Narayan v State [2010] FJHC 463; HAA041.2010 (21 October 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 041 OF 2010

BETWEEN:

NAVINIT NARAYAN
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Appellant - Mr. Valenitabua, S.
Respondent - Mr. Pillay, W.

Date of Hearing: 9th August, 2010; 4th October, 2010.
Date of Judgment: 21st October, 2010.

JUDGMENT

[1] The Appellant Navinit Narayan was charged in the Magistrates Court, Suva for the following offence:

Statement of Offence (a)

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 (b)

NAVINIT 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.

[2] After Trial in the Magistrates Court he was convicted and sentenced to one and a half years imprisonment, in addition the Appellant was fined $1,500.00 and also was disqualified from driving for a period of 3 years.

Petitioner appealed against the said conviction and sentence on the following grounds:

(1) The Learned Magistrate erred in Law and in Fact in convicting the accused in Traffic Case No. 888 of 2009.

(2) The Learned Magistrate erred in Law and in Fact in refusing the accused submission of no case to answer and in holding that the Prosecution had a prima facie case against the accused.

(3) The Learned Magistrate erred in Law and in Fact in holding that the Prosecution had proven its case beyond reasonable doubt that the accused drove a vehicle which was involved in an impact occasioning death of a person at a speed dangerous to other persons.

(4) The Learned Magistrate erred in Law and in Fact6 in failing to properly consider holistically the evidence before the court prior to convicting the Appellant.

(5) The Learned Magistrate erred in Law and in Fact in failing to consider that the issue in dispute is whether the accused drove his motor vehicle at a speed dangerous to another person.

(6) The Learned Magistrate erred in Law and in Fact in failing to hold that the evidence adduced on behalf of the Prosecution did not establish that the accused drove his motor vehicle at a speed dangerous to another person.

(7) The Learned Magistrate erred in Law and in Fact in failing to uphold the accused closing submission that the language of the particulars offence and the summary of facts were not even outlined in the usual and proper manner in accordance with the charge under section 97 (2)(b) of the Land Transport Act ["The LTA Act"] which is an incurable defect.

(8) The Learned Magistrate erred in Law and in Fact in failing to hold let alone consider the accused submission that the statement of offence and the particulars of the offence are clearly looking at two different elements under the LTA Act being section 97(2)b and 97(c)respectively, a fatal miscarriage of justice committed against the accused.

(9) The Learned Magistrate erred in Law and in Fact by failing to consider the accused closing submission on the relevant laws on dangerous driving occasioning death.

(10)The Learned Magistrate erred in Law and in Fact in convicting the accused without any evidence as to the speed at which the accused was driving at the time of the accident and by solely relying on the speedometer evidence which was static at 110km/h.

(11)The Learned Magistrate erred in Law and in Fact in considering and upholding the evidences adduced by the prosecution witness regarding 'speed' when the same were littered with contradictions and inconsistencies showing lack of credibility.

(12) The Learned Magistrate erred in Law and in Fact in convicting and sentencing the accused. The sentence passed by the Learned Magistrate was harsh and excessive in all the circumstances of the cases as she gave an immediate custodial, disqualification and also a fine.

(13)The Learned Magistrate erred in Law and in Fact in failing to properly consider the accused plea in mitigation holistically and submissions on sentencing, and has merely mentioned that she has relied on factors in mitigation without reasoning out the factors such as the medical condition of the accused and that he was in hospital for a number of days after the accident.

(14)The Learned Magistrate erred in Law and in Fact in failing to consider that there is no evidence that the accused did cause the fatal accident due to any selfish disregard for the safety of other road users and other aggravating factors raised in the Guilfoyle and Boswell principles.

(15) The Learned Magistrate erred in Law and in Fact in failing to suspend the accused's one year imprisonment term after considering that he was a first offender but she sentenced him to pay $1500 fine plus disqualification from driving for 3 years.

(16)The Learned Magistrate erred in Law and in Fact by failing to consider that the maximum sentence that could be imposed in such matters is $10,000 fine or a 10 year imprisonment and imposed immediate custodial sentence and also fined the accused.

[3] I have carefully considered the submissions made by Counsel for both Appellant and the Respondent (State). I wish to consider the grounds No. 7 and No. 8 initially. In summary the contention of the Appellant is that the charge laid against the accused is bad in Law.

[4] Counsel for Appellant submitted that the particulars of the offence which is mentioned in the charge is "driving in a manner which was dangerous to public", and that it does not tally with the section mentioned in the statement of offence.

[5] In the statement of offence the relevant penal section mentioned is Section 97(2)b and 114 of the Land Transport Act No. 35 of 1998.

[6] Section 97(2) of the Land Transport Act reads as follows:

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....

[7] Therefore 97(2)b is "driving the vehicle at a speed dangerous to another person or persons".
Driving a vehicle "in a manner dangerous to another person or persons" is specifically mentioned in 97(2)c, but not in Section 97(2)b as mentioned in the charge.

[8] Therefore, it is clear that in the charge the sub-section mentioned in the statement of offence differs from the particulars mentioned in the particulars of offence. It should be noted that two distinct offences are mentioned in Section 97(2)(b) and in 97(2)(c).

The legislature has specifically made specific separate provisions for "driving at a speed dangerous to another person" and "driving in a manner dangerous to another person".

Now the court will have to consider whether this defect would cause prejudice to the accused.

[9] It is the contention of the State (Respondent) that no prejudice is caused to the Appellant.

Citing the case of Ram Sami v State (1999) 45 FLR 70 Counsel for State submits, that there is no statutory requirement that the statement of offence should also refer to any particular sub-section or paragraph of the section charged, although it is highly desirable that to do so is relevant.

[10] The above mentioned statement in Ram Sami v State cannot be applied to the situation in this instance case.

In the instant case it is not that the particular sub-section was not mentioned as in "Ram Sami" case. Here in this case the prosecution has mentioned the wrong sub-section which tends to mislead the defence. The particulars of offence of the charge reflects an offence under Section 97(2)(c), while the statement of offence is under section 97(2)(b) of the LTA Act.

[11] The particulars of offence are given for the accused to give a fair knowledge of what he is charged for and to prepare for his defence. When the given particulars of offence are insufficient it may cause difficulty for the accused to know what he is charged for. However, as in this case if the particulars of offence are misleading by reflecting the details of the wrong sub-section it will cause grave prejudice to the accused when preparing for his defence.

[12] On a previous occasion the Appellant pleaded guilty to the same charge and was convicted by the Learned Magistrate. Then the Learned Magistrate found that the summary of facts did 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".

Then the Learned Magistrate referred the matter to High Court. In case No. HAC 188 of 2008 Madam Justice Shameem discussed the legal position in detail with regard to the elements of Section 97(2)(b) and Section 97(2)(c) of the LTA Act. Referring the matter for rehearing Madam Justice Shameem observed that it was a matter for the prosecution to decide what the appropriate charge should be.

[13] It has to be noted that only thereafter, the prosecution filed this defective charge again in the Magistrates Court. At the close of the prosecution case, as well as in the closing submissions, the defence counsel had raised this ground in the Magistrates Court.

[14] In the above premise I conclude that the charge is defective, bad in Law and incurable. Therefore, I set aside the conviction of the Magistrates Court dated 26/5/2010.

[15] Now it is my duty to see whether this case should be sent back to the Magistrates Court for retrial.

In Archbold Criminal Pleadings 2010 at page 1154:

"The decision whether to order a retrial requires an exercise of Judgment, involving consideration of the public interest and the legitimate interests of the defendant. The former was generally served by the prosecution of those reasonably suspected on available evidence of serious crime, if such prosecution could be conducted without unfairness to, or oppression of, the defendant. The legitimate interests of the defendant would call for consideration of the time which has passed since the alleged offence and any penalty already paid".

I consider the offence as well as the 4 ½ month period the Appellant has served in Prison. When considering the sentence served and the fact that this is the 2nd time that the conviction is being set aside by the High Court in this case, I find that a retrial should not be ordered.

Result

In the above premise conviction and sentence is quashed.

Appeal allowed.

Priyantha Fernando
Puisne Judge

At Suva
21/10/2010.