Case Update |
Criminal Law | Criminal Procedure | Legal Profession
Public Prosecutor v Tubbs Julia Elizabeth [2001] 4 SLR 75
High Court - Magistrate's Appeal No 42 of 2001
Yong Pung How CJ
28 June, 6 August 2001
Causing death by negligent act - Road accident - Failure to keep proper lookout - Whether doctrine of res ipsa loquitur applicable to infer negligence - Standard of care expected of reasonable and prudent driver along type of road and prevailing traffic conditions - Whether reasonable and prudent driver could have avoided fatalities - Penal Code (Cap 224) s 304A
Hamidul Haq, Mohamed Nasser Ismail and Francis Ng (Deputy Public Prosecutors)
for the appellant.
Sant Singh and Foo Cheow Ming (Sant Singh Partnership), Dhamendra Kunjuraman
Nair (Haridass Ho & Partners) for the respondent.
The respondent was acquitted of a charge under s 304A of the Penal Code (Cap 224) for causing the death of three pedestrians in a motor accident. On 3 February 2000, at about 9pm, the respondent was driving her SAAB motor car along the right lane of Alexandra Road in the northbound direction towards Commonwealth Avenue. This stretch of road was a dual carriageway with three lanes on each side, divided by a median strip in the centre. A pedestrian group consisting of a mother, her son and a toddler in a stroller stepped off the median strip and onto the path of the respondent's car, resulting in a fatal collision.
Both the prosecution and the defence called two expert witnesses each to reconstruct the events leading up to the accident. The experts unanimously agreed that the SAAB was travelling at 50km/h, that the driver would have been put on notice of the pedestrians as an impending hazard when they stepped off the kerb, that there was a two-second window of time between the pedestrians stepping off the kerb and the point of impact, and that upon perceiving a hazard, the normal 'perception and reaction time' ('PRT') of a driver under the circumstances would have been between 1.5 to 2 seconds.
The prosecution appealed against the acquittal, arguing that the standard of care expected of the reasonable and prudent driver on the stretch of Alexandra Road was more akin to that of a busy housing estate road. Accordingly, the prosecution submitted that the respondent was negligent both in failing to spot the pedestrian group some 50 to 55 metres away when they were on the median strip, as well as in failing to react within the accepted PRT when they stepped off the kerb of the median strip. In support of its case, the appellant also argued that the findings of fact made by the lower court could be reviewed as they arose from inferences made from the contents of a witness's evidence, as opposed to the actual demeanour of that witness in court. Additionally, the appellant further sought to invoke the doctrine of res ipsa loquitur in support of a finding of negligence.
Held, dismissing the appeal:
Where the demeanour of the witness was not at issue, the appellate judge would
theoretically be in as good a position as the trial judge to make inferences
from the face of the record. However, as a guiding principle the appellate judge
should not simply substitute his view for that of the trial judge. He should be
sensitive to the impressionistic nuances which invariably contribute to the
inferences drawn by the trial judge, exercising careful restraint and
intervening only in the rare case where logic clearly militates against the
trial judge's findings of fact. The present appeal was not such an exceptional
case.
It is settled law that the doctrine of res ipsa loquitur has no application in criminal cases in which negligence must be positively proved beyond reasonable doubt. Furthermore, it was a total misunderstanding of the doctrine to say that a driver was prima facie negligent when mobile pedestrians walked into his path of their own volition; Ramasamy v R [1955] MLJ 95 and Lai Kuit Seong v PP [1969] 1 MLJ 182 followed.
The standard of care expected of a reasonable and prudent driver driving along the stretch of Alexandra Road in question fell somewhere in between that expected of a housing estate road and an expressway. Accordingly, the reasonable driver did not have to take strenuous precaution against every potential hazard. He was entitled to assume that pedestrians on the median strip would not cross unexpectedly; PP v Teo Lian Seng [1996] 1 SLR 19 followed.
While it was technically possible to have seen the pedestrians standing on the median strip some 50 to 55 metres away, or four seconds prior to impact, it was not established beyond reasonable doubt that the reasonable driver would have done so, due to the contrast between areas of bright and low lighting, the visual clutter along the median strip in the form of tree trunks and the metal railing, and the need to focus on the left lane to avoid cars emerging from the Anchorage condominium. The respondent was accordingly not negligent in failing to detect the pedestrians at this stage.
Early detection of the pedestrians would not in any case have made a difference to the driver's reaction. Given that this was a major roadway with an overhead bridge and obstructive railings, the reasonable driver would have been assured of his right of way and was not expected to slow down or take evasive action upon detecting the pedestrians. It was also mere speculation that early detection would have lowered the response time of the respondent when the pedestrians stepped off the kerb two seconds later. This crucial question was never posed to the expert witnesses, considering that it was not a matter within the ordinary human experience for which the court could come to its own conclusion. Furthermore, the experts had made an unqualified finding on the issue of PRT, and it was not open to the court now to simply disregard their opinion and substitute its own speculation on the matter; McLean v Weir [1977] 5 WWR 609, Tengku Jonaris Badlishah v PP [1999] 2 SLR 260 and Saeng-Un Udom v PP [2001] 3 SLR 1 followed.
The crux of this appeal lay in whether the reasonable and prudent driver could have avoided a collision resulting in fatality. The inescapable conclusion drawn from the expert testimony was that the reasonable and prudent driver could still have caused the fatalities as he may not have been able to decelerate prior to impact. Hence, even if the respondent was negligent, her negligence could not be said to have caused the fatalities.
In any case, the respondent had acted reasonably by responding and engaging her brakes within the accepted PRT, that is, two seconds after perception and at the point of impact.
Public Prosecutor v Tubbs Julia Elizabeth [2001] 4 SLR 75
High Court - Magistrate's Appeal No 42 of 2001
Yong Pung How CJ
28 June, 6 August 2001
Appeal - Findings of fact - Approach of appellate court - Demeanour of witness not at issue - Inferences from contents of evidence
See CRIMINAL LAW.
Re Nirmal Singh s/o Fauja Singh [2001] 3 SLR 608
High Court - Originating Motion No 600005 of 2001
Yong Pung How CJ, LP Thean and Chao Hick Tin JJA
25 May, 6 July 2001
Application for reinstatement on the roll of advocates and solicitors - Application made just slightly past five years from date of striking-off order - Previously convicted of corruption and criminal breach of trust - Whether applicant fit to have his name restored on the roll - Legal Profession Act (Cap 161) s 102(1)
Davinder Singh, SC, and Ajay Advani (Drew & Napier) for the applicant.
Lok Vi Ming (Rodyk & Davidson) for the Law Society.
Asanthi S Mendis (State Counsel) for the Attorney General.
The applicant was struck off the roll of advocates and solicitors on 1 December 1995 following his conviction on three charges of corruption and one charge of criminal breach of trust. All four offences were committed by the applicant in the course of his employment as an advocate and solicitor. Some five years and four months later on 3 April 2001, the applicant applied under s 102 of the Legal Profession Act (Cap 161) to have his name restored to the rolls.
Held, dismissing the application:
A significantly longer period than five years is required to have elapsed before
an application to be restored will be entertained, given that the maximum period
of a court-ordered suspension is now five years. An advocate and solicitor who
has been struck off should not end up in substantially the same position as, or
be better off than, one who has merely been suspended from practice for the full
period of five years so as to adequately reflect the difference in gravity
between a striking-off and a suspension order.
The nature of the offences committed by the applicant and for which he was struck off was of such a degree of severity as did not warrant a restoration of the applicant to the roll at this point in time. The court had to consider as its primary duty the protection of the interests of the public and the profession as a whole over the interests of the applicant. In the final analysis, the court was not satisfied that the applicant could have been fully reformed and rehabilitated in the relatively short time span which had elapsed since he had been struck off the rolls, or that the public would be adequately protected if the applicant was allowed back into legal practice at this point in time; Re Ram Kishan [1992] 1 SLR 529 followed.