State v Ali [2009] FJMC 22; Traffic Case 1149.2009 (15 October 2009)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT NAUSORI
FIJI ISLANDS

Traffic Case No. 1149 of 2009

STATE

V

NAUSHAD ALI

BEFORE CHAITANYA LAKSHMAN
RESIDENT MAGISTRATE

For Prosecutor: Sgt. Amelia
Accused: Present – In Person

JUDGMENT

The accused was charged with Dangerous Driving Occasioning Grievous Bodily Harm, contrary to Section 97(4) (c) and 114 of the Land Transport Act (1998).

The particulars of the offence stated that "Naushad Ali s/o Usman Ali on the 13th day of April 2008 at Nausori in the Central Division drove a motor vehicle on Princess Road, Navitoko, in a manner dangerous to another person involved in an impact occasioning grievous bodily harm to Vanshika Devi d/o Jay Prasad."

Section 97 (4) (c) of the Land Transport Act 1998 provides that "a person commits the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle in a manner dangerous to another person or persons."

The hearing for the case took place on 30th September 2009.

Elements of the Offence

Each of the elements of the offence that the accused is charged with that the prosecution need to prove in order to prove its case are as follows:

(i) Naushad Ali on 13th April 2008,

(ii) at Nausori in the Central Division drove a motor vehicle on Princess Road, Navitoko,

(iii) in a manner dangerous to another person involved in an impact,

(iv) occasioning grievous bodily harm to Vanshika Devi d/o Jay Prasad."

The Prosecution Case

The prosecution called 3 witnesses. Pw-1, was Vanshika Devi, Pw-2 was Mahendra Nath and Pw-3 was Constable Josese.

PW-1 is 9 years old and a truth test was carried out by the Court to find out if the witness could give evidence on oath. The court after some questions found the witness to be competent to give evidence.

PW-1 told the court of the accident that she was involved in. she told the Court that she looked both sides before she crossed the road. When she crossed she did not see any vehicles. The medical report of PW-1 was also tendered. The accused did not object to it being tendered. In cross examination Pw-1 told the Court that her father as at work and mum was at home and she had gone to Ram Naumi with her sister on the date of the accident. Pw-1’s sister was on the other side of the road when she had the accident.

PW-2 was talking to another girl when he saw the car coming from Sawani side. PW-2 was turning to go to the shed when he saw the girl cross the road she was hit by the car. PW-2 could not judge the speed of the car. PW-2 confirmed that some vehicles were parked on the side of the road.

Pw-3 attended to the report and drew the rough sketch and interviewed the driver. PW-3 told the Court he did not see tyre marks at the scene.

Defence Case

The accused gave sworn evidence and told the court he was returning from Wailase, Naitasiri with his pregnant wife and daughter in the vehicle. He was in control of his senses. It was around 9.30 to 10 pm when the accident occurred.

The accused further stated that the area where the accident occurred was a 60 km zone and he has a habit of checking his speedometer and that at the time of the accident he was driving at 40 km/hr.

The accident according to the accused occurred when the girl crossed from behind a vehicle.

In cross examination the accused told the court that he reduced speed and applied the barked and the damage to his vehicle was minor dents as he was slow.

The court visited the scene with the victim, prosecution, its witnesses and the accused.

Analysis

On the charge of Dangerous Driving Occasioning Grievous Bodily Harm, the prosecution must prove that the accused’s manner of driving fell below the standard of a reasonable and a prudent driver, and thereby caused a dangerous situation as a result of which the victim suffered grievous bodily harm.

The Prosecution did not tender any evidence that the accused’s driving fell below the standard expected of a reasonable and prudent driver. PW-2 who was an adult witness at the scene of the accident did not see the accused drive fast or unreasonably.

The Court also notes the evidence of the accused and believes his evidence when he states that he was not fast and cautious in the area of the accident. The Court believes that if the accused was speeding and unreasonable he would have run over the victim, a very young girl. The Court from the evidence finds that the accused was not fast, if he was fast he would have left brake marks from his tyres in the process of stopping after hitting the girl.

The prosecution needed to lead evidence of the manner of driving which created a dangerous situation and places the accused at fault. From the evidence that was tendered by the prosecution the Court notes that there is no evidence that the accused’s manner of driving fell below the standard expected of a reasonable and prudent driver. The fact that there was grievous bodily harm suffered by the victim is not in itself sufficient to prove the offence the accused is charged with.

From the hearing of this case a number of issues came out which this court would like to comment upon. Firstly, this Court notes that the young girl was unsupervised and attending a function with her sister, another young person. The parents had allowed these children to attend to ram naumi on their own. This Court seeks that parents and elders be responsible and that they provide adequate supervision of their children during such festive occasions. Children are naturally excited during festivities and get carried away. The Child was lucky that she did not sustain major or injuries.

Secondly, I wish to commend Mr Ali (the accused) for his actions following the accident. Mr Ali stopped his vehicle took the victim to the hospital, he later went to the Police Station and took a Police Officer to the scene and assisted them. Mr Ali’s actions are commended by this Court.

This Court acquits the accused as the prosecution has failed to prove the elements of the charge against him beyond reasonable doubt.

The accused is acquitted.

28 days to Appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE

15/10/09