Mudaliar v Reginam [1977] FJSC 9; Criminal Appeal 007 of 1977 (10 March 1977)

Fiji Islands - Mudaliar v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 7 OF 1977

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KRISHNA SAMI MUDALIAR
s/o Sanmogam
Appellant

AND

REGINAM
Respondent

Mr. H.M. Patel for the Appellant
Mr. I. K I. Khan for the Respondent

JUDGMENT

On 29th November, 1976 the appellant was convicted in the Suva Magistrate's Court of the offence of dangerous driving contrary to section 38(1) of the Traffic Ordinance (Cap.52) and sentenced to a fine of $120 or in default four months' imprisonment with his licence to be endorsed.

The appellant appeals against his conviction only upon the following grounds:

1. HAVING regard to the finding by the Magistrate that the girl herself retreated from the middle of the road onto the path of an on-coming vehicle the Learned Trial Magistrate erred in convicting your petitioner of dangerous driving.

2. THE verdict is unreasonable and cannot be supported having regard to the evidence.

3. THE inconsistencies in your Petitioner's evidence were not of such a nature as to disentitle him to be acquitted of the charge.

These grounds were argued together. Counsel for the appellant stated that grounds 1 and 2 were merely particular aspects of the general ground which is set out in ground 2.

Counsel for the appellant submitted that the complainant was the author of her own misfortune by stepping into the path of the appellant's on-coming car and that under the circumstances no blame could reasonably be attached to him. Counsel also said that the facts as accepted by the learned Magistrate could not in law sustain a conviction on a charge of dangerous driving.

The facts can be briefly stated. On 2nd April, 1976 at Nasinu 6.5 miles on the King's Road the complainant intended to cross from the left hand side of the road (i.e. when facing towards Nausori) to the other side. She crossed as far as the centre of the road which was marked with a white line when for some reason she retreated as the appellant's car was approaching fairly fast from Suva direction. Upon seeing the complainant, who was ahead and a little over 18 feet away the appellant tooted the horn of his car and applied the brakes and swerved to his left. As he did so the car struck the complainant on her right knee and careered on for a further 76 feet before it could stop.

It would appear from the complainant's evidence that she was startled and became frightened when she heard the tooting of horn from the appellant's car as it came up fast towards her. Instinctively she stepped back from the centre line of the road probably for fear of being knocked down if she remained where she was.

On the above facts there can be little doubt that the appellant must have been driving at a dangerously high speed with scant regard for other road users immediately prior to the occurrence of the accident. The tell-tale brake marks left by the appellant's car were ample proof of this. Any experienced motorist would know that the stretch of road between Suva and Nausori is not conducive to high speed travelling not only because of the density of vehicular traffic to be found on this road but also because of the constant presence of pedestrians crossing or walking on the road. It is quite apparent that the speed with which the appellant was travelling precluded him from exercising proper control over his car in any emergency. It also precluded him from keeping a proper lookout for the state of traffic on the road. This was clearly a serious fault in the manner of his driving which showed that at the material time the appellant could not have been driving with the care or skill of a competent or experienced driver: see R v. Gosney (1971) 2 Q.B. 674. If the appellant had been careful or skilful in his driving I am certain he would have seen the complainant in sufficient time to take appropriate evasive action. The fault in the appellant's manner of driving was doubtless responsible in creating a dangerous situation on the road which substantially contributed to the accident in question.

In these circumstances I am satisfied that the learned Magistrate was correct and justified in convicting the appellant on the offence of dangerous driving. I accept that the appellant was on that day at Nasinu 6 ½ miles driving in a manner which was dangerous to the public having regard to all the circumstances of the case.

I can find no merit in this appeal which must be dismissed.

T.U. Tuivaga
JUDGE

Suva,
10th March, 1977.