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State v Radeau [2003] FJHC 104; HAA0015J.2003S (23 May 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0015 OF 2003S

Between:

THE STATE
Appellant

And:

PAULA RADEAU
Respondent

Hearing: 16th May 2003
Judgment: 23rd May 2003

Counsel: Mr S. Leweniqila for State
No appearance for Respondent

JUDGMENT

The Respondent was charged with the following offence in the Magistrates’ Court at Valelevu:

Statement of Offence

CAUSING DEATH BY DANGEROUS DRIVING: Contrary to section 238(1) of the Penal Code, Cap. 17.

Particulars of Offence

PAULA RADEAU on the 8th day of August, 2000 at Tailevu in the Northern Division, drove a motor vehicle on Lodoni Road Wainikavula in a manner which was dangerous to the public having regard to all the circumstances of the case and thereby caused the death of LUSIANA SOGOTABUA.

On the 17th of May 2001, the Respondent pleaded guilty. The facts were read. They were that on the 8th of August 2000, the Respondent was driving his carrier registration number CW715 at Lodoni Road. When he approached Wainikavula bend “the steering wheel went loose, his carrier failed to negotiate the bend, and landed into the river.” One of his passengers, a 13 year old girl Lusiana Sogotabua, drowned as a result of the accident. Other passengers were injured.

The learned Magistrate then called for the vehicle examiner’s report. On 14th June 2001, the vehicle examiner appeared but said he did not have the report. On 12th July 2001, the vehicle examiner said he could not find his report.

The next day, the learned Magistrate said that in the absence of the vehicle examiner’s report he could not sentence the Respondent. At page 9 of the record, he said:

“For all of the above reasons, I have found the accused not guilty, conviction is set aside, and he is hereby acquitted accordingly.”

The Director of Public Prosecutions appeals against this acquittal. The grounds of appeal are:

(a) That the learned Resident Magistrate erred in law when he failed to vacate the prior plea and enter a negative plea and call for evidence to be adduced in accordance with the provisions of the Criminal Procedure Code in the face of an apparent equivocal plea.

(b) The learned Resident Magistrate erred in law and in fact in acquitting the Respondent without giving a reasonable opportunity to the appellant to put all the evidence before him.

At the hearing of this appeal despite being served with the Petition of Appeal and notice of hearing, the Respondent chose not to attend court.

On a perusal of the court record, it is evident that this appeal must succeed. Firstly, the facts outlined by the prosecution did not disclose the offence charged. The Respondent was charged with causing death by dangerous driving. The prosecution must show that the Respondent was in some way at fault, and that it was that fault which caused death. The facts simply say “the steering wheel became loose.” Was this the Respondent’s fault? Did he know that the steering wheel was defective? The facts do not disclose fault, and therefore do not disclose the offence.

Secondly, the learned Magistrate obviously realised that a defence (of mechanical defect) was available on the facts. Instead of setting aside the guilty plea, and proceeding to trial, he decided to hold an enquiry before passing sentence. This was the wrong procedure to follow. Thirdly, in seeking to hold an enquiry, when the facts did not disclose the offence, he deprived the prosecution of the opportunity to call witnesses to prove fault.

For these reasons, the acquittal was wrong in law, and must be quashed. The acquittal is set aside. The guilty plea is substituted with a not guilty plea and the matter remitted to the Valelevu Magistrates’ Court for trial. This appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
23rd May 2003