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Director of Public Prosecutions v Ali [1978] FJSC 23; Criminal Appeal 008 of 1978 (22 March 1978)

THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 8 OF 1978

DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

v.

AKBAR ALI
s/o Yakub Ali Maqbool
Respondent

JUDGMENT

The respondent was on the 2nd December, 1977 acquitted by the Magistrates Court at Suva of the offence of Causing Death by Dangerous Driving contrary to section 269(1) of the Penal Code.

The Director of Public Prosecutions appeals against the acquittal on the grounds that the learned trial Magistrate failed to apply proper legal principles to the facts of the case. He refers in his petition to the following matters on which the Magistrate is said to have erred:

(i) He erred in finding that "the truck was cutting the corner ..... this would have been a relatively safe manoeuvre if the motor cyclist had indicated he was turning left," after having earlier come to the conclusion that the "sketch on face of it leads to irresistible inferences that the driving was dangerous - truck appearing to be omitting corner."

(ii) Erred in finding that the cyclist had indicated his intention to turn left.

(iii) Failed to draw proper inferences from the circumstantial evidence in the case namely:-

(a) the position of the truck at the time of the collision;

(b) the point of impact as shown by the position of the cyclist and the pool of blood;

(c) the position of the brake mark;

(d) the nature of the road;

(e) the defendant's statement to prosecution witness Number 1,

the totality of which evidence leads to a irresistible conclusion that the defendant was driving the truck in a dangerous manner."

Only one witness was called by the prosecution who claimed to have seen the accident. He was Police Constable 421 Jesse who was sitting in a bus which had stopped on the Kings Road near the junction of Kings Road and Nasinu Road. Although he claimed to have seen the accident the only evidence he gave regarding the truck driven by the respondent was that the truck "was turning at angle towards Nasinu". After the accident this witness said the truck was stationary at an angle facing towards Nasinu Road in the middle of the road.

The learned trial Magistrate found that this witness was discredited in respect of portion of his evidence relating to the rear trafficator light of the cycle. The Magistrate was not impressed by this witness and he also stated that in respect of his other evidence he was hesitant and the evidence "had to be almost dragged out of him."

P.C. Jesse spoke to the respondent immediately after the accident and testified that the respondent told him that the respondent had not seen the motorcycle. This was in response to a question from the constable as to why the respondent had hit the motor cycle.

The learned Magistrate referred to the respondent's answer to the question and stated in his judgment that the respondent may have been misheard by the constable because it was clear that the respondent's defence was that he had seen the cyclist and saw him indicating he was turning left. He did not, however indicate he did not believe P.C. Jesse on this aspect of his evidence.

There was no justification in my view for the Magistrate to assume the constable misheard the respondent. The constable under cross-examination denied that the respondent had said to him that the motor cyclist did not see the truck. It was only when the respondent made a statement after caution later on the day of the accident that he disclosed for the first time that he had seen the motor cycle which he contended was indicating it was turning left from Kings Road into Nasinu Road.

He repeated this in a very brief unsworn statement in Court and called one witness who shortly after the accident which he had not seen, noticed that the signal light on the motor cycle was on but the light was not flickering as the indicators were damaged.

Before setting out the facts which were established I will deal with the evidence regarding the motor cycle trafficator indicating a turn to the left. The record indicates that the Magistrate in his judgment said:

"P.W.1 and D.W.2 both confirm seeing a light on at rear indicator shortly after the accident."

The record does not confirm this.

P.W.1 said;

"I did not see the indicator of motor cycle flickering. I did not see rear left light was still on after accident. There was no indicator on."

The Magistrate considered P.C. Jesse had been discredited in respect of this portion of his evidence.

D.W.2 said:

"I saw the signal light on motor cycle was on - the light was not flickering the indicators were damaged."

This witness did not state whether the light was on left right or rear.

I have checked the Magistrate's hand written record and I am of the view that "P.W.1" in the first instance quoted above from the typed copy of the record should read P.W.4. The figure could be a 4 or a 1. P.W.4 Sergeant Saula who came on the scene after the accident said in evidence:

"The left trafficator was on but not flickering - the rear one I think - front left indicator was damaged."

It was P.W.4 and D.W.2's evidence which satisfied the Magistrate that P.W.1 P.C. Jesse was discredited in respect of his evidence relating to the motor cycle's rear left light and was the basis for his finding as a fact that the cyclist had indicated he was turning left. There was some evidence to support this finding and the Magistrate gave the respondent the benefit of the doubt. The Magistrate did not err in his finding as alleged by the appellant in the grounds appeal.

The facts accepted by the Magistrate which in the main were established by the facts related in the respondent's cautioned statement, which is the only clear evidence indicating how the accident occurred, show that the accident happened in the following manner:

The motor cyclist passed a bus which was stationary or about to move a few yards from the Nasinu Road junction. The trafficator light on the motor cycle indicated the cyclist was intending to turn left presumably into Nasinu Road which was close by. The respondent was driving a truck travelling from the opposite direction. Before the cyclist had turned left, the respondent, who also intended turning right across Kings Road into Nasinu Road commenced his turn before he reached the junction. When the respondent appreciated the motor cyclist was not turning into Nasinu Road he, the respondent, stopped at an angle across the road, part-way through his turn and the motor cyclist came straight on and hit the respondent's truck in the front. There is no evidence to indicate the cyclist took any evasive action or had time to do so.

The sketch plan is a very rough document which omits some important measurements and is of limited assistance. It does however confirm P.C. Jesse's evidence that the truck stopped at an angle across the road. If any reliance could be placed on the sketch plan, it would indicate that the cyclist had actually just passed the junction and had collided with the truck which had commenced its turn before reaching the junction. This is borne out to some extent by the respondent's own statement.

The Magistrate found as a fact that the truck was cutting the corner. He held, in my view erroneously, that this was a relatively safe measure if the cyclist had indicated he was turning left.

The Magistrate after considering the evidence and finding as a fact that the cyclist had indicated his intention to turn left then stated:

"The position appears to be that the truck stopped suddenly when defendant realised cyclist was not turning left - too late in these circumstances to avoid the cyclist running literally straight into him."

This view is one which is amply borne out by the evidence. The Magistrate then proceeded to find the respondent not guilty and acquitted him without in my view having properly considered whether on the facts and the view he formed from such facts the respondent had driven in a manner dangerous to the public.

In my view it is immaterial whether or not the motor cyclist had indicated he was intending to turn left into Nasinu Road. The facts clearly show that the respondent had commenced his right turn across the road preparatory to entering Nasinu Road before the cyclist was committed to his turn. The respondent should not have commenced his turn until after the 'motor cyclist had actually turned into Nasinu Road. In doing so he created a dangerous situation resulting in the death of the cyclist.

P.C. Jesse's evidence that the motor cycle passed the stationary bus near the junction travelling at 30 - 35 m.p.h., on which the Magistrate made no comment, would indicate to any careful driver that there was some doubt whether the cyclist was about to turn into Nasinu Road even if the trafficator light was indicating a left turn. The damage to the motor cycle was severe indicating a violent impact consistent with the speed alleged. The respondent in his statement did not state the cyclist actually commenced a left turn, on the contrary he relates that the cyclist came straight on only to find the respondent obliquely across the road right in the cyclist's path and the collision occurred resulting in the death of the cyclist.

If in fact the respondent did not see the motor cycle, as he told P.C. Jesse immediately after the accident, it is clear from the evidence that there was a point in time just before the collision when he did see the vehicle. A brake mark shown on the plan indicates the respondent reacted to the danger and stopped suddenly at an angle across the road in the path of the cyclist who was on his correct side of the road. When the respondent first commenced his turn he could not then have seen the motor cycle or he should have appreciated that the cyclist was not turning left but coming straight on as he told P.C. Jesse. If this was the position in commencing his turn without first ensuring the road was clear and it was safe to do so his driving fell below the standard of a careful prudent driver.

Whichever way the facts are viewed, the situation which existed at the time dictated that the respondent should not have turned right across the road until he had ensured it was safe to do so. If the motor cycle trafficator light indicated a turn to the left the respondent should still have waited to make this turn until after the cyclist had made his turn.

The respondent said in his statement that he saw the cyclist a chain from the junction. He noticed the cyclist slowing down at the junction. The respondent then made his turn without waiting to see if the cyclist was in fact turning into Nasinu Road. The cyclist did not turn and a collision occurred before the respondent reached the junction and after the cyclist had just passed or was about to pass the junction. Had the respondent been keeping a proper lookout he could not have failed to see that the cyclist was not turning into Nasinu Road despite the trafficator light indicating a left turn. There is no doubt that the respondent was at fault and a proper consideration of the evidence by the Magistrate would have established this fact.

The case of Simpson v. Peat (1952) 2 Q.B. 24 is one which bears some similarity to the facts in the instant case. The defendant in this case driving a vehicle at a reasonable speed on a main road was approaching a minor road leading off to the right. At the same time and place a motorcyclist was driving in the opposite direction at a reasonable speed. As the two vehicles approached the defendant drove his car to the right intending to turn into the minor road and a collision occurred. The court comprised of five judges directed that the case go back to the justices with a direction to convict.

Lord Goddard who read the judgment of the Court at page 28 said:

"The defendant was turning to his off side in a main road cutting across the line of traffic coming from the opposite direction. It was not found that the motorist was driving too fast or that the respondent was confronted with a sudden emergency. It is not even found that he gave a signal, but in any case it was for him to take care that he could execute the manoeuvre in safety."

The offence charged in that case was driving without due care and attention.

In the instant case there was, as I have stated ample evidence that the respondent drove without due care and attention and thereby caused the death of the cyclist.

In R. v. Evans (1963) 1 Q.B. 413 where a defendant had been convicted of causing death by dangerous driving it was held as stated in the head note to the case "that the test being objective the degree of negligence was irrelevant and if in fact the driver adopted a manner of driving which the jury thought dangerous to other road users in all the circumstances he was guilty, and it mattered not (although it was relevant to sentence) whether he was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best".

The learned Magistrate did not, in my view properly evaluate the evidence before him and draw the proper inferences from the established facts. The respondent drove without due care and attention and the Magistrate should have convicted him.

The appeal is allowed.

The Magistrate's order acquitting the respondent is set aside and the respondent is convicted of the offence of Causing Death by Dangerous Driving contrary to section 269(1) of the Penal Code.

R.G. Kermode
JUDGE

Suva,
22nd March, 1978.