Pal v Reginam [1987] FJLawRp 23; [1987] 33 FLR 52 (27 March 1987)

[1987] 33 FLR 52

SUPREME COURT OF FIJI

CHANDAR PAL

v.

REGINAM

(SUPREME COURT - Tuivaga, C.J. - 27 March 1987)

Appellate Jurisdiction

(Traffic Prosecution - amendment from careless to dangerous driving – power including inherent jurisdiction to do so - no rule that corroboration necessary before convicting, known enmity between complainant and defendant - appeal Court rarely interferes with trial Court on findings of facts.)

S. P. Sharma for the Appellant
I. U. Mataitoga for the Respondent

Chandar Pal appealed against his conviction and sentence at Nausori Magistrate’s Court of 3 months imprisonment on a charge of dangerous driving (s. 38 Traffic Act (Cap. 176- 1985 Edn).

Grounds of appeal included that the charge was amended by adding a Count of dangerous driving to one originally proferred of careless driving; the appellant being convicted of the former. The second ground was that Magistrate erred in convicting the appellant in the absence of corroborative evidence, in view of the history of enmity between the complaint and appellant.

On the January 1984 at about 10.00 a.m. the complainant a Solicitor was travelling along Rewa Bridge Road from Nausori towards Suva. At the same the appellant driving his truck entered the bridge at the opposite end. When he noticed and recognized the complainant's car and there was about thirty yards between the two vehicles, he swung his vehicle into the complainant's path and then back again to his correct lane. The experience was most frightening to the complainant. He reported the incident to a highway patrol officer.

The learned Magistrate found that the action of the appellant was deliberately done to frighten the complainant against whom he bore a personal grudge arising of a Court case.

Held: The manoeuvre of the appellant was undoubtedly dangerous. There was ample power including inherent jurisdiction to cause such an amendment to be made to the charge in the course of the hearing in the interests of justice.

The matter depended on credibility which the learned Magistrate attached to the witnesses testimony as was his primary function. He accepted the comp and rejected the appellant's version of the occurrence. There was no requirement on the Magistrate not to act without corroborative evidence.

An appeal Court will not usually interfere with the findings of a fact of a local court in the absence of misdirection.

In Watt v. Thomas (1947) 1 All E.R. 582 at p. 587 Lord Thankerton said:

"I. Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusion.

II. The appellate court may take the view that without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

III. The appellate court either because the reasons given by trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court."

It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question."

There were no proper grounds for interfering with the conviction of the appellant in the instant case.

The sentence imposed was severe, more so than the unusual pattern in dangerous driving offences. It is exceptional in such cases to award a prison sentence, and that there should be uniformity in sentencing.

Appeal against conviction dismissed. Appeal against sentence upheld. The sentence of 3 months imprisonment set aside. In lieu therefore appellant fined $50 or three months imprisonment. Order as to disqualification confirmed.

Case referred to:

Watt v. Thomas (1947) 1 All E.R. 582.

TUIVAGA. C. J.

JUDGMENT

This is an appeal against conviction and sentence by appellant who was convicted in the Nausori Magistrate's Court on a charge of dangerous driving contrary to section 38 of the Traffic Act, Cap. 176 (1985 Edn), and was sentenced to three months' imprisonment is disqualified from driving for a period of eighteen months.

On the appeal against conviction there are two main grounds. The first ground complains of the fact that the charge was amended by adding a count of dangerous driving to one of careless driving and in respect of which the appellant was convicted.

The second ground contends that the learned Magistrate erred in convicting appellant in the absence of corroborative evidence in view of the history of enmity between the complainant and appellant.

The facts which were accepted by the learned Magistrate and upon which the conviction of appellant was based were of a very narrow compass.

On 6th January 1984 the complainant, Abdul Rasheed (P.W.1) travelling- along the Rewa Bridge from Nausori towards Suva. The time was about 10 o'clock in the morning.

At about the same time the appellant driving a truck entered the opposite end. When appellant noticed and recognised complainant’s car about thirty yards away he swung his car on complainant’s path and then back to his correct lane. The experience was most frightening for complainant who reported the matter to a highway patrol officer.

It was also accepted by the learned Magistrate on the material the action of appellant was deliberate and was done to frighten the complainant against whom appellant may have been nursing a personal grudge because of ill-feeling arising out of a court case.

Whatever the nature of their relationship, the fact is that the driving manoeuvre displayed by appellant on that day was undoubtedly dangerous.

With regard to the first ground of appeal that it was incompetent for the Court to amend the charge by adding a count of dangerous driving there are ample powers in the Court under the Criminal Procedure Code as well as under the inherent jurisdiction of the Court to cause such an amendment to be made in court in course of trial in the interests of justice. This ground of appeal therefore fails.

With regard to the second ground of appeal, the issue before the trial court was essentially one of fact. This is not a case as contended by counsel for appellant in which the learned Magistrate had to look for corroboration before he could convict. This case depends on credibility of witnesses based on the evidence and which it is the primary function of the trial court to determine. It is well-settled that an appellate court will not as a rule interfered with the findings of fact of a trial court in the absence of any clear misdirection. In this case the learned Magistrate accepted the version of facts given by complainant and rejected appellant’s version as untrue.

The function of an appellate court in an appeal such as this has been explained in several cases of high authority. I need only refer to one of them. This is House of Lords case of watt v. Thomas (1947) 1 All E.R. 582 where at page 587 Lord Thankerton said -

"I. Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion.

II. The appellate court may take the view that without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.

It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, it may be, the individual case in question."

I am satisfied that there are no proper grounds for interfering with the conviction entered against appellant.

As regards the appeal against sentence I accept that the imposition of a gaol sentence on a first offender in this case was more severe than the general pattern of sentencing in this country for dangerous driving. It is an exception rather than the rule that a prison sentence is imposed in this type of motoring offence. It is important that the approach to sentencing should be uniform as between the courts.

It seems to me that a fine and disqualification would sufficiently meet the circumstances of this case.

Accordingly the sentence of three month's imprisonment imposed on appellant is set aside and in lieu thereof a fine of $50 or three months' imprisonment is substituted. No variation is made to the order of disqualification from driving.

Appeal against conviction dismissed, sentence varied.

Tuivaga, C.J.
Chief Justice