IN THE HIGH COURT OF FIJI
(AT SUVA)
CRIMINAL (MISC) JURISDICTION

CRIMINAL ACTION NO. HAM012 OF 1997S

BETWEEN :

NILESH RAJESH ROHAN
Appellant

- and -

THE STATE
Respondent

Mr V. Kapadia for the Appellant
Mr. Auld for the Respondent

JUDGMENT

The Appellant applies for bail pending appeal against his conviction for ‘Dangerous Driving Causing Death’ and sentence of 18 months’ imprisonment on the 29th May 1997 in Suva Magistrates’ Court.

Only one prosecution witness saw the incident. He deduced excessive speed from the racing of the car engine. For a start this is not a very reliable basis for assessing speed. He had a view from the side of the road for a matter of seconds. He said 60 kph. 

The only sustained version came from the Appellant.

He said he noticed a group of 8 or 9 people standing on the white centre line of Victoria Parade opposite the N.L.T.B. Building.

He was 20 – 30 metres away from the group, and it was not suggested he was in breach of any traffic law as to speed. 

He estimated his speed at 40 – 50 k.p.h. but that did not come from his speedometer but only estimation.

As a new driver of only about 3 months experience that estimate of sped was likely to be out, but which way, up or down, is impossible to say.

The Appellant’s vehicle had the right of way and was entitled to proceed down Victoria Parade, at a reasonable speed, without vehicles or persons performing sudden dangerous manoeuvres in its path: see Chandar Pal v. R. (1974) 20 Fiji Law Reports 1.

The Appellant at some 65 to 100 feet from this group saw an Indian woman (so he was keeping a very good look-out) run across his path towards the N.L.T.B. building.

The rest of the group remained still standing at the spot on the white centre line.

The Appellant slowed down and changed the gear from 4th to 3rd. This should have further reduced the speed.

As soon as this lady crossed, the Appellant pressed the accelerator (obviously, it could be argued, to get out of the situation where others might be induced to tempt fate, as did the Indian woman).

But that turned to the wrong decision, as the deceased 8 year old boy (apparently with no parent restraining him) chose that moment to jump in front of the Appellant’s accelerating vehicle.

Of course, that gave the Appellant no chance, and the argument on this Appeal will be, is this even dangerous driving at all? Or is there a reasonable doubt that the unfortunate boy was solely responsible for his own death?

Other matters that arise for argument on appeal are whether the Magistrate placed undue reliance on the sole matter of speed and upon a witness who gained but a momentary glimpse of the Appellant’s vehicle and could not possibly give any evidence in the matter that could assist.

Further, the reliance of the Magistrate on the behaviour of the vehicle after impact with the boy may be argued to be unsafe.

The Appellant’s Counsel placed great reliance on there being a totally erroneous approach to sentence by the Magistrate.

That approach was to start with 5 years, the maxima term permissible for the offence, and take 3 ½ years off that, for the effect of mitigation.

This will undoubtedly be argued to be a quite extraordinarily wrong approach to sentence in any matter at all before a Court.

It will be no doubt argued on the Appeal that the Magistrate should have first ascertained the appropriate rate of sentence in accordance with Fatiaki J’s reasoning in Sefanaia Marau v. The State Criminal Appeal No. 79 of 1990.

There as here, there was no actual fault found with the accused person’s control of his vehicle or in his manner of driving except “driving at a fast speed”. There also the accused was driving in the vicinity of crowds attending a festival.

Fatiaki J. reviewed decided cased in Fiji on ‘Causing Death by Dangerous Driving’ and came to the conclusion that “experience and statistics indicate that a custodial sentence is the exception rather than the rule.”

He went on to cite with approval the English decisions in Guilfoyle (1973) 57 Crim. App. Rep. 549 and Boswell and Others (1984) 6 Crim. App. Rep. (Sentencing Series) 257.

In Guilfoyle it was said that there were “two broad categories of offender: first, those in which the accident has arisen through momentary inattention or misjudgment, and secondly, those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers or with a degree or recklessness.”

The Court of Criminal Appeal in Guilfoyle continued: “In the judgment of this Court an offender who has been convicted because of momentary inattention or misjudgment and who has a good driving record should normally be fined and disqualified from driving or obtaining a driving licence for the minimum statutory period, or a period not greatly exceeding it, unless, of course, there are special reasons for not disqualifying.”

Then, having ascertained in accordance with Marau’s case whether any imprisonment at all ought to have been imposed, the Magistrate, it will not doubt be argued, should have considered the effect of the mitigation.

Instead, he made the following, it might be said, dubious comments:-

“The offence is viewed seriously by Parliament as prescribed by s. 238(1) of the Penal Code wherein Parliament has commanded the Court to impose the maxima of 5 years imprisonment.” (is this really true? Or has it merely provided for a maximum of 5 years in the worst possible case?) “for those who are found guilty of this offence i.e. causing death by dangerous driving.”

“The sole cause of the accident, as found by the Court, was the accused speeding excessively, at the material time.”

“However, it is well known in most cases, in Fiji and overseas, that deaths on the roads are mostly attributed to excessive speed.”

“This is a typical case. Driving in a busy town area, where people are mingling around. It is the duty of the Courts to protect the public, by sending out the right message to all drivers, who use the roads. They must be careful to avoid hitting and killing pedestrian.”

“Given the above, and the fact that Parliament, through s.238(1) of the Penal Code has commanded the Courts to look at the 5 years sentence, in this type of case, the Court reduces the sentence to 18 months imprisonment to the accused for his offence, i.e. the accused is convicted as charged and sentenced to 18 months.”

“3 ½ years is deducted from the 5 years, in view of Counsel’s pleas in mitigation.”

I am conscious of the rule of practice that there must be exceptional circumstances before bail pending appeal can be granted after conviction at trial. I take heed of the dicta in Apisai Vuniyayawa Tora v. Reginam Volume 24 Fiji Law Reports 28 that “as a general rule, the merits of the appeal are not relevant,” but the learned Judges of Appeals there go on to say “though there may be cases in which they are a factory to be taken into consideration.”

I am of the view that the present case is one of those, at least on the question of whether a custodial sentence should be imposed, although there could also be a substantial argument as to whether the conviction can be justified.

Since a very considerable doubt arises on the material, as to whether the Appellant should even be in jail in the first place, (in which case, any period spent in prison will be an injustice,) I am of the view that there are exceptional circumstances in the case, and that the Appellant should be granted bail pending his Appeal to the High Court against his Conviction and Sentence. 

K.J. TOWNSLEY
JUDGE

10TH JUNE, 1997 SUVA