State v Singh [2009] FJMC 31; Traffic Case 47.2008 (29 September 2009)

IN THE RESIDENT MAGISTRATES COURT
CENTRAL DIVISION
SUVA

Traffic Case No. 47 of 2008

STATE

V

AMRITA SINGH

Prosecution: Inspector Raisuni, Police Prosecutor
Accused: Ms P Narayan and Mr H Rabuku

Date of Hearing: 25 June, 26 June, 6 August and 31 August, 2009
Date of Ruling: 29 September 2009

RULING ON NO CASE TO ANSWER

[1] The Accused has been charged with Dangerous Driving Causing Grievous Bodily Harm contrary to s 97 (4) (b) (c) of the Land Transport Act.

[2] The charge arose from an accident that occurred on 6th September 2007 on Marine Drive, Lami when the Accused’s vehicle bumped a young male pedestrian who was crossing the main road in Lami Town.

[3] Defence Counsel made a submission of no case to answer pursuant to s 210 of the Criminal Procedure Code after the Prosecution closed its case.

[4] Dates were given for filing written submissions and for oral submissions, but only Defence Counsel attended to filing written submissions within the time frame set by the Court. The State attempted to file written submissions after the Court had already heard oral submissions and set a date for ruling, but the same were rejected by this Court as the State had not obtained the consent of Defence Counsel to late filing and the matter was already set for ruling.

The Test for No Case to Answer

[5] The correct test to use for a submission of no case to answer in the Magistrates Court is stated in the case of R v Jai Chand, [1972] 18 FLR 101 at p.103, as follows:

". . . . from which it seems clear that the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly [sic] directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence."

[6] This approach was cited with approval in the recent case of State v Baba, High Court of Fiji Criminal Appeal No. HAA 43 of 2008 (9 October, 2008).

[7] Therefore it is for this Court to determine if there has been evidence led on each of the essential elements of the offence, and if that evidence is such that a reasonable tribunal might or could convict upon it.

[8] Section 97(4) of the Land Transport Act provides as follows:

"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-

(a) under the influence of intoxicating liquor or of a drug;

(b) at a speed dangerous to another person or persons; or

(c) in a manner dangerous to another person or persons."

[9] The elements to be established by the Prosecution are (i) vehicle driven by Accused (ii) involved in impact (iii) causing grievous bodily harm to another person (iv) driving at a speed or in a manner dangerous to another person.

The Prosecution’s Evidence

[10] The State called the following witnesses to give evidence:

(a) the Complainant Kalaveti Yabakitolu [PW1];

(b) the Complainant’s cousin Peni Talevolau [PW2]

(c) Mr Patrick Lee of Land Transport Authority [PW3]

(d) Dr Sitiveni Traill of CWM Hospital [PW4]

(e) WPC Lamana of Lami Police Station [PW5]

(f) Police Constable Daven of Lami Police Station [PW6]

[11] The following documents were tendered into evidence by the Prosecution:

Exhibit 1 Police Medical Examination Form dated 06/09/2007

Exhibit 2 LTA Vehicle Test Result Sheet No. 202842

Exhibit 3 Rough Sketch Plan

Exhibit 4(a) Fair Sketch Plan

Exhibit 4(b) Key to Fair Sketch Plan

Exhibit 5 Record of Interview of Amrita Rajni Singh

The Witness Evidence

[12] PW1, being the Complainant, gave evidence that he was bumped by a 4WD vehicle while crossing the main road at the pedestrian crossing in Lami Town on 6 September 2007. He was 13 years old at the time.

[13] He said that he waited at the pedestrian crossing, looked both ways, a taxi travelling towards Suva stopped, he saw a 4WD vehicle facing Navua 11 steps away, he started to cross and all of a sudden he was hit by the 4WD vehicle when he was 4 steps into the crossing.

[14] PW1 also said that he flew after being hit, and indicated in the court room that the distance he flew was about the same as from the witness box to the end of the bar table, roughly 3 meters.

[15] PW1 said he was bumped on his right leg and his left shoulder landed on the road and he slid under the vehicle and the vehicle dragged him.

[16] PW1 said he suffered injuries in the accident, including a fractured right leg, bruises on his back and an injured left knee. He said he spent 7 weeks in the hospital confined to bed, and spent 3 months on crutches.

[17] In cross examination it was put to PW1 more than once that he was not in the pedestrian crossing when he was bumped and he strongly denied that, and said he was in the pedestrian crossing when bumped. He also said no when it was put to him that the vehicle that hit him was stationary where it hit him.

[18] PW2 was PW1’s cousin. He was with PW1 at the time of the accident and saw the accident happen. He was 13 years old at the time.

[19] PW2 gave evidence that he and PW1 went to the pedestrian crossing and stood there, and looked both ways for vehicles.

[20] He said he saw a 4WD vehicle 11 steps away, travelling towards Navua. He also saw a taxi travelling towards Suva, which stopped waiting for them to cross.

[21] He said PW1 was walking in front while crossing, and PW1 got hit.

[22] PW2 described the 4WD vehicle as speeding, which was objected to by Defence Counsel as not being in PW2’s police statement.

[23] When asked to explain what he meant by speeding, PW2 replied said it was because PW1 when hit he flew. He also said the 4WD vehicle didn’t slow down but maintained its speed. He said there were no vehicles in front of the 4WD vehicle and none following.

[24] He said PW1 was 1 meter into the pedestrian crossing when he was hit.

[25] PW2 described the accident in some detail, saying that PW1 when hit landed on top of the 4WD vehicle, then flew through the air and fell on the ground on his left shoulder. He said the 4WD vehicle could not stop, it tried to brake but instead it kept moving, and PW1 slid and he went under the front of the 4WD vehicle and the 4WD vehicle stopped ahead of PW1.

[26] On cross examination it was put to PW2 that PW1 did not cross at the pedestrian crossing. PW2 denied this. It was put to him that PW1 did not fly in the air after being bumped, but PW2 denied that and denied that the accident occurred suddenly.

[27] PW3 gave evidence that he examined the Accused’s vehicle the day after the accident. He found that the bonnet and front bumper of the vehicle were damaged and described the damage as minor.

[28] PW4 was a doctor from CWM Hospital who gave evidence based on the hospital file, as the original examining doctor had migrated.

[29] PW4 gave evidence that PW1 was diagnosed and treated for comminuted fracture of the right distal femur. He said the pattern of the fracture was consistent with high energy blunt trauma. He said PW1 was treated with skeletal traction for 6 weeks, which involved putting a pin through the leg bone and hooking it to weights by ropes to pull on the fracture to return it to its normal length. He said that PW1 had recovered well and there was no permanent injury.

[30] PW5 was the third police constable to arrive at the scene of the accident. She gave evidence that she saw the accident vehicle parked near the bus stop on the left side of the road facing Navua.

[31] She said the driver was standing near the vehicle, there were 2 sisters together, and she spoke to the driver, an Indian lady.

[32] She said another constable was there and he pointed out the point of impact to her as being behind the vehicle.

[33] She said that according to the driver’s statement and her sister’s statement the point of impact was a bit in front of the pedestrian crossing.

[34] PW5 said she drew the rough sketch plan, the fair sketch plan and the key.

[35] PW5 pointed to the Accused as the driver of the accident vehicle.

[36] PW5 said the victim of the accident was not at the scene when she arrived, and that she looked for a dent on the accident vehicle but didn’t see any dent or damage to the vehicle.

[37] On cross examination, PW5 identified the point of impact shown on Exhibit 3 as being 3.9 meters away from the pedestrian crossing and agreed that the speed limit was 50 kmph.

[38] In response to the Court’s question, PW5 said there was nothing, no marks or debris on the road, to indicate the point of impact, and that traffic was not stopped but was going again when she arrived at the scene of the accident.

[39] PW6 was Acting Corporal 1536 Devendra. He identified SC Akimo as the first officer at the scene of the accident.

[40] He gave evidence that he saw the victim, a young Fijian boy of about 14, sitting on the pavement holding his leg and crying, and that he directed a vehicle to convey the boy to the hospital.

[41] He said he talked to the driver of the vehicle, and identified the Accused as the driver.

[42] He said he was shown the point of impact by the passenger of the vehicle, and that it was just before the pedestrian crossing (towards the bus stop).

[43] He said he gathered evidence at the scene, being a loose chip of paint and a tread mark, which he said was a very small mark where the vehicle applied brakes. He said the vehicle had a slight dent on its bonnet.

[44] He said he questioned the boy with the victim, but he did not ask the boy to identify the point of impact.

The Accused’s Caution Interview

[45] The Accused was caution interviewed by the police on 6th September 2007. She said in her interview she was travelling to Navua, and just after she passed the pedestrian crossing a boy suddenly ran in front of her vehicle and she applied the brakes but it was too late.

[46] She denied driving dangerously, saying she was not at a high speed. She said when approaching the pedestrian crossing she had seen plenty people standing there and she had slowed down to 30 kmph.

Is there Evidence on All the Elements of the Offence?

[47] There is sufficient evidence to establish that the Accused was the driver of the vehicle in question and that vehicle bumped PW1 found in the testimony given by PW5 and PW6 and in Exhibit 5, wherein the Accused admitted bumping PW1 with her vehicle.

[48] There is sufficient evidence of grievous bodily harm to PW1 in his testimony and in the testimony of PW3, which is confirmed by Exhibit 1, the Medical Examination Report.

[49] The only element in dispute is whether the speed and/or manner of the Accused’s driving was dangerous.

[50] Defence Counsel in his submissions focuses on the issue of speed, alleging that there is no evidence brought by the State as to the Accused’s speed, other than her Caution Interview in which she says she had slowed down to 30 kmph when she saw plenty people standing near the pedestrian crossing on the other side.

[51] The Court accepts the oral evidence of PW5 that the speed limit at the scene of accident is 50 kmph.

[52] However the charge is not one of exceeding the speed limit but one of driving at a speed dangerous to others or in a manner dangerous to others.

[53] Driving through an occupied pedestrian crossing at 30 kmph would be driving at a speed dangerous to others or in a manner dangerous to others in this Court’s humble opinion as what is required is for the vehicle to stop and wait while the pedestrians cross.

[54] The evidence of this is found in the testimony of PW1 and PW2, who both said that PW1 crossed at the pedestrian crossing and that they looked before crossing and saw the Accused’s vehicle and it was some distance [11 steps] away.

[55] Both PW1 and PW2 gave credible evidence despite their young age. Both held up under cross examination by Ms Narayan.

[56] Mr Rabuku in his submissions states that the evidence of PW1 and PW2 should be dismissed entirely, alleging that their evidence is totally unreliable as they are cousins and therefore blood related. He has not cited any authority for the proposition that any type of blood relationship between witnesses is grounds for rejecting their evidence as unreliable without regard to its credibility.

[57] Mr Rabuku has not pointed to anything in the actual testimony of PW1 or PW2 to indicate unreliability or bias, nor has he identified any self interest in the criminal proceedings.

[58] PW2 gave especially convincing testimony, as he was in a better position to observe the accident than PW1. He said that the Accused did not slow down as she approached and then she tried to brake after bumping PW1 but was unable to stop right away.

[59] Both PW1 and PW2 said PW1 flew through the air after being bumped. PW2 said PW1 hit the bonnet of the Accused’s vehicle first then flew through the air and slid along the ground.

[60] Both PW1 and PW2 said the Accused’s vehicle passed over PW1’s body. PW1 said he was dragged a short way by the Accused’s vehicle.

[61] When this was put to the Accused in her Caution Interview she said she did not know if her car had driven over PW1 or not. [5th question on page 5].

[62] PW2’s evidence is consistent with the evidence of PW3 who said there was a dent on the bonnet of the Accused’s vehicle as well as damage to the front bumper.

[63] Mr Rabuku in his submissions refers to the evidence of PW5 and PW6 that the point of impact was 3.9 meters past the pedestrian crossing as independent/expert evidence that should be preferred to that of PW1 and PW2.

[64] However, the independence of this evidence is questionable given that PW5 relied on what PW6 told her and PW6 got the point of impact information from the Accused’s sister. Neither PW5 nor PW6 had first hand knowledge of the point of impact as they did not witness the accident.

[65] Neither police officer asked either PW1 or PW2 where the point of impact was. Neither police officer took witness statements from people standing on the side of the road as to where PW1 was when he was bumped.

[66] When the Court asked if there was debris or anything else to mark the point of impact, PW5 said there wasn’t anything like that.

[67] PW6 had referred to a slight tread or brake mark on the road, but the location of that brake mark is not shown on either sketch plan.

[68] Both PW1 and PW2 said PW1 flew through the air after being bumped and that PW1 landed on the road in front of where he was bumped. PW1 also said he was dragged by the Accused’s vehicle when it passed over him. He estimated that he landed some 3 meters away from where he was bumped. PW2 put it at 5 – 6 meters.

[69] The evidence of PW1 and PW2 is consistent with the point of impact marked on the rough sketch plan being the place where PW1 landed on the road, as opposed to being where he was bumped.

[70] In her Caution Interview on page 3 the Accused was asked what precautions she took when approaching the foot crossing, and she stated as follows in her answer:

"As I was approaching the foot I had seen plenty people standing other side and I slowed down."

[71] The Accused does not mention seeing the taxi on the other side of the road that stopped at the pedestrian crossing.

[72] The Accused also says in her Caution Interview that she did not see PW1 and PW2 running on the footpath, she never saw PW1 until he was in front of her vehicle.

[73] This suggests that the Accused was paying more attention to the people on other side of the road than the road itself or the pedestrian crossing.

[74] Mr Rabuku states in his submissions that the State must prove mens rea as well.

[75] This is a traffic offense. There is no requirement of mens rea with respect to dangerous driving.

[76] We refer to the case of Kumar v Reginam, High Court of Fiji Criminal Appeal No. 122 of 1978L (7th November 1978) in which the High Court said as follows with respect to a charge of causing death by dangerous driving:

"The need for imprisonment on a charge of causing death by dangerous driving depends not on the consequences i.e. the causing of death but upon the manner of the appellant's driving. It is an offence which requires no intent and therefore one cannot necessarily be guided by the disastrous consequences of the accident. The most reckless driving may involve a 'bus full of passengers in a terrifying crash without loss of life or serious injury and the very guilty driver does not face a charge of causing death by dangerous driving. On the other hand a moment's mental aberration on the part of another bus driver who had been driving with great care might result in many deaths and his less guilty conducts will give rise to the more serious charge. It will be no defence for him to say "Well there was only a slight degree of negligence" - R. v. Evans 1962; 3 AER. 1086 at 1088. However, it will be a factor in determining whether or not the driver goes to prison. If the deaths had resulted from reckless driving on the part of a selfish driver then he would most probably go to prison. One has to carefully examine the manner of the driving which caused the accident and all the attendant circumstances."

[the emphasis is ours]

[77] In the case of Kumar v State, High Court of Fiji Criminal Appeal No HAA 14 of 2001 (12 April 2002), which involved a charge of dangerous driving causing death, the High Court stated the test for dangerous driving as follows:

"The test for a charge of Dangerous Driving is an objective one, as is the test for Careless Driving. The difference between the Careless Driving and Dangerous Driving is not the manner of driving, (which has the same test) but the situation that has been caused thereby. In other words, a person who drives carelessly, also drives dangerously, if viewed objectively, his/her manner of driving creates a dangerous situation. Thus a person who drives carelessly, drives dangerously if he/she thereby causes a death. Therefore, counsel’s submission that the Appellant (on the version of the facts given by PW1) was only driving carelessly, has no validity."

[78] While there is no independent evidence as to the Accused’s speed, the Accused is charged under s 97(4)(c) as well as s 97(4)(b) of the Land Transport Act.

[79] There is evidence before the Court in the testimony of PW1 and PW2 that the Accused proceeded through the pedestrian crossing without stopping or slowing down despite the presence of the two boys in the foot crossing.

[80] The Court finds that there is sufficient evidence that the Accused drove in a manner dangerous to another person that a magistrate might or could convict on the same.

[81] The Court rules that the State has established a prima facie case to answer against the Accused on the charge of Dangerous Driving Causing Grievous Bodily Harm contrary to s 97 (4) (c) of the Land Transport Act

Dated this 29th day of September, 2009

Mary L Muir
RESIDENT MAGISTRATE
SUVA