State v Chand - Judgment [2015] FJHC 652; HAA035.2013S (11 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO. HAA 035 OF 2013S

BETWEEN

THE STATE
APPELLANT

AND:

UMLESH CHAND
RESPONDENT

Counsels : Ms. S. Naidu and Ms. S. Navia for Appellant
Mr. V. Maharaj for Respondent
Hearing : 29 September, 2014
Judgment : 11 September, 2015

JUDGMENT

1. On 15 February 2010, the respondent (accused) appeared in the Nasinu Magistrate Court on the following charge:
   

FIRST COUNT

Statement of Offence

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

Particulars of Offence

UMLESH CHAND s/o Muni Lal on the 24th day of November 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby caused the death of Shalen Prakash.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

UMLESH CHAND s/o Muni Lal on the 24th day of November 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby caused the death of Navneet Narayan.

THIRD COUNT

Statement of Offence

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

Particulars of Offence

UMLESH CHAND s/o Muni Lal on the 24th day of November 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby caused the death of Ratu Malakai Banuve.

FOURTH COUNT

Statement of Offence

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

Particulars of Offence

UMLESH CHAND s/o Muni Lal on the 24th day of November 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby caused the death of Salanieta Kotoimoala Miutamata.

FIFTH COUNT

Statement of Offence

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97(4)(c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

UMLESH CHAND s/o Muni Lal on the 24th day of November 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Litia Cagimaira.

SIXTH COUNT

Statement of Offence

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97(4)(c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

UMLESH CHAND s/o Muni Lal on the 24th day of November 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Sudesh Prasad.

SEVENTH COUNT

Statement of Offence

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97(4)(c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

UMLESH CHAND s/o Muni Lal on the 24th day of November 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Ratu Peni Muakalou.

EIGHTH COUNT

Statement of Offence

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97(4)(c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

UMLESH CHAND s/o Muni Lal on the 24th day of November 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Samanunu Kalouniceva.

NINTH COUNT

Statement of Offence

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97(4)(c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

UMLESH CHAND s/o Muni Lal on the 24th day of November 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Renuka Prasad.

2. On 9 September 2010, in the presence of his counsel, the charges were read and explained to the respondent (accused), and he said, he understood the same. He then pleaded not guilty to all the charges. The case went through various pre-trial adjournments between then and 15 May 2012. The reasons were various.
   
3. On 15 May 2012, in the presence of his counsel, the trial proper against the respondent (accused) commenced. Three witnesses for the prosecution gave evidence. They were PC 3052 Pram Sivan Reddy (PW1), a police officer; Ms. Vijayata (PW2), a student, and Mr. Sudesh Prasad (PW3), a garage mechanic. The trial continued on 16 May 2012. Mr Suresh Chand (PW4), a driver and Mr. Jekesoni Tawatatau (PW5), a resident of Tacirua, gave evidence. On 24 May 2012, the trial continued. Vilitati Waqasaqa (PW6), a resident of Tacirua and Mr. Kishor Chand (PW7), an Authorized Motor Vehicle Examiner of Land Transport Authority, gave evidence. Finally on 22 October 2012, Ema Kaibau (PW8), a school teacher gave evidence. The prosecution then closed its case.
   
4. On the same day, the court found a prima facie case against the respondent (accused), requiring him to be put to his defence. His options were explained to him by the court. Through his counsel, he choose not to make a sworn statement, but to make an unsworn statement from the dock. At the end of his unsworn statement, the defence case closed. On 3 December 2012, the parties found that the right to make an unsworn statement from the witness box had been repealed by the law.
   
5. On 2 January 2013, the court reminded the parties it had found a case to answer against the accused. Noting that the right to make an unsworn statement had been repealed, the court re-put the options open to the defence for its defence, that is, the right to remain silent, the right for the accused to give sworn evidence and his right to call witnesses. The respondent (accused) then informed the court that they wish to remain silent and do not wish to call any witnesses. They then closed their case.
   
6. On 10 May 2013, the court delivered a judgment, finding the respondent (accused) guilty as charged on all counts. The court then convicted the respondent on all counts. On 8 July 2013, the court delivered its sentence. On counts no. 1 to 4, he sentenced the respondent to 2 years imprisonment on each count. On counts no. 5 to 9, he sentenced the respondent to 6 months imprisonment on each count. He suspended all the sentences for 3 years. In addition he suspended the respondent's driver's licence for the next 6 months, but the same is to take effect only on Sundays. He was also ordered to pay a fine of $450 for all counts.
   
7. Both parties were dissatisfied with the above convictions and sentence. As for the convictions, the respondent (accused) made seven complaints, which we will discuss later when we consider his grounds of appeal. On sentence, the State complained that it was manifestly lenient, and the same need to be set aside, and a more appropriate sentence be imposed. As for the respondent (accused), he complained that the sentences were harsh and excessive.
   
8. In considering the above complaints, we will start with the complaints against convictions, by discussing the respondent's seven (7) grounds of Appeal against conviction. Then we will consider the complaints against sentences, by discussing the parties' position on the matter.
   
9. In his appeal against conviction, the respondent (accused) listed the following 7 grounds:
   

"...1. THAT the Learned Trial Magistrate erred in law and in fact in convicting the Appellant by failing to evaluate the evidence adduced by the prosecution and the defence adequately and/or at all particularly with regards to numerous material contradictions in relation to the manner of driving of the minivan driver.

2. THE Learned Trial Magistrate erred in law and in fact in misdirecting himself on the burden of proof by stating that the accused needs to give an explanation as to why he was driving in that manner.

3. THE Learned Trial Magistrate erred in law and in fact in misdirecting himself on the standard of proof by apportioning the blame and/or cause of accident between the minivan driver and the Appellant.

4. THE Learned Trial Magistrate erred in law and in fact in convicting the Appellant despite accepting the evidence of an eye witness PW8 Ema Kabou as a reliable and truthful whose evidence was consistent with the Appellants Caution Interview and exonerated the Appellant absolutely.

5. THE Learned Trial Magistrate erred in law and in fact in denying the Appellant by his Counsel to make submission on no case to answer which was a right accorded to the Appellant at the close of the Prosecution case by virtue of section 231(1) of the Criminal Procedure Decree 2009.

6. THE Learned Trial Magistrate erred in law and in fact in failing to follow proper procedure in the inspection of the scene outside the courtroom which resulted in material irregularity, that is:-

a) Failing to ensure the presence of the Appellant at the scene during scene visit;

b) failing to adequately record things said or done by any witness at the scene;

c) allowing a Prosecution witness (PW1) to demonstrate how the accident happened without giving an opportunity to the accused to agree and/or disagree and/or to rebut the said explanation;

d) failing to ensure the presence of any eye witness (in this case PW8 Ema Kabou) who could have also explained and or demonstrated how the accident occurred.

7. THAT in all circumstances of the case, the conviction against the Appellant is unsafe and unsatisfactory and ought to be set-aside and quashed..."

10. We will now discuss and consider the Respondent's seven grounds of appeal against conviction. For the record, I have carefully read the court record, the Learned Magistrate's judgment and sentence, including the parties' various written submissions.
    

Conviction Appeal Ground No. 1 [see paragraph 9(1)]:

11. I have carefully read the Learned Magistrate's 14 pages judgment, dated 10 May 2013, to find out whether or not this ground of appeal was justified. The Learned Magistrate re-cited counts no. 1 to 9 in pages 1 to 3 of his judgment, then listed the agreed facts from pages 3 to 5, then summarized the prosecution's witnesses evidence from pages 5 to 9, then considered the law and facts from pages 9 to 12, and then made some finding of facts in paragraphs 35 and 37 (pages 12 to 13), and then found the charges proven beyond a reasonable doubt in paragraph 38 and convicted the respondent (accused) in paragraph 39.
    
12. In my view, the Learned Magistrate, as judge of fact and law, had properly evaluated the evidence before the court. He had properly evaluated the evidence of the 8 witnesses called by the prosecution, and the agreed facts tendered by the parties. The agreed facts contained the accused's police caution interview statements, dated 11 July 2009, which contained his version of events on the case. Furthermore, the trial was about the "manner of driving of the accused", not the "manner of driving of the minivan driver". The minivan driver was not on trial, therefore any reference to him in the judgment, in my view, was immaterial to the charges before the court. In any event, this ground is not properly made out, and I accordingly dismiss it.
    

Conviction Appeal Ground No. 2 [Paragraph 9(2)]:

13. In paragraphs 22 and 27 of his judgment, the Learned Magistrate correctly directed himself on the burden of proof been on the prosecution throughout the trial. He referred to the leading authority on the same, Woolmington v Director of Public Prosecution [1935] AC 462. In my view, the comment "the accused needs to give an explanation as to why he was driving in that manner", must be read within the context of the judgment as a whole. Selective reading of passages in a judgment without considering its whole context must be discouraged. In this case, the accused had already given his version of events on what happened at the material time via his police caution interview statements, dated 11 July 2009, which were tendered by the parties as an "Agreed Fact". Note that the date of the incident was 24 November 2008, and 8 months thereafter, the accused gave his police statements. He had enough time to carefully think about the answers he was going to give the police. In any event, this ground is not made out, and I dismiss it.
    

Conviction Appeal Ground No. 3 [Paragraph 9(3)]:

14. In paragraphs 23, 24, 25 and 26 of his judgment, the Learned Magistrate correctly directed himself on the standard of proof expected from the prosecution, in discharging their burden of proving the accused's guilt. As I said before in ground 1 of the conviction appeal, the subject of the trial is the "manner of driving of the accused, at the material time", not the "manner of driving of the minivan driver, at the material time". In counts no. 1 to 9, the respondent (accused) was the one named in the charge as the accused, not the minivan driver. The minivan driver was named as the deceased in count no. 1. Therefore, the "apportioning of the blame and/or cause of accident between the minivan driver and the respondent (accused)", was really immaterial to the resolution of the issue of whether or not the accused drove dangerously, at the material time. In my view, this ground is not made out, and it must therefore be dismissed.
    

Conviction Appeal Ground No. 4 [Paragraph 9(4)]:

15. It is well settled that when a Resident Magistrate presides in a criminal trial in the Magistrate Court, he or she is the judge of fact and law. As judge of fact, he or she must listen to and consider the whole of the evidence tendered by the prosecution and the defence. He or she will have to compare and analyze all the evidence. He or she will have to decide on the credibility of each of the witnesses. He or she may find that some of a witnesses' evidence on a particular matter may be credible, and therefore accepted, and others may not be credible, and thereby rejected. As judge of fact, he or she is entitled to accept and/or reject the whole or part of a witnesses' evidence, depending on the witness's credibility. In my reading of the court record and the Learned Magistrate's judgment, in my view, he had gone through the above process, and he's made finding of facts in paragraphs 35 and 37. This ground fails and I therefore dismiss it accordingly.
    

Conviction Appeal Ground No. 5 [Paragraph 9(5)]:

16. On this ground, the respondent (accused) had referred to the wrong section on a "no case to answer submission". The respondent relied on section 231(1) of the Criminal Procedure Decree 2009 which is applicable to High Court trials only. Section 178 and 179 of the Criminal Procedure Decree 2009 applied to trials in Magistrate Courts, and they read as follows:
    

"...178 If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused

179(1) At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require the making of a defence, the court shall –

(a) again explain the substance of the charge to the accused; and
(b) inform the accused of the right to –
(i) give evidence on oath from the witness box, and that, if evidence is given, the accused will be liable to cross-examination; or
(c) ask the accused whether he or she has any witnesses to examine or other evidence to adduce in his or her defence; and
(d) the court shall then hear the accused and his witnesses, and other evidence (if any)..."

17. Section 231(1) and (2) of the Criminal Procedure Decree 2009 reads as follows:
    

"...231(1) When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence

231(2) When the evidence of the witnesses for the prosecution has been concluded, the court shall, if it considers that there is evidence that the accused person (or any one or more of several accused persons) committed the offence, inform each such accused person of their right –

(a) to address the court, either personally or by his or her lawyer (if any); and
(b) to give evidence on his or her own behalf; or
(c) to call witnesses in his or her defence..."

18. Unlike Section 231(1) of the Criminal Procedure Decree 2009, in Section 178 and 179(1) of the Criminal Procedure Decree 2009, the right of the parties to be heard is not clearly spelt out. However, on the issue of the parties' right to natural justice and their right to be heard on an important issue such a "submission of no case to answer", it was always prudent for the court to call on the parties to make "a submission of no case to answer", even when the prosecution's evidence are such that "a submission of no case to answer" was unlikely to succeed. Hearing the parties on the issue will assist the court make a decision on whether or not there is a case to answer.
    
19. In this case, the court record showed that the Learned Magistrate did not call on the parties to make a submission on the issue of there been no case to answer. This was an unfortunate oversight. It was always prudent to call on the parties to make a submission of whether or not there was a case to answer, at the end of the prosecution's case. The court can then record the parties' position on the matter and then make a ruling accordingly. However, despite the above oversight by the Learned Magistrate, the evidence placed before the court by the prosecution, was such that there was overwhelming evidence to support the Learned Magistrate's decision that there was a case to answer. As such there was really no miscarriage of justice, and I accordingly dismiss this ground of appeal.
    

Conviction Appeal Ground No. 6 [see Paragraph 9(6)]:

20. The court record at pages 17 and 18 showed that the scene visit was conducted before the trial proper started. The scene visit occurred on 14 May 2012, and the trial proper started the next day on 15 May 2012. So, the scene visit was more like a pre-trial view of the crime scene. The alleged incident occurred on 24 November 2008. The scene visit occurred on 14 May 2012, approximately 3 ½ years after the alleged incident. The trial Magistrate recorded the scene visit on page 18 of the court record. The sum total of the respondent's complaint was that because the "scene visit" was not carried out properly, the total evidence had somehow being tainted because of this alleged "irregularity".
    
21. In my view, the above complaint was not tenable. The trial process had all the mechanism to deal with the above alleged "irregularity". Through the power of cross-examination, the respondent, through his counsel, could put questions to PW1and PW8, to elicit the informations they required. Furthermore, the scene visit only assisted as to showing the directions of the road, at the time. As to the conditions of the road at the material time, the scene visit on 14 May 2012 was of no assistance at all. On this point, the booklet of photographs prepared by the Valelevu Police Station, and submitted as part of the Agreed Facts, already showed the road conditions at the material time. So, in reality appeal ground no. 6 was misconceived, and I therefore dismiss it accordingly.
    

Conviction Appeal Ground No. 7 [see Paragraph 9(7)]:

22. I have carefully read the court record and the Learned Magistrate's judgment to find out whether the above appeal ground was justified or not. He listened to and recorded the witnesses' evidence. He carefully analyzed the evidence, both verbal and the tendered Agreed Facts. He carefully considered the tendered documents and photographs. He then reached his findings of facts in paragraph 35 and 37 of his judgment. In my view, the conviction was safe and satisfactory, and I therefore dismiss this ground of appeal.
    
23. I now proceed to consider both parties' appeal on the sentence. The respondent complained that the Learned Magistrate's sentence on 8 July 2013 was harsh and excessive. The State, on the other hand, complained that the sentence was "manifestly lenient having regards to all the circumstances of the case", and the same ought to be set-aside and an "appropriate sentence" be given. To answer the parties' complaints, the Learned Magistrate's sentence ought to be examined.
    
24. In his sentencing remarks, the Learned Magistrate referred to the applicable sentences in the Land Transport Act 1998. He referred to the Leading British authorities of Guilfoyle (1973) 57 Cr. App. R. 549 and Boswell and Others (1984)6 Cr. App. R(s) 257. He referred to Shelvin Sharma v State, Criminal Appeal No. HAA 097 of 2005S, High Court, Suva and other Fiji court authorities.
    
25. In Iowane Waqairatavo v The State, Criminal Appeal No. HAA 127 of 2004S, High Court, Suva, Her Ladyship Madam Justice N. Shameem, said the following:
    

"...The tariff for the offence of causing death by dangerous driving under the Penal Code was 9 months to 2 years imprisonment. The maximum sentence under the Penal Code statute is 5 years imprisonment. However the offence under the Land Transport Act has a maximum penalty of 10 years imprisonment with a minimum fine of $1000. Clearly, it was the intention of the legislature to increase the tariff for causing death offences. Presumably this is to reflect the alarming numbers of road deaths in Fiji.

Accordingly therefore, a non-custodial sentence for this offence must be the exception rather than the rule. Indeed, a starting point should be picked from between 2 years and 4 years imprisonment, depending on the gravity of the offending. The gravity of the offending is to be assessed on circumstances such as the numbers of deaths, and the seriousness of the fault, which lead to the offending..."

26. On the facts found by the Learned Magistrate, at the material time, the accused was driving at 7 ton PWD truck. He was driving down Princes Road on a steep slope on a bend. The weather conditions were very bad. It was raining, dark and cloudy at times. He was driving at an excessive speed. A minivan, LM 25, was coming up hill on the same road. The accused's truck's break was ok. It was a big truck. The truck had the ability to stop before the accident. When the accused saw the minivan, LM 25, coming up the road, he panicked, applied the brakes, the break jammed, and due to his excessive speed, his truck collided with the right side of the minivan, tearing the same off and thereby causing the 4 deaths and 5 injured of the minivan's passengers. The Learned Magistrate found that the accused was speeding on Princes Road, when travelling on a bend, on a heavy raining day, when the road was wet, and it was dark, and he knew if there was an accident, other road users would be injured.
    
27. The aggravating factors were as follows:
    
    • (i) The Accused's Attitude as inferred from the Learned Magistrate's finding of facts. The accused knew he was driving a 7-ton truck. He knew if there was an accident with other vehicles, a fatal injury to him would be a remote possibility. This is because of the size and strength of his 7-ton truck. Consequently, on this raining day, when the road was wet and it was dark, he saw no need to slow down. Even if he was within the 60 or 50 kmph speed limit, the weather conditions and the wet road would make it dangerous even to travel at the speed limit. Circumstances require he slow down, even to 30 to 10 kmph, to protect other members of the public, especially so when he's driving a 7-ton truck. He failed to do so.
      
    • (ii) Through his offending, the accused had caused deaths to 4 members of the public, and 5 injuries to others. The family members of the 4 dead are serving a life sentence with the loss of their loved ones. Five others were injured. The accused still has his life. You must not complain when your liberty is taken away, because you have caused a lot of heart aches to a lot of people, who had lost their loved ones.
      
    • (iii) Through your offendings, you had caused property damages to the owner of the minivan, LM 25 and other truck, E 7353, when you crashed into them, at the material time. You also caused damages to PWD when you damaged the truck, as a result of your offendings.
      
28. The mitigating factors were those that were found by the Learned Magistrate in his sentencing remarks.
    
29. On count no. 1, I would start at 4 years imprisonment. I would add 3 years for the aggravating factors, making a total of 7 years imprisonment. For the mitigating factors, I would deduct 2 years, living a balance of 5 years imprisonment. On count no. 1, I sentence you to 5 years imprisonment.
    
30. I repeat the above process and sentence for counts no. 2, 3 and 4.
    
31. On count no. 5, I start with a sentence of 2 years imprisonment. I add 1 year for the aggravating factors, making a total of 3 years imprisonment. I deduct 1 year for the mitigating factors, leaving a balance of 2 years imprisonment. On count no. 5, I sentence you to 2 years imprisonment.
    
32. I repeat the above process and sentence for counts no. 6, 7, 8 and 9.
    
33. The summary of your sentences are as follows:
    
    • (i) Count No. 1 : 5 years imprisonment
    • (ii) Count No. 2 : 5 years imprisonment
    • (iii) Count No. 3 : 5 years imprisonment
    • (iv) Count No. 4 : 5 years imprisonment
    • (v) Count No. 5 : 2 years imprisonment
    • (vi) Count No. 6 : 2 years imprisonment
    • (vii) Count No. 7 : 2 years imprisonment
    • (viii) Count No. 8 : 2 years imprisonment'
    • (ix) Count No. 9 : 2 years imprisonment
      
34. Because of the principle of totality of sentencing, I direct that all the above sentences are concurrent to each other, making a final sentence of 5 years imprisonment. I now sentence you to 5 years imprisonment, with a non-parole period of 4 years imprisonment, effective forthwith.
    
35. On each of count no. 1, 2, 3 and 4, the accused is disqualified from driving for life. Because of the above, it is academic to issue disqualification orders for counts no. 5 to 9.
    
36. The $450 fine previously paid to the court as a fine, is amended from a fine to court cost, to pay for the hearing of the matter.
    
37. The Learned Magistrate's sentencing orders of 8 July 2013 is set-aside, and the orders mentioned above are put in its place. The new sentencing orders are to take effect forthwith.
    
38. Before I part with this case, this case is a warning to those who drive large vehicles, that is, trucks, buses, and other big vehicles. There seemed to be an attitude that if an accident happened involving their vehicles, they will come out alive and the others dead, simply because of their size. A very high duty of care rest on drivers of large vehicles to use extreme care and precaution, to safeguard other road users. A breach of that duty of care will certainly earn them a prison sentence, if they failed to exercise due care.
    

Salesi Temo

JUDGE

Solicitor for Appellant : Office of the Director of Public Prosecution, Suva.

Solicitor for Respondent : MC Lawyers, Suva.