IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0110 OF 2005L

KENNETH MANG KWONG LOW

v.

THE STATE

Counsel: Mr. I. Khan for the Appellant
Mr. N. Nandan for the State

Date of Hearing: 5 September 2005
Date of Ruling: 5 September 2005

EX TEMPORE RULING ON APPEAL

This is an appeal in respect to which an appellant appealed against his conviction for careless driving. The appellant initially appealed against the conviction and sentence and at the commencement of the hearing he withdrew the appeal against sentence and with leave filed an additional ground of appeal.

The appellant only relies upon the additional ground of appeal which is: That the Learned Magistrate erred in law and in fact in not taking into consideration that it was dangerous to accept sworn evidence of the Prosecution witness which was in conflict with their statements previously made by the same witnesses.

The appellant was charged with careless driving:

Statement of Offence

CARELESS DRIVING: 	Contrary to section 99 and 114 of the Land Transport Act, 1998.

Particulars of Offence

Kenneth Mang Kwong Low on the 31st day of July 2004 at Lautoka in the Western Division drove a motor vehicle on Queens Road, Field 40 without due care and attention.

Before the Learned Magistrate at Lautoka was evidence given on behalf of prosecution by PW-1, the driver of the vehicle who was overtaken by the appellant. The evidence was that he was travelling from Lautoka to Nadi, he passed through the Navutu roundabout and he approached the tramline where he slowed his vehicle. During that time, the vehicle registration number DK 168 overtook his vehicle at speed and on cutting in front of his car, bumped the front right corner of his vehicle. He says he travelled a short distance, stopped and inspected the vehicle and travelled on to Lomolomo Police Post where he reported the incident.

The witnesses, PW-1, in cross-examination was referred to a statement made by him on the 31st July 2004 to the police. In that statement it was alleged that he had referred to seeing a locomotive at the crossing. In his evidence he said he did not say to the police that he saw a locomotive crossing the tramline.

The statement made on the 31st July 2004 was tendered as Exhibit D-1.

The second witness for the prosecution before the Learned Magistrate was a passenger in the motor vehicle being driven by PW-1. That witness described the same scene at Navutu near the tramline, the driver of the vehicle in which she was a passenger slowing down, another vehicle registration number DK 168 overtook and hit the right side front of the vehicle in which she was travelling. She also gave evidence of the driver of the vehicle in which she was a passenger reporting the incident to Lomolomo Police Post.

In cross-examination she added that they stopped at the scene to inspect the vehicle. She was also shown a statement allegedly made on the 25th August 2004 to the police. She denied having made a statement on that day and said when shown the statement “I did not write it”. She confirmed in cross-examination that the overtaking vehicle hit the front of the car in which she was travelling. The statement of the 25th August 2004 was tendered as Exhibit D-2.

It is submitted on behalf of the appellant that the Learned Magistrate was in error in not directing himself or in not overtly directly himself in accordance with the principles set forth in Gyan Singh v Reginam - 9 FLR 105 which itself relies upon Jagdishwar Singh & Ors v Reginam - 8 FLR 159. Both of these authorities were further considered by the Fiji Court of Appeal in Frank Chand Singh & Another v Reginam - 11 FLR 119.

The Court of Appeal highlighted the need for evidence to be scrutinized in circumstances whether there is a prior inconsistent statement. In doing so, the Court of Appeal referred to the earlier decision of Gyan Singh v Reginam and said:

“It is the duty of the trial judge to warn the assessors, and to keep in mind himself, that it is dangerous to accept sworn evidence which is in conflict with statements previously made by the same witness; or, at least, that such evidence should be submitted to the closest scrutiny before acceptance. It is, however, still the duty of the assessors, and of the judge himself, after full attention has been paid to this warning, to determine whether or not the evidence given before them in court at the trial is worthy of credence and, if so, what weight should be attached to it.”

The Learned Magistrate having had the benefit of observing the witnesses give evidence before him, delivered his judgment on the 16th May 2005 and in that judgment, he refers to the evidence of the prosecution witnesses together with the evidence of the appellant. He refers to the appellant having given evidence that the vehicle that he was overtaking accelerated when he was parallel to it. The Learned Magistrate says that he was not able to accept the version given by the accused. I note from the court record, it was not something that was put to any of the prosecution witnesses in cross-examination and was accordingly rightly rejected by the Learned Magistrate.

The Learned Magistrate refers in his judgment to the evidence of the appellant who gave evidence that he was travelling from Lautoka to Nadi at the relevant time that he overtook the vehicle in the vicinity of the Navutu roundabout and the tramline. The only issue appears to be whether on returning to his correct side of the road, the appellant in fact bumped the other vehicle or not.

The third police witness, a police officer, inspected the appellant’s motor vehicle and gave evidence before the Learned Magistrate of damage to the rear left corner of that vehicle, evidence which is consistent with the incident as described by the prosecution witnesses.

I think there is some doubt whether the appellant can in fact rely upon a statement given by PW-2, Ulamila Musu on the 25th August 2004, Exhibit D-2 as she, before the Learned Magistrate, denied having made the statement, the principle with respect to prior inconsistent statements requires that the statement be acknowledged and that did not occur so far as that document is concerned. It is submitted on behalf of the appellant, the prosecution by consenting to the tender of the document waived such rights as they might otherwise have had.

Whilst the Learned Magistrate has not in his judgment set forth that he has directed himself in accordance with the principles set forth in Frank Chand Singh & Anor v Reginam, he has detailed the evidence upon which he could rely in forming the conclusion that the appellant committed the offence with which he is charged. The Learned Magistrate had the opportunity of seeing all witnesses given their evidence and be subjected to cross-examination.

It would appear to me that the reasons given by the Learned Magistrate and the evidence upon which he has relied for those reasons are indeed sufficient to enable him to form the opinion he did.

I am also of the opinion not to have set forth in this judgment that he considered the principles with respect to prior inconsistent statements is not fatal and accordingly, I am of the opinion that the appeal should be dismissed.

JOHN CONNORS
JUDGE

At Lautoka
5 September 2005