State v Prasad [2010] FJMC 6; Traffic Case 3466.2009 (15 February 2010)

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

Traffic Case No. 3466 of 2009

STATE

V

RONEEL PRASAD

Before: CHAITANYA LAKSHMAN
Resident Magistrate

Prosecution: Ins. S. Ali
Accused: Present with his Counsel Mr. Rajendra Chaudhry

RULING

The accused was charged with Dangerous Driving, contrary to Section 98(1) and 114 of the Land Transport Act (1998).

The case was heard on 15th January 2010.

At the conclusion of the prosecution case the Counsel for the accused made a submission for no case to answer. The prosecution argued that the accused had a case to answer. The Counsel for the accused made substantive oral and written submission. Following the close of the prosecution case the Court visited the scene with the prosecuting officer and the Defence counsel

The Law on No Case to Answer

Section 210 of the Criminal Procedure Code provides that:

"if at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the Court shall dismiss the case and shall forthwith acquit the accused".

A Practice Note [1962] 1 All ER 448 directed that in criminal cases, which is also applicable in traffic cases:

"A submission that there is no case to answer may properly be made and upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as the result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Apart from these two situations a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."

In R v. Jai Chand [1972] 18 FLR 101, Justice Grant stated 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 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".

The Prosecution Case

The Prosecution in this case called 4 witnesses. Pw- 1 was Susana Yabaki. The other witnesses were:

(a) Susana Madigi

(b) PC Eliki Drogadrau and

(c) PC Ravinesh.

The material evidence of PW-1 was as follows:

"recalled driving Vehicle # EN329 on 30th March 2009. Recalled late afternoon driving on Princess Road. Susana Madigi was with her. Heading towards Nausori Airport. A signal was given by a car coming from opposite side, it lit a light. I did not go over 60 km. So I think there was police. Came past Navuso. Saw a car opposite my side was crossing to my lane and swerved to the left. There was a collision. That’s all I know. I was taken to Nausori hospital. There was a man saying to me you bumped me. He said he was a taxi driver a taxi at the back of my car too. 2 cars one in front and taxi at the back. I was in my lane I had passed the bus. There was a bus that I had just passed that. I was already in front of the bus. The bus was parked on the side. I was on my lane. The car came to my lane."

In cross examination PW-1 stated the following:

"the time was after 5pm. I do not know the exact time. Was to collect husband after 5.30pm. I left home after 5.00pm. Takes 25- 30 minutes from Colo-i-suva to Airport. Was to drop Susana and then continue to Airport. I was doing 60 and less. Speed limit in the area is 80 km/hr. it is not 50 km/hr. Sign post on road for 80. I was doing 60 miles/hr. Road was not busy. It was single lane. I was on my side. I saw the bus went past the bus. I was turning I had gone past the bus. I suddenly turned to the left. I saw this car coming to me. I turned to the left. The car was right in front of me. I was on my lane when I passed the bus." Photos of the scene were shown to the witness. Upon further cross examination PW-1 stated "I did pass the bus I went on the other lane."

In re-examination PW-1 stated that "the bus was parked right on the side."

The material evidence of PW-2 was as follows:

"recall 30th March 2009 5 to 5.30pm. passenger in vehicle # EN329. Driver was Susana Yabaki. Heading towards Nausori from Colo-i-suva. Vehicle was involved in an accident. When we reached Navuso a bus was off-loading passengers. We overtook the bus. When we were about to overtake the bus we saw a car coming on the same lane and I did warn the driver to be careful of that car. I did inform the driver to turn towards left side where the pedestrian was walking. That’s the time the collision happened. I did not feel anything. I was hurt. We were almost past the bus. The impact took place on our lane. "

In cross examination PW-2 stated

"when we passed the bus the bus was not on the lane. The bus was further to the side. We were still on our lane. Bus was on the bus stop. There was no bus stop. The lane was on the right side. I could see the lane. We already went past when we had accident."

In re-examination PW-2 stated "I saw the marking on the road."

Evidence in chief of PW-3 was

"8 months in traffic. Attended to accident while in traffic department. Received report of accident on 30th March 2009 between 5 to 5.30pm. Attended to scene. Arrived at scene. Saw 3 vehicles damaged. Noticed the tyre mark on victims lane 18.8m. been informed by by-standers and taxi driver at the accident scene. I found accused at fault. Point of impact on victim’s lane. Slightly near to center lane. Tyre mark the length of the tyre mark to point of impact – 18.8m. fresh tyre marks – brake mark – 18.8m. I found the point of impact where the 2 vehicles met during the accident. Glass and bumper were at the point. The taxi driver was present at the time. He pointed to the point of impact."

In Cross examination PW-3 stated

"I was at the scene at 17.50 hrs. I drew sketch plan at 1750 hrs. Width is 7.2m. I did not take distance to white mark. I did not record distance from the side road to brake mark. I do not have any photos of the brake marks. I do not have record of distance from side of the road." Upon being asked by the accused’s counsel the following question PW-3 responded as follows:

"Q: is sketch accurate?

A: is a sketch plan.

Q: Does not contain critical elements?

A: no

Q: The point of impact could be middle of the road?

A: no I did not record. No photo to indicate 18.8 m.

Q: any bus stops on the way?

A: no."

There was no re-examination of PW-3.

Evidence in chief of PW-4, PC Ravinesh was

"investigating officer of the case. Rough sketch made by PC Eliki. Recorded statements of the witnesses. Only 2 witnesses. Received other recorded statements by other officers. Interviewed Roneel Prasad at traffic office. Interview in English. He understood English. Gave rights asked he wanted a lawyer. He read interview himself. He accepted what was written. No force was used. Was in narrative manner. Father of accused was present. He did not sign. He was there from beginning until the end."

In Cross examination PW-4 stated

"I did not inform him of his right to a lawyer after his father as present. Accused wanted his father present. I interviewed him 6 weeks later as I was handed the case 6 weeks after the accident. PC Eliki handled it before. I prepared the statement of facts. I did not interview the driver as there was no information about the bus driver. The docket was handed to me to interview the accused. I did not have statements of the victim and Madigi. Based it on sketch plan and 2 witnesses statements. I was directed by supervisor to caution interview. Relied on fellow officers. There was interference in investigation. I did not attend to the scene. Never visited the scene. The scene was already visited. I was the investigating officer, duty is to investigate. No idea how accident happened."

Courts analysis

This Court takes note of Practice Note [1962] 1 All ER 448 and the test laid down in it with respect to no case to answer. This Court also notes R v. Jai Chand [1972] 18 FLR 101 and Justice Grant’s comments in the case.

This Court has in this ruling scrutinsed the evidence of the prosecution witnesses. The Court noted the demeanor of the witnesses. The prosecution evidence has been laid out in detail in the preceding part of this ruling. The crucial evidence that this Court highlights which impact this case are as follows:

The prosecution’s main witness’s evidence is that she was driving at 60 miles an hour.

This in km/hr equates to about 96 km/hr. which is over the national speed limit. This evidence of PW-1 was never clarified or re-examined by prosecution. The Court takes the evidence that is tendered before it which is that PW-1 was clearly speeding.

PW-2’s evidence is that

"we overtook the bus. When we were about to overtake the bus we saw a car coming on the same lane and I did warn the driver to be careful of that car. I was hurt. We were almost past the bus. The impact took place on our lane."

And in cross examination

"when we passed the bus the bus was not on the lane. The bus was further to the side. We were still on our lane. Bus was on the bus stop. There was no bus stop. The lane was on the right side. I could see the lane. We already went past when we had accident."

The evidence of PW-2 is contradictory and unreliable she states in evidence in chief they were almost past the bus, which means they were overtaking the bus. The Court has visited the scene and noted that it is not possible to overtake and be on your own side. You will go onto the other on-coming lane.

In Cross examination Pw-3 mentioned–

"I did not take distance to white mark. I did not record distance from the side road to brake mark. I do not have any photos of the brake marks. I do not have record of distance from side of the road."

Upon being asked by the accused’s counsel the following question PW-3 responded as follows:

"Q: is sketch accurate?

A: is a sketch plan.

Q: Does not contain critical elements?

A: no

Q: The point of impact could be middle of the road?

A: no I did not record. No photo to indicate 18.8 m."

PW-3 was the officer who drew the accident plan he totally missed crucial measurements which were needed in this case. The measurements that are missing would have determined a number of things. Like, how wide each lane was? The width of the gravel walkway?

Cross examination evidence of PW-4 is

"There was interference in investigation. I did not attend to the scene. Never visited the scene. The scene was already visited. I was the investigating officer, duty is to investigate. No idea how accident happened."

From the evidence in Court it was clear that there were two other crucial witnesses (taxi driver and pedestrian), probably more (if we are to include the passengers in the accused vehicle and the bus driver) who were not called to shed light on the accident and give credence to the prosecution case. They were not called. The taxi was behind PW-1’s vehicle and allegedly bumped her from behind should have given evidence. The bus driver who is alleged to have been overtaken should have been interviewed and his evidence weighed by the prosecution.

In considering the submission by the Defence Counsel the Court finds that the evidence adduced by the prosecution has been so discredited as the result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. This Court also warns itself that at this stage it is not so much on whether the Court would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. This Court finds that the evidence before it is manifestly unreliable and that no reasonable tribunal could safely convict on it. The accused is acquitted of the charge.

28 days to Appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE

15/02/2010