State v Chand [2010] FJMC 7; Traffic Case 3970.2009 (26 February 2010)

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

Traffic Case No. 3970 of 2009

STATE

V

SANJAY ROHIT CHAND

BEFORE CHAITANYA LAKSHMAN
RESIDENT MAGISTRATE

For Prosecutor: PC Shalen Prasad
Accused: Present

JUDGMENT

The accused is charged with Careless Driving, contrary to section 99 (1) and 114 of the Land Transport Act #35 of 1998. The particulars of the offence is that Sanjay Rohit Chand on 2nd day of May 2009 at Nausori in the Central Division drove a Police Vehicle Registration Number GN282 at Kings Road, Rewa Bridge without due care and attention.

The case was heard on 22nd February 2010.

The Evidence

The Prosecution in this case called 4 witnesses. Pw-1 was Sc 401 Uraia Rabuka, PW-2 was PC 3758 Ravinesh, PW-3 was Cpl Manoj Mani and PW-4 was WPC Maria.

The Material evidence of PW-1 was that he has 27 years’ service in the Fiji Police Force. On 2nd May 2009 at 11.45pm he was at the checkpoint. He started work at 2000hrs and was on road block duty at the end of Rewa Bridge. They set up all things which included cones. Operation team arrived with highway men, including PC Ravinesh and Constable Sanjay.

PC Ravinesh and Constable Sanjay came to the road block. They parked the vehicle beside the tent at the road block at about 12.31. Constable Sanjay reversed the vehicle and the vehicle went over the crocodile tooth which was on the check point. They were doing bookings at the check point. After the bookings they left. The incident happened when they were returning. They were at the check point for 2 hours. The crocodile tooth was placed there before they came. The crocodile tooth was not moved. Cones, drums and lights were the precautions. The vehicle was parked on the side of the tent. The accident happened when Constable Sanjay reversed the vehicle. The vehicle was not to be reversed. The road was clear. Big round-about. He should have moved forward. Could not recall the vehicle number.

PW-1 identified the accused in Court as the person driving that night.

In cross examination PW-1 told the court that the procedure is to let vehicles come slowly to identify criminals. That police sign boards, cones and flicking lights are at the road block. Vehicle faced Suva, beside the tent at the roundabout. The distance from the edge to the crocodile teeth was about 6 yards. A cone was in front of the crocodile teeth and 1 big drum, flicking lights on top of the drum. Drum in middle of the road and you will reach the cone first before the drum.

In re-examination the accused stated court should note the distance of 6 yards.

PW-2, PC Ravinesh gave evidence that he has been a police officer for the past 4 years and he recalled 2nd May 2009. He was on traffic stand by. He started work at 1900hrs. was detailed to be at a checkpoint. Pc Sanjay and Urai were with him. They went to the checkpoint at 2100 hrs. He went in a police vehicle # GN 282 driven by PC Sanjay. Checkpoint was already set up and went to do bookings. All equipments were on the road. They did bookings for 1 ½ hour after that they went to Sawani and came back. PC 2881 Sanjay and Urai were with him and some other policeman.

GN 282 was parked at the roundabout near the tent. The vehicle was off and no-one was in the vehicle at about 2300 hours. At 2345 hrs they left. The crocodile teeth were not moved. The vehicle was parked. The accused reversed the vehicle and the front left tyre went on the crocodile teeth.

In cross examination PW-2 stated that he was seated in the front passenger seat. He did not see the crocodile teeth when he got into the vehicle. The cones were beside the crocodile teeth. The accused got into the car from his side and the cones were not damaged.

In re-examination PW-2 stated that the crocodile teeth was in the same place and he did not see the crocodile teeth.

The evidence of PW-3, Corporal Manoj was that he has 13 years police service. He visited the scene at Rewa Bridge roundabout where a police vehicle ran over crocodile teeth and he drew the plans. The point of impact was shown by PC Ravinesh. The front left tyre of accused vehicle went over the crocodile teeth. The accused was interviewed by WPC Maria.

In cross examination PW-3 told the Court that it was accidental and not without due care and attention. . The plans were drawn on 8th may and the tyre and the crocodile teeth were not submitted as exhibits. In re-examination PW-3 told the court there was no need to exhibit the tyre and the tyre was repaired and used.

PW-4, WPC Maria’s evidence in Court was that she has 9 years police service. She was instructed by I/O to interview the accused. She told the I/O she was junior than the accused. The accused agreed to pay for the tyre.

At the close of the prosecution case the Court ruled that the accused had a case to answer and that the accused was put to his defence as stipulated under Section 211 of the Criminal Procedure Code.

The accused gave unsworn evidence and stated that the incident that happened was accidental. Neither he nor the prosecution witness saw the crocodile teeth and that there was no exhibit of the crocodile teeth.

At the conclusion of the case the Court visited the scene with the accused and the prosecution.

The Law on Careless Driving and Analysis of the Evidence

Careless Driving is defined by s. 99 (1) of the Land Transport Act as driving "on a public street without due care and attention".

The test for careless driving is stated in the case of Khan v State, High Court of Fiji Criminal Appeal No. 1 of 1994 (21 October, 1994) as follows:

"In order to determine whether the offence of careless driving is committed, the test, as LORD GODDARD C.J. said in SIMPSON v PEAT (1952 1 AER. 447 at p.449) is: "was D exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances? "The standard of proof is an objective one . . . "

From the evidence at the hearing and from the Court visiting the scene the Court noted the position of the vehicle and the crocodile teeth. The Court from the evidence notes that the crocodile teeth was not moved from the position that it was placed in when the accused arrived up until the time of the accident. The accused who parked his vehicle near the tent would have seen the crocodile teeth before he parked his vehicle. After the vehicle was parked the crocodile teeth was not moved. The crocodile teeth was placed in a conspicuous place.

The test for careless driving is was the accused exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances?

The Courts answer to this question is in the negative. The accused did not exercise that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances. The crocodile teeth were placed in the position with all necessary warnings. The accused was at the scene for some time and he would have seen the crocodile teeth before he parked and while he was doing the bookings. The other notable issue is that the accused did not need to reverse his vehicle as he was to use the roundabout from the position his vehicle was in. No reasonable and prudent driver would have reversed in the existing circumstances.

The Court finds that the accused, Sanjay Rohit Chand did not drive the police vehicle with due care and attention that a prudent and reasonable driver would exercise in the circumstances.

The Court finds that the State has met its burden of proof beyond reasonable doubt as to the accused’s careless driving. The Court finds the accused, Sanjay Rohit Chand guilty and convicts him of Careless Driving contrary to s 99(1) of the Land Transport Act.

28 days to Appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE

26/02/2010