Kunabuli v State [2008] FJHC 103; HAA018J.2008S (9 May 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 018 of 2008

BETWEEN:

ISIMELI KOLIALIA KUNABULI
Appellant

AND:

THE STATE
Respondent

Hearing: 2nd May 2008
Judgment: 9th May 2008

Counsel: Mr. T. Fa for Appellant
Ms. W. George for State

JUDGMENT

This is an appeal against conviction and sentence. He appeals on a number of grounds but at the hearing of the appeal, pursued only one, that the learned Magistrate erred in law and in fact when he failed to properly consider the defence case. The Appellant was convicted of careless driving, contrary to sections 99(1) and 114 of the Land Transport Act (1998), and fined $100, in default 2 months imprisonment.

The charge, which was laid on the 14th of April 2005, alleged that the Appellant on the 8th of March 2005 at Suva, drove a motor vehicle on Grantham Road without due care and attention. At the time of the offence, he was a special constable.

The trial was heard on the 9th of January 2006. The evidence of Mohammed Rafiq was that he was driving along Grantham Road on the 8th of March 2005, and wished to turn into Milverton Road. He was driving at about 40 kmph. He indicated with his right indicator. As he turned he saw a police pajero approaching him and overtaking his car. He slowed down, but was bumped in the middle of the oncoming lane. His front wheel was hit, and his tyre blew up on impact. He said that the Appellant, who was driving, was driving at a high speed.

Under cross-examination he said he had not seen the police vehicle when he turned, and that the impact was in the middle of the oncoming lane. He said that the Appellant should have overtaken from the left. The trial was then adjourned and did not continue until the 31st of July 2006. The next witness was Miki Raduna. He was a resident in the area, and on the 8th of March 2005, he was standing in his porch at 3pm when he saw PW1’s vehicle turning into Davui Lane. PW1 was indicating when the Appellant’s vehicle came "from nowhere" and hit PW1’s vehicle. The Appellant was driving fast.

The next witness PC Shan drew the sketch plan and gave his opinion that the point of impact was in the centre lane towards Nabua. A no case to answer submission was made by defence counsel but was rejected by the learned Magistrate.

The Appellant gave sworn evidence. He said that he was driving a police vehicle GM228 on Grantham Road when he saw PW1’s vehicle one car length in front of him. He indicated to turn left, and the vehicle turned towards the left. When the Appellant was about to overtake from the right, PW1 then turned to the right. PW1 was fast and he "bumped my left front tyre and fender." The Appellant said he thought PW1 was making a "U" turn. He said he was travelling at 15-20kmph.

Under cross-examination, he said he was not rushing, that PW1 had suddenly made a "U" turn. Judgment was delivered on the 19th of September 2006. After reviewing the evidence he found that the evidence of the complainant and Appellant was conflicting but relied on the evidence of PW2 whom he accepted as an independent witness. He said he accepted that the complainant indicated to turn right, and that the Appellant collided with his vehicle because he was overtaking on the right. He said that this was consistent to the damage to the vehicle. He found that the Appellant’s driving was below the standard expected of a prudent driver. He found the Appellant guilty.

In the appeal before this court, counsel submitted that the learned trial Magistrate erred in accepting the evidence of PW1 and said that the Appellant’s version of the evidence, that is that PW1 was executing a "U" turn should have been accepted.

The question of what version of facts should be accepted, is really an issue for the court of first instance. PW1’s version of the facts was consistent with PW2’s evidence and with the damage done to the vehicle. Furthermore, even if the Appellant thought PW1 was executing a "U" turn, this does not absolve him of responsibility. A prudent driver will not overtake a vehicle who is executing a "U" turn on a busy road.

For these reasons I find that the learned Magistrate did not err. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
9th May 2008