State v Chand [2003] FJMC 2; Traffic Case No 2365 of 2000 (29 August 2003)

IN THE RESIDENT MAGISTRATE’S COURT AT SUVA

Traffic Case No. 2365 of 2000

STATE

V

SUBHAS CHAND

BEFORE M/S LAISA LAVETI
RESIDENT MAGISTRATE

29TH AUGUST 2003:

JUDGMENT

The accused Subhas Chand (B-1) is charged for dangerous driving contrary to section 98 (1) and 114 of the Land Transport Act No. 35 of 1998. It is alleged that on the 9th October 2001 at Nasinu in the Central Division he drove a motor vehicle on Kings Road at Kinoya in a manner which was dangerous to the public having regards to all the circumstances of the case. B-1 had denied the charges and trial was undertaken before me on 25/8/03.

The State called 2 witnesses whilst the accused chose to give an unsworn statement. As is always the case in all criminal trials, the onus is on the prosecution to prove each ingredient of the offence to the requisite standard of proof. There is no onus on the accused to prove his innocence and he has the right to silence if he so chooses. Against that background, the court is being asked to consider the evidence.

THE EVIDENCE

According to the complainant Malakai Waqanokonoko PW1, he was traveling on the Kings Road after leaving the traffic lights at Kinoya when the accused vehicle, a bus suddenly made a right turn in front of him at the Velau Drive junction. PW1 stated that he applied his brakes and swerved his vehicle to the right to avoid collision but to no avail. His vehicle hit the accused bus and the bus carried his vehicle into Velau Drive. He stated that he was 5 meters away when he first sighted the bus.

In cross-examination, the accused stated that he was travelling at moderate speed which is below 40 kmph and he applied the brakes and swerved but could not avoid the collision.

WPC 2382 Caroline of Valelevu Police Station is the second prosecution witness. She attended the scene and tendered as exhibits the sketch plans she had drawn. The scene was on the Kings Road towards the entrance of the Velau Drive Kinoya. The collision was between the Accused’s Dee Cees bus registration DJ 151 and the complainant’s car registration number CH 544. According to her evidence

"the bus was halfway inside Velau Drive when the complainant’s car bumped it from the rear"

PW2 also interviewed the accused and tendered as exhibits the caution interview.

In cross-examination, PW2 stated that both drivers were warned for prosecution but only the accused was interviewed on the instruction of senior police personnel. Furthermore she admitted that even though that there was broken glass at the scene, it was not indicated on the sketch plan because she did not think it necessary.

The defence submissions of no case to answer although strong was overruled and the accused gave an unsworn statements merely confirming the contents of his responses in the caution interview.

ANALYSIS OF THE EVIDENCE

I have considered the evidence and viewed the exhibits tendered.

Both witnesses for the prosecution were thoroughly cross-examined and on the basis of their responses the following factors were gleaned. According to PW1

1. The accident occurred all of a sudden.
   
2. He was travelling below 40 kmph
   
3. He applied the brakes and made a right swerve to avoid the collision.
   
4. The collision was caused by the accused’s negligent driving.
   

According to PW2

1. The collision occurred after the accused’s bus had entered Velau Drive.
   
2. She drew the sketch plan on information she had received from the complainant.
   
3. There were no brake marks on the road.
   
4. Even though there were glass fragments on the road, she did not mark it on the plan.
   

The sketch plan though was able to confirm PW2’s evidence and negated PW1’s version. In doing so, it also confirmed the contents of the Caution Interview and creates a doubt about the veracity of the States evidence.

That doubt is given in favour of the accused. Furthermore even-though PW1 had right of way priority of the main road, the confirmation that the accident occurred after the bus entered the Velau Drive is to his detriment. Under Section 215 of the CPC, I acquit the accused forthwith.

28 days to appeal.

(Sgd) Laisa Laveti
RESIDENT MAGISTRATE