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Sharma v The State [1989] FJHC 5; Haa0018j.1989b (23 October 1989)

IN THE HIGH COURT OF FIJI
AT LABASA
Appellate Jurisdiction

CRIMINAL APPEAL NO. 18 OF 1989

Between:

PRAKASH SHARMA
s/o Shiu Narayan Sharma
Appellant

- and -

THE STATE
Respondent

Mr. V. Parmanandam for the Appellant
Mr. R. Perara for the Respondent

JUDGMENT

This is an appeal against the conviction of the appellant by the Magistrate's Court in Labasa for an offence of Careless Driving for which he was fined $40.00.

The appellant had pleaded not guilty and after a defended trial in which the prosecution called the complainant and the police investigating officer and the appellant gave sworn evidence, the learned trial magistrate convicted the appellant in a 5 page judgment.

Learned counsel for the appellant (who had not represented the appellant in the trial) argued only one ground in the appeal as follows:

"(c) that the learned trial magistrate erred in law in convicting the Appellant when the "point-of-impact" was in the Appellant's half of the road. Hence there has been a substantial miscarriage of justice."

It was submitted that at the trial the prosecution, defence and trial magistrate were so embroiled in the question of whether or not the appellant was attempting a U-turn immediately before or at the time of the accident that they had all failed to notice or realise the place or point on the road where the accident is alleged to have occurred.

In support of this submission counsel relied primarily on the police sketch plans of the scene of the accident drawn shortly after the police had arrived at the scene and tendered at the trial as Prosecution Exhibits 1 and 1A.

The "point-of-impact" shown on the plan is 3.9 metres from the complainant's correct side of the road and 3.3 metres from the complainant's incorrect side, (i.e. 0.3m outside the imaginary centre-line of the road delimiting the complainant's correct half of the road). It was established by agreement of the drivers and with reference to pieces of broken glass found on the road surface at that point.

Reliance was also placed on the evidence of the complainant to the effect that he had applied his brakes and swerved to the left immediately before the collision and despite that, learned counsel argues, the collision occurred on the complainant's incorrect side of the road as shown by the "point-of-impact".

Given those circumstances counsel submits that even if the appellant had made a sudden U-turn nevertheless the point-of-impact and the extent and site of the damage to the two vehicles shows that the appellant had already completed his U-turn or at the very least had already entered his correct half of the road before the collision occurred.

On that basis it was submitted that the question of whether or not the appellant had executed a sudden U-turn or had failed to indicate an intention to do so, was both irrelevant and immaterial.

I must confess that when I first heard the appeal I was attracted by the simplicity and mathematical nature of the submissions of learned counsel for the appellant.

However, upon closer reflection I cannot agree. The driving of a motor vehicle cannot be subjected to a mathematical, picture-frame analysis. It is by nature a continuous motion with constantly changing variables to which minor and sometimes major adjustments must be made and often in a matter of seconds. Viewed in that light a rough sketch plan of an accident scene which is drawn after the event and often drawn not to scale is unlikely to provide definitive proof of how or why an accident such as in the present case, occurred.

The learned trial magistrate in his judgment considered all the evidence in the case including the sketch plan the weather conditions, the nature and width of the road, the length of the appellant's vehicle and the "point-of-impact".

He believed the complainant's evidence as he was entitled to and found that the appellant had executed a U-turn without giving any warning indication and without keeping a proper lookout for traffic approaching from behind.

The test as to whether a defendant is guilty of careless driving is an objective one based on the standard of a reasonable, prudent and competent driver in all the circumstances of the case. It has been judicially stated on numerous occasions that this is primarily a question of fact for the determination of the tribunal of fact which in this instance was the learned trial magistrate.

The learned trial magistrate has found as a fact that in 2 respects the appellant's driving had failed to conform to that objective standard.

It is well-settled that an appellate court will not as a rule interfere with the findings of fact of a trial court in the absence of a clear mis-direction. In this case the learned trial magistrate believed and accepted the version of the facts given by the complainant after carefully considering all the evidence in the case including the sworn evidence of the appellant.

I am satisfied that there are no proper grounds for interfering with the conviction entered against the appellant. The appeal is accordingly dismissed.

(D.V. Fatiaki)
JUDGE

At Labasa,
23th October, 1989.

HAA0018J.89B