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IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 0032 OF 1997
BETWEEN:
ABDUL RAUF
s/o Karim
Appellant
AND:
THE STATE
Respondent
Mr. A. Kohli for the Appellant
MsLaveti for the Respondent
JUDGMENT
This is an appeal against the judgment of the Labasa Magistrate convicting the appellant for an offence of Causing Death by Dangerious Driving. The appellant had pleaded 'not guilty' to the charge and the prosecution called ten (10) witnesses and produced a post-mortem report, (Ex.1); a sketch plan of the scene, (Ex.2); and the appellant's caution interview record, (Ex.3). For his part the appellant gave sworn evidence admitting a collision with a turning vehicle but denying that he was at fault.
The prosecution's case as summarised in the police prosecutor's written submissions (at p.53 top) was that the appellant's driving was 'at fault' in so far as:
"(i) He was speeding.
(ii) He was driving too close to the left hand side of the road and did not bother about the pedestrian on the road at the time.
(iii) He was negligent (and) had departed from what a reasonable prudent and competent driver would have done in the circumstances."
The learned trial magistrate in a comprehensive twelve (12) page judgment convicting the appellant took into account the following 'factors' in considering the appellant's 'manner of driving' (at p.11):
"The straight stretch of the road with no traffic except the lonely on-coming vehicle (p.39); the inordinately excessive speed of the accused's (vehicle) as testified to by several prosecution witnesses; a pedestrian falling down ... by the forceful blast of the (appellant's) swiftly moving vehicle (P.W.5); the knocking down of two pedestrians on the gravel portion ... injuring one fatally and leaving the other with a broken leg (P.W.2); and in a collision with a vehicle that had turned completely into a driveway on the left hand side ... (p.39)."
The appellant appeals against his conviction on the following grounds:
1. THAT the Learned Trial Magistrate erred in law and in fact in coming to a finding that the driving at an excessive speed was the cause
of the accident when in fact the cause of the accident was the sudden turning towards the path of the appellant by the oncoming vehicle.
2. THAT the Learned Trial Magistrate erred in law and in fact in coming to a finding that the Appellant was driving at an excessive speed
when in fact the brake marks clearly indicates that the Appellant was well within the speed limit prescribed for the area.
3. THAT the Learned Trial Magistrate erred in law and in fact in coming to a finding that the res ipsa loquitor applied in a criminal case.
4. THAT the Learned Trial Magistrate erred in law and in fact in coming to a finding that the Appellant drove his vehicle in an extremely
dangerous and reckless manner in the absence of any evidence to support the same.
5. THAT the Learned Trial Magistrate failed to properly evaluate the evidence adduced by the Appellant."
Counsel for the appellant briefly argued each ground of appeal with references to the evidence and the trial magistrate's judgment.
Essentially, counsel's submission was that the main cause of the accident in this case was an on-coming vehicle suddenly turning
across the appellant's path causing the appellant to swerve and hit the deceased.
In particular, Counsel referred to the judgment of Grant C.J. in Chandar Pal v. R. 20 F.L.R. 1 where, in overturning the appellant's conviction for an offence of Causing Death by Dangerous Driving where the deceased taxi-driver had cut across the appellant's path, the learned Chief Justice said at p.2:
"Where death has resulted from a traffic accident it is necessary for the prosecution, on a charge of causing death by dangerous
driving, to show that the accused's dangerous driving was a real cause of the accident and something more than de minimis (R. v. Hennigan (1971) 3 ALL E.R. 134) and to establish the accused's dangerous driving it is necessary for the prosecution to show that there was some fault on his part
causing a situation which viewed objectively, was dangerous (R. v. Gosney (1971) 3 ALL E.R. 220)."
In this latter regard his Lordship later observed at p.3:
"... had the taxi turned across the road to the entrance way ... when the appellant's car was a reasonable safe distance away
but the taxi was struck by the appellant's car because the appellant was being unobservant, or because his car was travelling well
over 40 mph and therefore covered the intervening distance sooner, the appellant would certainly have been at fault."
In this case on the appellant's own admission he had first seen the approaching vehicle when it 'was 5-6 chains away' (i.e. 110-130 yards) and the driver of the approaching vehicle (P.W.8) testified (at p.31) that when he indicated his intention to turn, the appellant's vehicle was 'beyond the bridge (which) is about 40m (i.e. 120 feet) from the shop'.
At that distance and assuming the accuracy of the appellant's own estimate of his speed at the time namely, 'between 50-55 kmph' (i.e. 30 mph) he would have had anywhere between 75 feet and 120 feet (See: Wilkinson's Table of Stopping Distances) within which to stop his vehicle had he been alert and careful. The evidence that was accepted by the learned trial magistrate indicates
however, that the appellant was neither observant nor travelling at a safe speed.
Furthermore, counsel's submission unlike the prosecution's case, does not appear to be supported either by the appellant's sworn testimony
or his record of caution interview answers. In neither, does the appellant admit any knowledge of hitting any pedestrians on the
roadside prior to colliding with the turning vehicle.
Indeed in a most telling part of his testimony, the appellant said in cross-examination (at p.41):
"At the moment (of colliding with the turning vehicle) I did not know that I had knocked a pedestrian ... I came to know about the knocking down only in hospital. I did not feel any impact
on my vehicle."
(See also: Qn & Ans: 6 & 21 in Ex.3 recorded a fortnight after the accident.)
In this regard the learned trial magistrate accurately summarised the appellant's case when he said (at p.12):
"The defence as seen by the defence evidence seems to be treating this case as one of collision when the accused's vehicle had
collided with another vehicle and not a case of causing death by dangerous driving.
Collide, he did, with another vehicle, of course. But before that he had knocked down two pedestrians injuring one fatally and leaving
the other with a broken leg. Collision is only the aftermath of a fatal accident."
On appeal, State Counsel referred to the evidence of the five (5) pedestrians called by the prosecution who consistently described the speed of the appellant's vehicle as: 'coming overspeed'; 'very high speed'; 'very fast' and 'over the required speed'. In addition, counsel referred to the appellant's apparent familiarity with the road; his lack of attention to pedestrians on the
road side; and his failure to take evasive action, as further evidence of the 'manner of his driving' which, counsel submits, when viewed collectively and objectively, was quite overwhelming and justified the appellant's conviction.
Counsel for the appellant also complains at the learned trial magistrate's reference to the civil doctrine of 'res ipsa locquitur'. Even accepting that the reference is unfortunate in so far as it raises a rebuttable presumption of negligence, nevertheless, the
numerous references in the learned trial magistrate's judgment to the criminal standard and burden of proof, leaves me with not the
slightest doubt that no miscarriage of justice was or could have been occasioned by such an innocuous reference in a long and careful
judgment.
Grant C.J. in Sohan Ram v. R. 24 F.L.R. 55 in a not dissimilar reference to the doctrine in upholding a conviction in a drunken-driving case, said at p.56:
"If a car has an accident where there is no hazard for a normal driver, and the driver fails to give an explanation which is
consistent with his having driven properly and which might reasonably be true, it is evidence that the car was not being driven properly."
As for 'ground 4', it was settled long ago in R. v. Kamchan Singh (1953) 4 F.L.R. 69 that for an appeal to succeed on the ground that 'the conviction was against the weight of evidence', the appellant must show that the verdict is unreasonable or cannot be supported having regard to the evidence. It is necessary for
the appellant to show that there was no evidence on which the trial magistrate could reach the conclusion which he did reach if he
had properly directed himself. This the appellant has clearly failed to do in my view in this appeal.
In Archaiya v. R. 10 F.L.R. 117, Hammett Ag. C.J. in rejecting an argument that the 'manner of driving' did not include the 'speed' of the vehicle:
"Held: 1. The 'speed' factor is one of the many to be taken into account when it has to be considered whether the 'manner' in which a vehicle
is being driven is dangerous to the public: It is a fallacy to suppose that the 'manner' of driving concerns only the way in which
control is exercised over the steering mechanism."
(See also: per Humphreys J. in Kingman v. Seager (1938) 1 K.B. 397 at p.400/401)
Having heard State Counsel in this appeal and having myself considered the totality of the evidence accepted by the trial magistrate in his judgment, I have
come to the firm conclusion that none of the grounds of appeal relating to the appellant's conviction has been established.
The appeal is accordingly dismissed.
D.V. Fatiaki
JUDGE
At Labasa,
24th November, 1997.
Haa0032j.97b
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