IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 26 OF 1994

Between:
KALIKA PRASAD
s/o Budh Ram
Appellant

- and -

STATE
Respondent

Mr. V. P. Ram for the Appellant
Mr. D. McNaughtan for the State

JUDGMENT

This is an appeal by the Appellant against his conviction for the lesser offence of careless driving by the Magistrate's Court, Labasa on 19 August 1994 when he was fined the sum of $50 in default fifty days' imprisonment.

The sole ground of his appeal is that:

"The Learned Magistrate erred in law and in fact in his assessment of the facts and found the petitioner guilty of careless driving without a full assessment of all the evidence adduced and specially as to whether the evidence supported the facts as alleged by the Complainant."

The appellant was originally charged with the offence of dangerous driving on Labasa - Korotari road on 21 August 1993. The learned Magistrate's judgment fully sets out the facts of the case and his findings.

Briefly, the complainant's evidence, inter alia, is as follows (page 29 of Record):

"According to the complainant Mohammed Farid he had been driving his car registered No: AN 212 around 6.30 pm on 21/8/93 on Labasa - Korotari road towards the town accompanied by another. They were going to the bazaar at Holy Family Secondary School.

He had his dipped lights and was following another vehicle in front. When he was about 15 yards from the Korowiri sector office junction a vehicle came from the by-road without lights. He expected it to stop. It put on to the road without stopping and to avoid the accident he went to the right hand side of the road. A collision occurred and his vehicle ended up in the drain turning turtle. His speed was 55Kmphr at the time. The right front of the Accused's car hit the left front and left side of his car."

The Appellant's evidence, inter alia, is at page 33 of the Record as follows:-

"Around 6.30 pm on 21/8/93 he was coming from a feeder road to Labasa - Korotari main road. Having came to the junction he looked towards the direction of the town which was clear. Looking in the Vunimoli direction he saw two vehicles coming towards him about 5 or 6 chains away, both of which had dim lights. He too had his dipped lights. It was still light and one could see without lights.

He thought he had time to cross and crossed to the other side; he turned to his right and proceeded. Then one of the two vehicles is the van passed him and a car came in his front and collided with his car. After the collision his car turned and faced in the direction of the town. The other car hit his (witnesses) left and his car turned left-wise."

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

Also when an appellate court is called upon to consider the findings of fact by the trial Court, and those findings are based on the credibility of witnesses, it is an established rule that the appellate court would not interfere unless the findings of fact could not be supported on the evidence or law or on any other proper grounds (MOHAMMED HAKIM KHAN v DUKH BHANJAN SHARMA Hyne C.J, 1956 FLR p.183; KAMCHAN SINGH v THE POLICE, Hyne CJ, 4 FLR p.69). 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."

In commenting on the above passage LORD REID in BENMAX v AUSTIN MOTOR CO. LTD (1955) 1 AER. 326 at 329 said:

"I think that the whole passage ....... refers to cases where the credibility or reliability of one or more has been in dispute and where a decision on those matters has led the trial judge to come to his decision on the case as a whole. If that be right, then I see no reason to doubt anything that was said by Lord Thankerton. But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion."

The learned counsel for the appellant has argued strongly that the learned Magistrate has come to wrong conclusions on the facts. He outlined to Court certain discrepancies in the evidence.

The learned State counsel in his reply submitted that the appellant pulled out suddenly when the complainant tried to avoid a collision by pulling to right. He said that it is the accused's driving which is on trial. In this case it was the complainant who was on the Main Road and had the right of way. As for questions referred to in the interview he said that was the appellant's answer to a question and "not evidence of its truth". The learned Magistrate he said found the appellant guilty of careless driving under s.37 of the Traffic Act which he was entitled to do in accordance with the law.

The learned Magistrate has given a well-considered judgment setting out the facts, analysing the facts and drawing conclusions from them. He found that (at page 35 of Record):

"All the evidence taken as a whole clearly and unmistakably shows that the accused coming from the feeder road had put on to the main road without proper lookout or with insufficient lookout or with the misjudgment and as a result collided with a vehicle going on the main road. The Accused in his own sworn evidence states when he came on to the mouth of the junction he looked on both the direction; he saw the town direction clear but saw two vehicles coming from the direction of Korotari with dipped lights, about 5 or 6 chains from the junction. He thought that he had time to cross but he collided with the complainant's car."

The learned Magistrate said that (p.37 of Record):

"I do not accept or believe the defence on the point (referring to the PWI having passed after the appellant crossed "to the other side") but believe and accept the prosecution version."

After giving a careful consideration to the evidence, I have come to the conclusion that this is not one of those cases in which the appellate court could or should interfere.

From the learned Magistrate's judgment it is quite clear that he had taken into account all the factors that should have exercised his mind particularly the particular section of the road where the accident happened, that is on the complainant's wrong side and he has said so in his reason for accepting the evidence of the prosecution witnesses in finding the appellant guilty nevertheless he found that the complainant had to go to the very "right hand edge in an endeavour to avoid the collision, seeing the accused's vehicle suddenly crossing the path", thus leaving a "lengthy brake mark" in his trail. The learned Magistrate further found that the appellant had "misjudged the distance and the space of the complainant's vehicle", and hence the accident seems to be due to "inattention" or "misjudgment".

It was in all those circumstances for the trial Court and not for this Court, to decide on the credibility of the witnesses.

On the facts as found by the learned Magistrate, the appellant was guilty of careless driving. He was not exercising that degree of care and attention which a reasonably prudent driver would have exercised in the circumstances, he was guilty of the offence irrespective of whether or not he was committing an error of judgment.

(SIMPSON v PEAT, 1952 1 AER p. 447). It is for every driver experienced or inexperienced to exercise due care and attention as section 37 of the Traffic Act says: (McRONE v RIDING 1938 1 AER p.157). The learned State Counsel referred the Court to the case of WALKER v TOLHURST (1976 Q.B.D. RTR. p. 513) where in a similar situation, but the vehicle at fault was to turn to left from a side road bumped a cyclist on the main road, had 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 recognise 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."

In this case the learned Magistrate had taken the above into consideration and was of the "view that the accused under the circumstances had driven carelessly rather than dangerously. I hold that the prosecution has failed to prove the charge of dangerous driving against the Accused but the evidence is quite sufficient to prove the lesser offence of careless driving" (p.41 of Record).

To conclude, therefore, the evidence on which the trial Magistrate relied was sufficient to justify the conclusion which he reached and the appeal is accordingly dismissed.

D. Pathik
Judge

At Labasa
30 March 1995
HAA0026J.94B