Kumar v Regina [1979] FJSC 46; Criminal Appeal 52 of 1979 (7 November 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

APPELATE JURSIDICTION
CRIMINAL APPEAL NO52 OF 1979

BETWEEN

RAM KUMAR
s/o RAJA RAM
(Appellant)

AND

REGINA
(Respondent)

Mr. Ram Krishna, for Messrs Sahu Khan & Sahu Khan for the Appellant
Mr. D. Williams, Counsel for the Respondent

JUDGMENT

The appellant was charged with the offence of causing death by dangerous driving contrary to section 269(1) of the Penal Code. He pleaded not guilty, but after hearing evidence, including evidence by the appellant himself, the magistrate convicted him of the offence charged and sentenced him to a fine of $300 and disqualified him from driving for 2 years. It is from this conviction and sentence that he now appeals.

The appellant was driving a heavily leaded heavy goods vehicle along the King's Road at Tagitagi when he knocked down and killed a small girl of about 5 years of age.

The deceased and her mother had just got off a bus and wished to cross the road to the other side. It would appear that at the time of the accident the bus had driven off and the road was clear, so this is not a case where pedestrians suddenly appear from the back of a stationary bus. It would appear also that although one witness described the truck as "travelling fast", there was no evidence of excessive speed. In fact the appellant gave evidence that there was a governor on his engine so that it was not possible for him to exceed 30 miles per hour. This evidence was uncontradicted. It is virtually impossible from the .record to say exactly how the accident occurred. This is largely because of contradictions and inconsistencies in the evidence of the witnesses for the prosecution, but the position is not helped by the state of the record. This is partly due to the abbreviated form in which the magistrate recorded the evidence (where accuracy in recording a witness’ words can be vital) and partly due to the deplorable preparation of the record. Although the magistrate certified that he had checked with the original and that the record was a true copy of the original there are numerous errors.

Checking records must be an onerous task for a busy magistrate, but it is an important task that should be undertaken conscientiously.

Most accidents are avoidable, but not in every case is the driver of the vehicle concerned criminally responsible. Where children are involved one must avoid a certain amount of prejudice against the driver, although naturally expecting a driver to be extra careful. But children do sometimes run out in front of vehicles leaving a driver no chance of avoiding an accident, and the court must consider very carefully the circumstances of every accident.

In this case there were apparently quite serious inconsistencies.

The mother of the little girl said that they had gone no more than 2 steps from the side of the road and that she had hold of the child’s hand. She said that at the time the road on her left (that is the side from which the appellant’s lorry came) was clear for about a mile. This could hardly have been correct because she then said that the appellant’s lorry came onto their side of the road and hit the deceased, as she still had hold of her hand (although the deceased was in front of her). (Incidentally this piece of evidence, i.e. that she still had hold of the deceased’s hand was not supported by the other eye witness). She also said that she first saw the truck when it was 2 chains away and added that they had stopped to let the truck go through.

The road at this point is 34 feet wide so the two must have been standing about 6 -7 feet from their side of the road or 27 - 28 feet from the appellant’s correct side of the road. Indeed the policeman who visited the scene said he saw one of the child’s sandals (of a type known as flip-flops) on the road about 7 feet from the side of the road, a spot which had been pointed out by the mother as the point of impact. I will revert to the evidence of the flip-flop later. I think one might well ask, if the mother saw the lorry first 2 chains away and she was standing 6 -7 feet from her correct side of the road, was the lorry then on its incorrect side, or did it swerve right across onto its wrong side, and if so what avoiding action did she take, did she try to pull the child out of the path of the lorry?

There are improbabilities in her evidence well as conflict with other witnesses' evidence. The plan of the scene drawn by the policeman who visited the scene seems to contradict her evidence. The body is shown as lying towards the middle of the road but well within the appellant’s side of the road. The flip-flop that was supposed to show the point of impact was 12 feet at right angles across the road. From the plan there is just no way in which the accident could have happened as the mother described it. Another eye witness was Prem Chand Seth (PW3). He said he saw the truck going fast and travelling not on his side but in the middle of the road, it hit the girl who was stationary in front of her mother. The record then continues “Girl hit and spin with truck’s right wheel and was thrown on to my side of the road.” That does not seem to make sense and the magistrate’s own handwriting is indecipherable. Later the witness said “Did not see girl cross - she had taken 2 steps when lorry on its wrong side hit her.” This seems to conflict with what the witness said before (and does he mean that she had only taken 2 steps from the side of the road as the mother said?) and to confuse the issue even more, in cross-examination the witness said "I maintain place of impact still was 6 paces from lorry’s side of the road." He then explained that his pace was the equivalent of a yard, but further demonstrated the distance he meant as 12 - 15 feet from the lorry's correct side of the road then the lorry was completely on its correct side of the road, and neither in the middle of the road nor on the wrong side as the witness had previously stated.

The deceased's flip flops were found lying on the road. According to the policeman who visited the scene and drew the sketch plan one was lying about 10 feet from the girl's head and 13½ feet from the lorry’s side of the road and the other was lying about 12 feet from the girl's head at right angles across the road and 7 feet from the side of the road. Apparently the mother had pointed this out as the point of impact. I have already pointed out the virtual impossibility of this being the actual point of impact. And to confuse the issue further PW4 a blacksmith living near the scene, who heard the accident and ran to the scene said both flip flops were lying on the same side of the road, that is the lorry’s correct side of the road. In fact the policeman found everything connected with the accident, except the one flip flop, on the same side of the road. (Was the flip flop deliberately placed to show where the mother said the impact took place? It is a possible explanation.)

That then apart from statements made by the appellant was the evidence for the prosecution and as conclusive proof of the appellant’s guilt it leaves a lot to be desired.

The appellant gave evidence on oath, his evidence being more or less the same story that he gave earlier to the police. He said he saw the two women and the girl on a road crossing. (Incidentally there was no evidence that this was a pedestrian crossing, and so I presume the words meal only that they were crossing the road). He blew his horn, the women stopped but the child ran across. Then the mother called the girl back, she ran back and that is when the lorry struck her. He said that the women had stopped in the centre of the road, not two paces from the side as the mother of the child stated.

I think from what I have already indicated that this version of the accident is more probable than that given by the mother or by PW4.

The magistrate fairly correctly set out in his judgment the evidence given by the prosecution and by the appellant, but he did not analyse it in any way, nor did he in terms consider the appellant's evidence that the girl had rushed across the road and then came back when her mother called. He did not consider the discrepancies and inconsistencies or the improbabilities in the prosecution case.

He found as a fact that the two women (incidentally although there is mention of two women, only one, the mother gave evidence) and the girl in front were on the women’s side of the white line. This ignores the evidence of PW4 who although somewhat inconsistent in his evidence, at least on one occasion put the impact clearly on the lorry’s side of the road, i.e. 12-15 feet from his side of the road.

He found as a fact that the appellant was travelling along the middle of the road (which itself contradicts the evidence of the mother) and was not keeping a proper look out and it was this failure or fault which caused the accident. There was no explanation of the finding that the appellant was not keeping a proper look out. In fact the appellant had said that he had seen the women and the child and went on to explain what the child did. Had the magistrate said that the appellant should have recognised that there a dangerous situation in time and taken precautions there might have been less room for argument, but I think the findings of fact he did make were hardly supported by the evidence. The evidence required very careful appraisal to try to decide how the accident occurred. Perhaps a few careful questions asked of the witnesses might have clarified some of the apparent inconsistencies and contradictions, but I think that the magistrate has shown insufficient care in evaluating the evidence before him, and now it is quite impossible to predict what view he would have taken had he evaluated the evidence properly. The state of the evidence is such that there must be considerable doubt whether the prosecution proved the appellant’s guilt beyond any reasonable doubt and the crown quite properly has not seriously opposed the appeal.

Accordingly I allow the appeal and set aside the conviction of the appellant on the charge of causing death by dangerous driving contrary to section 269 of the Penal Code, and the sentence passed on him in respect of this offence. If the fine has been paid it should be returned to the appellant.

(Sgd.) G.O.L. Dyke
JUDGE

LAUTOKA
7th November, 1979.