Regina v Patel [1977] FJSC 171; Criminal Appeal 37 of 1977 (5 August 1977)

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

Criminal Appeal No. 37 of 1977

BETWEEN

REGINA
Appellate

AND

KANU PATEL s/o Parshotan Dass
Respondent

Mr, Ikbal Khan, Counsel for the Appellant
Mr. G. P. Shankar, Counsel for the Respondent.

JUDGMENT

This is an appeal by the Crown against the orders of a magistrate in relation to two traffic offences arising out of an accident.

The respondent was charged with dangerous driving, failing to stop after an accident and failing to report an accident, all on 27th of May, 1976.

On 7.10.76 he pleaded not guilty to all 3 offences.

On 22.3.77 a charge of careless driving was substituted for that of dangerous driving and the other 2 charges remained unaltered. The accused then pleaded guilty to all 3 charges.

The facts which the accused admitted revealed that the complainant was driving on Queen's Road and she slowed down behind a bus which had just stopped. The accused pulled out of a side road on her left without bothering to stop as he reached the main road and he collided with the rear of the complainant's motor vehicle. The respondent did not stop but drove on towards Nadi and did not report the accident to the police.

The magistrate convicted him on all 3 charges.

The respondent was represented before the learned magistrate by Mr. G.P. Shankar who in mitigation said that the accused did not know there had been an accident. He later heard the police were seeking him and went to the police station.

The magistrate imposed a fine of $30 on the careless driving charge and discharged the respondent, "under S. 38", on each of the 2 remaining counts. No doubt the magistrate had s. 38(1) P.C. in mind.

The prosecutor submits that the orders discharging the respondent on counts II and III are manifestly lenient.

The statement of offence for failing to stop quotes s. 43(1)(a) Cap. 152 which relates to accidents involving personal injury. The facts reveal no personal injury and the charge should be brought under s. 43(1) (b).

Again the offence of failing to report the accident quotes s. 43(1) (a) (2) and 4(b) - whatever all that may mean. Subsection (1)(a) is only concerned with failure to stop. S. 43(2) should be quoted for failure to report an accident.

The offence of failing to stop is not part and parcel of the careless driving offence and should not be treated as such. The two offences are quite distinct from each other. Accidents occur without evidence of careless driving but there is still an obligation to stop under s. 43(1). Similar comment applies to the offence of failing to report an accident.

A careless driver involved in an accident may have a motive for not stopping. It may be to avoid the risk of prosecution by trying to avoid his registration number from being noted, and to avoid having to compensate the aggrieved motorist. It is an anti-social attitude.

Similar observations apply to a failure to report the accident.

Consequently where an accident is caused by careless driving a magistrate should not treat the failure to stop as trivial. In fact where failure to stop follows an accident incurring personal injury the maximum penalty is $400 or two years imprisonment. In Ramlal v R, Cr. App. 40/76, where death had resulted and the negligence of the accused was nominal the learned Chief Justice imposed a fine of $100 on the driving charge but took a much more serious view of the failure to stop and sentenced the accused to 6 months imprisonment. Even where no personal injury is caused the maximum penalty is $200 or 6 months imprisonment. Similar observations apply to a failure to report the accident. If the accused did not stop because he was on urgent business then, provided there is no personal injury, he should under s.43(1) report it to the police at the first opportunity within the next 24 hours.

Apart from the question of sentence it appears very doubtful from the record whether the accused intended to plead guilty. Mr. G.P. Shankar pleaded in mitigation, that the respondent, was not aware of the accident. It has long been acknowledge that an accused can plead that he was not aware of the accident and could not be expected to stop. Occasionally the rear portions of heavy lorries, articulated vehicles or vehicles pulling trailers collide with something and cause damage quite unknown to the driver. It would be unfair to convict them for failing to stop or for failing to report it.

Of course the prosecutor may tender evidence such as the driver looking back in the direction of the damage, that there was a noticeable jolt and crash or that the position and extent of the damage is such that it may be inferred that he must have been aware of the accident, or evidence of some culpatory remark made by him.

When an accused says I was not aware that an accident had occurred and that is why I did not stop his statement amounts to a plea of not guilty.

If it appears that a plea of guilty was tendered in mistake or due to some lack of understanding it can be set aside and a fresh plea taken. According to Archbold 367 at p. 159 if an accused did not intend to admit that he was guilty the court will entertain an appeal against conviction. In the instant case it seems that the accused did not intend to plead. It is not logical to plead guilty to failing to stop after an accident and then by way of mitigation to further plead that he did not know that an accident had occurred.

In the instant case the accused is not appealing. The appeal comes from the Crown against sentence. As I have pointed out earlier it would seem that the Crown had cause to complain against the magistrate's attitude towards those two charges. He may have been strongly influenced by counsel's statement that the accused did not know an accident had occurred. If that is so then he must be taken to have accepted that explanation in which case it would have been advisable to obtain further assurance that there was no mistake in the accused's plea. Such an assurance could only be given by withdrawing that part of the mitigation, which alleged that the accused was not aware of the accident.

Mr. G.P. Shankar in reply to my observations said the accused had told the police that he did not stop because he was in a hurry to reach Lautoka. However, he says his instructions were that the accused did not know there had been an accident. There is nothing in the record which informed the magistrate that the accused had told the police he did not stop because he was in a hurry.

The Crown by presenting this appeal are inviting me to impose fines on the accused for the offences in question in lieu of the magistrate's discharge. But it would be unfair for me to impose fines on an accused who proclaims inspite of his plea of guilty, that he committed no such offences. I would have to be satisfied that there was an unmistakable plea of guilty to each offence before imposing any penalty.

The record should show quite unequivocally that the accused intended to plead guilty. If he maintains that he was not aware of the accident then pleas of not guilty should be recorded.

In the exercise of my powers of review I quash the convictions on the charges of failing to stop and failing to report an accident and set aside the conditional discharges.

I return the proceedings to the learned magistrate who shall require the accused to plead again to the two said offences.

(SGD) J.T. WILLIAMS

JUDGE

LAUTOKA,
5th August, 1977.

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

Date of Hearing: 6th May, 1977.