Crutchfield v Reginam [1978] FJSC 11; Criminal Appeal 149 of 1977 (7 April 1978)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 149 OF 1977

GEORGE CRUTCHFIELD
Appellant

v.

REGINAM
Respondent

JUDGMENT

The appellant was on the 5th October, 1977 charged with two offences namely Driving a Motor Vehicle Whilst Under the Influence of Drink contrary to section 39(1) of the Traffic Ordinance Cap. 152 and Dangerous Driving contrary to section 38(1) of the Traffic Ordinance.

On the 14th October, 1977 the appellant was acquitted by the Magistrates Court, Suva, of the first offence but convicted of the second offence of Dangerous Driving and was fined $75.

The appellant appeals against conviction and sentence and the Director of Public Prosecutions also appeals against the acquittal of the appellant of the offence of Driving a Motor Vehicle Whilst Under the Influence of Drink.

I will first consider the appeal against conviction and sentence of the offence of Dangerous Driving. When the appeal was for hearing on the 27th January, 1978 and was adjourned, the Court pointed out to counsel for the appellant that the only ground of appeal did not appear to make sense and counsel undertook to clarify the matter.

On the 7th April, 1978 when the appeal was for hearing, the Court again pointed out that it could not understand the ground of appeal. Counsel for the appellant then advised the Court that he had written on the 5th April, 1978 to the Registrar explaining that a line was missing from the typed ground of appeal and setting out the correct version. This letter was not on the file. In fact the final version included no less than six extra lines of type and was an amended ground of appeal and not a corrected version of the ground set out in the petition. There should have been a proper application to amend the ground of appeal but as counsel for the Crown had no objection to the amendment counsel for the appellant was permitted to argue the amended ground of appeal which is as follows:

"Having regard to all the circumstances, and the fact that the appellant was acquitted of driving whilst under the influence of drink to such an extent as not to be able to control his vehicle, and the learned trial Magistrate erred in law, and in fact in finding that the appellant was guilty of dangerous driving in that:

(a) the appellant drove on his correct side of the road at all times

(b) the situation of danger was created by the complainant who drove on the incorrect side of the road

(c) there was no evidence that the appellant drove in a manner, or at a speed which was dangerous having regard to all the circumstances."

While it is alleged that the learned Magistrate erred in law and in fact, what the appellant contends is that the facts found by the Magistrate do not establish the offence of dangerous driving.

At about 8 p.m. on the 3rd December, 1976 P.W.1 Evan Ho Chu was proceeding in his motor car down Edinburgh Drive. An accident had occurred earlier on his side of the road involving two vehicles. The police were on the scene investigating the accident. P.W.1 pulled out to pass the scene of the accident and had just about passed the scene when he then appreciated that a on coming vehicle, the lights of which he had previously seen and believed to be about 200 yards away when he first pulled out to pass the other vehicles, was approaching at a very high speed. He immediately stopped his car being unable to pull to his left but left no room for the other car to pass him. The driver of the other car, the appellant, belatedly attempted to stop but was unable to do so in time and a violent collision occurred. There is no dispute that P.W.1 was on his incorrect side of the road when he became involved in the accident and it is also clear that he had failed to appreciate the speed of the approaching vehicle.

There was evidence, which the learned Magistrate accepted, that the appellant approached the scene of the prior accident at a high speed and took no evasive action prior accident at high speed and took no evasive action until too late. It was clear to the Magistrate that the appellant had seen the lights of the police vehicle and the vehicles involved in the prior accident as he approached the scene but he still continued his approach at high speed.

The learned Magistrate was satisfied beyond reasonable doubt that the appellant's driving was in the circumstances dangerous driving and duly convicted him. Taking into account that on the appellant's own admission the weather was wet and visibility not good, and that there were several stationary vehicles and people around the scene of the accident, there is no doubt in my mind that in approaching the scene at night at a high speed or at a speed where he was unable to stop or take evasive action when presented with an emergency, the appellant was driving in a manner dangerous to the public having regard to all the circumstances of the case. He should have approached the scene with extreme caution and in my view his driving was dangerous even before P.W.1 pulled out to pass the scene of the prior accident. Moreover the appellant should have seen P.W.1 in plenty of time and have been able to take evasive action. Due to the speed at which he was travelling he was unable to stop in time.

Counsel for the appellant did not address me on the question of sentence which I therefore do not have to consider. The fine was not in any event excessive.

The appellant was properly convicted. The appeal fails and is dismissed.

I turn now to the cross-appeal. There is only one ground of appeal and that is that the learned Magistrate erred in the standard of proof he required of the prosecution in acquitting the appellant. (I shall continue to describe the respondent in the cross-appeal as "the appellant" for the sake of uniformity).

The learned Magistrate fully considered all the facts and in acquitting the appellant of the offence of driving a motor vehicle while under the influence of drink he said in his judgment:

"Thus with considerable reservation I have to say that a slight doubt remains in my mind. The accused is clearly entitled to that doubt ...."

The Director of Public Prosecutions' concern about the acquittal is appreciated.

There was evidence that the appellant had been drinking liquor and he himself admitted to having had 2 or 3 whiskeys before leaving the Bowling Club on the night in question. The evidence of P.C. 201 Isikeli, who was at the scene of the accident, indicates that there was a heavy smell of liquor both in the appellant's car and on his breath immediately after the accident. When the appellant was asked by P.C. Isikeli to come out of the car he could not stand and was staggering. The constable said there was "a big impact" in describing the accident. It was in other words a violent collision.

A.S.P. Pillay who saw the appellant at the police station described his condition and was of the opinion he was very drunk. He did not put the appellant through any tests but gave instructions that the appellant be taken to the hospital for examination by a doctor. At the hospital the appellant refused to be medically examined.

In his defence the appellant stated that he had hit his head on the window of his car and was dazed and disorientated for many hours afterwards. He was in receipt of a 100% disability pension for injuries received during World War II and had in 1976 been four months in hospital receiving treatment.

Where the Magistrate was obviously in difficulty was the absence of medical evidence to establish beyond reasonable doubt that the appellant's condition when first seen by the police was caused by the liquor the appellant had drunk and not the result of the accident in which there had been a heavy impact on collision which could have left the appellant in a dazed or shocked condition.

The appellant did give evidence on oath and as the Magistrate stated in his judgment he did not find the appellant particularly persuasive but nonetheless he had to accept the appellant was not entirely discredited.

Had there been any evidence at all of erratic driving or evidence of lack of proper control of the vehicle by the appellant this evidence coupled with the evidence of the appellant's condition given by the police officers may well have resolved the doubts the Magistrate had and resulted in a conviction. The appellant was driving on his correct side of the road and while the speed he was travelling was excessive in the circumstances pertaining at the time, such speed does not establish beyond reasonable doubt that the appellant was incapable due to his condition of having proper control of his vehicle. A completely sober but reckless driver could drive in such a manner and often does on Fiji Roads. There was clear evidence dangerous driving with which offence the appellant was charged and duly convicted.

It is no offence to refuse to be medically examined or to refuse to supply a specimen of blood or urine. In a case such as the instant case where a driver refuses to be medically examined and who is involved in an accident where there is a heavy impact and gives an explanation for his condition after the accident the prosecution have a difficult task. This is so where there is no clear cut evidence of failure to properly control a vehicle and where it cannot be said with certainty that the driver's condition when seen by the police was due to excessive alcohol and to that alone. Clearly the learned Magistrate appreciated the problem. His doubts while slight were not on the evidence fanciful and in my view he was correct in giving the appellant the benefit of such doubt and acquitting him.

The cross-appeal accordingly fails and is dismissed.

R.G. Kermode
JUDGE