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Hanif v Reginam [1979] FJSC 55; Criminal Appeal 12 of 1979 (3 August 1979)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Labasa Criminal Appeal No. 12 of 1979

MOHAMMED HANIF
s/o Gowar Ali
Appellant

AND

REGINAM
Respondent

Mr. A. Ali for the Appellant
Mr. I. Khan for the Respondent

JUDGMENT

The appellant was convicted by the Magistrates Court, Labasa of causing death by dangerous driving contrary to section 269 of the Penal Code and sentenced to nine months' imprisonment. He appeals against his conviction and sentence on the following grounds:

"(a) THAT the learned trial Magistrate erred in holding that your Petitioner was the driver of the vehicle in question when the evidence as a whole tended to establish that there was grave doubts as to this alleged fact.

(b) THAT the sentence imposed by the learned trial Magistrate is excessive and unreasonable having regard to the circumstances surrounding the case."

He was also convicted of driving without a driving licence and driving in contravention of third party risk. There is no appeal in relation to those charges either against conviction or against sentence.

Some of the facts are not in dispute. The incident occurred early in the morning of 15th November 1977 on Nabouwalu Road near Vunicagi. The van in question belonged, not to the appellant, but to one Tahir Ali. The van left the road and overturned. The deceased, a passenger in the van, died as a result. The appellant, the deceased and Tahir Ali were friends living in the same neighbourhood. The appellant had no driving licence. The main issue at the trial was the identity of the driver and the cause of the accident.

The incident had occurred in daylight and the prosecution relied mainly on eye witnesses. According to them, the van in question had come to the deceased's house between 6 a.m. and 7 a.m. driven by the appellant. The deceased was with him. The deceased got off the van and gave some prawns to his sister Ram Rati. This was also seen by the deceased's wife Nirmala Wati and his mother Ram Kumari. The van then drove off, still driven by the appellant. The accident in question occurred only moments later just a short distance away before it could reach the appellant's house. A school boy, Narendra, also a prosecution witness, saw the van coming towards him erratically and jumped out of the way. The van left the road and overturned. The appellant was behind the driving wheel.

As soon as the news of the accident reached the deceased's house, his wife and others rushed towards the scene. Tahir Ali, the owner of the van whose house is further away from the scene of the accident than that of the deceased, overtook them from behind and went running past them towards the overturned van. At the scene he tried to persuade the deceased's wife and other relatives to tell the police that it was he, Tahir Ali, and not the appellant, who had been driving the van. This, he told them, would facilitate their insurance claim.

The appellant's case was that he did not know how to drive and had not driven the van. He had no driving licence. At the time of the accident, he was asleep in his bed. His wife, Saliman Bi, supported his evidence.

Tahir Ali, who also gave evidence, said that it was he who had been driving the van at the relevant time and that the accident had occurred owing to a blown tyre. The whole issue, therefore, was one of credibility.

The learned Magistrate had no hesitation in accepting the prosecution evidence and was entirely unable to place any reliance on the evidence of the appellant, Tahir Ali and his other witnesses as to the driver's identity. He was quite entitled to do that, and this Court should not disturb that finding of fact. I do not accept the submission made by learned counsel for the appellant that the evidence of the boy Narendra was the only prosecution evidence of the driver's identity and that his evidence, standing alone, was unreliable. In my view, there was a great deal of other evidence which, if accepted, strongly supported Narendra's evidence and the learned Magistrate accepted that evidence.

The other issue related to the alleged blown tyre immediately prior to the accident. This was asserted by Tahir Ali whose evidence, as I have already stated, the learned Magistrate rejected entirely. He did not believe that Tahir Ali was in the van at the time of the accident. What is more, the prosecution called two witnesses Vishnu Prasad and Sunil Dutt who had arrived at the scene after the accident. They both stated that they had seen Tahir Ali and one Raja Hussein deliberately puncture the front off-side tyre with a screwdriver and a piece of iron. This is the tyre that Cpl. Ponsami had later found flat and had removed for examination. The vehicle examiner Dev Nadan Pillay who examined the tyre said:

"I saw ¹/₄" long hole in the tyre; it was a sharp cut (witness shown a tyre Ex. 3). This is the tyre. There is a cut on the tyre and the tube. It appears a sharp object pierced through the tyre."

The learned Magistrate accepted the evidence of Vishnu Prasad and Sunil Dutt and found that the accident had not resulted from a blown tyre. There was ample evidence on which he could have found, as he did, that the damaged tyre was intact at the time of the accident.

The appeal against conviction, therefore, fails.

As to sentence, learned counsel for the appellant correctly points that this was not the first trial of the appellant on this charge. He had earlier been convicted of it before another Magistrate but his appeal to this Court against conviction had been allowed and a retrial ordered. This appeal is from the judgment of the learned Magistrate who presided over the retrial. Learned counsel draws the Court's attention to Archbold (39th Edn. para. 893) where it is stated that, on a retrial, the sentence imposed ought not to be greater than that passed on the original conviction which in this case was a fine of $150. He concedes that that statement is based on a statutory provision not applicable in Fiji but submits that the principle is sound and should be followed.

The appellant drove without a driving licence. For this he was convicted on a separate count under the Traffic Ordinance and received separate punishment. There is nothing in the record to suggest that the learned Magistrate took that into account in assessing the nature of the dangerous driving. On this issue he said:

"The accident took place on a long stretch of road. Accused drove the vehicle in a zig zag manner and the vehicle tumbled. The deceased was thrown out of the vehicle and killed due to the injuries he received. The evidence disclosed reckless driving. One witness had to jump when he saw the vehicle coming."

It is clear from the evidence that this is a straight stretch of a country road, and there is no suggestion of any speed limit. The time was about 6.30 in the morning. It seems that the only pedestrian on this stretch of the road was Narendra, the schoolboy. His evidence as to speed was not very precise. The only definite inference that can reasonably be drawn from his evidence is that the appellant had, by the time he reached Narendra, completely lost control of the vehicle which then went off the road and overturned. The Learned Magistrate was no doubt correct in holding that the driving was dangerous. He was, however, not justified in holding that his driving showed deliberately reckless disregard for other users of the road of whom, as I have said, there were hardly any at that time. The deceased was a passenger in the van and had been a friend of his. They had gone out catching prawns the night before and were, presumably, driving around together distributing the catch when the van went out of control. Normally, in a case like this a fine and an order of disqualification would meet the ends of justice. There was a great deal in the subsequent conduct of the appellant and other defence witnesses which showed an attempt to cover up the offence but such conduct should not be taken into account in assessing the nature of the driving which led to the death of the deceased.

The appeal against sentence is allowed and the prison term of nine months is set aside. The appellant has already served one-third of the effective term he would have had to serve and it will not, therefore, be just to substitute a fine in place of the prison term. The ends of justice will adequately be served if, in place of the prison term imposed by the learned Magistrate, a term of imprisonment is substituted which will allow the appellant's immediate release.

I, therefore, substitute such a term so that the appellant is immediately released from prison. The order of disqualification remains unaltered.

(Sgd.) G. Mishra
JUDGE

Suva,
3rd August 1979