Singh v Reginam [1978] FJSC 51; Criminal Appeal 074 of 1978 (22 September 1978)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction

Criminal Appeal No. 74 of 1978

Between:

RAJENDRA SINGH
S/O GANPAT SINGH

and

REGINAM

JUDGMENT

This is an appeal against the conviction of the appellant on the 7th July 1978 at Suva Magistrates Court of causing death by dangerous driving contrary to section 269(1) of the Penal Code.

The facts are straightforward and uncontested. On the morning of the 27th October 1977 the appellant was driving his motorcycle on Kings Road in the direction of Suva and was passing some buses which were stationary at a bus stop on his nearside when a young girl started running across the road from between the buses into his path. As one witness put it, she "shot out" from between the buses, when the appellant was no more than four yards from her. The appellant, who was driving his motorcycle in second gear at 20 miles an hour, applied his brakes immediately upon seeing the girl but she ran into the nearside handlebar of the motorcycle, knocking the appellant from the motorcycle which fell on his left leg. The girl also fell down, but then stood up and continued running across the road. Thereafter she was taken to the Colonial War Memorial Hospital, as was the appellant for treatment of his injured leg.

On or about the 5th November 1977 the girl died at the hospital from brain damage - caused perhaps by her head having come into contact with the road surface at the time of the accident. However this is no more than an inference, in the absence of any prosecution evidence relating to the girl from the time she was taken to hospital on the 27th October until the time of the post mortem examination on the 7th November and in the absence of any medical opinion as to the cause of the brain damage; but in the event it is not necessary for this Court to decide whether such an inference is justified.

The trial Magistrate, in convicting the appellant, took the view that in driving past the stationary buses at 20 miles an hour the appellant was travelling too fast to avoid the girl when she ran into the road and collided with his motorcycle, and that this was dangerous driving which caused her death. It is axiomatic that had the appellant not driven past the stationary buses at 20 miles an hour the accident would not have occurred - nor would it have occurred had the appellant not driven at all that day. But that is not the test. A court must not work backwards from the death of a pedestrian, however tragic, and conclude that, because the pedestrian died as the result of a collision with a vehicle, the driver must be criminally liable.

The proper test is whether the prosecution have established beyond reasonable doubt that, viewed objectively, a potentially dangerous situation arose resulting in the death of the pedestrian and that one of the causes of that situation was the faulty manner of the accused's driving which fell below the standard of care or skill of a competent and experienced driver (R. v. Hennigan (1971) 3 All E.R. 133; R. v. Gosney (1971) 3 All E.R. 220).

It is clear from the facts and the Crown concedes that in this case the dangerous situation was brought about solely by the reckless behaviour of the pedestrian and that there was no contributory fault on the part of the appellant.

The conviction is accordingly quashed and the sentence set aside.

Suva,
22nd September 1978.

Clifford H. Grant
Chief Justice