Cawaru v State [2010] FJHC 126; HAA002.2010 (12 April 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 002 of 2010

BETWEEN:

IOWANE CAWARU
Appellant

AND:

THE STATE
Respondent

Date of Hearing: 19th February 2010
Date of Judgment: 12th April 2010

Counsel: Mr. A. Sen for Appellant
Ms S. Bull for State

JUDGMENT

[1] Following a trial in the Magistrate’s Court, the appellant was convicted of dangerous driving. He was sentenced to 8 months imprisonment and fined $1,000.00 in default an additional term of 6 months imprisonment. Further, he was disqualified from driving for 6 months.

[2] He appeals against conviction and sentence on the following grounds:

1. That the learned Trial Magistrate erred in convicting the Appellant when no one was hurt and the circumstances of driving did not constitute such charge.

2. That the Learned Magistrate erred in failing to analyse the evidence before him and did not take the defence person into consideration.

3. That the Learned Trial Magistrate erred in sentencing the Appellant to 8 months in prison, $1,000 fine and 6 months driving licence off and took into consideration irrelevant matters in imposing the said sentence.

4. That the sentence imposed by the Learned Magistrate is harsh taking into consideration all circumstances of the case.

First Ground

[3] This ground of appeal asserts that in order to sustain a charge of dangerous driving, someone has to be injured. I find this argument to be misconceived.

[4] The appellant was charged contrary to section 98(1) of the Land Transport Authority Act of 1998. Section 98(1) states:

"Any person who drives a motor vehicle on a public street ... in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the public street and the amount of traffic which is actually at the time or which might reasonably be expected to be on the public street, commits an offence and, subject to subsections (2) and (3), is liable upon conviction to the prescribed penalty."

[5] The essential elements of a charge under section 98(1) are:

1. Any person

2. who drives a motor vehicle

3. on a public street

4. in a manner which is dangerous to the public having regard to all the circumstances of the case.

[6] Proof of injury to someone is not required to sustain a charge under section 98(1) because it is not an essential element of the offence.

[7] In the present case, the charge was properly drafted. It included all the essential elements of the offence. There was no requirement for the charge to include something that was not an element of the offence. Nor was there any requirement to prove injury to someone to sustain the charge. This ground fails.

Second Ground

[8] This ground has merits. The State concedes this ground of appeal.

[9] The prosecution relied on the evidence of two civilian witnesses. Nacanieli Namata said he was employed by PWD Roads Section and on 17 October 2005 he was working in Savusavu Town painting a pedestrian crossing. They had placed wires around the zebra crossing they were painting. He said the appellant drove his vehicle through the pedestrian crossing knocking down a cone. The witness said he was standing on the footpath at the time the accused knocked down a cone.

[10] The second witness was Malakai Rakula who was working on the pedestrian crossing with Nacanieli Namata. Malakai said he was just about to step on the road when the appellant drove by and knocked down a cone. Malakai said he was almost bumped by the appellant.

[11] The appellant was unrepresented at the trial. He gave unsworn evidence. He said on the day in question he was not in Savusavu. He did not drive any vehicle. He was fishing in Nawaikava.

[12] In his judgment, the learned Magistrate outlined in detail the evidence that was led at the trial. The learned Magistrate accepted the evidence of the prosecution witnesses over the unsworn evidence of the appellant. In assessing the appellant’s defence of alibi, the learned Magistrate said:

"18. The accused failed to call evidence to support his version of the facts that:

(i) he wasn’t in Savusavu on the morning of Monday 17th October, 2007 but fishing with his friend, Kulder Singh in Nawaikava; and

(ii) on the morning of Monday 17th October, 2005 he was not driving his taxi because his licence had expired and was not renewed at that point in time.

19. The evidence of the Accused was very doubtful because he could not be cross-examined on his defence."

[13] After rejecting the appellant’s defence, the learned Magistrate proceeded to consider the penalty for the offence. After considering the penalty, the learned Magistrate found the charge proved.

[14] In his judgment the learned Magistrate made two fundamental errors.

[15] The first error concerns the manner in which the learned Magistrate dealt with the appellant’s defence of alibi.

[16] When an accused raises alibi as a defence, the prosecution must disprove it (R v. Anderson [1991] Crim. L.R. 361 and R v. Baillie [1995] 2 Cr. App. R. 31). This is because in a criminal trial, the prosecution carries the burden to prove the guilt of an accused. The accused does not have to prove anything. The burden of proof remains on the prosecution from the beginning to the end of the trial.

[17] The statement of the learned Magistrate that the appellant failed to call evidence to support his alibi, tends to reverse or diminish the onus of proof, in so far as it invited the appellant to prove his defence. This was a prejudicial error.

[18] The second error made by the learned Magistrate is, considering the penalty for the offence before finding of guilt. It is trite law that penalty for an offence is irrelevant when it comes to finding of guilt of an accused.

[19] Finding of guilt is made on facts proven by evidence. The tribunal of fact is not supposed to consider punishment when considering guilt of an accused. That was done in this case.

[20] The conviction of the appellant is rendered unsafe because of these fundamental errors made by the learned Magistrate in his judgment.

[21] For these reasons, I quash the conviction of the appellant. The grounds of appeal relating to the appeal against sentence are no longer relevant in these circumstances.

[22] The appellant opposes an order for a retrial. He had already served a portion of his sentence. I have considered the strength of the prosecution case. I find the evidence to be weak to sustain the charge. The offence is more than four years old.

[23] In these circumstances, it is not in the interests of justice to order a retrial.

Result

[24] The conviction is quashed and sentence is set aside. There will be no order for a retrial.

[25] The appeal is allowed.

Daniel Goundar
JUDGE

At Labasa
12th April 2010

Solicitors:
Messrs. Maqbool & Company for Appellant
Office of the Director of Public Prosecutions for State