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State v Ravuvu [2004] FJHC 105; HAA0065J.2003S (4 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0065 OF 2003S

Between:

THE STATE
Appellant

And:

MAKITALENA CAKAUSEREVAKI RAVUVU
Respondent

Hearing: 24th May 2004
Judgment: 4th June 2004

Counsel: Mr. N. Lajendra for State
Mr. S. Matawalu for Respondent

JUDGMENT

This is an appeal against acquittal. The Respondent was charged as follows:

Statement of Offence

DANGEROUS DRIVING: Contrary to section 98(1) and 114 of Land Transport Act No. 35 of 1998.

Particulars of Offence

MAKITALENA CAKAUSEREVAKI RAVUVU on the 3rd day of December 2002 at Nausori in the Central Division drove a motor vehicle on Kings Road, Nausori town in a manner which is dangerous to the public having regards to all the circumstances of the case.

The Respondent was charged on the 31st of January 2003. She pleaded not guilty and the case proceeded to trial on the 19th of June 2003. PW1, Nitesh Prasad gave evidence that on 3rd December 2002 he was cycling to Manoca from the bakery at Manoca when a van came at high sped from a junction at Mistry Lane and bumped him. He fell down and lost consciousness and was taken to the hospital in a taxi called by the Respondent. The Respondent was driving the vehicle which drove out of Mistry Lane. It was a Pajero.

Under cross-examination, the witness said he was hit on his side of the road but was thrown to the right side of the road to the centre line. He denied that he was on the wrong side of the road at the time of the collision. PW2, PC Raj Gopal Chetty gave evidence that he visited the scene at 2.10pm on the 3rd of December 2002. He drew the rough and fair sketch plan which shows that the Respondent’s vehicle had come out of the junction and was travelling towards Nausori. He saw broken glass close to the centre line on the road. He interviewed the Respondent under caution and tendered the interview.

In her interview the Respondent said that she had stopped at the junction at Mistry Lane to see if her way was clear. She said there was a boy coming towards her on a bicycle who was two lamp posts away. She then drove into the main road but heard a loud sound from the back of her vehicle. She said that when she heard the sound she had already driven into the left side of the road.

The Respondent gave sworn evidence which was very similar to her caution statement. However she said that she had seen the boy two lamp posts away which she estimated was 100 metres. She said that the impact occurred on the left lane near the centre line.

The learned Magistrate in his judgment reviewed the evidence and asked whether a dangerous situation had been caused by the manner of the Respondent’s driving. He found that the Respondent had driven her vehicle without fault and that it was the cyclist who had driven on the wrong side of the road and at a dangerous speed. He also found that the cyclist was not paying attention to the traffic because it was raining and he had his head lowered, with one hand holding bread. He found that he was not satisfied beyond reasonable doubt that the Respondent had not driven dangerously and acquitted her. He then said:

“Further under s.158(2) of the CPC I order prosecution to pay $100 as costs to the accused.”

The grounds of appeal were originally that the learned Magistrate erred in fact in acquitting the Respondent, and that the order for costs was excessive and unreasonable. However, the State later filed an additional ground of appeal. It reads:

“That the learned trial magistrate by his conduct at the outset of the trial gave rise to a real and reasonable perception of bias and favour towards the Respondent and on this account failed thereupon to recuse himself from the further hearing of the matter.”

In support of this ground, the State filed a notice of motion requesting supplementation of the court record. In the supporting affidavit of Inspector Usman Ali, Divisional Prosecuting Officer (Eastern) states that he was the prosecutor in the case. He said at paragraphs 6, 7 and 8 of his affidavit:

“6. That on the hearing date, the Respondent appeared at Court for trial accompanied by her husband, Senator Asesela Ravuvu.

7. That at the outset of the proceedings and in open court, the learned trial magistrate extended an official welcome to the husband of the accused to the Court and expressed the Court’s appreciation for his presence.

8. That the Senator remained in the Court during the whole of the proceedings.”

The affidavit and motion were sent to the trial magistrate whose response was that he had no comment to make. Counsel for the Respondent agreed that the incident had occurred. In the circumstances I accept the contents of Inspector Usman Ali’s affidavit and supplement the court record accordingly.

Bias

The test for bias is whether an informed observer would reasonably suspect bias from the conduct of the proceedings, or would consider that there was a real danger of bias (Amina Koya v. The State CAV0002.1997).

In this case, it is submitted that in extending a welcome to the husband of the accused, there was a real danger or reasonable apprehension of bias. There can be no doubt at all that the act of extending a welcome to the relative of one of the parties to the litigation, was a singularly unwise and unjudicial act.

Judicial officers should at all times remember that the perception of partiality must be guarded against, and that a display of special treatment to one of the parties in court, can weaken and undermine the entire justice system. When well-known and prominent members of the community are given official welcomes by the court, and those who are less privileged are accorded no such courtesies, the latter may well conclude that they are unequal in the eyes of the law.

In this case, the learned Magistrate should have refrained from extending such a welcome to the spouse of the accused. However, the question on appeal was whether there was a reasonable apprehension of bias in the conduct of the entire proceedings. As was said by the Court of Appeal in Amina Koya v. The State, the question of bias should be decided after a scrutiny of the record of the trial.

In this case, after perusing the court record, I am unable to conclude that the learned Magistrate acted in a way which might give rise to a suspicion of bias. Although his conclusion that the accident was caused by a speeding bicycle and not by any fault of the Respondent was a little unusual given the maximum speed a bicycle is able to be driven as compared with a Pajero, his conclusion that the Respondent did all a prudent driver should have done, was a possible conclusion on the facts. Indeed the Respondent’s version of events was consistent with the marked point of impact and with her own statement to the police. The decision of the Court was not irrational, nor is there any evidence on the record of any bias towards the prosecution. Although the learned Magistrate’s conduct was unwise, I do not consider that it caused a reasonable suspicion, or a real danger of bias.

This ground fails.

The evidence

The only real question for the court was whether the Respondent failed to conduct herself as one might expect from a prudent reasonable driver. The prosecution’s case was that she drove into the road from the side road without giving way to the approaching cyclist. Her position was that she assessed the distance at which the cyclist could be seen (100 metres) and decided that it was safe to drive into the road. Clearly her assessment was wrong, but the test is an objective one. What would the reasonable prudent driver have done in the circumstances?

The learned Magistrate concluded that the Respondent had taken every possible precaution and that the cyclist was at fault. In fact, the issue for him to determine was not the fault of the cyclist (whose right of way it was) but the fault of the Respondent.

In this case the learned Magistrate had the benefit of hearing the evidence on oath. He directed himself correctly on the question of law to be answered, and concluded that the Respondent was not at fault. This is not a conclusion an appeal court can interfere with. It was a possible conclusion on the facts. This appeal ground also fails and is dismissed.

Costs

Section 158(2) of the Criminal Procedure Code provides:

“It shall be lawful for a judge of the [High Court] or any magistrate who acquits or discharges a person accused of an offence, to order the prosecutor whether public or private, to pay to the accused such reasonable costs as to such judge or magistrate may seem fit:

Provided that such an order shall not be made unless the judge or magistrate considers that the prosecutor either had no reasonable grounds for bringing the proceedings or has unreasonably prolonged the same.”

In considering a costs application, a court should ask both parties to make submissions, and should specify the ground on which costs are awarded. There are no other grounds on which costs may be awarded (Graham Southwick v. State CAV0001 of 2003S) and a ruling on costs should specify whether the prosecution was unreasonably brought, or unreasonably prolonged.

It is apparent that neither ground applied in this case. If the learned Magistrate had accepted the evidence of PW1, he would have convicted. No prosecutor can predict whether a court will accept the evidence of any witness, when the statement of the witness appears to be credible. In this case, there was an equal chance of a conviction, as there was of an acquittal.

The costs order was therefore wrong in law and must be quashed.

Conclusion

The appeal against acquittal fails and is dismissed. The appeal against the costs order succeeds and the order is quashed.

Nazhat Shameem
JUDGE

At Suva
4th June 2004