Regina v Ram [1977] FJSC 165; Criminal Appeal 21 of 1977 (1 July 1977)

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

Criminal Appeal No. 21 of 1977

BETWEEN

REGINA
Appellant

AND

PARAS RAM s/o Rati Lal
Respondent

Mr. Dyfed Williams, Counsel for the Appellant;
Mr. S. Anand, Counsel for the respondent.

JUDGMENT

Paras Ram f/n Ratilal was charged in the Magistrate's Court at Nadi that on 11th June 1976 he drove a private motor vehicle on the Queen's Road Namaka in a manner dangerous to the public. He first appeared in Court on 7th October 1976, and again on 4th November when the case was adjourned to 18th March for hearing. The record on that day shows that after the first witness had given his evidence and been cross-examined, the police indicated that they wished to file an alternative count and a count of careless driving was then preferred, to which the respondent pleaded guilty. The prosecutor stood on the facts given in evidence by the complainant and the respondent admitted those facts. These were that the accident occurred at the inter-section of the road from the Nadi Airport Terminal with the Queen's Road, opposite the Gateway Hotel. The complainant was travelling on the Queen's Road, and the respondent's vehicle came from the Airport Terminal into the Queen's Road. It slowed down but did not stop and collided with the complainant's vehicle. Complainant applied his brakes and his vehicle came to rest on the right hand side of the road. He was going at 40-45 miles per hour. He saw the respondent's car about 5 to 6 yards from where he would halt before entering the main road. Respondent did not halt.

The respondent through his solicitor told the Court that his vision was impaired, although he did not say how, and he submitted that complainant could have avoided the accident if he had been more cautious, and that he also should have been charged. The learned Magistrate started off his judgment by saying that this was an error of judgment on the part of the defendant. I pause here to say that whether or not there was an error of judgment it was no answer to a charge of careless driving. It was at one time thought so, but the ideas has been exploded since Simpson v Peat (1952) 1 A. E. R. 447 where the Lord Chief Justice of England, heading a divisional court of five judges said at p. 449:

"When one is considering careless driving it is in our opinion clear that a driver may not be using due care and attention although his lack of care may be due to something which could be described as an error of judgment. If he is driving without due care and attention it is immaterial what caused him to do so."

The learned Magistrate went on to say:

"In my view any motorist coming into a carriageway of a road or deviation from the same must take every care to do so without interfering with the movements of other motorists using the same carriageway. If they do so then they are answering for such careless acts. In this case the accident occurred in the pathway of the complainant when defendant drove his vehicle on to it. It was incumbent on the defendant to either wait until the complainant had gone past before he drove across the road or drive completely off the complainant's pathway before the complainant had gone past."

I agree with that entirely, if I may say so with respect, and add that if a driver fails in that duty he will be guilty of careless driving. He may even be guilty of dangerous driving in circumstances such as these. But then the learned Magistrate went on to say that the defendant was not entirely to be blamed, as complainant contributed to the accident, because he was travelling at 40 to 50 miles per hour and saw defendant's vehicle when it was 5 to 6 yards away from the junction and when he was 40 to 50 feet away he saw the defendant crossing in front of him. He knew the intersection was a busy one, and as a prudent driver he should have reduced speed substantially. Whether or not this be the case, it does not seem to me to mitigate the defendant's fault in erupting onto a highway from a side road. I would have thought that the fact that his vision was impaired would have imposed upon him an additional duty of care. The learned Magistrate then said that he thought that the ends of justice would not be met if the defendant alone were penalised and he discharged him under s. 38(1) of the Penal Code. That section is as follows:

"S. 38(1) Where a court by or before which a person is found guilty of an offence, not being an offence for which a fixed sentence is prescribed by law, is of opinion, having regard to the circumstance including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Ordinance is not appropriate, the court may, with or without proceeding to conviction, make an order discharging him absolutely, or, if the court thinks fit, he commits no offence during such period, not exceeding twelve months from the date of the order, and subject to such other conditions, if any, including the payment of costs or compensation, or the restitution of goods or the payments of money in lieu of goods, as may be specified in such order."

Here the learned magistrate obviously considered the circumstances and his conclusion was that they permitted the application of S. 38. The question for this court is not only whether the learned magistrate exercised his discretion properly but whether he was right. The question as to whether he exercised his discretion properly might perhaps have to be considered against the background of the fact that this case was one fifteen which came before this Court on the same day in which the Director of Public Prosecutions complained that accused persons had been discharged under S. 38 of the Penal Code by Nadi Court in March 1977. Of those one was drunk and incapable, one was accused of behaving in an insulting manner and the remainder were motoring offences. Counsel for the Director of Public Prosecutions referred me to Cross on the English Sentencing System (1971) where the learned author says at p. 11:

"Absolute discharges are granted relatively rarely,"

and he has furnished a table at page 170 showing that in motoring offences in Magistrates' Courts in England in 1969 absolute discharges were granted in only 1% of all cases. In the case of offences other than motoring offences the percentage of absolute discharges was also only 1%. Cross goes on at p. 11 to say:

"Two typical situations in which absolute discharges are granted are first those in which the law has confessedly failed because the accused is morally blameless and no deterrent purpose would be served by his punishment, and secondly cases in which the Court considers that the accused's conduct was an isolated instance and that no further pressures are needed to keep him up to scratch."

Later he says:

"Akin to the first type of case in which absolute discharges are employed is that in which the court takes the view that the defendant ought never to have been prosecuted."

and again:

"Absolute discharges are intended for cases in which the judge has few, if any, misgivings about a repetition of the offence, and wishes to do all he can to reduce the stigma attaching to the conviction."

I would say that none of the above considerations apply to the present case. But Mr. Anand suggested that no appeal lay in a case where there was no conviction and referred me to several cases. R v Tucker (1974) 2 A. E. R 639 depends upon the construction of an English statute which gives an appeal against a sentence to a person who has been convicted. It was held that although a person the subject of a probation order has been sentenced, he had not been convicted and that therefore no appeal lay. In Fiji the right of appeal given by s. 289(1) of the Criminal Procedure Code is as follows:

"...any person who is dissatisfied with any judgment sentence or order of a Magistrate's Court in any criminal cause or matter to which he is a party may appeal to the Supreme Court against such judgment, sentence or order."

It was not suggested that the Director of Public Prosecutions was not a proper party, so that he is entitled to appeal against this order. It matters not whether there is a conviction. Then Mr. Anand submitted that an order discharging an accused person can only be appealed by him and he cited Simpson v. Attorney-General (1968) 14 F. L. R. 161. There the learned Chief Justice held that the magistrate's order refusing to remove an order of disqualification is not subject to appeal. I think it is sufficient to say that such an order is quite different from the kind of order I am considering here, which is an order made after the trial of the case by way of judgment and sentence. The Tanganyika case referred to in Simpson v. Attorney-General was an appeal against a refusal of bail, which again is quite different from a judgment after a trial. Mr. Anand also referred to a New Zealand case, Halligan v. Police (1955) NZLR 1185. There a rugby football club conducted what a magistrate subsequently found to be a common gaming house and the club which was an incorporated body was convicted. The treasurer was also convicted of managing the common gaming house, but other members of the committee who had also been responsible for organising the gaming were not charged. A collateral result of the conviction was that the treasurer was debarred from a racecourse because of his conviction, whereas his more fortunate colleagues, although perhaps equally blameworthy did not suffer the same disability. MacGregor J. considered that though the power of absolute discharge was only to be exercised sparingly, and in matters of an unusual nature, the circumstances of the case before him warranted the exercise of the power.

In this case this Court is in fact dealing with an appeal against sentence. I must regard the exercise of a power which is only to be sparingly exercised, fifteen times in one month to be prima facie erroneous, and when to that is added, that the power was exercised in a case where the circumstances show clear carelessness on the part of the accused, I consider the learned magistrate was wrong. Nor is there anything put forward in the character of the accused person to justify the exercise of the power. I therefore set aside the order of the learned magistrate discharging the respondent and enter a conviction and impose a fine of $40. The order made by the learned magistrate as to payment of costs will stand.

(Sgd.) K.A. STUART
JUDGE

LAUTOKA,
1st July 1977.

The Director of Public Prosecutions for the appellant.
Messrs Anand, Tappoo & Co., Solicitors, Nadi;
Solicitors for the Respondent.