Lata v State [2023] FJHC 807; HAA046.2023 (25 October 2023)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 046 of 2023
CRIMINAL MISC. CASE NO. 180 of 2023

BETWEEN :
ROSHNI LATA
APPELLANT

A N D :
THE STATE
RESPONDENT

Counsel : Mr. W. Pillay for the Appellant.
: Ms. S. Swastika for the Respondent.

Date of Hearing : 19 October, 2023
Date of Judgment : 25 October, 2023

JUDGMENT

BACKGROUND INFORMATION

1. The appellant was charged in the Magistrate’s Court at Lautoka for one count of dangerous driving occasioning death contrary to section 97 (2) (c) (5) (d), (8) and 114 of the Land Transport Act 35 of 1998.
   

Particulars of Offence

ROSHNI LATA on the 6^th day of July, 2015 at Lautoka in the Western Division drove a motor vehicle registration number DD 665 on Kings Road, Drasa Flat, in a manner dangerous to another person, involved in an impact with a bicycle ridden by Reuben James Summerlin and occasioned the death of the said Reuben James Summerlin.

2. The appellant pleaded not guilty and the matter after numerous adjournments proceeded to trial proper on 18^th September, 2020. However, before this there was a voir dire hearing in which the Magistrate’s Court ruled that the caution interview of the appellant was admissible in evidence. At trial proper the prosecution called six witnesses and after the Magistrate’s Court found there was a case to answer the appellant gave evidence for defence.
   
3. By judgment dated 9^th June, 2023 the learned Magistrate found the appellant guilty and convicted her accordingly. After hearing mitigation on 17^th July, 2023 the appellant was sentenced to 2 years imprisonment with a non-parole period of 18 months to be served before the appellant is eligible for parole with a disqualification from driving for the next 2 years and 3 months.
   
4. The brief summary of facts is as follows:
   
   1. On 6^th July, 2015 between 7:00 to 7:30am after the Tropik Woods junction on the Drasa flats a white van registration number DD665 driven by the appellant was going towards Lautoka. The appellant overtook two to three vehicles whilst over speeding.
      
   2. In the opposite lane on the side of the road going towards Ba was the deceased riding a bicycle. The appellant’s van collided with the bicycle, as a result of the impact the deceased flew from his bicycle and landed in a nearby drain about 9.5 meters away from the point of impact.
      
   100. The brake marks from the vehicle driven by the appellant was 19.8 meters on one side and 24 meters on the other side. The brake marks started from the lane where the appellant’s van was travelling.
        
   4. The medical cause of death of the deceased was massive subarachnoid hemorrhage due to traumatic severe injury as a consequence of multiple traumatic fractures from a road accident.
      
   5. The appellant was arrested, caution interviewed and charged.
      
5. The appellant being aggrieved by the conviction of the Magistrate’s Court filed a timely petition of appeal in this court. The former counsel of the appellant filed seven grounds of appeal, and with the leave of the court one additional ground of appeal and the current counsel filed further eight grounds of appeal.
   

APPEAL AGAINST CONVICTION

The following grounds of appeal were filed in court:

1. That the learned Magistrate erred in law and in fact in not holding and not finding that there was no impact on the part of the accused pursuant to section 97(2) of the Land Transport Act 1998.
   
2. That the learned Magistrate erred in law and in fact in not holding and not finding that there was no fault on the part of the accused pursuant to Kumar v State [2002] FJCA 12; AAU0014U.2002S (30 August 2002).
   
3. That the learned Magistrate erred in law and in fact in not holding and not finding that there was no dangerous driving on the part of the accused pursuant to R v Gosney [1971] 3 All ER 220.
   
4. That the learned Magistrate erred in law and in fact in failing to consider that the accused was not the driver of the offending vehicle but someone else who to this day has managed to escape the arms of the law.
   
5. That the verdict is unreasonable and unsupported having regards to the inconsistencies, contradictions, omissions and improbabilities in the evidence of the prosecution’s theory of the State’s case.
   
6. That the learned Magistrate erred in law and in fact by disregarding the evidence of the appellant and not finding that the evidence led by the appellant created a doubt in the prosecution evidence.
   
7. That the learned Magistrate erred in law and in fact in finding the appellant guilty when the prosecution evidence as a whole did not discharge the standard of proof of reasonable doubt against her.
   

ONE ADDITIIONAL GROUND OF APPEAL

8. That the learned Magistrate erred in law and in fact when he used the wrong analysis by using an example of an accused person who had taken a progressive approach driving a public passenger vehicle which appears in paragraph 6 of the judgment.
   

FURTHER ADDITIONAL GROUNDS OF APPEAL

1. That the learned Magistrate erred in law when it failed to engage with the appellant’s case.
2. That the learned Magistrate erred in law when it failed to engage with the evidence as presented in the case either from the prosecution and/or the appellant.
   
3. That the learned Magistrate erred in law when he failed to follow a proper path of reasoning and/or a logical process of reasoning in arriving at its conclusions, findings and orders.
   
4. That the learned Magistrate erred in law when he failed to apply the test and/or correct test for and/or of dangerous driving.
   
5. That the learned Magistrate erred in law when he failed to make any and/or the relevant finding of fact for each element of the offence as constituted in section 97 of the Land Transport Act 1998 and specifically:
   
   • (a) The learned Magistrate did not apply any tests and/or make a finding of fact on dangerous driving.
   • (b) The learned Magistrate did not apply any tests and/or make a finding of fact that there was in fact an impact that caused the death of the Reuben James Summerlin.
   • (c) The learned Magistrate failed to engage with the evidence as presented in the case either from the Prosecution and/or the Appellant.
     
6. That the learned Magistrate erred in law in making findings of fact without following a proper path of reasoning and/or a logical process of reasoning in arriving at its conclusion, findings and orders including but not limited to:
   
   • (a) finding the Appellant as being evasive at times without specifying the basis of such finding.
   • (b) finding the Appellant was not truthful without specifying where, and/or when the Appellant answered questions that would lead to such a conclusion.
   • (c) finding that the prosecution witnesses were credible, reliable and truthful without following a proper path of reasoning and/or a logical process of reasoning in arriving at its conclusions, findings and orders.
     
7. That the learned Magistrate erred in law in reversing the legal and/or evidential burden of proof when, at page 7 paragraph 5, the learned Magistrate leads his 10 line analysis of the evidence by making findings of facts about the Appellant and whether the Appellant was truthful and/or the demeanor of the Appellant whilst failing, therein, to engage with the substance of the Appellants evidence and/or case.
   
8. That the learned Magistrate erred in law in superficially engaging with the Prosecution evidence and/or case and thereafter, accepting the Prosecution evidence and/or case in toto and without a proper path of reasoning and/or a logical process of reasoning in arriving at its conclusions, findings and orders.
   

6. Both counsel filed written submissions and also made oral submissions during the hearing for which this court is grateful. The appellant’s counsel in his submissions both written and oral condensed all the above grounds as follows:
   
   1. The learned Magistrate failing to engage with the Appellant and Respondent’s case in total.
   2. The learned Magistrate failing in law to provide adequate and/or any reasons for his judgment.
   100. The learned Magistrate follow a proper path of reasoning in arriving at its conclusions, findings and orders.
   4. The learned Magistrate erred in law and fact when he engaged in conduct that resulted in the shifting of the onus and legal burden of proof.
      

GROUND ONE

The learned Magistrate failing to engage with the Appellant and Respondent’s case in total.

7. The appellant’s counsel stated that under this ground of appeal the learned Magistrate failed to provide any reasons for his decision. Counsel relies on section 142 of the Criminal Procedure Act which mentions how the contents of a judgment should be.
   
8. Counsel made specific reference to page 6 of the judgment (page 9 copy record) under the heading “Analysis”. Counsel was critical of the entire analysis carried out by the learned Magistrate which he says is a repetition of the prosecution’s summary of evidence except paragraphs 6 and 7 under this heading.
   
9. Furthermore, counsel relies on the High Court of Australia decision in DL vs. The Queen [2018] HCA 26 wherein counsel submits the court had discussed not only the basis of decisions but also the adequacy of reasons and process of reasoning.
   
10. Section 142 of the Criminal Procedure Act states:
    

Contents of judgment

142.-(1) Subject to subsection (2), every such judgment shall, except as otherwise expressly provided by this Act, be written by the Judge or Magistrate in English, and shall contain-

(a) the point or points for determination;

(b) the decision and the reasons for the decision; and

(c) shall be dated and signed by the Judge or Magistrate in open
court at the time of pronouncing it.

(2) Where the accused person has admitted the truth of the charge and has been convicted, it shall be a sufficient compliance with the provisions of this section if the judgment contains only the finding and sentence or other final order and it is signed and dated by the Judge or Magistrate at the time of pronouncing it.

(3) In the case of a conviction the judgment shall specify the offence and the section of the Crimes Act 2009 or other law under which the accused person is convicted, and the punishment to which he or she is sentenced.

(4) In the case of an acquittal the judgment shall state the offence of which the accused person is acquitted and shall direct that he or she be set at liberty.

11. Before any decision is made the process of reasoning plays an important role. The legislative regime in section 142 of the Criminal Procedure Act is a strong tool which guides a judicial officer in respect of judgment writing. Let’s look at the judgment in particular the impugned paragraph under the heading “Analysis”.
    
12. The analysis carried out by the learned Magistrate is a summary of the prosecution case which encompasses all the relevant facts in evidence pertaining to the elements of the offence. When this is done the important facts or evidence adduced will no doubt be repeated.
    
13. The burden of proof is on the prosecution so in his analysis the learned Magistrate rather than only condensing the case strategy of the prosecution had taken the extra effort to outline the important evidence of each prosecution witness. Judgment writing is an art which cannot be designed in a particular way. The style of judgment writing defers from one judicial officer to another.
    
14. An analysis in a judgment expresses the elements of the offence clearly to give the reader an appreciation of the theory behind the charge. In this case the learned Magistrate did follow the above and was satisfied that the prosecution had proven the offence charged to the required standard.
    
15. The appellant has not complained about any misrepresentation of evidence. An analysis entails a detailed examination of the important facts which the learned Magistrate undertook and when this exercise is undertaken there is bound to be a repetition of facts/evidence. The learned Magistrate had correctly narrated the evidence and applied it to the applicable law. On the basis of the analysis the learned Magistrate accepted the evidence of all the prosecution witnesses whilst disbelieving the appellant.
    
16. In the case of Jan Barkat Ali vs. Reginam (1972) 18 FLR 129, Grant J. at paragraph 4 line 8 made a pertinent observation about the above in the following words:
    

...The trial Magistrate records the points for determination in the first paragraph, then sets out the evidence including that on which the prosecution relied to establish the points for determination, gives his decision thereon in the final paragraph specifying (partially by reference to the first paragraph) the offence of which and the law under which the accused is convicted and in the penultimate paragraph gives the reasons for his decision, namely that having reviewed the evidence he accepts that of the prosecution witnesses and rejects that of the accused. No more is necessary. A magistrate is not obliged to give reasons for his acceptance or rejection of the evidence of any particular witness and so long as the evidence to which he has referred and which he accepts is sufficient to establish the ingredients of the offence there has been no failure to comply with the statutory requirements of Section 154 of the Criminal Procedure Code.

As was stated in Clarke v. Edinburgh Tramways Co. [1919] UKHL 303; (1919) S.C. (H.L.) 35 per Lord Shaw cited with approval by Viscount Sankey L.C. in Powell and Anor. v. Streatham Manor Nursing Home (1935) A.C. 243 at 250:

"When a judge hears and sees witness and makes a conclusion or inference with regards to what is the weight on balance of their evidence, that judgement is entitled to great respect, and that quite irrespective of whether the judge makes an observation with regard to credibility or not.”

The same point was emphasised by Blair-Kerr J. in Ng Pui Fong & Ors. v. R Hong Kong Crim. App. No. 354 of 1963 where he said:

“In making his findings of fact, a magistrate is not required to write what amounts to a series of character studies of the witnesses who have testified before him. If he chooses to give reasons, such reasons when taken in conjunction with the written record of the evidence may enhance the value of the magistrate’s judgement. But it frequently happens that it is the general impression which a witness gives to the magistrate which convinces him that the witness is truthful or otherwise. It may be quite impossible to put it into words. .... True, magistrates have to give reasons for their decisions, but this does not mean, whenever there is a ‘head-on collision’ as regards the evidence of two witnesses, one of whom is undoubtedly telling the truth and the other is undoubtedly lying, and neither of the two witnesses shifts his grounds or contradicts himself, but the magistrate nevertheless is convinced beyond reasonable doubt that one man is telling the truth and the other is lying, that the magistrate's findings must necessarily be discounted because he is unable to express by way of a detailed character sketch his reasons for saying he believes A and disbelieves B.”

In the circumstances of this case it would have been preferable for the trial Magistrate to have stated his rejection of the evidence of the accused was limited to so much of his evidence as conflicted with the evidence of the prosecution witnesses on the salient issues and did not extend to previous events on which the accused's evidence was unchallenged, but it is quite clear that this is what the Magistrate intended. In all other respects his judgment unobjectionable.

17. In Narottam Kanji Umaria v Reginam [1962] Fiji Law Rp 3; [1962] 8 FLR 103 (4 May 1962) Hammett P.J. observed at second last paragraph the following:

In the present case the unchallenged evidence of the only witness for the prosecution showed that the Appellant arrived by air at Nadi Airport on 22nd December, 1961. He was found in possession of certain undeclared dutiable goods shortly after he had, to a Customs Officer, falsely declared that he was not in possession of any such articles. There was ample evidence which, if believed—and it clearly was believed—supported the conviction on the first count. The omission of the learned trial Magistrate to record formally the reasons for his decision and strictly to comply with the provisions of Section 155(1) of the Criminal Procedure Code was not therefore a fatal defect.

18. Section 155 (1) of the Criminal Procedure Code (now repealed) is similarly worded with section 142 (1) of the Criminal Procedure Act.
    
19. More recently in Shiu Ji Shri Krishan vs. State, criminal Appeal no. HAA 015 of 2022 Rajasinghe J. at paragraphs 5 and 6 made the following pertinent observations:
    

Paragraph 5

Section 142 (1) of the Criminal Procedure Act states that every judgment delivered by a Judge or a Magistrate must contain the point or points required to determine the decision and the reasons for such decision. The Supreme Court of Fiji in Pal v Reginam [1974] FJLawRp 1; [1974] 20 FLR 1 (17 January 1974) has given a descriptive and precise guideline in formulating the judgments in the Magistrates' Court, which I find of a great assistance. Grant CJ in Pal v Reginam (supra) had outlined that:

“As a general rule, the judgment should commence with a description of the charge, followed by the relevant events and the material evidence set out in correct sequence in narrative form, the identifying number of each pertinent witness being incorporated at the appropriate places, after which the Magistrate should state what witnesses he believes and whose evidence he accepts or rejects, and should proceed to make his findings of fact, apply the appropriate law to those facts, and give his reasoned decision; bearing in mind throughout the provisions of Section 154 (1) of the Criminal Procedure Code. If these considerations are kept in view, not only will it make the task of an appellate court easier, it might well lead to fewer decisions being upset.”

Paragraph 6

In view of the guideline as expounded in Pal v Reginam (supra), the Magistrate must state what witnesses he believes and what evidence he accepts or rejects. In doing that, he should give reasons for believing the witness and accepting or rejecting the evidence. To do that, the Learned Magistrate must adequately evaluate the evidence and the witnesses presented in the hearing. Determination of the reliability and credibility of the evidence is one of the main factors in this process. It would help the Court finally determine which evidence to accept or what part of the evidence to refuse.

20. In this case the learned Magistrate had as expected of him identified the charge then mentioned the evidence of the prosecution and defence witnesses. Thereafter the learned Magistrate identified the applicable law and the elements of the offence that needed to be satisfied by the prosecution. In the analysis the learned Magistrate summarized the important pieces of evidence the prosecution witnesses had adduced in court in support of the elements of the offence charged.
    
21. The learned Magistrate then makes a finding of who is to be believed and in this case he believed all the prosecution witnesses. By this time it became apparent to the learned Magistrate on evidence adduced that it was the appellant who had created a dangerous situation by overtaking two or three vehicles whilst over speeding and colliding with the bicycle coming in the opposite lane which resulted in the death of the cyclist.
    
22. This ground of appeal is dismissed due to lack of merits.
    

GROUND TWO

The learned Magistrate failing in law to provide adequate and/or any reasons for his judgment.

23. The appellant’s counsel argued that the learned Magistrate failed in totality to provide the reasons for his decision. The counsel further states that the learned Magistrate came to the conclusion that the appellant was evasive and untruthful only on the basis of the distance between her van and the car in front.
    
24. It is trite law that in a criminal trial the prosecution has the burden to prove beyond reasonable doubt the guilt of the accused. It is obvious from a reading of the paragraph in question which is reproduced herewith that the learned Magistrate had taken note of the demeanour of the appellant whilst giving evidence and had mentioned one instance of inconsistency between her evidence and her caution interview in the following words at second last paragraph of the Judgment (page 10 of the copy records):
    

“I have watched the demeanor of the accused whilst giving evidence. The accused was evasive at times and not truthful when given evidence. When questioned on the distance between her van and the car overtaking in front of her during cross examination. She answered saying she was about 4 to 5 meters, her caution interview was put to her on Q and A. 48 where she had stated that the distance was between 3 to 4 meters. I do not believe evidence of the accused as she was evasive at times and she was not truthful whilst giving evidence in this case.”

25. The appellant’s complaint is that the discrepancy between her evidence and her caution interview was not significant to affect her credibility.
    
26. The appellant’s counsel only focused his submissions on what is written in one paragraph of the judgment without looking at the evidence holistically. The conclusion by the learned Magistrate not to believe the appellant was based on his observation of the appellant’s demeanour who

according to the learned Magistrate was evasive and not telling the truth. To justify his rejection of the appellant’s evidence the learned Magistrate interalia took an example of a crucial discrepancy between her evidence in court about the distance between her van and the vehicle she overtook with what she told the police about this distance in her caution interview. This discrepancy made it clear that the short distance between the two vehicles meant the appellant did not see the cyclist which supports what the appellant told the police at Q. & A. 62 of her caution interview that she did not see the cyclist since she was only focusing on the vehicle in front.

27. The finding of credibility is left to the decision maker who had the opportunity to see the witness in court. In my considered judgment the learned Magistrate had seen all the witnesses give evidence in court and he was therefore the best person to make a decision whether to accept or reject the appellant’s evidence.
    

28. In Ajendra Kumar Singh vs. R (1980) 26 FLR 1 the Court of Appeal said at page 9:

"...It is also set out in [Director of Public Prosecutions- v- Ping Lin [1975] 3 All ER 175] as has frequently been said that an appellate Court should not disturb a judge's findings unless it is satisfied that a completely wrong assessment of the evidence has been made, or the correct principles have not been applied".

29. In this case, the appellant and the prosecution had presented different versions of the accident. In such circumstances, the court must consider the whole of the evidence adduced at trial, including the evidence of the appellant, to determine whether the prosecution has proven beyond reasonable doubt that the appellant committed the offence. The learned Magistrate did so and gave his reasons for refusing to accept the evidence of the appellant. There is no compelling reason why this court should interfere with the fact finder’s decision in this regard.
    
30. This ground of appeal is also dismissed due to lack of merits.
    

GROUND THREE

The learned Magistrate [did not] follow a proper path of reasoning in arriving at its conclusions, findings and orders.

31. Counsel argued that in the judgment the learned Magistrate first rejected the appellant’s evidence (page 10 of the copy record) after discussing the same when there was no burden of proof on the appellant and thereafter the learned Magistrate accepted the prosecution witnesses as credible, reliable and truthful. Counsel further submitted that there was no basis upon which the court came to these conclusions in absence of any logical reasoning process.
    
32. The argument raised by counsel is misconceived in the second last paragraph of the judgment after rejecting the evidence of the appellant the learned Magistrate stated that he accepted the evidence of all the prosecution witnesses this conclusion does not affect the judgment at all.
    
33. After perusing the copy record I am satisfied that the learned Magistrate had correctly assessed the appellant’s evidence before deciding not to accept it. There is nothing illogical about this. It matters not that the learned Magistrate made a finding of credibility first for the appellant and then the prosecution witnesses. As mentioned earlier it is not good enough to argue in the appellate court the finding of credibility and reliability of a witness evidence when the appellate court did not see the demeanour of the witness concerned.
    
34. This ground of appeal is dismissed due to lack of merits.
    

GROUND FOUR

The learned Magistrate erred in law and fact when he engaged in conduct that resulted in the shifting of the onus and legal burden of proof.

35. The above ground of appeal is restricted to the shifting of the onus and legal burden of proof to the appellant unfortunately counsel did not allude to how this was done. What counsel has done is give a commentary on matters beyond the ground of appeal. The learned Magistrate had directed his mind to the fact that the prosecution had the burden of proof which was beyond reasonable doubt as follows at paragraph 9 of the Judgment (page 10 of the copy record):
    

“The evidence tendered by prosecution proved all the elements of the offence of dangerous driving occasioning death beyond reasonable doubt.”

36. Counsel from paragraph 43 to 48 of his written submissions states:

In his own judgment the Learned Magistrate says that there is a test to be applied for dangerous driving. At page 6, paragraph 2 of the Judgment the Learned Magistrate says that he accepts the test in R v Gosney (1971) 3 All ER 220 at page 224. He says:

Accordingly, Gosney (supra) has enunciated an objective test in order to determine dangerous driving. The court first needs to determine whether there was a dangerous situation. Then it is required to consider whether there has been some fault by the driver, causing this dangerous situation. If the conduct of the driver, that contributed to cause the dangerous situation, falls below the care or skill of a competent and experienced driver, it would constitute the element of fault.

44. When did the court apply the test?
    
45. When did the court accept the identify element?
    
46. When did the court conclude dangerous driving?
    

a. What test did it use?

b. Which parts of the evidence did it accept for this purpose?

c. Which parts of the evidence did it reject for this purpose?

d. Who did the court believe? Why?

e. Who did the court reject? Why?

47. It is clearly, and patently, obvious from the fact of the Judgment of the Learned Magistrate that the Learned Magistrate has failed to give any reasons, any logical reasoning path, any reasons for accepting and/or rejecting evidence and, for that purpose, any evidence as to how he has decided the case against the appellant.
    
48. With respect, it is our submission that the Learned Magistrate has erred in law specifically in not complying with the section 142 of the Criminal Procedure Act.
    
37. In cross examination of the prosecution witnesses the defence counsel had put their defence case for the consideration of the court. The appellant has not raised any complaint about the learned Magistrate’s failure to correctly put the defence narration of the cross examination in his judgment.
    
38. The rhetorical questions posed by counsel in his submissions does not take the appeal any further. The learned Magistrate had correctly carried out his function as required of him in his judgment which complies with section 142 of the Criminal Procedure Act. I have explained my reasons earlier in this judgment which I do not wish to repeat.
    
39. This ground of appeal is also dismissed due to lack of merits.
    
40. Moreover, I have once again reviewed the evidence for the prosecution and the defence to satisfy myself as to whether the judgment in its current form had served justice bearing in mind the applicable law. The test in this regard is that the appellate court has to be satisfied on the evidence adduced and the law that the only conclusion reached would have been one of guilt.
    
41. The Court of Appeal in Munendra vs. The State, criminal appeal no. AAU 0023 of 2018, 25 May, 2023 from paragraphs 40 to 42 stated the above in the following words:
    

[40] The test as propounded on the proviso to section 4(1) of the Criminal Appeal Act, 1907 in UK which is identical with the proviso to section 23(1) of the Court of Appeal Act in Fiji, is that the appellate court may apply the proviso and dismiss the appeal if it is satisfied that on the whole of the facts and with a correct direction the only proper verdict would have been one of guilty [see R. v. Haddy [1944] K. B. 442; 29 Cr. App. R. 182; Stirland v D. P. P. [1944] A.C. 315; 30 Cr. App. R. 40; R. v. Farid 30 Cr. App. R 168)].

[41] The proviso to section 23(1) of the Court of Appeal Act is almost identical with section 256 (2) (f) of the Criminal Procedure Act and therefore, the same test applied to the proviso to section 23 (1) should apply to proviso in section 256 (2) (f) of the Criminal Procedure Act.

[42] The Court of Appeal in Aziz v State [2015] FJCA 91; AAU112.2011 (13 July 2015) adopted the same test in the application of the proviso to section 23(1) of the Court of Appeal Act as follows:

‘[55] ...........if the Court of Appeal is satisfied that on the whole of the facts and with a correct direction the only reasonable and proper verdict would be one of guilty there is no substantial miscarriage of justice. This decision was based on section 4(1) of the Criminal Appeal Act 1907 (UK) which was in the same terms as section 23(1) of the Court of Appeal Act.

[56] This test has been adopted and applied by the Court of Appeal in Fiji in R –v- Ramswani Pillai (unreported criminal appeal No. 11 of 1952; 25 August 1952); R –v- Labalaba (1946 – 1955) 4 FLR 28 and Pillay –v- R (1981) 27 FLR 202. In Pillay –v- R (supra) the Court considered the meaning of the expression "no substantial miscarriage of justice" and adopted the observations of North J in R –v- Weir [1955] NZLR 711 at page 713:

"The meaning to be attributed to the words 'no substantial miscarriage of justice has occurred' is not in doubt. If the Court comes to the conclusion that, on the whole of the facts, a reasonable jury, after being properly directed, would without doubt have convicted, then no substantial miscarriage of justice within the meaning of the proviso has occurred."

[57] ....................when considering whether to apply the proviso the appeal may be dismissed if the Court considers that there was no substantial miscarriage of justice.

In Vuki –v- The State (unreported AAU 65 of 2005; 9 April 2009) this Court observed at paragraph 29:

"The application of the proviso to section 23(1) _ _ _ of necessity, must be a very fact and circumstance – specific exercise."

42. I have read the evidence as stated in the copy record and I am satisfied that upon the evidence adduced by the prosecution, the only verdict is the guilt of the appellant. This was a case of dangerous driving by the appellant who had overtaken more than one vehicle at a high speed, going onto the other lane and then colliding with the cyclist. This cyclist was on his correct lane. The brake marks of the appellant’s vehicle and the distance the cyclist landed in the drain after the impact speaks of a driving below the standard of a prudent driver. The impact resulted in the death of the cyclist almost instantly.
    
43. Before I leave I would like to state that it is important for the registry officers to be vigilant when they receive documents for filing. It is incumbent on all officers to check the actual file before documents are issued. This case is a classic example where the current law firm without filing a change of solicitors or without being on record for the appellant was able to file further grounds of appeal in absence of leave granted by the court.
    
44. Had the officer before issuing the document referred to the file he or she would have seen that the filing of further grounds of appeal was not permissible since there was already another law firm on record for the appellant.
    
45. For sake of procedural compliance and proper administration of justice the court registry officers are expected to uphold utmost vigilance before documents are accepted and issued to avoid breaches of established court practice and procedures.
    

ORDERS

1. The appeal against conviction is dismissed due to lack of merits;
   
2. The conviction entered against the appellant is upheld;
   
3. 30 days to appeal to the Court of Appeal.
   

Sunil Sharma
Judge

At Lautoka
25 October, 2023

Solicitors
Messrs Gordon and Co. Lautoka for the Appellant.
Office of the Director of Public Prosecutions for the Respondent.