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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO: HAA0058 OF 2002
Between:
SEMISI LASIKE
Appellant
And:
THE STATE
Respondent
Hearing: 28th August 2002
Judgment: 13th September 2002
Counsel: Mr. K. Maraiwai for Appellant
Mr. B. Solanki for State
JUDGMENT
The Appellant (who is also the Respondent by virtue of the cross-appeal by the Director of Public Prosecutions) was convicted of Dangerous Driving on 30th May 2002 in the Suva Magistrates Court. He had been charged with the following offences:
FIRST COUNT
Statement of Offence
CAUSING DEATH BY DANGEROUS DRIVING: Contrary to section 238(1) of the Penal Code, Cap. 17.
Particulars of Offence
SEMISI LASIKE on the 27th day of June, 2000 at Nausori in the Central Division, drove a motor vehicle on Princess Road, Navuso in a manner which was dangerous to the public having regards to all the circumstances of the case and thereby caused the death of AKUILA DRESA.
SECOND COUNT
Statement of Offence
DRIVING MOTOR VEHICLE UNDER THE INFLUENCE OF DRINKS/DRUGS: Contrary to section 39 of the Traffic Act 176.
Particulars of Offence
SEMISI LASIKE on the 27th day of June, 2000 at Nausori in the Central Division being the driver of a motor vehicle drove the said vehicle on the Princess Road, Navuso whilst under the influence of drinks/drugs to such an extent that was incapable of being in proper control of the said vehicle.
The Appellant pleaded not guilty and the case proceeded to trial. The Appellant was represented by counsel until the 22nd of April 2002, when counsel did not appear. The trial proceeded. The prosecutor called eight witnesses. The Appellant chose to remain silent. He called no witnesses. On 30th May 2002 the learned Magistrate found that the Appellant was not guilty of the charges, but was guilty on Count 1, of the lesser offence of Dangerous Driving. The Appellant was a first offender. The learned Magistrate sentenced him as follows (at page 50 of the record):
This is indeed a tragic case, where a young couple were mowed down by a vehicle driven by Semisi Lasike, the accused person. As a result of his manner of driving, the late Akuila Dresa was killed ..... The accused is sentenced to 1 year imprisonment. Also disqualified from obtaining or in possession of a Driving licence for two years.
In the course of his sentencing remarks, the learned Magistrate referred to sentencing authorities such as Boswell (1984) 6 Cr. App. R(s) 287, which are relevant to cases of Causing Death by Dangerous Driving.
The Appellant appeals against conviction and sentence on the following grounds:
The Director of Public Prosecutions has filed a cross-petition against the Appellant's acquittals on Counts 1 and 2. The grounds of appeal are as follows:
(a) That the learned Magistrate erred in law when he failed to take consider all relevant evidence including the Post-Mortem report, which had been tendered by prosecution and proved that the victim had died from the injuries sustained during the accident.
(b) That the learned Magistrate failed to properly consider and direct himself to the significance of the Government Analyst report tendered by prosecution which confirmed the presence of alcohol in the Respondent's blood.
(c) That the learned Magistrate erred in law and in fact when he found evidence of dangerous driving but failed to convict the Respondent for Driving Motor Vehicle Under the Influence of Drinks/Drugs.
(d) That the learned Magistrate erred in law and fact when he acquitted the Respondent on the two counts.
Facts
The facts of the case, as disclosed by the evidence of Lavenia Bilovesi, Tarisi Naikosi and Adish Chand were that on 27th June 2000, the Appellant, a taxi driver hit a number of pedestrians on the side of Corbett Avenue, Waila at about 8.20pm. Lavenia Bilovesi said that she, her sister-in-law and Akuila Dresa (her fiance) were walking from Navuso on the right hand side of the road, when her sister-in-law said that there was a car coming from behind them. They moved to the grass verge where the car hit them. Lavenia Bilovesi lost consciousness. When she regained consciousness she discovered that Akuila Dresa had died. Her evidence was consistent with the evidence of Tarisi Naikosi (the sister-in-law) who was not hit by the car, but who was 3 feet away from the collision. She said the accident happened on the side of the gravel road.
Adish Chand was 30 yards away from the accident. He had been walking along Corbett Avenue on the left side of the road, facing Nausori. He said the car was travelling towards Sawani, and that he had to Asave himself by jumping into the hedge with his younger brother. He helped the police take the victims away by police mini-bus. He said the driver of the white car did not stop.
Special Constable Rakesh Prasad was driving towards the Sawani Police Post when he saw people gathered at the side of the road on the bend. He saw a Fijian man and woman lying on the road in a pool of blood. He took the victims to the Nausori Health Centre. Seremaia Tubuna gave evidence that he identified the body of his son Akuila Dresa who had Adied as a result of accident which took place at Corbett Avenue.
Inspector Penioni Ravoka gave evidence that at 8pm on 27th June 2000, he attended the scene of the accident. He then went to the Sawani Police Post where he saw the Appellant. The Appellant had been stopped by the police officers in charge of the roadblock near the Post. He said the Appellant smelt heavily of liquor and was locked in the cell. He was interviewed the next day on 28th June 2000, at 10.20am. The statement was tendered. In that statement the Appellant said that on 27th June 2000 he was driving his taxi Reg. No. BK772 from Nadali to Suva. He was alone in the car. On his way he passed a Pajero opposite the Navuso Road and he saw the occupants kissing. As he was driving he kept looking in his rear vision mirror to look at the kissing couple. The vehicle suddenly went off the road. The interview notes read as follows:
While I was driving ahead I kept looking through my rear-vision mirror and watched the occupants of the vehicle behind when suddenly my vehicle went off the road. I tried to bring back my taxi to the main road when I saw three people standing in my way. I tried to save them but it was too late. I didn't see anyone walking whilst approaching the scene and I only saw them when I was trying to get back into the main road. I drove straight towards Sawani after bumping them.
Q: Why was you so concentrated at what was happening to the two who were following you in the Pajero and not concentrating on your driving?
A: What they were doing was funny to me.
Q: Did you know that accident can happen if you are not concentrating on your driving?
A: Yes.
Later in the interview he denied drinking any alcohol before the accident, and said he had drunk alcohol at a family gathering on 26th June. He said nothing in his charge statement.
Police Constable Mukhtar gave evidence that on 28th June 2000, he received the report of the accident and visited the scene. He then went to the Nausori Health Centre where he saw the deceased Akuila Dresa, and PW1. He saw the Appellant at the Sawani Police Post and he took him to the Nausori Health Centre. He prepared the Medical Report for the Government Analyst, and tendered the post mortem report. The Analyst's report shows that the blood alcohol level of Semisi Lasike on 28th June 2000, was 103.7mg%. The report is dated 3rd July 2000.
The post mortem report of Akuila Dresa shows the estimated time of death was 9.15pm on 28th June 2000. There was haemorrhage on the left side of his head (sub-dural and sub-arachnoid) haematoma in the right lung and numerous lacerations and abrasions on the head, nose, shoulders, elbow and back. There was a complete fracture of the left femur. The cause of death was multiple injuries due to motor vehicle accident.
That was the evidence led at the trial. The learned Magistrate, in his judgment delivered on 30th May 2002, after reviewing the evidence, found that the accident happened because the Appellant hit two pedestrians on the gravel footpath on the side of Princess Road because he drove in a manner dangerous to the public. It is not clear from the judgment what evidence he relied on to come to this conclusion because he dismissed the Appellant's explanation for the accident in his interview with police as Afanciful. The question he asked himself was:
Does this kissing incident, was so passionate, that left the accused completely paralysed, to control the steering wheel of his vehicle?
The Appellant was acquitted of the charge of Causing Death by Dangerous Driving on the ground that the prosecution had not shown that the Appellant had driven Arecklessly. He acquitted the Appellant on Count 2 on the ground that the Appellant has not been shown to have driven a vehicle whilst drunk, thereby being incapable of properly driving the vehicle.
The DPP's Appeal
The first ground of appeal is that the learned Magistrate erred in failing to take into account all the relevant evidence including the post-mortem report.
Counsel for the Director submitted that the learned Magistrate was satisfied beyond reasonable doubt of the dangerous driving, that the causing of death was not disputed, and that therefore, he should have convicted of causing death by dangerous driving. Counsel for the Appellant, in his written submissions said that the post mortem report was inadmissible because it was not tendered by the medical officer concerned. He further said that there was no corroboration of the post-mortem report. Finally he submitted that no one had identified the Appellant as the driver of the vehicle that killed the deceased.
The basis of the learned Magistrate's decision to acquit on Count 1, was not that death was not caused. The basis was that the prosecution had not proved recklessness, which he defined in terms of the House of Lords decision in R -v- Lawrence (1982) AC 510. At page 46 of the record the learned Magistrate said:
In Lawrence (1982) AC 510, Lord Diplock said: ............ an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things:
First, that in driving in that manner as to create an obvious and serious risk of causing physical injury to some other person ... or of doing substantial damage to property: and
Second, that in driving in that manner the defendant did so without having any thought to the possibility of there being any such risk, or, having recognised there was some risk involved, had nonetheless, gone on to take it.
These two limbs are quite important to note by the Prosecution. Furthermore, the evidence of impairment through drink had to be linked to the manner of driving so the jury could be satisfied that the accused drove the vehicle in such a manner as to create an obvious and serious risk of physical injury or substantial damage to property (the first limb) and did so without having given thought to the possibility of risk, or having recognised some risk was involved, had nonetheless gone on to take it (the second limb). This part has been touched in this judgment, where medical evidence were required. In view of the above authorities, I find Semisi Lasike, the accused person not guilty of the First Count: Causing Death by Dangerous Driving: contrary to section 238(1) of the Penal Code, Cap. 17.
Section 238 of the Penal Code provides:
(1) Any person who causes the death of another person by the driving of a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, is guilty of a misdemeanour and is liable on conviction to imprisonment for a term not exceeding five years.
This section creates three separate offences. One is causing death by reckless driving. The second is causing death by driving at a speed dangerous to the public. The third is driving in a manner dangerous to the public. The prosecution in each case, must choose which offence is being alleged. The test for reckless driving, according to the common law definition of recklessness, is partially subjective. Did the accused know there was a risk, and went on to take that risk? The test for causing death by driving at a speed dangerous to the public is an objective one. Similarly, the test for causing death by dangerous driving is an objective one. The offence is proved when the driver drives in a way which falls below the standard expected of a competent and prudent driver, and thereby causes a situation, which viewed objectively, is dangerous R -v- Gosney (1974) 3 ALL ER 220, Sambhu Lal -v- Reg Criminal Appeal 49/1986).
The definition of Arecklessness in Lawrence (supra) is therefore not relevant to the offence of causing death by dangerous driving. It is the Gosney test that applies.
In this case the learned Magistrate applied the wrong test in considering the standard of driving of the Appellant. In convicting him of Dangerous Driving he did not say what evidence he relied on to come to that conclusion. However there was uncontradicted evidence of dangerous driving. Dangerous driving is the causing of a dangerous situation by a manner of driving which falls below the standard expected of a prudent driver. On the evidence of the lay witnesses, the deceased and his partner were hit on the gravel footpath. Other pedestrians had to jump into the flower hedge to avoid being hit. The Appellant admitted that he was driving on an unlit road, at a bend and that he was distracted by a kissing couple which caused him to drive off the road. As the learned Magistrate said, the distraction provided no defence to dangerous driving. Indeed, I consider that this evidence was proof of dangerous driving. A prudent driver driving on an unlit road, at a bend and allowing himself to be distracted by the occupants of another vehicle behind him, instead of keeping his eye out for other road-users in front of him, is clearly driving dangerously, especially when that manner of driving has caused him to veer off the road onto the footpath causing pedestrians to be hit. Not only was there uncontradicted evidence of driving below the standard expected of a prudent driver, but there was evidence (which the Magistrate accepted) that a dangerous situation had been caused thereby. The evidence of alcohol, does not appear to have been relevant to the charge of causing death by dangerous driving. There was ample evidence of fault without reference to drinking alcohol. The rejection of the evidence of the presence of alcohol in the blood has no bearing on the conviction on Count 1. The only remaining question was whether the death of Akuila Dresa was caused by the dangerous driving of the Appellant.
Counsel for the Appellant submitted that there was no evidence that the Appellant was driving the vehicle involved in the accident. In fact, the Appellant in his caution interview made a full admission that he drove the vehicle, was distracted and caused the accident. The learned Magistrate clearly accepted this and found the Appellant to be the driver concerned. He was entitled to make this finding. The Appellant, who was by then unrepresented, did not cross-examine on the caution interview at all.
The only direct evidence that Akuila Dresa died as a result of a motor vehicle accident came from the post mortem report. The deceased's father, who said that his son had so died, did not witness the incident and is not an expert on causes of death.
Although counsel submitted that the post-mortem was inadmissible, it could have been admitted under section 191(1) of the Criminal Procedure Code on condition that the prosecution had given notice of tendering the report to the accused and the accused did not object or under section 192A of the Criminal Procedure Code which provides for the admission of any facts.
It is not apparent from the record which procedure the prosecution decided to follow. However the section 192A procedure requires the agreed fact to be signed by counsel and the magistrate. No such document is on the court file. It appears that the procedure under section 191(1) might have been followed. On 24th April 2001, Mr Vere for the accused said he had seen the post mortem report but that it was not on his file. The post mortem doctor, Dr Cayari, was never on the list of prosecution witnesses warned to attend court.
The cross-examination conducted by defence counsel, never touched on causation. Indeed, when Sevenala Tubuna gave evidence the identity of the deceased was not disputed. The record (at page 26) reads as follows:
Akuila Dresa had passed away on 27/06/00. On 28/06/00 I identified the body of my son, when I was called by the Police. He died as a result of accident which took place at Corbett Avenue along Sawani Road. I live beside the road.
Under cross-examination he said:
The name of that place is Corbett Avenue. It is on the left hand side. I identified the body of the late Akuila Dresa at the Colonial War Memorial Hospital in Suva. PC Mukhtar also identified the body of my late son.
When the post-mortem report was tendered by PC Mukhtar (PW8), the accused was unrepresented. Despite three adjournments to accommodate defence counsel, he did not appear to defend his client. The post-mortem report, which PC Mukhtar said had been disclosed to the Appellant, was tendered without objection, in the absence of counsel. There was no cross-examination on it.
It is always good practice, especially when an accused person is unrepresented, for the prosecution to inform the court that the accused has consented to the tendering of a report under section 191(1) of the Criminal Procedure Code. Indeed, no such report is admissible unless the court is satisfied that the requirements of the section have been complied with. In another case I might have found that the court did not err in allowing the post mortem report to be tendered without satisfying itself that the prosecution had been in compliance. However, in this case although the cross-examination of the witnesses shows that the post-mortem report was not likely to be an issue, the Appellant was unrepresented, did not cross-examine at all, and remained silent.
If the accused's counsel had been present and had not objected to admission of the document, I might have found that although there was an apparent breach of section 191(1) of the Code, the Appellant was not prejudiced because the defence was that there was no dangerous driving. However the Appellant was not represented. After the non-appearance of his lawyer, the court had a duty to be vigilant about any prejudice the Appellant might suffer as a result of non-representation. As the Court of Appeal said in Maciu Gonevou -v- The State 40 FLR 20 on the section 191 procedure for an unrepresented defendant:
It is scarcely to be supposed that he would have had any knowledge of section 191. It is, however traditional practice for the Judge in cases where the accused is unrepresented to take special pains to ensure that he is informed of special provisions, procedures and legal technicalities which affect him and to assist him to understand the courses open to him.
The record shows that there was no recorded consent to the tendering of the report, and that the Appellant did not cross-examine PC Mukhtar either on the port-mortem report or on the caution interview. In the circumstances, if the learned Magistrate had acquitted the Appellant on Count 1 after refusing to admit the post-mortem report, he would not have been in error. However, that was not the basis for the acquittal. He acquitted instead on the basis that the prosecution had not proved reckless driving. On this ground, the appeal against acquittal succeeds. The acquittal was wrong in law and must be quashed.
Ground (b) is that the learned Magistrate erred in considering the Analyst's report in relation to Count 2. However, the Magistrate did consider the report at page 42 of the record. He said:
4. The Blood Alcohol level, which showed 103.7mg% in the Government Analyst Report, dated 3rd July 2000, does not clearly show to the court, that the accused was incapable of driving a vehicle with such alcohol level.
As State Counsel conceded in court, at the hearing of this appeal, there was no evidence that the alcohol affected the Appellant's manner of driving. An expert can give evidence that no one with 103.7mg% of blood alcohol can safely drive a car. No such evidence was led. The prosecution might have led evidence of a pattern of driving showing drunkedness, such as zig-zag driving or persistently driving off the road. No such evidence was led. Indeed the accident was alleged to have been caused by the kissing incident and loss of concentration.
This ground is unsuccessful. It follows that the next ground also fails. The finding that the Appellant drove dangerously, did not hinge on the evidence of drink. Indeed the learned Magistrate chose to disregard the evidence of the alcohol in the Appellant's blood because he held that he was not satisfied beyond reasonable doubt that the alcohol/blood ratio had affected the Appellant's driving. This was a finding, which on the evidence, he was entitled to make. It did not affect a conviction under Count 1, which could have been proved without reference to alcohol.
The last ground of appeal is that the learned Magistrate erred in acquitting the Appellant on the two counts.
For the reasons I have given above, this appeal against acquittal succeeds in respect of Count 1 only.
The Appellant's Appeal
The first ground of appeal is that the learned Magistrate erred in sentencing the Appellant to 12 months imprisonment. The State agrees, that if the conviction for dangerous driving is upheld, the sentence is wrong in principle because it exceeds the normal tariff for dangerous driving cases.
In fact a perusal of the court record shows that the learned Magistrate in fact sentenced the Appellant for causing the death of Akuila Dresa by dangerous driving. Having acquitted him of that offence, it was not open to him to sentence on that basis. However for the reasons I am about to give, the conviction itself is unsafe and the question of sentence is therefore academic.
The second ground of appeal is that the learned Magistrate erred in relying on Aunlawfully obtained evidence. This ground of appeal was amplified in counsel's written submissions. In those submissions, counsel said: Athat the learned trial Magistrate failed to adjourn the case so as to enable the Appellant to engage a counsel on a charge which was so serious as the learned Magistrate had warned .... the Appellant should have been given the right to engage another counsel so that his rights under the Constitution would not be usurped.
The Appellant was represented by counsel (not the same counsel appearing on appeal) from 13th July 2000. On the 17th of October 2000, on the first day set for hearing, the prosecution asked for an adjournment on the ground that Lavenia Dresa, a prosecution witness, was still unwell as a result of the injuries she sustained in the accident. On 6th December 2000, the case was adjourned to 22nd January 2001. The Appellant did not appear and a bench warrant was issued. On 23rd February 2001, a new hearing date was set, for the 24th of April. On that day the defence asked for an adjournment on the ground that counsel had not received the analyst's report and the post-mortem report. The case was adjourned to 24th May 2001 for hearing. On that day the case proceeded. Five witnesses were called for the prosecution, and the case was adjourned to 10th July 2001 at the request of the prosecution, on the ground that a witness was not available.
On 10th July 2001, the Appellant did not appear and a bench warrant was issued. He appeared later in the morning, and the case was adjourned to 7th August 2001. On 7th August, the prosecution asked for an adjournment because the prosecutor was sick. Defence counsel did not object. He asked for a November date because he (counsel) was going to be a candidate in the General Elections. The case was adjourned to 26th November 2001.
On the 26th of November, counsel did not appear. The Appellant told the court that his lawyer was in the High Court and that he requested a date in 2002. The learned Magistrate allowed the application Abecause of the seriousness of the charge.
The case was adjourned to 23rd January 2002. On that day, the learned Magistrate was not available and the case was adjourned to 22nd April 2002. On that day counsel did not appear. The learned Magistrate proceeded without him. PW6 Inspector Penioni Ravoka tendered the Appellant's caution statement. Instead of cross-examining, the Appellant said I shall wait for my counsel. The Magistrate refused to wait saying that the Appellant had been warned. There was no cross-examination of this witness.
PW7 PC Nadolo tendered the charge statement. The Appellant had not made any statement to the police on being charged. There was no cross-examination. PC Mukhtar then gave evidence and tendered, amongst other exhibits, the plan of the scene, the post mortem report and the analyst's report. As I have already found, the prosecution did not lay the basis for the admission of these exhibits. The Magistrate did not ask, and again there was no cross-examination by the Appellant. In his defence, the Appellant remained silent and called no witnesses.
The right to counsel under section 28(1) of the Constitution, is not an absolute right. The purpose of the right, as the Canadian Supreme Court said in R -v- Brydges 1990 CanLII 123 (SCC); (1990) 1 SCR 190, is aimed at Afostering the principles of adjudicative fairness. In Mitchell -v- The Queen [1999] UKPC 28; (1999) 1 WLR 1679, counsel withdrew in the middle of the murder trial. The Privy Council held that the judge should have adjourned to allow the accused to seek different counsel, and that failure to do so constituted a breach of the accused's right to counsel. The question asked by the Privy Counsel, was whether the justice of the case required the judge to ensure that the Appellant was represented. In answering this question, the right to counsel must be balanced with the right to trial without delay, and the public interest in ensuring that offenders are brought to justice.
In this case, counsel failed to appear when the trial eventually proceeded. He had been given several opportunities to appear but for some reason not apparent on the record, he failed to appear. It is understandable that the learned Magistrate having adjourned the case on several occasions to suit the diary of counsel, decided to proceed without him. This is particularly so when the prosecution witnesses had on several occasions been summoned to court to give evidence.
However the real question is whether the Appellant was thereby prejudiced. As the High Court of Australia said in Dietrich -v- The Queen (1992) CLR 293, if an application to adjourn to allow for legal representation and the trial is not fair, there has been a miscarriage of justice and the conviction must be quashed. The issue is the way in which the trial has been conducted.
In Romanu Naceva & Others -v- The State Crim. App. AAU0014.1998S the Court of Appeal allowed an appeal against conviction for manslaughter, on the ground that the case involved complex questions of law and fact which the appellants who were unrepresented for part of the trial could not have been expected to fully comprehend. In Birja Nand -v- The State Crim. App. AAU0002.1997, an appellant who said he had been prejudiced by lack of representation and who appealed against his conviction for murder, was held to have been given a fair trial on the basis of the way proceedings had been conducted.
In this case therefore, the nature of the proceedings, and the way in which the Appellant conducted his defence, is crucial to the question of prejudice resulting from lack of legal representation. The record shows that the Appellant asked no questions of any of the remaining witnesses. He did not question the admissibility of the caution interview (which was a complete admission to dangerous driving) or of the post-mortem report. He remained silent and called no witnesses. The learned Magistrate did not ask the prosecution for the basis for tendering the reports. Nor did he invite the Appellant to make closing submissions. In fact, it is not at all what the defence was, after the caution interview and post mortem report were tendered.
In the circumstances I do not consider that the Appellant had a fair trial. Further, the fact that the learned Magistrate applied the wrong test to consider the evidence of dangerous driving, is a material irregularity that must lead to the quashing of the conviction.
This ground of appeal is successful.
The remaining grounds of appeal deal with the inherent contradiction in convicting of dangerous driving when the learned Magistrate had found insufficient evidence of causing death by dangerous driving. As I have said, the learned Magistrate asked himself the wrong question in relation to Count 1. These grounds also succeed. It is not necessary to consider sentence.
Result
The appeal of the Director of Public Prosecutions against the acquittals, is successful in respect of Count 1. The appeal of the Appellant against conviction for dangerous driving succeeds for the reasons I have given. The appeals have succeeded on irregularities which led to a mistrial (Rose (1982) 1 WLR 614, 622.)
The appeals relate to an incident in June 2000, more than 2 years ago. However the Appellant has not served any significant part of his sentence. A trial de novo is ordered before another Magistrate on the charge of causing death by dangerous driving.
Nazhat Shameem
JUDGE
At Suva
13th September 2002
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