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State v Kumar [2004] FJHC 108; HAA0028J.2004S (7 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0028 OF 2004S

Between:

THE STATE
Appellant

And:

ANUJ KUMAR
Respondent

Hearing: 4th June 2004
Judgment: 7th June 2004

Counsel: Mr. P. Bulamainaivalu for State
Mr. M. Raza for Respondent

JUDGMENT

This is an appeal in respect of which the Appellant appealed against his conviction for careless driving, and the State appealed against inadequacy of sentence. However for the reasons set out in this judgment, a consideration of the State’s appeal has become unnecessary.

The Appellant was originally charged with dangerous driving. His charge read:

Statement of Offence

DANGEROUS DRIVING: Contrary to Section 98(1) and 114 of Land Transport Act 35 of 1998.

Particulars of Offence

ANUJ KUMAR s/o Deo Kumar on the 18th day of March, 2002 at Nausori in the Central Division drove a motor vehicle on Bau Road, Nausori in a manner which was dangerous to the public having regards to all the circumstances of the case.

He was convicted on the 4th of November 2003 in Nausori of the lesser offence of careless driving. He was fined $100. The grounds of appeal against conviction are:

1. THAT the learned trial Magistrate erred in law and in fact in convicting the Appellant when the evidence was to the contrary to the evidence for the following reasons:
   
   • (a) that the prosecution witness, who was a passenger in the Appellant’s vehicle told the Court that the Appellant was not driving fast; and
     
   • (b) that the Appellant took an evasive action to avoid head-on collision due to the on coming van travelling on its wrong side of the road; and
     
   • (c) that if it was not for the evasive action taken by the Appellant, there would have been a head-on collision.
     
2. That the learned trial Magistrate erred in drawing adverse inferences by applying the wrong principles in convicting the Appellant.
   

The evidence led at the trial was confusing and contradictory. PW1 was a passenger in a government vehicle driven by the Appellant on the Bau Road. She said that as they were travelling, she saw a twin cab approaching their vehicle on its wrong side of the road. In order to avoid a collision the Appellant swerved to the right causing the vehicle to tumble over. She said that the Appellant had not driven at a high speed, and that he had received injuries as a result of the accident.

PW2, Constable Chetty who had been on patrol near the Vunimono Arya School said he saw the Appellant’s vehicle on the Wainibokasi Road and signalled to him to drive slowly as the road was busy. The evidence does not indicate the distance between the Wainibokasi Road and the scene of the accident.

PW3, Special Constable Vijendra Prasad said he saw the Appellant pass him on the Bau Road. It is not clear whether the witness was on foot or in another vehicle. He gave no evidence as to manner of driving.

PW4, Kumar Singh was driving a bus which was parked along the road immediately in front of the Appellant’s vehicle. He said that the Appellant overtook him as he was dropping passengers, and a green twin cab pulled out of the side of the road and moved left. The Appellant’s vehicle turned and overturned. He agreed that the Appellant had driven to the right side of the road to avoid a collision with the twin cab.

PW5, Constable Chand drew the sketch plan of the scene, showing the Appellant’s vehicle facing Nausori. He also interviewed the Appellant under caution. The interview is not on the record, but was discovered on the court file. In the interview the Appellant said that he had driven at 60-65 kmph, that he had overtaken a stationary bus and that a twin cab was coming from the wrong side of the road in the opposite direction causing him to swerve onto the right side of the road. He refused to answer other questions.

He gave sworn evidence, giving substantially the same version of the facts. Under cross-examination he denied that he was speeding and not paying attention to the road.

After reviewing the evidence, the learned Magistrate found that the Appellant had failed to show the standard of driving expected of a reasonable and prudent driver in that he overtook a vehicle without exercising due care and attention. He said: “the accused should have seen that a twin cab was parked on the wrong side of the road and should not have overtaken the bus.” He said that scratch marks on the road showed how fast the Appellant must have been driving at the time. He also found that the Appellant lost his right arm in the accident. He found the Appellant guilty of careless driving.

The learned Magistrate directed himself correctly on the test for careless driving. It is an objective test, and there must be some evidence of fault on the part of the driver charged. However, I am unable to find any such evidence in this case. There was no evidence of speed, other than the Appellant’s statement under caution. The marks found on the road could not have established speed without some reference to expert evidence in that regard. There is nothing careless about overtaking a stationery bus, and there was no evidence that anyone could have predicted that the twin cab would start to drive, from its parked position, to the wrong side of the road.

State counsel, quite rightly and fairly conceded that there was no evidence of careless driving. Indeed the evidence of PW1 and PW5 was entirely consistent with the Appellant’s own evidence. On the basis on this concession, the State did not proceed with its own appeal against sentence.

Result: The appeal against conviction is quashed, there being no evidence of careless driving. The appeal is allowed.

Nazhat Shameem
JUDGE

At Suva
7th June 2004