IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1 OF 1994

Between:

MOHAMMED TAHIR KHAN
s/o Saizad Khan
Appellant

v

STATE
Respondent

Mr. V.P. Ram for the Appellant
Mr. C. Hook for the Respondent

JUDGMENT

The appellant was convicted by the Magistrate's Court Labasa on 4 January 1994 of the offence of Careless Driving contrary to sections 37 and 85 of the Traffic Act and was sentenced to a fine of $50.00 in default 50 days imprisonment. He appeals against his conviction.

The appeal is on the following grounds:-

"(a)	That the Learned Magistrate erred in fact in holding that the Accused drove on to the gravel and off the main road thereby causing a collision and, having erroneously so held has erred in his reasons for conviction since such finding was fundamental to the Learned Magistrate's ratio decidendi for conviction.

(b)	That the Learned Magistrate's verdict is unreasonable and cannot be supported having regard to the weight of evidence tendered in this case."

Briefly, the facts are as follows: at about 6.15 p.m. at Soasoa, Labasa along a long straight stretch of tarsealed road, a truck Regd. No. A0062 was proceeding towards Malau. The appellant driving motor vehicle (a truck carrying water) Regd. No. CE409 followed this truck and later overtook it. While he was overtaking the truck the appellant had to go past a side road (Vunivau Road) on his right when the complainant driving his vehicle Regd. No. BH314 approached the main Labasa/Wainikoro Road from the appellant's right hand side. At or about the mouth of the side road the Appellant's vehicle and the complainant's vehicle collided.

The dispute is the manner in which the collision had occurred and, therefore, the cause of it. 

I shall deal with the two grounds of appeal together.

The learned Magistrate on the evidence before him made certain findings of fact as shown in his judgment. He did, as he was entitled, to determine the credibility of the witnesses in the light of the whole of the evidence. His judgment, inter alia, reads as follows:-

"The charge against the accused is that of careless driving. The evidence shows that the accused had overtaken another vehicle just opposite the Vunivau junction and collided with a car that was at the mouth of Vunivau road. The accident had occurred at the very edge of the right hand side of the road when one faces Malau direction. The sketch and the police evidence shows that the point of impact was on the gravel on the right hand side of the road. The accused states that his wheels were on the tarseal. Even if his wheels were on the tarseal they were at the very edge of the right hand side of the road. The road at the point is 9.1 metres. It is true that a vehicle overtaking another vehicle has to go to the right hand side of the road. But what was the need to go to the very edge of the right hand side if not to the very gravel portion.

On the accused's own admission he was travelling at 60 kmph with a heavy load of water. The sketch shows that he had gone to the very right hand edge of the road and collided with the car and then gone to the very edge of the left hand side. It is undisputed that there were no vehicles coming from the opposite direction i.e. from the direction of Malau. Even if a vehicle had come from the opposite direction the width of the road at the point is such that the accused could have overtaken without any difficulty. It being so, when there was no vehicle coming from the opposite direction and the road being clear. I cant see any reason for the accused to go to the very edge of the right hand side of the road in his act of overtaking. He must have gone at a extremely high speed and lost control of the vehicle. The sketch speaks for itself.

The defence tried to make of the fact that the car had been hit an its front right angles to the truck at the running board of the truck. But this position does not absolve the accused. What was he doing at the right hand edge of the road at a point when the road is 9.1 metres wide. I do not see any fault on the part of the complainant. Although either side of Vunivau road is grown with cane the accused himself states that the cane was short and the view was not obscured by the cane.

It is significant that on his interview statement which was not challenged the accused had stated in his response to the very first question put by the police officer "Yes it is true that I had bumped the said vehicle." This is quite contrary to what the defence is trying to show that the car had bumped the truck.

Taking into consideration all the evidence adduced in the case and in particular the fact that the accident had taken place at the very edge of the right hand side of the road if not on the gravel, I hold that the prosecution has proved against the accused the charge of driving without due care and attention beyond reasonable doubt, find the accused guilty and convict him of the offence with which he is charged."

It is not for this Court in its appellate jurisdiction to interfere in the learned trial Magistrate's findings of fact and his assessment of the credibility of witnesses, unless there were some fundamental flaw in his reasoning.

Here I cannot find any. The learned Magistrate has given reasons for his findings and the Court has no reason to disagree with him.

According to PWI (the investigating Officer) the complainant's vehicle (BH314) is damaged in front. He said that there was damage to the rear wheel but not to the front of CE409 (the appellant's truck). According to the complainant (PW2), when his car was stationary, the appellant's car came and collided with the front of his car and the rear wheel of the truck came over his car and as a result the "full front" of his car was damaged. Apart from other evidence the nature of damage is commensurate with the situation that while BH314 was stationary at the junction at the time of the accident the truck CE409 collided with the front of BH314. Had BH314 come out of the junction and while still moving it had gone straight ahead and struck CE409, as stated by the appellant, BH314 (a corolla car) would have gone right under the truck. As a result damage to it would have been different and far more extensive and it would not have ended up in the position it did. It is pertinent to note, as has been observed by the learned Magistrate, that the appellant in his statement to police in answer to the very first question put to him when interviewed said "yes it is true and I have bumped the said vehicle"; but in his evidence in Court he said BH314 was "moving" and "came and collided". There was nothing improper on the evidence, in my view, in the learned Magistrate's rejection of the appellant's version of how the accident happened. I have also given the sketch plan, the photographs and all the evidence a careful scrutiny and cannot see how an inference could be drawn that BH314 was "moving" at the time of the account.

In this case it is clear that the appellant overtook the truck in front of him and in the process of doing so bumped into the complainant's vehicle which had emerged from the side road and was stationary at the junction at the time of the accident. The appellant had a high view from his truck and because the sugar cane was small he could see vehicle travelling on the side road. Although there was nothing to prevent the appellant from overtaking, particularly when there was no oncoming vehicle, but it has to be safe for him to do so without causing danger to other road users like the complainant in this case. Although he came on the wrong side in the process of overtaking it did not allow him to collide with a stationary vehicle with impunity. In DILIP KUMAR s/o Uttam Ram v REGINAM Cr. App. No. 102/73 GRANT Acting C.J. (then) said:

"A driver who is overtaking is executing a hazardous manoeuvre which imposes upon him the highest duty of care. He is, almost invariably, encroaching on his incorrect side of the road and accelerating while not having a wholly unobstructed view of the road ahead; and it is his responsibility to ensure that he is in a position to properly control his vehicle and to cope with any contingency that might arise without endangering other road-users."

In PLUCKWELL v WILSON, (1832, 5 C & P 375, 172 E.R. 1016) ALDERSON J said:

".... that the person was not bound to keep on the ordinary side of the road; but that, if he did not do so, he was bound to use more care and diligence, and keep a better lookout, that he might avoid any concussion, then would be requisite if he were to confine himself to his proper side of the road".

The appellant failed to avoid the accident as he went too close to the edge of the road in the process of overtaking. The fact that there was no oncoming traffic does not mean that he can hog the whole half of the road which is his incorrect side without giving other road users a chance to manoeuvre their vehicle. The fact that there was this junction should have itself been, as put by learned State Counsel, "warning bell" to him before deciding to overtake in the circumstances of this case.

In determining what is reasonable care, the width of the roadway is to be considered. The road is 10 metres wide; the appellant went completely on the wrong side of the road and to the very edge of the road at the junction. Had the appellant been driving with due care and attention as a prudent driver would do in the circumstances, a distance of about ten to twelve feet would have been left on his right after allowing for the width of the two trucks passing alongside each other. It is abundantly clear that, as the learned Magistrate found that the speed at which the appellant was driving at the time of overtaking he was unable to have proper control over his vehicle and thus covered the very edge of the road on his incorrect side thus causing danger to other road users such as the complainant.

Also whether the vehicle was on gravel section or on the tarsealed section at the time when the appellant's vehicle went past is neither here nor there as the appellant was required to drive his vehicle in such a way as to cope with any contingency that might arise. Here there was the contingency that there was this stationary vehicle, and the appellant, as found by the learned Magistrate, went too far to his right. The manner of his driving in the circumstances amounted to driving without due care and attention. The appellant travelling on the wrong side held a higher degree of care then the complainant who was on the proper course and was stationary. In McRONE v RIDING 1938 1 AER 157 LORD HEWART C.J. said:

"I think that it is not without significance that the statute uses both the word 'care' and the word 'attention'. In other words, the driver, whoever he may be, experienced or inexperienced, must see what he is about. He must pay attention to the thing he is doing, and, perceiving that which he is doing or entering upon, he must do his best, and he must show proper care in the doing of that thing upon which he is intent.. there is one standard only. 'Due care and attention' is something not related to the proficiency of the driver, but governed by the essential needs of the public on the highway."

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.

I have considered Mr. Ram's submissions in this appeal but cannot find anything in his favour to enable me to come to a conclusion different to that of the learned Magistrate.

Therefore, contrary to Mr. Ram's submissions, there was ample evidence which was believed to justify the findings of the learned trial Magistrate. I do not find anything in the record which suggest that the Magistrate erroneously relied upon the prosecution witnesses. The Court sees no reason for disturbing his conclusion. I therefore see no merit in the learned appellant counsel's submissions on the grounds put forward in this appeal.

In the outcome, for the foregoing reasons the appeal against conviction fails and it is dismissed. 

D. Pathik
Judge

Suva
21 October, 1994
HAA0001J.94B