Sherlec v Reginam [1977] FJSC 108; Criminal Appeal 70 of 1976 (21 January 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. 70 of 1976

BETWEEN

FRANK SHERLEC

AND

REGINAM

JUDGMENT

On the 1st September 1976 at Suva Magistrates Court the appellant was convicted after trial of dangerous driving contrary to section 38(1) of the Traffic Ordinance and was fined $175 and disqualified from holding a driving licence for twelve months.

The appellant has appealed against conviction, the ground pursued at the hearing being that the verdict is unreasonable and cannot be supported having regard to the evidence; and he has appealed against the order of disqualification.

According to the evidence of a prosecution witness (P.W.1) the appellant drove a motor vehicle in a dangerous manner. According to the evidence of the appellant and two defence witnesses (D.W.2 and D.W.3) he did not. It is not a matter of how many witnesses were called in support of the prosecution case or for the defence, witnesses being weighed not numbered testes ponderantur non numerantur. It is the credibility of the witnesses that matters, and the responsibility of assessing the credibility of witnesses rests on the trial court. As stated by Lord Reid in Benmax v. Austin Motor Co. Ltd. (1955) 1 All E.R. 326 at 328:-

"Apart from cases where appeal is expressly limited to questions of law, an appellant is entitled to appeal against any finding of the trial judge, whether it be a finding of law, a finding of fact or a finding involving both law and fact. But the trial judge has seen and heard the witnesses, whereas the appeal court is denied that advantage and only has before it a written transcript of their evidence. No one would seek to minimise the advantage enjoyed by the trial judge in determining any question whether a witness is, or is not, trying to tell what he believes to be the truth, and it is only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness. But the advantage of seeing and hearing a witness goes beyond that. The trial judge may be led to a conclusion about the reliability of a witness's memory or his powers of observation by material not available to an appeal court. Evidence may read well in print but may be rightly discounted by the trial judge or, on the other hand, he may rightly attach importance to evidence which reads badly in print. Of course, the weight of the other evidence may be such as to show that the judge must have formed a wrong impression, but an appeal court is, and should be, slow to reverse any finding which appears to be based on any such considerations."

Having seen and heard the witnesses, the trial Magistrate was in no doubt that the first prosecution witness had told the truth and had described the actual manner in which the appellant drove his car. When referring to the evidence of the defence witnesses the trial Magistrate stated:-

"If I am to accept their evidence I have to believe that P.W.1 concocted his evidence from start to finish. P.W.1 was an excellent witness. He was subjected to a vigorous and lengthy cross-examination but maintained his evidence was true throughout. In addition he has had no time to concoct his story. Reference to the evidence of D.W.3 will show that when he [P.W.1] spoke to accused after accused's vehicle came to rest he told accused that accused had nearly collided with a pedestrian at Royal Suva Yacht Club and had driven erratically through Walu Bay. This was precisely the core of the evidence he gave before me.

The defence witnesses (excluding D.W.4) have had ample time to construct their story and have been shown to be lying on three significant points - the sobriety of D.W.3, the sobriety of accused and the allegation that P.W.1 was nowhere about when they all left Isa Lei. These instances serve to convince me that the whole of their evidence was concocted from beginning to end."

Earlier in his judgment the trial Magistrate had referred to defence witnesses having stated that the appellant had taken only three glasses of wine that night and to the third defence witness having had the same plus one Bacardi and coca cola, which was irreconcilable with the drunken behaviour of the third defence witness at the police station later that night and with the opinion of the fourth defence witness, an Inspector of Police, that the appellant was slightly drunk. Counsel for the appellant laid considerable stress upon the fact that, so far as the appellant was concerned, there was nothing on the record to the effect that he had taken only three glasses of wine, the evidence being that three bottles of wine were shared between five persons of whom the appellant was one, the proportion consumed by him not having been stated. However, this does not invalidate the finding of the trial Magistrate that the defence witnesses (excluding the fourth defence witness) had lied about the sobriety of the third defence witness and the appellant, as in addition to the testimony of the first prosecution witness evidence of the behaviour of the third defence witness at the police station amply demonstrated that she was not sober; and the fourth defence witness, whose evidence the trial Magistrate clearly accepted, testified to the fact that the appellant was not completely sober.

To succeed on a submission that the verdict is unreasonable and cannot be supported having regard to the evidence it is necessary for an appellant to shew that there was no evidence on which the Magistrate could reach the conclusion which he did if he properly directed himself. This the appellant has failed to do and the appeal against conviction is accordingly dismissed.

Turning to sentence, fortunately no accident resulted from the dangerous driving of the appellant, who is aged fifty five years and who has held a driving licence for thirty eight years with no previous convictions; and the Crown concedes that in the circumstances the order of disqualification errs on the side of severity. The fine of $175 is an adequate penalty and the order of disqualification is set aside.

(Clifford H. Grant)
CHIEF JUSTICE

21st January, 1977
Suva