IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0021 OF 2003S

Between:

STATE
Appellant

And:

TEVITA SAUNIVUALIKU RAIKOTI
Respondent

Counsel: Mr N. Nand for State
Respondent in Person

JUDGMENT

This is an appeal by the Director of Public Prosecutions. It is against the sentences imposed on the Respondent by the Suva Magistrate’s Court on the 29th of April 2003 in respect of the following offences:

FIRST COUNT

Statement of Offence

DANGEROUS DRIVING CAUSING DEATH: Contrary to sections 97(2)(c) and 114 of the Land Transport Act No. 35 of 1998.

Particulars of Offence

TEVITA SAUNIVUALIKU RAIKOTI on the 6th day of April 2003 at Nasinu in the Central Division drove a motor vehicle on the Kings road, 8 miles in a manner which was dangerous to the public having regards to all the circumstances of the case and thereby caused the death of KINIVILIAME NAVUSOLO.

SECOND COUNT

Statement of Offence

FAILURE TO COMPLY WITH REQUIREMENTS FOLLOWING AN ACCIDENT: Contrary to Regulations 63/64 and 87 of the Land Transport (Traffic) Regulations 2000.

Particulars of Offence

TEVITA SAUNIVUALIKU RAIKOTI on the 6th day of April 2003 at Nasinu in the Central Division being a driver of a motor vehicle that was involved in an accident at Kings Road, 8 miles failed to comply with requirements following an accident.

On Count 1, the Respondent was fined $1000 in default 100 days imprisonment and disqualified from driving for 6 months. On Count 2, he was fined $150 in default 30 days imprisonment. On each count the Respondent had pleaded guilty.

The grounds of appeal are:

(a)	That the sentence imposed by the learned Magistrate on the two counts was wrong in principle, and manifestly lenient having regard to all the circumstances of the case, and

(b)	The Magistrate erred in law when he accepted a plea by the Respondent and proceeded to sentence him in his chambers.

At the hearing of the appeal, the Respondent chose to waive his right to counsel, and represented himself. A perusal of the court record showed that it is silent on any hearing in chambers. State counsel applied to supplement the court record and filed the affidavit of Armogam Goundar, the Divisional Prosecuting Officer (Southern) which stated as follows:

“3.	That the case was called on the 29th day of April 2003 on or about 3.30pm before Mr Aminiasi Katonivualiku in his chambers.

4.	That before appearing in chambers, I enquired with the Court clerk as to why the case was being called in chambers.

5.	That I was informed by the clerk that it was the instruction of the Magistrate to have the matter called in chambers.

6.	That I was not in a position to question the direction of the Magistrate.

7.	That the matter was called in chambers and the charges were put to the Respondent who pleaded guilty to both the counts and he was subsequently convicted by the Magistrate.

8.	That the Magistrate then proceeded to sentence the Respondent in chambers.”

The Respondent agreed that the hearing was held in chambers but said that he had made no application for a chambers hearing and was not told why the proceedings took place in chambers.

The matter was referred to the Resident Magistrate who handled the matter. He responded by affidavit, saying that on the day in question at about 3.30pm he was dealing with a bench warrant in chambers when the Respondent’s file was brought to him. He said that because he was busy with writing a judgment at the time, he decided to deal with both matters in chambers. He then sentenced him as the court record states but said he intended to also impose an 18 month term of imprisonment suspended for 2 years but overlooked it at the time. He said that the Respondent was not known to him and that he had never seen him before. Clearly the learned Magistrate heard the matter in chambers as a matter of convenience.

The chambers hearing

Section 29(4) of the Constitution provides:

“The hearings of courts (other than military courts) and tribunals established by law must be open to the public.”

Section 29(5) provides:

“Sub-section (4) does not prevent:

(a)	the making by the Parliament of laws relating to the trial of juveniles, or to the determination of family or domestic disputes in a closed court; or

(b)	the exclusion by a court or tribunal from particular proceedings (except the announcement of the decision of the court or tribunal) of persons other than the parties and their legal representatives if a law empowers it to do so in the interests of justice, public morality, the welfare of persons under the age of 18, personal privacy, national security, public safety or public order.”

The rule that justice must be administered in open court is a fundamental one. It allows cases to be conducted under the scrutiny of the media and the public, and provides an important source of judicial accountability. If the legitimacy of the judiciary derives from public confidence in it, then the public must be able to see how the judiciary dispenses justice from day to day. As Gates J said in William Rosa Junior –v- The State Misc. Action HAM 006.03, 11th July 2003, in relation to the need to have applications to enlarge time heard in open court:

“If it has been the practice in the past to deal with enlargement applications without the presence of the relevant parties, that practice should cease. The parties should be heard, and the proceedings should be heard in open court, unless the public are to be properly excluded under one of the categories of exclusion set out in the Constitution [section 29(5)]. Open justice is often trumpeted. It would be better if it were simply applied.”

In State –v- Josefa Nata Crim. App. No. HAA0047 of 1994 the accused pleaded guilty to a charge of assault occasioning actual bodily harm in chambers. The magistrate discharged him conditionally and ordered that his name be suppressed. The Director of Public Prosecutions appealed against the orders. Kepa J found that while magistrates did have powers to suppress the publication of names, such powers should only be exercised for the dire administration of justice and to serve the interests of justice. He then quashed the suppression of name order on the ground that “the order only served to save the respondent’s personal embarrassment and his personal interests and not any wider interests of justice.” On appeal to the Court of Appeal, the court held that the name suppression order was derived from a court’s inherent power to exclude the public to ensure the dire administration of justice. At page 9 of the judgment the court said:

“This is a stringent test: the inherent jurisdiction is not one to be exercised to spare the feelings of individual parties or witnesses, or for business or other reasons personal to them. The circumstances must be of such a nature that disclosure of their names to the public would threaten the administration of justice in the particular case, or in relation to cases which may be brought in future. Such considerations arise in cases of sexual assault or blackmail, where complainants may be discouraged from pressing charges because of the understandable fear of publicity, and this has always been recognised as a valid ground for protecting their identity. There may not be many cases where protection of a defendant’s identity would be warranted on these principles. One example may be where he has assisted the police in the prosecution of other offenders. The knowledge that his name could be disclosed generally in court as an informer, with the risk of retribution against him might well deter him and result in others being reluctant to help the authorities in the future.”

These common law principles of limitations to the right to open justice, have been restated in section 29(5)(b) of the Constitution.

There is no dispute that the Respondent fails to fall into any of these categories. The case is one of causing death by dangerous driving, and failing to report an accident. He is not a juvenile and there is nothing about the circumstances of the case which justified a chambers hearing. In the circumstances the learned Magistrate erred in holding the hearing in chambers.

In addition to this error the sentencing process was also inadequate and unsatisfactory. The facts were outlined by the prosecution. They were that on 6th April 2003 at 9am the deceased with a 62 year old woman were walking along the Kings Road towards Suva when the Respondent hit them with his vehicle. The facts state that he was “travelling at a speed.” One pedestrian died. The other is still in hospital. The Respondent did not stop his vehicle after the accident and did not report the accident within 24 hours as required by the Land Transport Act.

The Respondent admitted the facts, was convicted as charged and was sentenced. In his sentencing remarks the learned Magistrate said that the victim might have survived if the Respondent had taken him to hospital. There was no reference to the tariff for cases of causing death by dangerous driving and no consideration of the type of fault involved, which would then have determined the type of sentenced to be imposed.

In order to establish an offence of causing death by dangerous driving, the prosecution must show (either in their facts or by evidence) that the accused had been at fault in some way in the manner of his driving, and that the element of fault has caused the fatal accident. The facts in this case fail to disclose any fault at all. At what speed was the Respondent driving? We do not know. Did he hit the pedestrians on the side of the road, in the middle of it or on the footpath? We do not know. Was there an established point of impact? We do not know. A causing death by dangerous driving offence is not disclosed by an accident. There must be some fault on the part f the accused. The facts failed to disclose any such fault. The Respondent who was unrepresented and whose case was heard in private, could not have known that the facts had failed to disclose the offence. In the circumstances, it is not surprising that he agreed to the facts as outlined.

On the record, it is clear that the conviction cannot stand. It is bad because the proceedings occurred in chambers and because the facts fail to disclose the offence on Count 1. In respect of count 2, the Respondent brought a number of matters to my attention which had not been brought to the attention of the court below. They are the circumstances in which he failed to report the accident. Although these circumstances are not relevant to the conviction, I consider that the conviction on count 2 must also be quashed because of the irregularity of the chambers hearing and remitted to the Magistrates’ Court for the pleas to be retaken.

Sentence

The inadequacy of the facts outlined has led to the quashing of the convictions. However, even if the convictions had not been quashed, I would have found the facts inadequate for the sentencing process. In Sefanaia Marau –v- The State Crim. App. HAA0079 of 1990, Fatiaki J considered an appeal against a sentence of 12 months imprisonment and 2 years disqualification for an offence of causing death by dangerous driving. He said at p.4 of his judgment:

“If I may say so there appears to be a serious misconception amongst drivers perhaps reinforced by sentences passed by the courts, that persons convicted of traffic offences are not really a danger to society or “criminals” in the popular sense of the word. Last year alone there were as many as 86 deaths on our roads and if the existing trend continues unabated this year the road death toll will exceed 100. No other area of human activity has given rise to such appalling fatality figures, human suffering and disability yet the attitude continues.”

In that judgment he adopted the guidelines of English Court of Criminal Appeal in Guilfoyle (1973) 57 Cr. App. R. 549 and Boswell and Others (1984) 6 Cr. App. R(s) 257. In Guilfoyle, Lawton L.J. said that cases of causing death by dangerous driving fell into two broad categories, that of the accident being caused by momentary inattention, and that of the accident being caused by the accused driving in a manner which has shown “a selfish disregard for the safety of other road users or his passengers or with a degree of recklessness.” Offenders can also be divided into two categories; those with a clean driving record, and those with records which show a continuing pattern of bad driving. An accused person with a good record and who is guilty of the “momentary inattention” type of dangerous driving can be disqualified from driving with no custodial sentence. However, where the accused has a bad record, and has shown a selfish disregard for other road users, thus killing the deceased, a custodial sentence would be appropriate.

In Boswell (supra) Lord Lane CJ identified a number of aggravating and mitigating factors in cases of causing death by dangerous driving. Aggravating factors include the consumption of drink or drugs, excessive speed, and prolonged and persistently bad driving. Mitigating factors include momentary inattention, a plea of guilty and a good driving record. Although (as I said in Ajnesh Kumar –v- The State Crim. App. No. HAA0014 of 2001S) Boswell was a case of causing death by reckless driving which is a more serious offence than causing death by dangerous driving, these guidelines are helpful. In order to sentence an offender for the offence of causing death by dangerous driving, the sentence needs to first decide which category the case falls into, and which category of offender the accused falls into.

On the facts disclosed in the court record, it would be impossible to make any such decision. It is not clear whether this is a case of momentary inattention or one of selfish disregard for road users. In the circumstances, any principled approach to sentencing is impossible. Even if the convictions were not quashed, I would have exercised my discretion to remit the matter to the Magistrates’ Court for facts to be outlined afresh.

Result

On the ground that the facts failed to disclose the offences, and that the proceedings were held in a closed court, I quash the convictions on both counts and order that the case be remitted to the Magistrates’ Court for pleas to be re-taken in open court and (if the pleas are of guilty) then for facts to be outlined afresh. Convictions and sentences are quashed. The appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
16th July 2003