IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 89 OF 1999
(Labasa Mag. Ct. Crim. Case No. 1286/98)

Between:

STATE
Appellant

And

ZAHID ALAM  s/o Mehboob Alam
Respondent

Mr. J Rabuku for Appellant
Mr. Robinson for Mr. Kohli for Respondent

JUDGMENT

The respondent, Zahid Alam s/o Mehboob Alam, was on 18 December 1998 acquitted after trial of the offence of dangerous driving contrary to section 38(1) of the Traffic Act Cap. 176.

The particulars of offence are that on 11 December 1997 at Daku, Labasa in the Northern Division the appellant drove a motor vehicle registration No. BK.223 on Labasa/Lagalaga road in a manner which was dangerous to the public having regard to all the circumstances of the case.

The ground of appeal is ‘that the learned trial Magistrate erred in law in acquitting the accused’. 

The learned State Counsel submitted that four witnesses were called to prove the charge. He said that the complainant Baram Deo whilst driving his motor vehicle was proceeding down hill when the respondent’s motor vehicle came from the opposite direction into the path of Deo on the wrong side and there was a collision between the two vehicles. Before the collision the respondent was following a bus and overtook it and it was suggested that the smoke from the bus blurred the respondent’s vision and hence he went on the wrong side while overtaking the bus resulting in the accident. Counsel said that the complainant was on his correct side all the time. It was the respondent who took the risk when he came on the wrong side.

Mr. Rabuku says that in these circumstances the respondent should have been found guilty of the offence with which he was charged.

Mr. Robinson for the respondent submitted that the Record does not show that overtaking took place (p23 of Record). He said that the complainant had gone past the bus and then he saw the respondent.

The learned Magistrate in his 12 page (typed) judgment set out at the beginning a lengthy dissertation on the law on the subject of dangerous driving. Then there were another three pages of law on ‘onus of proof’. At page 6 he commences consideration of the issue before him, namely, whether the respondent drove his motor vehicle in a dangerous manner having regard to all the circumstances of this case.

The complainant’s evidence was along the lines stated hereabove.

The learned Magistrate analyzed the evidence and he set out in some detail what the accused (respondent) had stated in his evidence. Upon my reading of the evidence and accepting the fact that the accident happened on the complainant’s side of the road, no adjudicator could come to any other conclusion than that the respondent was driving in a dangerous manner. It is abundantly clear from the evidence that the respondent was completely at fault when he came on the wrong side of the road and collided. The respondent himself admitted (vide p67 of Record) on page 10 of the judgment that there was a "sudden surge of smoke" from the bus while he was overtaking the bus caused the accident. Mr. Robinson could not explain to Court how in the face of all this evidence the respondent cannot be blamed for this accident. He had no reply.

The learned Magistrate referred to the accused ‘s evidence at p59-60 of the Record which is a clear indication that the accused overtook the bus when it was not safe for him to do so. This is what is stated at p6 of the judgment in regard to accused’s evidence.

The Accused elected to give sworn evidence. He said that he was following a bus and when there was an opportunity to overtake, he did so. At that time, visibility was good. Then he said that "puff of smoke" came out of the bus and he could not see anything so he tried to stop his van. Then the accused told the court as follows:

"As result of smoke, could not see. Then I heard a sound. Bang sound. Then knew had an accident. There would have been no accident if no sudden surge of smoke. I don’t suggest that other driver was at fault. The driver of the bus is to be blamed. Not sure of speed when overtaking but could have been 40-60 kmph. I had "As tried to stop."

It is further stated at p7 of the judgment:

"He was cross examined by the learned prosecutor. The accused said that he was three car distance away from the bus while following it. When he first sighted the bus, he said that "maybe" smoke was coming out of the bus but the visibility was good. In respect of the smoke which caused the accident, he said that it made the road not visible. He admitted that smoke was very thick and he could not see anything suddenly".

On the facts of this case, the test to be applied in deciding whether there was dangerous driving on the part of either drivers is as stated in R v Gosney (1971) 3 All.E.R. 220 at 222. It is this, whether there was when viewed objectively, a dangerous situation and whether there was some fault on the part of the respondent, causing that situation. In regard to such ‘fault’ it was held by the Court of Appeal in Gosney (supra) that the test to be applied was whether the driving fell below the standard of a reasonably competent and careful driver.

It is more likely that the learned Magistrate thought that the complainant was either completely or slightly at fault to find the respondent not guilty. In this regard the following passage, which I adopt, from the judgment of Cullinan J in Director of Public Prosecutions and Sahu Khan s/o Nasul Khan (Crim.. App. No. 56/86 Sup. Ct. (Now High Ct.) at p5 (cyclostyled judgment) is pertinent:

"The function of the criminal courts in traffic cases is not to apportion liability and decide who is "to blame", or who is to bear the major portion of the blame after a collision. That must be left to the civil courts. It is the criminal courts’ function to decide whether the accused’s driving is a cause, not necessarily a substantial cause, of the particular accident, the word "substantial" having been used in England solely to indicate to juries that they need not concern themselves with de minimis. As Lord Parker C.J. observed in R v. Henningan at p.135". 

"So long as the dangerous driving is a cause and something more than de minimis, the statute operates".

If it is the case that the other driver might be found in the civil courts to be guilty of contributory negligence, that is no concern of the criminal courts, but of the civil courts and also, of course, of the Director of Public Prosecutions."

On the facts before him under no circumstances could the learned Magistrate have acquitted the accused on the charge of dangerous driving. The Magistrate’s finding in this case is just not supported by evidence before him. His finding is completely against the weight of evidence. Half a dozen pages of law in the judgment is of no use unless the Magistrate makes a proper finding of fact. On the facts, which were very simple, the Magistrate should not have had any hesitation in finding guilt on the part of the accused.

This indeed is a clear cut case in which the appellate Court is duty bound in interfering with the learned Magistrate’s finding of fact. He is completely off the beam in his findings and the acquittal cannot stand.

In interfering with the learned Magistrate’s findings of fact in regard to the manner of driving on the part of the respondent, I have been guided by the headnote to Watt or Thomas and Thomas [(1947) A.C. 484 at 484-5, H.L.] which reads:

"When a question of fact has been tried by a judge without a jury and it is not suggested that he has misdirected himself in law, an appellate court in reviewing the record of the evidence should attach the greatest weight to his opinion, because he saw and heard the witnesses, and should not disturb his judgment unless it is plainly unsound. The appellate court is, however, free to reverse his conclusions if the grounds given by him therefor are unsatisfactory by reason of material inconsistencies or inaccuracies or if it appears unmistakably from the evidence that in reaching them he has not taken proper advantage of having seen and heard the witnesses or has failed to appreciate the weight and bearing of circumstances admitted or proved".

In the outcome, I allow the appeal on the ground that the order of acquittal is unreasonable and cannot be supported having regard to all the evidence.

I therefore set aside the order of acquittal and remit the case to the Magistrate’s Court, Labasa with a direction that the trial Magistrate do enter a conviction against the respondent on the charge as laid. He is then to pass such sentence as he may consider appropriate after giving the respondent or his counsel the opportunity of addressing the Court in mitigation.

D. Pathik
Judge

At Labasa
10 January 2000