumstances.
   
2. That the learned trial Magistrate erred in law and in fact in convicting the Appellant of Aggravating Dangerous Driving Causing Death under Section 97 of the Land Transport Act whereas the Summary of Facts does not disclose the said offence.
   
3. That the learned trial Magistrate erred in law and in fact in sentencing the Appellant of an offence under section 97(3) of the Land Transport Act, when the Summary of Facts disclose an offence under 97(2) of the Land Transport Act.
   

The appeal

The second ground of appeal is that the summary of facts did not disclose an offence under section 97 of the Land Transport Act. Section 97 of the Act provides:

"(1) A person commits the offence of aggravated dangerous driving occasioning death if the person commits the offence under subsection (2) in circumstances of aggravation.

(2) A person commits the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle –

(a) under the influence of an intoxicating liquor or of a drug; or

(b) at a speed dangerous to another person or persons; or

(c) in a manner dangerous to another person or persons."

Section 97(7) provides:

"In this section, "circumstances of aggravation" means any circumstances at the time of the impact occasioning death or grievous bodily harm in which –

(a) more than the prescribed concentration of alcohol was present in the accused’s blood; or

(b) the accused was driving the vehicle concerned on a public street at a speed that exceeded, by more than 45 kilometres per hour, the prescribed speed limit (if any) applicable to the length of that street; or

(c) the accused was driving the vehicle to escape pursuit by a police or authorized officer."

It is not in dispute that the summary of facts did not disclose evidence of any of the subsections (a), (b) or (c) of subsection 7 of section 97.

State counsel submits that there was evidence of aggravated dangerous driving on the facts. She points to the collision on the pedestrian crossing and the evidence of high speed. Counsel for the Appellant submits that section 97(2) describes the manner of driving under the section. However, she submits, the prosecution also had to disclose evidence of the "circumstances of aggravation" listed in section 97(7). This she submitted had not been done and the facts disclosed instead a lesser offence of dangerous driving occasioning death under section 97(2).

The elements of the offence under section 97(1) are not described with clarity in the legislation. There is a blurring of the boundaries between section 97(1) and (2) which does not assist either the accused or those expected to enforce the law. The elements are:

1. The Accused drove a vehicle;

2. He occasioned death;

3. In an impact;

4. At the time of the impact the accused was either drunk or speeding or driving in a manner dangerous to other road users.

5. In circumstances of aggravation which mean either –

(a) he had excessive blood alcohol; or

(b) he was driving at more than 45 kmph in excess of the prescribed speed limit; or

(c) he was escaping official pursuit.

In effect, the only mens rea component of the offence is that the driver was consciously driving. Section 97(2) and (7) both describe the actus reus. Section 97(7) is obviously unnecessarily restrictive. The criteria listed in s.97(7)(a) (b) and (c) are necessary requirements of the circumstances of aggravation. In other words, if there is no evidence of any of this criteria, there can be no charge under s.97(1) because section 97(7) describes what circumstances of aggravation are. Those circumstances are far more restrictive that section 97(2) which merely require proof of, inter alia, a dangerous manner of driving.

The need to prove both section 97(2) and section 97(7) puts a much greater burden on the prosecution. Those who drafted the section would no doubt justify the terms of section 97(7) by pointing to the heavy penalty for the offence, prescribed by section 114. The minimum penalty is a $2000 fine and disqualification for 12 months. The maximum penalty is $20,000 or 14 years imprisonment and disqualification for a period of up to life. In comparison the offence of dangerous driving occasioning death causes a maximum penalty of $10,000 or 10 years imprisonment and disqualification for any period up to life.

Clearly the summary of facts discloses not a section 97(1) offence but a section 97(2) offence. There may have been circumstances of aggravation discovered by the police investigation but they were not before the court. The Appellant did not have blood alcohol beyond the statutory limit. He was not driving 45 kmph above the speed limit. And he was not escaping from pursuit. The facts do not disclose an offence of aggravated dangerous driving.

When a Magistrate finds, on an outline of facts, that the facts disclose a lesser offence, then the matter should be pointed out to the prosecutor. The prosecutor can then withdraw the charge and file another, alleging the lesser offence. If he or she does not, then the Magistrate should vacate the guilty plea and proceed to trial on the basis of a not guilty plea. At the end of the prosecution case, he may advise the parties that he considers there is insufficient evidence to support the charge, but there is sufficient evidence to support the lesser offence. The Accused should be given an opportunity to cross-examine any of the witnesses again on the lesser charge so he or she is not prejudiced. At the end of the trial the Magistrate may convict of the lesser offence.

On appeal, I do not consider that I can reduce the charge and sentence afresh. That is a process that is better conducted in the Magistrates’ Court.

For the purposes of this appeal, I find that the summary of facts fails to disclose an offence under sections 97(1), (2) and (7). The conviction must be quashed and a rehearing ordered on a fresh charge under section 97(2).

The other grounds

Ground (3) also succeeds for the same reasons. I note that the State conceded the appeal against sentence, saying that the minimum sentence of 12 months disqualification would have been sufficient (with a fine and suspended sentence) because the Appellant has a clean driving record. Because this matter will be reheard by the Magistrate’s Court, I make no comment on what the sentence should be. The presiding Magistrate will exercise his or her own discretion.

Result

The conviction and sentence are quashed. A rehearing is ordered on a section 97(2) charge.

Nazhat Shameem
JUDGE

At Suva
6th December 2007