IN THE HIGH COURT OF FIJI
AT LAUTOKA
[APPELLATE JURISDICTION]

TRAFFIC APPEAL CASE NO: HAA 013 OF 2025

AVINESH KUMAR SINGH
(Appellant)

v

STATE
(Respondent)

Counsels: Appellant In Person
Mr. Baleilevuka for the Respondent

Date of Hearing: 6th August, 2025
Date of Judgment: 25th September, 2025

JUDGMENT

1.	The Appellant was charged with Careless Driving contrary to Section 99(1) and 114 of the Land Transport Act 35 of 1998. On 25th of April, 2025 he was convicted after a full trial at the Lautoka Magistrates Court. The Appellant was sentenced with a fine of $200.00 and default of which, 30 days’ imprisonment.

2.	The Appellant being dissatisfied with the conviction and sentence of the Magistrates Court, filed his grounds of appeal against conviction and sentence within time.
GROUNDS OF APPEAL 
Conviction

3.	The grounds of appeal against conviction were filed with the Notice of Appeal is as follows;

i)	That the Learned Resident Magistrate erred in in fact when she did not take into consideration that the motor vehicle registration number EK 769 did not veer off the road where as  the motor vehicle registration number HR 628  Was parked illegally on the footpath

Sentence

4.	The grounds of appeal against sentence were filed with the Notice of Appeal was;

ii)	That the sentencing Magistrate gave a sentence of $200.00 fine to be paid within 30 days which is harsh and excessive in the circumstances.

iii)	 That the learned Magistrate did not take into consideration the Appellant means when sentencing the Appellant.

5.	In order for the Appellant to succeed in this appeal he has to show that there was no evidence on which the trial Magistrate could reach the conclusion which he did if he properly directed herself.

6.	The Prosecution case was that, on the 21st of September 2023, PW1 was at home sweeping the porch when she heard a loud noise outside and when she looked she saw a bus bumped her car which was parked on the walkway outside the gate of their home near the road side. The exact location of the accident was at Ram Sami Reddy Road opposite Hari Lal Shop. She saw the driver of the bus got off and was looking at the impact, she call her husband who reported the accident to the police. According to her the car was scratched and the side mirror damaged. She could see the bus full of passengers and could also clearly saw the driver. She identified and pointed at the appellant in court to be driver of the bus. 

7.	To prove the charge of Careless Driving, the Prosecution must prove following elements.
i. The Accused,
ii. Drove a motor vehicle,
iii. On a public road,
iv. Without due care and attention.
8.	It was not disputed that, at the material time and place, the Appellant was driving a Bus registration number EK 769. It was also not in dispute that the Appellant was driving bus from S.M. Koya Road entering into Ram Sami Reddy Road. The Appellant had moved the bus to the edge of the road side to allow one of his passenger to get off when the bus collided with the complainant’s car parked on the walkway near the side of the said Ram Sami Reddy Road.

9.	The only dispute was whether the Appellant drove the vehicle without due care and attention. The Appellant was put to his defence, The Appellant argues that the learned Magistrate has come to a wrong conclusion on the facts. He outlines in his submission that his vehicle did not veered off the road where vehicle registration number HR 628 was parked illegally on the foot path.

10.	In PW1 evidence she admitted that her vehicle was parked outside the gate on the walkway near the road (Ram Sami Reddy Road).She said she was sweeping the porch when she heard a loud noise. She looked towards the road and saw the bus had an accident with their car. She saw the bus driver getting out of the bus and looking at what happened. She called her husband and the matter was reported to police.

11.	PW2 confirmed the evidence of PW1. He pointed out that the driver of the bus was at fault. Thus he had confirmed vehicle HR 628 was parked on the walkway near the road but not on the road about 40 centimeters away from the side of the road.

12.	The appellant agreed in cross examination that the complainant had parked her vehicle on the walkway footpath and not on the road and there was also a Bus Stop 30 to 40 meters ahead from where the accident happened. Obviously, the appellant should have continued and stopped at the bus stop if he had wanted to off passengers from the bus.

13.	In Khan v State Fiji Criminal Appeal No.1 of 1994(21 October 1994)  the Court of appeal made the following observations.
In order to determine whether the offence of careless driving is committed, the test, as LORD GODDARD C.J. said in SIMPSON   v  PEAT (1952 1 AER. 447 at p.449) is: "was D exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances?
The standard of proof is an objective one so that as in this case where the appellant made an error of judgment in colliding with the stationary vehicle on his right while in the process of overtaking he was guilty of the offence because a reasonable and prudent driver would not, in the circumstances, have made that error.
It was Appellant the driver of the bus who made an error of judgment while maneuvering the bus bumped the side of the stationary vehicle belonging to the complainant which was parked on the walkway.

14.	The learned Magistrate had summarized the evidence of each witness, and having properly analyzed the same, he has given a well-considered judgment and drawing reasonable conclusions from the facts proved before finding the Appellant guilty of  careless driving.  The Magistrate made the following observations at page 19 of Court Record – paragraph 24: quoted
“This is my judgment. I remind myself of the burden and standard of proof. I turn my mind to the elements of the offences. It is clear from the evidence inclusive of your testimony that you had hit a parked vehicle, a vehicle that was parked off the road and there was nothing that necessitated and justified you from doing so. It was clear that you simply misjudged the distance but that is less than is expected of a reasoned prudent driver.
I find you guilty of Caress Driving.
15.	The learned Magistrate accepted the evidence of the Prosecution and rejected that of the Defence. Her Ladyship’s finding is available on evidence and hence justified.

16.	The Appellant (DW1) in his evidence completely denied driving the vehicle without due care and attention. He stated that he stopped for a passenger to get off the bus when the bus he was driving hit the door of vehicle which was parked so close to the footpath. He said there was a 10 wheeler truck approaching from the opposite direction and the passenger of the bus was trying to get off so he moved the bus towards the footpath.

17.	The Appellant’s evidence is not plausible and also not supported by other evidence led in trial. If he had stopped at the bus stop 30 to 40 meters ahead he would have avoided the accident. The Appellant cannot blame the parked vehicle parked on the walkway as it was not on the road and not moving. The Appellant said he did not wait to stop at the bus stop because the passenger getting of was an old lady and her place is far from the bus stop. he Appellant admitted that his vehicle hit the car door.

18.	In Prasad v The State [1995] FJHC 65; Haa0026j.94b (30 March 1995). In that case Pathik J had cited cases where a similar factual situation arose. In Walker v Tolhurst (1976 Q.B.D. RTR. p. 513) 

the vehicle at fault was to turn to left from a side road bumped a cyclist on the main road. The Court held that "whether or not due care had been exercised was a subjective matter and the question for decision was whether the driver did or did not exercise due care". Lord Widgery C.J. there said at p.515 that:
"..... I think that we must recognize that, in general, if a car is seeking to emerge from a side turning into a main road and the driver fails to see a cyclist who is approaching him on his own side of the road, that must more often than not amount to a failure to show due care and attention, but not always."
19.	After giving a careful consideration to the evidence led in trial, I have come to the conclusion that this is not one of those cases in which the appellate could or should interfere. In this regard I also refer to what Lord Thankerton said in Watt (or Thomas) v Thomas 1947 1 AER 582 at 587 which reads:
` 	"I. Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion.
II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.
III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question."
20.	From the learned Magistrate’s judgment it is quite clear that Her Ladyship had taken into account all the facts and circumstances that should have exercised her mind before arriving at her conclusion. All the evidence taken as a whole clearly and unmistakably shows that the Appellant coming from SM Koya  road had put on to the Ram Sami Reddy  without proper lookout or with insufficient lookout or with the misjudgment and as a result bumped the side of the vehicle Parked on the walkway.

21.	 The evidence on which the trial Magistrate relied was sufficient to justify the conclusion which she reached. I affirm the Judgment of the learned Magistrate at Lautoka Magistrate Court.

22.	The conviction appeal is accordingly dismissed.

Appeal against Sentence

a)	The learned sentencing Magistrate gave a sentence of $200.00 fine to be paid within 30 days which is harsh and excessive in the circumstances.

b)	The learned magistrate did not take into consideration the Appellant means when sentencing the appellant.

The maximum [penalty for the traffic offence of Careless driving is $500.00 or 3 months imprisonment with 3 demerit points. There is no established tariff for the offence of Careless driving. The Court would rely on previous similar case authorities in deciding the outcome of this sentence appeal. In Kabulevu and the State [2010) FJHC 300 it was held that the minimum fine of $200.00 and 1 demerit point.  In this case the appellant was ordered to pay $200.00 which is the minimum fine normally ordered against convicted Careless driving offenders.

The Appellant had paid for filing fees of his appeal against sentence and for him to provide an excuse that he does not have the means to pay is unacceptable, therefore the Court is of the view that the Appellant is capable of paying $200.00 of his fine for Careless driving. The $200.00 fine imposed by the learned Magistrate was correct in law and well within the lower range of fines imposed for Careless Driving. The Appellants ground of appeal against sentence cannot succeed and to be dismissed.

Conclusion

In light of the above discussion I find that the grounds of appeal against conviction and sentence have no merits and to be dismissed.

30 days to appeal.

………………………………………
Sekonaia V. Vodokisolomone
Acting Puisne Judge

At Lautoka
On the 25th September 2025

Solicitors: Appellant In Person
Office of the Director of Public Prosecution for Respondent