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Seduadua v The State [1989] FJHC 7; HAT0042j.1989s (10 November 1989)

IN THE HIGH COURT OF FIJI
AT SUVA
Appellate Jurisdiction

TRAFFIC APPEAL NO. 42 OF 1989

Between:

MITIANI SEDUADUA
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the State

JUDGMENT

The appellant was convicted of Careless Driving and fined $20 by the Suva Magistrate Court on the 15th of November 1988 after a short trial.

The prosecution called the complainant and tendered a rough sketch plan of the scene (Exhibit 1) and a caution interview record of the appellant (Exhibit 2). The appellant gave sworn evidence in his defence and called a passenger who was riding in the tray of his vehicle at the time.

Two days after his conviction the appellant lodged a petition of appeal against his conviction urging the following 4 grounds in support:

(a) Than the learned Magistrate erred in law when he failed to consider the considerable speed the complainant was travelling and that it was the complainant who hit the petitioner's vehicle from behind;

(b) That the learned Magistrate erred in law when he failed to consider and evaluate the evidence of the petitioner in relation to the rest of the prosecution evidence;

(c) That the learned Magistrate erred in law when he failed to consider that the complainant was in a hurry to attend a meeting and that he left after the collision as he was already late for that meeting;

(d) That on the totality of the evidence before the Court there was sufficient doubt to have justified an acquittal.

In convicting the appellant the learned trial magistrate stated in his short judgment:

"On the evidence of PW1 it is clear that he was driving along the Nausori road and seeing the obstruction he had moved t the right when this accused had driven on to the main road without due care and attention. Accused went on to say that he was driving on the left of the road which according to police notes PW2 and PW1 the left side of road was obstructed.

I am satisfied that this accident was due to the fault of this accused who was driving a truck came out of the junction without proper look out without due care and attention and got on the way of PW1. I found the charge proved beyond all reasonable doubt.

I find accused guilty and convict him as charged."

In doing so the learned trial magistrate has found that the appellant's driving fell below the standard of a reasonable, prudent and competent driver in all the circumstances of the case.

In particular the learned trial magistrate who saw and heard the complainant and appellant give evidence, found that the appellant had come out of the junction without a proper look out and got in the way of the complainant.

The appellant himself admitted in cross-examination that he had not seen the complainant's vehicle.

The function of an appellate court in a case such as this which turns almost entirely on a question of fact was considered by the Privy Council in Khoo Sit Hoh v. Lim Thean Tong [1912] UKLawRpAC 5; (1912) AC 323 where Lord Robson said at p. 325:

"The case was tried before the Judge alone; it turned entirely on questions of fact, and there was plain perjury on one side or the other. Their Lordships' Board are therefore called upon, as were also the Court of Appeal, to express an opinion on the credibility of conflicting witnesses whom they have not seen, heard, or questioned. In coming to a conclusion on such an issue their Lordships must of necessity be greatly influenced by the opinion of the learned trial Judge whose judgement is itself under review. He sees the demeanour of the witnesses, and can estimate their intelligence, position, and character in a way not open to the Courts who deal with later stages of the case. Moreover, in cases like the present, where those Courts have only his note of the evidence to work upon, there are many points which, owing to the brevity of the note, may appear to have been imperfectly or ambiguously dealt with in the evidence, and yet were elucidated to the Judge's satisfaction at the trial, either by his own questions or by the explanations of Counsel given in presence of the parties. Of course, it may be that in deciding between witnesses he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or has given credence to testimony, perhaps plausibly put forward which turns out on more careful analysis to be substantially inconsistent with itself, or with indisputable fact, but except in rare cases of that character cases which are susceptible of being dealt with wholly by argument, a Court of Appeal will hesitate long before it disturbs the findings of a trial Judge based on verbal testimony."

In the present case after having carefully perused the record of the evidence and the judgment of the learned trial magistrate, I do not consider this one of those rare cases where this, court would or should disturb the trial magistrate's finding of fact.

The appeal is accordingly dismissed.

(D.V. Fatiaki)
JUDGE

SUVA,
10th November, 1989.

HAT0042J.89S