Khalil v Reginam [1977] FJSC 168; Criminal Appeal 46 of 1977 (10 June 1977)

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

Criminal Appeal No. 46 of 1977

BETWEEN

SAIYED ABDUL KHALIL s/o Abdul Gafoor
Appellant

AND

REGINAM
Respondent

Mr. D. Williams, Counsel for the Respondent
Mr. G.P. Shankar, Counsel for the Appellant.

JUDGMENT

This is an appeal against a conviction for careless driving.

The appellant who was driving from Lautoka to Suva was involved in a motor accident at a road junction just after he had passed through Sigatoka town.

The accident involving another car occurred at a road junction and P.W.1 Sgt. 646 H. Narayan Singh drew a sketch plan showing the road junction and the position of the motor vehicles after the accident. According to the plan the accused was driving along Queen's road in a car AN. 167; it is a straight stretch of road which is joined by another road coming in on the accused's left to form a T junction. The accused according to his evidence, which in this respect was accepted by the learned Magistrate, was driving across the end of the junction when he collided with the other car which came out of the side road into the path of the accused's car.

On the accused's left at the farthest corner of the junction from him as he approached the junction was a large arrow (߬) indicating that the SUVA road was to the left along the road forming the junction. Since the accused was proceeding to Suva he should have turned to the left at the junction instead of going straight on. The accused did not notice that sign and he continued straight on following the "old" Queen's road thinking that it was still the road to Suva.

The Magistrate in his judgment at p.7 of the record line 32 said,

"Having seen the other car on the highway it was accused's duty to either keep to his extreme left or if he wanted to go straight ahead on to the old Queen's Road now in disuse he should have stopped to let the other car go and to proceed only when the road is clear."

Those words of the learned magistrate show that the accused in passing the junction was entering into part of Queen's Road which is now in disuse but there is no evidence to show that that portion of road beyond the junction is disused. If such is the state of affairs then there should be ample warning prior to the junction showing that the main road no longer goes straight ahead but takes a right angled turn to the left to form a T junction with the old road. A motorist cannot be expected to look for warning signs on the far side of a junction, or beyond a diversion purporting to tell him what he should do before reaching the diversion or junction.

The learned Magistrate's words indicate his view that the accused, in going straight ahead, was leaving the main road and in doing so was cutting across the path of traffic using it and that he should have exercised more care in following such a course. No doubt that was in effect what did happen but it is apparent that to a motorist in the accused's position the main road seems to follow its old course and goes straight ahead and to all appearances the road on the left is simply a side road. To all appearances traffic using the side road must give way to traffic passing along the road followed by the accused. Judging from the sketch plan the accused could expect the other car on reaching the junction to give way to traffic on its right and the accused says this is what he had expected. Since the main road had been diverted into the side road on the accused's left the accused should have given way to traffic emerging from his left. In other words the accused should have followed the unusual course of reversing the lawful rule of the road by giving way to traffic on his left, provided of course that there was ample and proper warning beforehand. The accused says there were no warnings before one reaches the junction; his evidence is not challenged.

With respect I cannot agree with the Magistrate's decision that the arrow sign "߬SUVA", placed on the far side of the junction from the accused constituted ample and proper warning.

P.W.1 said the arrow sign was visible from a distance off 44yds. But account must be taken of the fact that anyone approaching a junction does not expect to see signs beyond the junction indicating what he should have done as he approached it. He is interested in signs which appear prior to the junction not in those which lie beyond it.

There should be large and obvious warning signs 40yds. or 50yds. before the diversion. It is not enough to say "danger lies here"; It is necessary to say in advance "danger lies ahead" and to indicate its nature. The accused ought not to be penalised for the apathy or ineptitude of those responsible for the absence of such warnings.

A person cannot be regarded as careless because he has run into a danger which he did not know existed and of which he has not been adequately and previously warned.

The appeal is allowed, the conviction is quashed and the fine of $30.00 set aside. The fine if paid shall be refunded to the accused.

SGD. J.T. WILLIAMS
JUDGE.

LAUTOKA,
10th June 1977.

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

Date of Hearing: 2nd June, 1977.