State v Nakibo [2008] FJMC 14; Criminal Case No 582 of 2005 (31 July 2008)

IN THE RESIDENT MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CRIMINAL CASE NO. 582 OF 2005

STATE

V

NAPOLIONE NAKIBO

For the Prosecution: R. Reddy
For the Accused: Mr Iqbal Khan

Date of Hearing: 18th April, 2008
Date of Ruling: 31st July, 2008

RULING ON SUBMISSION OF NO CASE TO ANSWER

The accused is charged with the offence of occasioning death by dangerous driving. The charge reads as follows:

Statement of Offence

OCCASIONING DEATH BY DANGEROUS DRIVING: Contrary to Section 97(2) (c) and 8 and 114 of the Land Transport Act, 1998.

Particulars of Offence

NAPOLIONE NAKIBO on the 23rd day of September, 2005 at Lautoka in the Western Division drove a motor vehicle on Kings Road, Matawalu in a manner, which was dangerous to the public having regards to all the circumstances of the case, and caused the death of Jone Ravuci.

[1] This matter was set down for hearing on 18/04/08 and upon completion of the prosecution’s case the counsel for the defence made a submission of no case to answer and requested time to file written submissions. I allowed him time to file written submissions and the submissions were filed on 21/05/08. The written submissions are 20 pages long and pages 1 to 17 contain the case authorities on submissions of no case to answer and cases on dangerous driving and page 18 discusses the prosecution’s evidence wherein it is stated as follows:

"We submit with respect that the accident occurred unintentionally or the accused drove the vehicle in high speed but the victim who was cleaning the street did not put any sign or notice and hence the accused could not have seen him before the impact."

This is not the facts in this case and the facts in this case are that the accused was traveling on Kings Road at Matawalu and overtook a PWD truck and lost control of his motor vehicle and as a result his motor vehicle tumbled a few times and landed in the drain on the left hand side facing the directions of Lautoka. I am surprised that despite being given time to file written submissions the counsel for the accused got the facts of the case wrong. I urge counsels to be more vigilant in making submissions in addressing the facts of the case. It seems that the counsel for the accused has mistaken the facts of this case with some other case.

[2] The accused is a police officer and on 23/09/05 he was driving on Kings Road Matawalu to attend to a report and he was accompanied by police constable Jone Ravuci. The accused was driving a police motor vehicle registration number GN 099 a Toyota Hilux twin cab. The accused overtook a PWD truck just before Matawalu Village and he lost control of the motor vehicle and as a result Jone Ravuci was thrown out of the vehicle and he died at the scene of the accident. Both the accused and the deceased were not wearing seat belts.

[3] The prosecution tendered the statements of following witnesses and documents by consent:

a Statement of Leniana Vulakoro who identified the deceased at the mortuary prior to the post mortem.

b. Statement of Marika Senibua a Land Transport Officer who examines the motor vehicle registration GN 099 at the scene and subsequently at Lautoka Police station and provide a vehicle examiners report.

c. Post mortem report dated 24/09/05.

d. A rough sketch plan dated 23/09/05.

e. Caution interview of the accused dated 26/09/05.

[4] In addition to the statements tendered by consent the prosecutions called two witnesses on its behalf. The first witness was Malcolm Inoke Nakacia and the second witness was Tevita Saladina.

[5] Malcolm’s evidence is that he and Tevita were standing in the play ground beside the place where the accident took place. He said that he saw an accident. He also stated that he was playing in the ground with his friend. He further stated that the Kings Road had gravel and the police vehicle overtook a PWD truck and it tumbled three times before ending up in the drain. He said that he was unable to say what was the speed of the police motor vehicle. He did not go to the scene of the accident and therefore did not see the driver and the occupant. He said that the PWD truck stopped after the accident.

[6] In his cross examination he agreed that he told the police that he was seated and not standing and he further stated that he heard some sound and his attention was drawn towards the place from where the sound came. Malcolm’s statement to the police was tendered as Exhibit D1.

[7] Tevita stated that he saw the police van overtake a PWD truck from the right hand side. Both the truck and the police van were travellling in the directions of Ba. He further stated that the police vehicle lost control and it went in a zigzag manner and it tumbled three times and landed in the drain in the left hand side. He said he knew the driver and identified him in Court as sitting in the dock. He said that he could clearly see everything from where he was seated. He said that he went to the scene of the accident and assisted in putting Jone Ravuci in a passing vehicle and he was taken to Lautoka Hospital. He further stated that he was sitting on the ground facing the road. In cross-examination he said that he was sitting on the railings alongside the road and he did not tell the police that he was sitting on the railings as the police did not ask him. He further said that what he said to the police was the truth and his statement was tendered in as Exhibit D2. He agreed that he stated in his statement that he was sitting with his friend Inoke Nakacia on the ground just before Matawalu bridge. He also stated in his cross-examination that "all I can say that the speed caused the accident." In his re-examination he was questioned as follows:

Q: Did the police motor vehicle manage to overtake the PWD motor vehicle?

A: It was still trying to overtake the PWD truck and went in a zigzag manner and then tumbled.

[8] The accused was interviewed on 26/09/05 in his record of interview the allegation was put to him as follows:

"I wish to question you, Napolione Nakibo in regards to an allegation that on Friday 23/09/05 at about 1340 hrs on Kings Road, Matawalu you drove a police vehicle registration number GN 099 (F/80) in a dangerous manner by driving at high speed which caused you to lose control of the said vehicle which then tumbled and caused the death of your passenger namely Jone Ravuci."

Questions 16, 17 and 18 and answers 16, 17 and 18 were as follows:

Q16: Do you agree that there were no defects to F/80 when you checked?

A: Yes, but later when I drove whenever I changed the gear, it pulled to my left side.

Q17: What time was this?

A: Between 7.00 a.m – 8.00 a.m.

Q18: What did you do on learning that whenever you changed gear the vehicle was pulling to the left?

A: I did not inform my NCO but I decided to drive slowly.

Questions 29, 30, 31, 32 and 33 and answers 29, 30, 31, 32 and 33 reads as follows:

Q29: Can you explain as to what had happened when you were approaching Matawalu on Kings Road?

A: There was a truck traveling in front of me when something broke on the front right tyre, F/80 started shaking, I then tried to control it but it tumbled.

Q30: What speed were you driving at prior, to hearing the noise from the front?

A: About 60km/hr.

Q31: According to eye witnesses, they saw you overtook a truck whilst driving at high speed, what do you have to say?

A: No.

Q32: Was there any on-coming vehicle prior to the accident?

A: No.

Q33: What was the road surface like on that particular stretch?

A: Newly tarsealed with loose gravels all over.

Questions 39, 40 and 41 answers 39, 40 and 41 reads as follows:

Q39: Were you two wearing seat belt?

A: No.

Q40: Can you describe as to how the F/80 went off road?

A: The vehicle tumbled side ways on the right side twice then it slided into the drain.

Q41: Did you apply brakes prior to losing control of the vehicle?

A: Yes.

Questions 46, 50, 51 and 52 and answers 46, 50, 51 and 52.

Q46: Looking at the sketch plan, from the skid marks to where your vehicle landed, measured at 40.7 metres. Do you agree that if you were driving at 60km/hr, your vehicle to tumble two – three times and to its resting place, is it possible?

A: I cannot answer.

Q50: Do you agree that you were driving at high speed and as a result whilst overtaking a truck you lost control of F/80, what do you have to say?

A: No.

Q51: Do you also agree, having looked at damage sustained by F/80, do you think if say, you were actually driving at 60km/hr, is it possible that your vehicle will tumble, twice (according to you) and go off road?

A: I will not answer.

Q52: Do you know as to any reason why the witnesses told police that you were driving at high speed and overtaking a truck when you lost control?

A: I cannot answer.

[9] From the record of interview it is apparent that the prosecution is alleging that the dangerous manner of driving in this case was the high speed. The accused in his record of interview stated that there was a truck traveling in front when something broke on the front right tyre F/80 started shaking I tried to control it but it tumbled.

INSPECTION BY THE LAND TRANSPORT AUTHORITY

[10] Marika Senibua was the Land Transport Authority Officer who examined the motor vehicle at the scene of the accident. He said since the vehicle was lying in the drain he could not inspect the front portion and on 26/09/05 he inspected the motor vehicle at Lautoka Police Station garage and he stated that he found few vehicle components damaged and he stated the damage in his inspection sheet. He completed the inspection sheet by marking with "X" and he completed the bulk of the inspection sheet by drawing a vertical line. He put a total of six crosses and he put a cross under the heading steering and suspension alongside "linkages".

[11] In the case of Chandar Pal –v- Reginam 20 F.L.R. 1 at 2 Grant A.C.J. said as follows:

"Where death has resulted from a traffic accident it is necessary for the prosecution, on a charge of causing death by dangerous driving, to show that the accused’s dangerous driving was a real cause of the accident and something more than de minimis (R. –v- Hennigan/[1971] 3 All E.R. 134) and to establish the accused’s dangerous driving it is necessary for the prosecution to show that there was some fault on his part causing a situation which viewed objectively, was dangerous (R. –v- Gosney [1971] 3 All E.R. 220)."

[12] Mr Iqbal Khan has cited numerous cases on law relating to submissions of no case and at paragraph 2.5 he cited the case of R –v- Galbraith [1981] 2 ALL E.R. page 1062 where it is stated as follows:

"How then should the Judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The Judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the Judge comes to the conclusion that the Crown’s evidence taken at its highest is such that a jury properly directed could not properly convict on it. It is his duty on a submission being made, to stop the case. (b) Where however, the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and whether on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty then the Judge should allow the matter to be tried by the jury. It flows that we think the second of the two schools of though is to be preferred."

[13] From the evidence of Malcolm and Tevita it is clear that the accused had overtaken the PWD truck and that the PWD truck also stopped after the accident. I do not know as to why the prosecution did not call the driver of the PWD truck and its occupants if any as witnesses as they in my view would have been real eye witnesses. The prosecution has not given any explanation for its failure to do so.

[14] Malcolm in his evidence stated that he was unable to say as to what was the speed of the police motor vehicle. In his statement to the police he said and I quote him, "the police van overtook the PWD van and due to high speed the van tumbled three times." Tevita in his evidence stated that "All I can say that speed caused the accident." Whereas in his statement to the police, he stated and I quote, "I saw a police vehicle twin cab colour blue overtook a PWD truck at very high speed from the right side and went to the far right and lost control and went in zigzag manner and tumbled three times."

[15] Malcolm in his evidence stated that he did not go to the scene of the accident whereas in his statement to the police he said that after some time he came to the scene of the accident. Tevita in his statement said that he and Malcolm ran to see what happened. Malcolm in his cross-examination agreed that his attention was only drawn towards the scene of the accident when he heard the sound. Both Malcolm and Tevita have given different versions as to what they were doing at the material time. Malcolm in his police statement said that he was sitting on the ground with his friend Tevita and Tevita also said that he was sitting on the ground with Malcolm and Tevita in his evidence said that he was sitting on the railing next to the road. I have some doubts as to whether both Tevita and Malcolm witnessed the accident as they have given numerous versions and they both in their police statement, stated in very clear terms that the accused drove the police van in a very high speed but that was not reflected in their evidence and Malcolm said that he was unable to say as to what was the speed of the police motor vehicle.

[16] The Land Transport Officer’s inspection report is also of interest where he has marked an "X" alongside linkages. The accused in his record of interview stated at question 29 that something broke on the front right tyre. Was it the linkage that broke? I do not know. The prosecution did not adduce any evidence on this very material point.

[17] From the record of interview of the accused it shows that the road where the accident took place was under construction or had been constructed. The prosecution did not call any evidence as to whether the constructions had been completed nor did they call any evidence as to whether a speed limit had been imposed at the relevant area. From what I gather the speed limit at the relevant area was the national speed limit of 80km/hr. The real evidence of speed of the police motor vehicle would have been given by the driver of the PWD truck but the police and prosecution for some reasons best known to them chose not to call the driver whose evidence would have been very material and crucial.

[18] In all circumstances of the case the prosecution’s evidence produced thus far is so unsatisfactorily and so unreliable that I uphold the submissions of no case to answer and I acquit the accused of the charge of occasioning death by dangerous driving.

[Mohammed S Khan]
Resident Magistrate

31st July, 2008