Criminal Appeal No. 109 of 1997
BETW>BETWEEN:
NILESH RAJESH ROHAN
Respondent
AND:
THE STATE
Appellant
Respo - In Person DPP - For the State
JUDGMENT
RE: MR. NILESH RAJESH ROHAN
BACKGROUND:
1. This Matter conc concerns Appeals against Conviction and Sentence imposed by the Magistrate sitting at Suva on 29 May 1997 on Mr.
Nilesh Rajesh Rohan. On that day the Appellant was convicted, after trial, of Causing Death by Dangerous Driving (S.238 of the Penal Code). He was sentenced to 18 months imprisonment. (The maximum penalty for this Offence is 5 years imprisonment)
GROUNDS OF APPEAL:
2. The Grounds of Appeal are set out in a Petition dated 2 June 1997, filed by the Solicitors for the Appellant. The Grounds state
that the Magistrate:
(1) erred in finding that the Appellant drove in excess of 50 kph;
(2) erred in finding that the speed was unsafe and concluding that the Appellant had driven in a dangerous manner;
(3) erred in finding that the Appellant drove in a manner dangerous to the public in all the circumstances;
(4) erred in not properly directing himself on the required standard of proof;
(5) failed to fully evaluate the evidence of the speed and the Appellant's evidence;
(6) that the sentence of 18 months imprisonment was excessive.
CIRCUMSTANCES OF THE CASE:
3. On the early evening of the 2 July 1994 the Appellant drove his motor vehicle along Victoria Parade in Suva. At this time there
were a significant number of persons (including Parents and Children) returning from a Circus Show held in nearby Cruickshank Park.
As the Appellant approached the area of the Mobil Petrol Station there were a number of people in the middle of the road waiting to
complete their crossing, when suddenly a young boy crossed the road immediately in front of the Appellant's vehicle and the vehicle
collided with the boy.
The boy, Ashish Kamal, was taken to hospital and later died from injuries received in the accident.
WITNESSES EVIDENCE:
4. There were only two 'eye witnesses' of the accident available to give evidence about what happened that evening. One was Mr. Mohammed
Feroz, and the other was the Appellant himself. I have examined carefully the evidence of each as recorded in the Magistrate's Record.
(1) Mr. Feroz
He is a Salesman and an experienced Driver. He was standing on the footpath in Victoria Parade when he saw the accident. He says a
car came at high speed raising the engine. He saw the boy cross, or half cross, to the second half of the road when he was struck
by the Appellant's car.
He says he saw the car lose control and collide with a traffic sign and a tree. Mr. Feroz's evidence was that the Appellant was "over
speeding". In cross examination he said:
"the boy ran across the white line. The boy was waiting for the others and suddenly ran across the road".
(2) The Appellant's Evidence before the Magistrate
The Appellant described to the Magistrate how he had driven his car along Victoria Parade at about 9.15 p.m. that Saturday 2nd July
1994. He saw a crowd outside the Mobil Petrol Station - 8 or 9 people standing on a white line in the middle of the road. He sounded
his horn; a lady crossed when he was 7 feet away and the Appellant moved to the 3rd gear driving (he says) at 50 kph. A boy jumped
in front of the car. Brakes were applied.
The Appellant says he did not see the boy prior to the accident: "he (the boy) just came suddenly".
PENULTIMATE PARAGRAPH (page 3) OF THE MAGISTRATE'S JUDGMENT:
5. The Magistrate mentions that the only "contestable material" (? ? Matter in dispute) was whether the Appellant was driving
too fast. The Appellant says it was 50 kph. Mr. Feroz says it was fast, based on a "racing engine" (a questionable way
to accurately assess speed).
In my view the tone of the evidence does not suggest excessive speed, and it is certainly difficult to be sure that it was in excess
of 50 kph. It is a difficult case.
RULING ON THE APPEAL:
6. To convict the Appellant the Magistrate had to be satisfied that the Appellant was driving in such a manner as to create an obvious and serious risk of causing physical injury to a person who might be using the road; and if the Appellant did drive in that manner whether he
did so without having given any thought to the possibility of any such risk, or having recognised there was some risk went on to
take it.
In deciding whether there was an obvious and serious risk the Magistrate had to apply the standard of the prudent motorist.
7. I have studied the evidence given by Mr. Feroz and the evidence given by the Appellant. If the Magistrate had applied the 'tests'
I have mentioned to the evidence given I doubt he would have been totally satisfied that the Appellant was driving (in all the circumstances
of the case including the sudden appearance of the child and the precautions taken a minute before the sounding of the car horn)
in a dangerous manner. I query if the Appellant was driving too fast in all the circumstances.
8. I would therefore allow this Appeal against Conviction. The Conviction and Sentence of imprisonment are quashed.
SUMMARY:
9. Appeal against Conviction and Sentence are allowed.
Peter Surman
JUDGE
At Suva,
9th April, 1998.
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