Lata v Reginam [1977] FJSC 170; Criminal Appeal 44 of 1977 (1 July 1977)

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

Criminal Appeal No. 44 of 1977

BETWEEN

MOHINI LATA d/o Ram Khelawan
Appellant

AND

REGINAM
Respondent

Mr. B. C. Patel, Counsel for the Appellant;
Mr. Dyfed Williams, Counsel for the Respondent.

JUDGMENT

This is an appeal against a decision of a magistrate at Lautoka finding the accused guilty on a charge of dangerous driving causing death. The circumstances out of which the charge arose are not altogether clear, although it is clear that the deceased who was a boy of approximately nine years of age was walking along the edge of the road towards the car which was being driven from Nadi towards Lautoka. It is clear too that the stretch of road where the incident occurred is quite straight, and that the accused first saw the child about 175 yards ahead of her. The prosecution case was that the accused ran off the road and struck the child, but the accused said that when she was about a cars' length away from him, the child stepped out onto the road, and she turned to the right and then to the left in an endeavour to avoid him, and during this manoeuvre the child was hit by her car. The accused's car then went out of control and hit a telegraph post. The prosecution evidence consisted of that of the investigating officer who drew a plan and produced it to the court, the evidence of a man who saw the accident from some distance away, and one who saw the boy before the accident and heard a thud and saw the boy thrown to his left - all from about 165 feet away, and statements made by the accused. The magistrate thought it doubtful whether that witness could see what he deposed to, and he did not accept the statement which the police obtained from the accused that she had hit two telegraph poles. He accepted the evidence of the damage to the accused's car and considered that to be much greater than would have occurred by striking a glancing blow at the deceased. He held that accused had created a dangerous situation by driving very close to the edge of the road when she knew that the child was approaching her on the edge of the road albeit a considerable distance away, and that her lack of attention so that she did not see the deceased child step into the road caused his death, and he found her guilty as charged.

Mr. B. C. Patel submits that in the light of the evidence the verdict is unreasonable. He says that the Magistrate has assumed accused should have kept the boy in view, and that there was no evidence to rebut her evidence that he stepped into the road when she was only a cars' length away. But that is not quite the position. The accused admitted that she did not see the child step into the road. The Magistrate has held that her failure to do so indicated that she failed to keep a careful lookout. Mr. Patel referred to a passage in Wilkinson on Road Traffic Offences (8th edn.) at p. 288 where the following passage appears:

"It is submitted that no criminal liability should attach to a driver for not keeping a proper look out during the second or two while he necessarily glances away from the road ahead, providing he is driving at a reasonable speed."

The passage, however, continues:

"If he is travelling at a speed of 30miles per hour a glance away for even four seconds may be dangerous".

I think that passage answers Mr. Patel's submission. Then there is the case of R v Parker (1957) 41 Cr. App. R. 134, where a momentary inattention resulting in a failure to see traffic lights was held to be evidence on which a verdict of dangerous driving might be found. Mr. Patel then submits that the Magistrate's court was in error in that it misapplied the law in R v Gosney (1971) 3 A.E.R. 220. The Magistrate in his judgment referred to the well known passage in that case at p. 224:

"Fault does not necessarily involve deliberate misconduct or recklessness or an intention to drive in a manner inconsistent with proper standards of driving; nor does it involve moral blame. Fault involves failure i.e. a falling below the standard of care or skill of a competent and experienced driver. Thus there is fault where an incompetent or inexperienced driver, although striving to do his best falls below that standard. Fault in this sense, even though it is slight, or is a momentary lapse, will be sufficient if, looked at sensibly, it is a cause of the dangerous situation, although not necessarily the sole cause. Such fault will often be sufficiently proved by inference from the facts of the situation but an accused is not precluded from avoiding that inference by proving some special fact relevant to the question of fault."

Mr. Patel also submitted that the Magistrate had imposed a burden of proof on the accused, in saying that she had not sought to explain why she failed to see the deceased step into the road. But I think he simply means that the accused did not seek to prove any special fact relevant to the question of fault. Mr. Patel referred to R v Hennigan (1971) 3 A.E.R. 133 and he submitted that this court should follow R v Prem Siwan Cr. App 72 of 1976 (Lautoka) a decision of this Court. This case was cited to the learned Magistrate but distinguished by him. In that case the accident occurred on a road on which there was no special limit, but there the deceased was plainly seen and he dithered instead of crossing. Williams J says:

"This is not a case of a motorist overtaking a pedestrian at high speed and not noticing him or not taking proper prosecutions to avoid him. The accused had a clear unobstructed road ahead of him and no compelling reason for having to reduce speed."

That quotation is sufficient to indicate the difference between that and the facts of this case. Here although the accused was not travelling at high speed, she was travelling towards a pedestrian and - moreover a child - whom she had in view for 175 yards and yet did not see when he stepped on to the road. I agree with the learned Magistrate in distinguishing Prem Siwan's case.

Mr. Patel also referred to several other cases but I do not think they help him. What finally has to be decided is whether there was evidence upon which the Magistrate could hold that accused was driving dangerously. The Magistrate thought there was and I am in agreement with him. The appeal must therefore be dismissed.

(Sgd.) K. A. Stuart
JUDGE

LAUTOKA
1st July 1977

Messrs Stuart, Reddy & Co., Solicitors, Lautoka;
Solicitors for the Appellant;
The Director of Public Prosecutions for the Respondents.