Prasad v Reginam [1977] FJSC 26; Criminal Appeal 027 of 1977 (20 May 1977)

Fiji Islands - Jack Prasad v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 27 OF 1977

BETWEEN:

:

JACK PRASAD
s/o Shiu Prasad Maharaj
Appellant

AND:

REGINAM
Rdent

JUDGMEUDGMEUDGMENT

The appellant was on the 7th December, 1976 convicted by the Magistrates Court, Suva of the offence of dangerous driving contrary to sections 38(1) and 85 of the Traffic Ordinance and fined $75 in default 3 months' imprisonment.

He appeals against conviction and sentence on the following grounds:

"(a) That the verdict is unreasonable and cannot be supported on the evidence before the learned trial Magistrate.

(b) That the evidence before the Court did not warrant a conviction, and the learned trial Magistrate erred in law in holding to the contrary.

(c) That there was no evidence of "dangerous driving" on the part of the appellant on which conviction could be based.

(d) That the sentence is harsh and excessive having regard to all the circumstances."

The prosecution called three witnesses. The appellant elected to make an unsworn statement. Of the three prosecution witnesses, it is only necessary to consider the evidence of two of them. The evidence of P.W.1, the police officer who investigated the accident, and who tendered a sketch plan, is of no assistance. P.W.2, Ratu Meli Dranibaka a taxi driver, testified that on the day of the alleged offence, when he was travelling at a speed of about 40 m.p.h. behind a heavy lorry and a van before climbing a rise near the Isa Lei Hotel. a white station wagon taxi, which he thought was a Holden, overtook him and the other two vehicles as he and the other two vehicles were climbing the rise. He could not identify the driver as the taxi was going too fast to enable him to do so. At the top of the rise, a half mile from where the taxi overtook him, he saw there had been a collision near the junction of the road leading to the Lami Fijian School. He said the two vehicles involved were a big taxi which was a Holden station wagon, and a black car.

The learned trial Magistrate. in considering the evidence of this witness, noted that P.W.2 could not identify either the taxi or the driver of it which passed him prior to his coming upon the scene of the accident. The trial Magistrate stated in his judgment that, because of P.W.2's uncertainty, his evidence required to be treated with extreme care. The Magistrate made no finding of fact that the taxi involved in the accident was the taxi which shortly before the accident had passed P.W.2 and two other vehicles.

The trial Magistrate convicted the appellant on the evidence of P.W.3 and statement or statements made by the appellant.

P.W.3 was the driver of the other vehicle involved in the accident involving the appellant's vehicle. He drove down Lami Village Road to the junction with the Queen's Road. He said he stopped at the junction and, after looking both ways, began to execute a 'U' turn. This 'U' turn involved him in proceeding across Queen's Road and. in the course of the 'U' turn, his vehicle was struck by the appellant's vehicle. At the time when he stopped at the junction there was on the left on Queen's Road a stationary bus facing Suva. He said the distance from the junction to the rise on the Suva side of the junction was 100 or more yards. He could not say how the accident happened.

The appellant had made a statement after caution to the police, stating that a vehicle had come down the Lami Village Road and entered Queen's Road without stopping at the junction. The appellant said the vehicle was about 4 or 5 yards ahead of him. He swerved right to avoid a collision only to be presented with the other vehicle making a 'U' turn and was unable to avoid a collision. His unsworn statement in Court was similar except that he did not state what action he took to avoid a collision. He did mention a sudden 'U' turn and said "No U turn no accident".

The trial Magistrate, while setting out in his judgment the evidence given before him. did not make any specific findings of fact. It is clear however that the trial Magistrate based his conviction of the appellant on the evidence of P.W.3 and an unsworn statement made by the appellant in Court as appears from the following extract from his judgment:

"If Accused saw, as he says he saw, P.W.3 entering Queens Road from the side-road and begin to cross it and, return then he should have had more than ample time to allow him to take such action. by adjusting his speed or otherwise, as would allow him to avoid the collision which occurred. That is, of course, unless he was unable to take such evasive action because of the manner in which he was driving. That I consider to be what was the then position. One can look at this matter from one of two angles, either way the accused comes out of it badly.

Either the Accused saw P.W.3 entering Queens Road after failing to stop at the junction. and thus having notice of his bad driving, saw him cross the road and begin to execute the U-turn, or he didn't see him at all until too late to avoid the collision. Either way, on a clear day with no climatic difficulties to contend with. the Accused is in the wrong."

So far as P.W.3's evidence is concerned, except for the fact whether he stopped at the junction or proceeded across the road without stopping as the appellant alleged in his unsworn statement, the other facts were not challenged and I consider, notwithstanding that the trial Magistrate made no findings of fact, that those facts were established by the prosecution and this Court is in a position to decide whether on those facts the prosecution established the offence.

It was for the prosecution to establish by evidence, that the appellant was driving in a manner which was dangerous to the public. It would appear that the prosecution relied on the evidence of P.W.2 to establish the ingredients of the offence. If it was the appellant who overtook three vehicles just before a rise, and collided with P.W.3 just over the rise, then prima facie it would appear a case had been made out. However, the prosecution was unable to establish beyond reasonable doubt that it was the appellant's vehicle that passed the three other vehicles. The trial Magistrate's failure to make any finding on this evidence indicates he had a doubt and the benefit of this doubt must be given to the appellant.

P.W.3 was of no assistance to the prosecution, except to establish that his and the appellant's vehicle collided. If he saw the appellant's vehicle before the collision he did not say so. All he could say was that he did not know exactly how the accident happened.

Whether P.W.3 stopped at the junction or did not do so is immaterial. He had, on his own evidence, 100 yards or more clear vision to the rise and yet he failed to see the appellant's vehicle. He then proceeded onto Queen's Road, which evidence indicated was a busy road at the time, crossed the road and made a 'U' turn in the course of which the accident happened. P.W.3's driving in this manner was in my view highly dangerous and of an unexpected nature to other users of the road.

The extract from the trial Magistrate's judgment, which I have quoted above indicates that he has based his decision on assumptions and not from facts found on the evidence before him. In my view, he was not entitled to speculate that there must have been dangerous driving because, either the appellant saw P.W.3 enter and cross Queen's Road and return and had ample time to avoid an accident, or was unable to take evasive action because of the manner in which he was driving, or he did not see P.W.3 until too late to avoid an accident.

It was for the prosecution to establish by evidence the ingredients of the offence and on my consideration of all the evidence in my view the prosecution failed to establish that the appellant on the day in question drove in a dangerous manner. There was no evidence as to how the appellant drove or what action he took or did not take other than what he said in a cautioned statement and an unsworn statement made to the Court which contain no admission of facts which would indicate that he drove in a dangerous manner.

The appeal is allowed. The conviction is quashed and the sentence set aside and the appellant is acquitted. The fine if paid is to be refunded and the order for endorsement of the appellant's licence cancelled.

R.G. Kermode
JUDGE

Suva,
20th May, 1977.