Khan v Reginam [1978] FJSC 49; Criminal Appeal 041 of 1970 (28 August 1978)

IN THE SUPREME COURT OR FIJI
Appellate Jurisdiction

Criminal Appeal No 41 of 1970

JUBBAR KHAN
s/o Jalil Khan
Appellant

v.

REGINAM
Respondent

Mr. H.M. Patel for the Appellant
Mr. M. Raza for the Respondent

JUDGMENT

This is an appeal against a conviction for careless driving. Grounds 1, 2 and 3 simply amount to the same allegation namely that the Magistrate did not interpret certain evidence in a manner favourable to the accused.

The fourth ground alleges inconsistencies in the evidence of P.W.'s 1 and 2 but did not, as it should have done, give any particulars of the inconsistencies.

The fifth and last ground is that the Magistrate should not have disbelieved D.W.4.

P.W.1, Jagdishwar Reddy, was driving a car from the direction of Suva to wards Rakiraki when he was involved in a collision with a motor lorry travelling in the opposite direction. It occurred as P.W.1 was going up-hill and about to enter a left hand bend and the accused lorry driver was emerging from it. He says he tried to stop and pulled in to his extreme left side but the lorry struck the car and pulled it backwards.

P.W.2 a passenger in the rear seat gave substantially the same kind of evidence except that the car had in fact stopped as the truck hit it.

When accidents of this nature occur on a bend the parties are screened from each other until an instant or two before impact, everything is over in a second or two, and the participants have little time to realise what is happening before it is over. Their recollections are bound to vary. The difference between "almost stepped" and "stopped" in relation to the car at the time of the impact cannot affect the question of liability for the actual cause of the accident. It is not the same as an accident on a long straight road where the vehicles could and should be clearly visible to the opposite drivers and passengers for a quarter mile or more. In such cases the behaviour leading up to the accident can be observed for several seconds giving room for recollections to be something more than immediate impressions. In my view the learned Magistrate quite rightly regarded that discrepancy as of no significance.

Both P.W.'s 1 and 2 stated that the lorry was on its wrong side of the road and still hit the car which was on its extreme left hand side. If that is true then the lorry driver would on the face of it be guilty of, at least, careless driving.

A police plan indicates that the car was dragged backwards for 32' and the lorry came to rest 101' from the police of impact. The point of impact was taken to be marked by some pieces of glass lying on the road. Of course this was not bound to be the point of collision in that the glass is bound to have a momentum in the direction of the vehicle from which it dropped and will touch the ground beyond the point of impact if the vehicle is moving at the time. However, in this case if the glass came from the car it would have no momentum because the car was almost stopped. If it came from the lorry it would have a momentum in the direction of the lorry and on falling to the ground would be displaced from the point of impact in the direction of the lorry which would give a location more favourable to the lorry. Accordingly acceptance of the broken glass as the point of impact would not, in my opinion, operate to the accused's disadvantage but would tend to produce a shorter stopping distance on the part of the lorry.

D.W.4, a taxi driver, was following the P.W.1, and his evidence was to the effect that P.W.1's driving was somewhat erratic and that he was in the centre of the read when the accident occurred. Such evidence from a witness who was not personally involved would be bound to exercise the mind of any magistrate to approach the prosecution evidence, pointing to a contrary state of affairs, with considerable caution. It is not the kind of evidence which could be glossed over or dealt with in an indifferent manner. The Magistrate did not believe D.W.4 and he gave reasons for so doing. He saw and heard the witness. There is nothing in the evidence or in the learned Magistrate's judgment which indicates that he must have erred in discrediting D.W.4.

For the foregoing reasons the appeal is dismissed.

The appellant will pay the prosecution costs which I fix at $20.00.

J.T. Williams
JUDGE

Suva,
28th August, 1978