State v Khan [2014] FJHC 686; Traffic Review Case 02.2014 (19 September 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

CRIMINAL REVIEW CASE NO. 2 OF 2014

STATE

V

ABDUL SALMAN KHAN

Counsel: Mr. R. Kumar for the State
Mr. M Fesaitu (L.A.C.) for the respondent

Dates of hearing: 17 June 2014
11, 31 July 2014
12 September 2014
Date of Judgment: 19 September 2014

JUDGMENT

1. Pursuant to section 260 of the Criminal Procedure Decree 2009, this Court has called for the record of proceedings conducted in the Suva Magistrates' Court against the Respondent, in which he was convicted of Dangerous Driving Occasioning Grievous Bodily Harm contrary to section 97(4)(c) and 114 of the Land Transport Act 1998.
2. The purpose of examining the record of these proceedings is to consider whether the proceedings were properly conducted and/or the sentence passed was appropriate.
   
3. The charge that the unrepresented accused pleaded guilty to on the 17th September 2013 was that on the 27th April 2013he drove a vehicle registered as "BLUBRD" in a dangerous manner resulting in an impact which caused grievous bodily harm to a Mr. Mohammed FazeelFarieek.
   
4. A set of facts was put to the accused, which he admitted. On the 23rd September, the Magistrate sentenced him to a fine of $400 and disqualified him from driving for a period of two months.
   
5. The said Mr. Farieek who was a passenger in the vehicle suffered so much injury as a result of the "impact" that he is physically and mentally handicapped to such an extent that he is unable to continue his university education and is in need of constant need of assistance to perform daily tasks and must be supervised in all of his activities. It was because of this serious dysfunctional impairment that the file was called for to consider whether the sentence in the circumstances may have been too lenient.
   
6. However on calling on the parties to make submissions on the matter, Counsel for the State quite properly pointed out that the proceedings were irregular before even getting to the sentence. The facts put to the accused and agreed by him are woefully inadequate. They neither disclose any driving offence, nor do they refer to the grievous bodily harm suffered by Mr. Farieek.
   
7. After a plea of guilty, the Summary of Facts becomes the basis of the evidence against an accused in place of viva voce evidence called at trial and obviously then they must disclose the elements of the offence charged. This is the second time in 12 months that this Court has seen an accused convicted in the Magistrates Court (by different Magistrates) on the basis of a set of facts not disclosing any offence. Particularly with an unrepresented accused pleading guilty, every Magistrate and High Court Judge for that matter must ensure that the facts admitted are appropriate to the charge.
   
8. This Court has no option but to quash the conviction, set aside the sentence and order a new trial before a different Magistrate. That being the case, the less that is said about the sentence the better.
   

ORDER

9. The conviction entered against the accused in traffic case no. 205 of 2013 in the Suva Magistrates' Court is quashed and the sentence set aside.
   
10. The respondent Khan is to appear in the Suva Magistrates Court on the 26th September 2014 to face proceedings de novo for the offence of dangerous driving causing grievous bodily harm.
    

P. Madigan
Judge.

At Suva
19 September 2014