Naidu v Reginam [1977] FJSC 159; Criminal Appeal 109 of 1977 (14 October 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. 109 of 1977

BETWEEN

CHINAM NAIDU s/o Yentesh
Appellant

AND

REGINAM
Respondent

Mr. S.R. Shankar, Counsel for the Appellant
Mr. Ikbal Khan, Counsel for the Respondent

JUDGMENT

The appellant was convicted in a magistrate's court under Regulation 78(2) of The Road Traffic Regulation 1974 for hanging "a toy" on the front windscreen of his car and which "affected the vision of the driver." The draftsman misread the regulation which does not require that the offending article should affect the driver's vision; it simply requires that the driver's vision may be affected. Regulation 78(2) reads as follows:-

"(2) No person shall use or permit to be used on a road any motor vehicle containing any article hanging or otherwise fitted or placed in the vehicle which may adversely affect the vision through the windscreen of the driver."

It appears that on 19/7/77 a constable stopped the accused's car on the highway and observed a model of a hand measuring 6" × 4" appended to the inside of the windscreen by means of a sucker. In evidence the constable stated that the appendage was on the windscreen above the steering wheel. This was challenged by the accused who claimed that it was in front of the passenger's seat.

In his judgment the learned magistrate said -

"What is in dispute is its position."

He then properly drew attention to the wording of Regulation 72(2) pointing out that the prosecution did not have to prove that the driver's view was obstructed but only that it may be obstructed. Following that observation he stated that no matter on which part of the windscreen the hand was fixed there may be occasions when it would obstruct the driver's vision. He said the extent of the obstruction was not material for the purpose of committing the offence, but was material in relation to sentence. The magistrate appears to have taken the view that the matter must inevitably and there and that proof that an article was appended to a windscreen in it self constituted an offence under the regulation. In accordance with that interpretation of the regulation the learned magistrate did not deem it necessary to determine whether the police constable or the appellant was correct in describing the portion of the windscreen to which the hand was affixed. It sufficed, in his opinion, simply to show that there was a hand attended to some part of the windscreen.

The appellant was convicted and fined $25.00.

His appeal was based on the grounds that:-

(a) There was no evidence of any obstruction

(b) There was no evidence that the plastic hand in any way affected the view or sight of the appellant.

Mr. Shankar, who appeared for the appellant submitted during the appeal that if the hand was on the left hand side of the windscreen it was most unlikely that it would interfere with the driver's vision. He pointed out that the road traffic licence is struck on the left hand side of windscreens; the internal mirror projects over the centre of them and internal sun visors could be moved to cover a substantial portion of the windscreen. In all those instances part of the windscreen is covered and obscured. Nevertheless vision of the driver is no necessarily obscured.

With respect to the learned magistrate I lean to the view taken by appellant's counsel.

Part of a windscreen can be obscured permanently in such ways as described above without obscuring or obstructing vision. I think that one must interpret the word "vision" as meaning driving vision, that is to say the depth and breath of vision necessary to enable a driver to take in the full width of the road immediately in front of his car without impediment. There is also that field of vision to the left which one uses before entering a main road at a junction.

The learned magistrate appears to have said that it does not matter where an article is attached to a windscreen there must come an occasion when it is likely to obscure vision. If that view be correct then licence stickers, sun visors and internal mirrors inevitably give rise to offences by reason of their being on a windscreen.

I think with respect it is essential that the magistrate must be satisfied as to the size of the article and its position. From those facts and from other evidence such as the size of the windscreen, the height of the driver so as to get his eye-level in relation to the obstruction etc. the magistrate can and must reach a definite finding as to whether that article in that position may have obstructed the driver's version.

In the instant case even if the learned magistrate had accepted the appellant's evidence that the hand was on the left hand side he may nevertheless have correctly concluded that it may have been such as to obstruct the driver's view and convicted on that ground. Had he accepted the constable's evidence that the hand was just above the steering wheel he may have had little doubt that an offence had been proved.

With respect I do not think it is open to a magistrate to say I am not interested in where the article was placed on the windscreen and that it is sufficient evidence of an offence merely to prove that there was an article stuck somewhere on the windscreen.

On 7.10.77 I had allowed the appeal and remitted the fine and the foregoing contains the reasons for my judgment.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
14th October, 1977.

Messrs G.P. Shankar & Co., for the Appellant
Director of Public Prosecutions for the Respondent

Date of Hearing: 7th October, 1977.