Regina v Nand [1977] FJSC 169; Criminal Appeal 39 of 1977 (1 July 1977)

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

Criminal Appeal No. 39 of 1977

BETWEEN

REGINA
Appellant

AND

JADHU NAND s/o Ram Saroop
Respondent

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

JUDGMENT

In this case the accused Jadhu Nand f/n Ram Saroop was charged on three counts, first with dangerous driving, contrary to section 38 of the Traffic Act Cap 152, secondly with failing to stop after an accident contrary to section 43(1) (a) of the Traffic Act and thirdly of failing to report an accident, contrary to section 43(1) (a)(2). The charged was originally laid on 11th June 1976 and the accused first appeared in Court on 5th August, when he pleaded not guilty. There were adjournments and Mr. M. V. Pillai appeared for him. On 8th March 1977 the police filed an alternative count of careless driving on the count of dangerous driving, and the accused then pleaded guilty to the alternative count and his plea was accepted. He also pleaded guilty to the other two counts. The court was told by the police that the careless driving arose when a woman called Sereana Biu was driving a private car along the Queen's Road at Martintar on her way to Lautoka. Accused was driving a van behind her. At one stage he proceeded to overtake the woman and in the course of overtaking her, he went too much on to his wrong side and grazed her vehicle. He did not stop after the accident or report the matter to the police. On the accused's side the Court was told that accused was one of the oldest living drivers in Fiji, and had been driving for 40 years. It was an error of judgment. The Court was invited to take account of the plea of guilty. There was no injury to anyone and the accident of a minor nature. The Court without giving any reasons discharged the accused under section 38 of the Penal Code and ordered him to pay $6 costs. On the second and third counts he was fined $6 on each count in default six days imprisonment. The Director of Prosecutions appeals against the Magistrate's order of discharge on the first count and the sentences on the other two counts.

Mr. Shankar for the Respondent took a preliminary point to the effect that the charge of careless driving should not stand. I have held in the case of R v Vijay Prasad Criminal Appeal (Lautoka) 38 of 1977 that it should and I follow that ruling in this case.

Mr Williams for the Director of Public Prosecutions submitted that in this case the accused could not be said to be morally blameless and therefore it was inappropriate to apply section 38. On the second count he submitted that the sentence did not reflect the importance of the offence, and he did not present any argument on the third count.

Mr. Shankar submitted that a dismissal of the charge under section 38 reflected the fact that the Magistrate had accepted the defence contention that this was a minor accident and that the Magistrate had taken all the circumstances properly into account.

It is true that there was no plan produced by the prosecution, nor was the width of the road given, but the fact that the prosecutor suggested that the respondent went on to his wrong side indicates that the road was ordinarily sufficiently wide to allow the passage of two vehicles. The defence did not controvert that view. Accepting that to be the position then, the respondent was careless first in being on the wrong side of the road, and secondly of failing to keep a careful look out. There is also implicit in the incident the suggestion that the respondent was going too fast in the circumstances in which he found himself, otherwise it is probable that he would have been more careful. This incident occurred at night, and that laid an additional duty of care on the respondent. All of these facts appear to me to signify careless driving of quite a high degree. I think that, after making allowance for the respondent's previous good record and the fact that he has pleaded guilty, the proper penalty is a fine of $25.

As to the second count, I agree with Mr. Williams that this is very far from being a minor matter. A man who after hitting another vehicle at night drives on without stopping commits a serious offence. In R v Ramlal f/n Gopi Criminal Appeal No 40 of 1976 (Suva) the Chief Justice imposed a sentence of six months imprisonment for a similar offence. In allowing the learned Magistrate's sentence to stand, I think that I am perhaps taking an exceedingly charitable view of the respondent's actions. The result is that the learned Magistrate's decision on the first count is set aside and a conviction will be entered and a fine of $25 imposed. The Magistrate's order as to costs will be confirmed. On the second and third counts the appeals are dismissed.

(Sgd.) K.A. Stuart

JUDGE
LAUTOKA
1st July, 1977.