| Fiji Islands - Sharan v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction
CRIMINAL APPEAL NO. 0045 OF 1997
Between: GOKUL SHARAN
s/o Shiu Nandan
Appellant
AND:
THE STATE
Respondent
Mr. G. Prasad for the Appellant
Ms. L. Laveti for the Respondent
JUDGMENT
On the 20th May 1997 after a broken two-day trial, the appellant was convicted in the Labasa Magistrate Court for an offence of Dangerous Driving. Upon his conviction the appellant was fined $60 and had his driving licence endorsed.
The prosecution's case was that on the evening of the day in question the appellant whilst returning home was travelling on Korotari Road at such a speed and in such a manner that he was unable properly to control his vehicle and collided with the complainant's tractor-drawn
trailer loaded with cane whilst it was travelling on its correct side of the road.
The appellant's case however was that the accident occurred because the complainant's trailer and its load of cane was protruding
on his side of the road. Needless to say the appellant maintains that at all times his van was driven on its correct side of the
road.
The trial magistrate in convicting the appellant said: (at p. 37 of the record)
"I reject the accused's evidence that P.W.1 was driving on his incorrect side or even in the centre of the road. I have no doubts
in my mind that the accused ..., drove very fast, went on his incorrect side, avoided the tractor but ran into the load of sugarcane
on the trailer. I find as a fact that his speed was much more than 50 kmph as a result of which while negotiating the bend - although
it is a very slight bend - he crossed the centreline."
The appellant now appeals against his conviction alone and advances several grounds of appeal, but reference need only be made to
the following all-encompassing ground:
"d. That upon proper and full evaluation of all the evidence at the trial, the prosecution had failed to prove beyond reasonable
doubt that your petitioner was driving in a manner which was dangerous to the public having regard to all the circumstances.
Counsel for the appellant began his submissions by criticising the trial magistrate's primary findings of fact which are set out in
the third paragraph of his judgment (at p.31 of the record) where he states:
"I do not have any doubts that it was the defendant who was driving on his incorrect side. I also find that his speed was far
in excess of 50 kmph ... (and) I find as a fact that at no time did the tractor or the trailer went on its incorrect side."
These 'findings' counsel says, are not supported by any reliable evidence and fails to properly take into account the spread of the fallen cane shown
in the rough sketch plan of the accident scene (Exhibit 1) or of the uncontraverted evidence that the cane loaded on the complainant's trailer protruded some "12 to 18 inches" beyond the sides of the trailer and could immediately before the accident, have extended beyond the centre white line into the appellant's
path.
In other words, counsel submits, the trial magistrate failed to consider the 'possibility' that the accident could have occurred without either vehicle being driven on its incorrect side albeit that he would have had to find that the trailer and/or its load of cane was either on or over the centre white line and slightly
inside the appellant's half of the road.
State Counsel in seeking to support the appellant's conviction referred to the complainant's evidence (at p.15) that the appellant's approaching van was travelling "very fast" immediately before the collision; to the appellant's own admission (at p.23) that at the time of the accident he was travelling at a speed of "about 50 kmph"; and to the measured distance (63 metres) which the appellant's van travelled after the collision before coming to a stop in a drain on the side of the road. Undoubtedly there was evidence of 'speed' before the trial magistrate.
State Counsel accepted that where the cane was scattered on the road would generally indicate the 'point of impact' (i.e. close to or on the centre white line; see also the complainant's last answer in-chief at p.15), but other than that, the sketch plan was of little assistance.
As for the trial magistrate's 'finding' that the appellant had crossed the centre line (p.31 and p.39 top) counsel said this was a reasonable inference from the appellant's own admission (at p.25 top) that "(he) swerved to (the) left" immediately before the accident coupled with the complainant's sworn evidence (at p.15) that the accident occurred on "(his) left side (of the road)".
Counsel conceded however that the trial magistrate had not considered the "possibility" raised by the appellant's counsel and based on the undisputed evidence that the complainant's trailer was wider than his tractor
and the cane load on the trailer was in turn, wider than the trailer.
Quite plainly on the evidence before the trial magistrate the case came down to a determination of credibility between the complainant's
version that the accident occurred on his side of the road and the appellant's evidence that when the accident happened the complainant's trailer and/or its load of cane was on his (the appellant's)
side of the road.
The trial magistrate in his judgment quite emphatically believed the complainant and disbelieved the appellant.
In such circumstances what ought to be this Court's approach?
The general rule or approach to be adopted by this Court is correctly set out in my view in the head note to: Chandrika Prasad Mishra v. Goberdhan 18 F.L.R. 116 which reads:
"Where a magistrate has based his findings of primary facts upon his opinion of the veracity of the witnesses, convincing and
compelling reasons must be shown before an appellate Court can feel justified in differing from the magistrate's findings."
In my considered view the learned trial magistrate having decided this fundamental issue of fact on his assessment of the credulity
of the complainant as against the appellant and having found as a fact, that it was the appellant who had 'crossed the centreline', there was in my view, no need for him to go further and dismiss the 'possibility' raised by counsel for the appellant that the complainant's loaded trailer was on its incorrect side.
In any event, the learned trial magistrate expressly found: '... as a fact that at no time did the tractor or the trailer went on its incorrect side' (See: para. 3 p.31 and bottom para. p.37). Quite clearly the trial magistrate did consider the 'possibility' which was raised in the appellant's evidence.
Having carefully considered the evidence and the submissions of counsel for the appellant I remain unconvinced that the 'possibility' raised by counsel for the appellant and based on the varying widths of complainant's tractor, trailer and cane load is so compelling
and detachable from the trial magistrate's assessment of credibility that I would feel justified in differing from his findings based
as they are upon his assessment of the complainant's veracity.
The appeal is accordingly dismissed.
D.V. Fatiaki
JUDGE
At Labasa,
14th October, 1997.
Haa0045j.97b
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/1997/153.html
