State v Narayan [2009] FJHC 34; HAC188J.2008 (6 February 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 188 of 2008

STATE

V

NAVNIT NARAYAN

Hearing: 3rd February 2009
Judgment: 6th February 2009

Counsel: Ms H. Tabete for State
Ms K. Bavou for Accused

JUDGMENT

[1] I treat this case as one which has come to the knowledge of the High Court or has been reported to the High Court for orders, under section 325 of the Criminal Procedure Code. That section provides:

"(1) In the case of any proceedings in a magistrates’ court, the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may –

(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 319 and 320 and may enhance the sentence;

(b) in the case of any other order other than an order of acquittal, alter or reverse such order."

[2] The accused was charged, on the 2nd of September 2008, with dangerous driving occasioning death. The charge read as follows:

Statement of Offence

DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97(2) (b) and 114 of the Land Transport Authority Act Number 35 of 1998.

Particulars of Offence

NAVNIT NARAYAN f/n JAGAT NARAYAN, on the 23rd day of June 2008, at Navua in the Central Division, drove a motor vehicle registration number EV 565 on Queens Road, Qaributa Navua in a manner which was dangerous to the public, having regards to all the circumstances of the case, whereby caused the death of PREETIKA LAL f/n MAHA LAKSHMAN.

[3] The case was called on the 2nd of September 2008 and the accused elected Magistrates’ Court trial. There were several adjournments for disclosure and plea was taken on the 5th of November 2008. The accused was at all times represented by counsel. He said he understood the charge and pleaded guilty.

[4] The facts were that on the 23rd of June 2008, the accused was driving his motor vehicle registration number EV 565 along the Queens Road at Qaributa, Navua. Whilst driving in a manner dangerous to the public, he lost control of his vehicle, it veered into the wrong lane, and collided with two other vehicles. It then collided with a third vehicle, driven by Preetika Lal (the deceased) who died within minutes of the impact. The post mortem report showed that she died of cranio cerebral injuries secondary to a motor vehicle accident. The accused also received severe injuries. He was later interviewed and charged.

[5] These facts were agreed to and the accused was convicted as charged. In mitigation the defence said that the accused was a 30 year old professional, employed as Projects Coordinator and Manager at Temo Consulting Ltd. He expressed remorse about the loss of life and pleaded guilty as a reflection of that remorse. He was newly married to a New Zealand citizen whom he was unable to join because of this case.

[6] Counsel then submitted that the tariff for cases of dangerous driving occasioning death was 2 to 4 years imprisonment with non-custodial sentences reserved for cases of "momentary inattention." Counsel submitted that this was such a case and that the appropriate sentence was a non-custodial one. The "fault" admitted to in mitigation was that he drifted off to sleep whilst driving.

[7] The defence called character witnesses in mitigation. A ruling was then delivered on the 17th of November 2008. In it the learned Magistrate found that the facts did not disclose the offence and that there was no information given as to how the accused was driving dangerously. There was no evidence of speed nor was there any evidence of fault. The learned Magistrate said:

"... because the summary of facts does not disclose the crucial element of speed and the particulars of or details of or the meaning of "driving in a manner dangerous to the public" that is detailing how his, the Accused’s driving is carried out in a manner that was dangerous to the public, the charge and conviction are not justified."

[8] She considered that the charge and conviction should be set aside by the High Court, and she referred the matter to the High Court to take that step.

[9] At the hearing of this matter in the High Court, both counsel for the prosecution and the defence conceded that the facts did not disclose the offence. Defence counsel submitted that the correct charge should have been section 97(2)(c) which creates a less specific and less serious offence. She said that the element of fault her client agreed to was falling off to sleep whilst driving. She would then ask for a non-custodial sentence.

[10] The accused was charged with an offence under section 97(2)(b). Section 97(2) reads as follows:

"(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 intoxicating liquor or of a drug;

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

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

[11] The elements of a 97(2) (b) offence are:

The accused

drove a vehicle

which was involved in an impact

occasioning the death of a person

at a speed dangerous to other persons.

[12] Section 97(2) (c) has the following elements:

The accused

drove a vehicle

which was involved in an impact

occasioning the death of a person

in a dangerous manner.

[13] The maximum penalty is the same for both offences, that is, a minimum fine of $1000 and disqualification from driving for 6 months, and a maximum of $10,000 fine or 10 years imprisonment and disqualification from driving for life. Although the tariff is the same for both types of offences, the starting point must be picked according to the manner of driving. If a driver drove badly and with a selfish disregard for human life over a long stretch of road, he or she must expect a starting point at the higher end of the tariff. Cases of momentary carelessness will lead to a lower starting point.

[14] The difficulty for the learned Magistrate in this case however, was not just that she could not sentence because she did not know how dangerously the accused drove. The difficulty was that the facts failed to disclose any fault at all. The conviction, as she rightly pointed out was a nullity.

[15] In these circumstances I exercise the powers of the High Court under section 325 of the Criminal Procedure Code and quash the conviction. I order a re-hearing after the plea has been re-taken. It is a matter for the prosecution to decide what the appropriate charge should be.

[16] I do make one observation. The original summary of facts did allege fault. It stated that the accused was driving at a high speed and that the speedometer was found locked at 110km per hour. This part of the summary was deleted by the prosecutor presumably with the consent of the defence. Guilty pleas do save the court’s time. However prosecutors must be careful that in outlining facts on a guilty plea they do not water the facts down to the extent that justice is compromised. This form of "plea-bargaining" does not, in the long run, strengthen the integrity of the criminal justice system.

Nazhat Shameem
JUDGE

At Suva
6th February 2009