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Kabulevu v State [2010] FJHC 300; HAA021.2010S (13 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 021 OF 2010S

PITA VULI KABULEVU

V

THE STATE

Counsels: Mr. F. Vosarogo for the Appellant
Ms. W. George for the State

Hearing : 24th June 2010
Judgment : 13th August 2010

JUDGMENT

1. On 26th May 2009, the appellant (accused) pleaded not guilty to the following charge:

Statement of Offence

CARELESS DRIVING: contrary to Section 99(1) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

PITA VULI KABULEVU, on the 2nd day of December, 2008 at Samabula in the Central Division, drove a motor vehicle registration number CR 172 along Reservoir Road without due care and attention.

2. On 21st August 2009, the trial commenced with the prosecution calling two witnesses. Thereafter, the accused gave sworn evidence for the defence. A site visit was done on 1st September2009. Closing submissions were done on 26th November 2009, and the court delivered its judgment on 18th January 2010. It found the accused guilty as charged. Plea in mitigation was done on 2nd February 2010, and later the court fined the accused $300, 3 months to pay, in default 1 month imprisonment. The accused was also given 1 demerit point.

3. The brief facts as found by the court were as follows. On 2nd December 2008, at Samabula in the Central Division, the accused was driving a one ton truck registration number CR 172, up Reservoir Road, pass the Saint Giles Hospital. It was a two lane road, and the accused was driving on the lane next to the footpath. Near the Australian High Commission, the accused decided to do a u-turn. At the time, the complainant was driving his taxi up Reservoir Road, on the outer second lane, behind the accused's vehicle. While doing the u-turn, the complainant's taxi came up Reservoir Road and collided with the accused's middle right side. The court held that by doing the u-turn, the accused drove carelessly.

4. The accused was not happy with the court's decision. He filed an appeal against conviction and sentence. His five grounds were as follows:

(a) THAT the learned trial Magistrate failed to properly consider, weigh, judiciously and fairly evaluate the evidence of careless driving necessary for a conviction; and

(b) THAT the learned Magistrate failed to properly apportion the lack of road attentiveness required and as a result, the prosecutions have failed to prove the ingredients of the offence; and

(c) THAT the learned Magistrate failed in law when he failed to consider/ take all relevant evidence including the over-speeding of the complainant's vehicle on the road condition and location which was described in evidence; and

(d) THAT the learned Magistrate erred in not emphasising on the faults evident in the driving manner of the complainant and the lack of proper skills required in the condition of the road at the time of the accident; and

(e) THAT the sentence was manifestly harsh and excessive considering all the relevant factors of the case.

5. Ground 4(a): failed to properly consider and evaluate the evidence to ground a conviction for careless driving:

I have carefully read the court record, and the learned Resident Magistrate's judgment, containing 76 paragraphs. For a case of "careless driving", the judgment was well prepared and thorough. The accused's complain abovementioned must be dismissed, because in my view, the learned Resident Magistrate carefully considered and evaluated the evidence from paragraphs 35 to 74 of her judgment, to find the accused guilty as charged. This ground therefore failed.

6. Ground 4(b): failed to properly apportion the "lack of road attentiveness" required, and as a result, prosecution failed to prove the charge:

In this case, there was no need to apportion the "lack of road attentiveness" to anyone, but the accused. The learned Resident Magistrate was the judge of fact and law, and she found that the accused was driving carelessly, when he did a u-turn on Reservoir Road, at the time. This finding was reached, after a careful analysis of the evidence, and her finding of facts, as itemized in paragraphs 72, 73 and 74 of her judgment. This ground, in my view, must fail.

7. Ground 4(c): failed to consider all relevant evidence, including the over-speeding of the complainant's vehicle on the road conditions:

Speeding, as a ground to conclude that someone was driving carelessly, is always difficult to prove in a trial. Allegation of speeding are always easy to throw around in a trial, but difficult to prove in court. A person had to sight the speedometer of a vehicle to be able to conclude confidentially the speed of a motor vehicle. Alternatively, a speed radar held by a traffic officer monitoring vehicles on the road, may record the speed of a vehicle correctly. There was no evidence of speeding, by the complainant in this case, tendered by either parties. It was therefore wrong to conclude, factually, that the complainant was speeding in his taxi. The complaint regarding failure to consider all relevant evidence have been covered in Ground 4(a). This ground therefore failed.

8. Ground 4(d): erred in not emphasizing on the faults evident in the driving manner of the complainant and the lack of proper skills required on the road at the time:

It is well settled in the Magistrate Court, that the learned Resident Magistrate is the judge of fact and law. She found in paragraphs 72, 73 and 74 of her judgment that the accused was solely responsible for the accident by undertaking a "risky manoeuvre", that is, doing a u-turn on Reservoir Road when it was busy. As a judge of fact, she found no fault on the part of the complainant. She was entitled to reach this position, as judge of fact, after analyzing the evidence. In my view, this ground must also fail.

9. Ground 4(e): the sentence was harsh and excessive.

The maximum penalty for careless driving is a $500 fine and 3 demerit points. The minimum fine is $200 and 1 demerit point. A $300 fine and 1 demerit point, in my view, is not harsh and excessive. This ground must also fail.

10. Given the above, I dismiss the appellant's appeal, and confirm the Magistrate Court's judgment and sentence, in this matter.

Salesi Temo
ACTING JUDGE

AT Suva
13th August 2010