Rasheed v Reginam [1978] FJSC 20; Criminal Appeal 006 of 1978 (10 March 1978)

THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 6 OF 1978

ABDUL HAFEEZ RASHEED
s/o Abdul Rasheed
Appellant

v.

REGINAM
Respondent

JUDGMENT

The appellant was on the 9th December 1977 convicted of the offence o£ Careless Driving contrary to sections 37 and 85 of the Traffic Ordinance by the Magistrates Court Suva and was fined $25 in default one month's imprisonment.

The petition does not indicate whether the appellant appeals against conviction and/or sentence. It can only be assumed from the grounds of appeal that the appellant appeals against conviction.

The petition was presented by the appellant's own legal firm A.H. Rasheed & Co., and leaves much to be desired as to the form and contents thereof. The alleged particulars of offence for example are stated in the following manner:

"Particulars of Offence

That your Petitioner on the 29th September, 1976 at Suva in the Central Division drove a private motor vehicle on Ratu Mara Road without due care and attention and fined $25 in default one month imprisonment."

Originally there was only one ground of appeal:

"The trial Magistrate erred in law and in fact when he held that there was overwhelming evidence against your Petitioner and applied the wrong test when he stated that your Petitioner was following the complainant's car thereby misleading himself and thus there was miscarriage of justice."

At the hearing an additional ground was raised after due notice with leave of the Court.

"That the learned Magistrate erred in law in not exercising his discretion judicially under Section 136 q£ the Penal Cede on so far as not to allow the prosecution or the defence Counsel to cross-examine Sergeant 340 after he was re-called by the Court and whereby there was a miscarriage of justice."

This was amended after the Court pointed out that section 136 of the Penal Code had been repealed in 1969 to read section 136 of the Criminal Procedure Code.

Mr. Patel for the appellant was unable to point out where the learned Magistrate had erred in law for the simple reason that no law was involved in the appeal. The first ground of appeal referred only to findings of fact by the learned Magistrate. The authorities are so clear that this Court cannot upset findings of fact properly found by the Magistrate that it is no, necessary to refer to such authorities.

As the learned Magistrate correctly stated in his judgment the case against the appellant was "quite over-whelming". He found as a fact that the appellant "did not keep a sufficient lookout, did not leave sufficient space between himself and the vehicle in front and did not react sufficiently quickly when the said vehicle in front either slowed down almost to a stop or stopped altogether."

The facts found by the learned trial Magistrate fully justified the conviction and the first ground of appeal fails.

There is no merit in the second ground of appeal.

The Magistrate recalled one prosecution witness and asked him one question:

"Do you recall 2 D.W. telling you that he had been a passenger in the taxi?"

To which question the witness stated:

"I cannot remember."

The appellant was represented at the trial by counsel who had the right to further cross-examine the witness after he was recalled but did not do so obviously because of the negative nature of the witness's answer. There was no miscarriage of justice.

The appeal is dismissed.

R.G. Kermode
JUDGE

Suva,
10th March, 1978