State v Prasad [2011] FJMC 100; Traffic Case 4570.2009 (7 September 2011)

IN THE MAGISTRATE’S COURT OF NASINU

TRAFFIC CASE NO.4570/2009

STATE

VS

ARUN PRASAD

Ms V Nasilasila for the LTA
Accused Present and appeared in person

Judgment

[1] The accused is charged with the offence of Careless Driving. The charge read as follows;

CHARGE:

Statement of Offence [a]

First Count

CARELESS DRIVING: Contrary to Section 99 (1) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

ARUN PRASAD on the 15.7.09 at Samabula (St. Joseph) in the Central Division drove a Taxi Registration No. LT3158 at Waimanu Road without due care and attention when making a sudden U turn in front of vehicle (Bus)

[2] This case was heard on 23rd July 2011 and case was fixed for judgement today.

Summary of evidence

[3] At the trial, prosecution called one witness to prove the charge.

[4] PW 1-Joape Neimila; He said that he has been working 7 years as LTA officer. Before that he was in Fiji Police Force for 25 years. On 15th July 2009, he was duty on Highway Patrol at Waimanu Road. He said that he was following a Central Bus Transport Company Bus and suddenly bus stopped. They nearly bumped on it. Taxi bearing registration number LT 3158 in front of the bus made sudden “U” turn. It was heading to Suva same direction and suddenly made u turn and went to Samabula. If they did not if they were not alert it could have result an accident. The Taxi driver was booked for careless driving and he was issued a TIN. The witness also identified the accused.

[4] The accused was given to cross examine the witness. On cross examination the witness said that bus was so closed to the Taxi and it was following the Taxi. Witness was questioned should the bus keep the distance; witness replied it kept because of sudden U turn it had stopped. Witness said he did not see any signal as he was at the back of bus. The witness further said the accused did not give enough time and made the U turn. Witness said the accused did not go to driveway or his front was blocked. The witness said they chased the accused and stopped him.

[5] Thereafter prosecution closed their case. Since there is a case to answer, then, Defence was called, rights of the accused had been explained and the accused opted to give sworn evidence.

The accused gave evidence as follows;

DW1-Arun Prasad Lal; The accused said that he is a Taxi driver. On particular day, he drove the Taxi at Waimanu Road; he was going to drop a passenger. When he about to enter the drive way he gave right signal. When he turned to the drive way, he said that there was a vehicle was parked at driveway. He said that he saw the traffic was coming on the other side, as he has no other option he made the U turn. Then, he dropped the passenger and was paid by the passenger. Then LTA officer called him other side of the road and booked for the careless driving. The accused said he has 17 years clean licences and tried to explain the situation. But the witness did not accept it.

In cross examination, the accused said he cannot remember exact date and the time. He admitted that there was a bus at his back, but it was bit far. He was suggested if he made a sudden stop it could have result an accident, but the accused said if the bus kept proper distance, it would not have. Prosecution suggested that the witness is lying, but he denied. He said it was 3, 4 car length. He said he did not see LTA officers. He saw them after the turn. He said that he was doing right thing because drive way was blocked.
Then the accused closed his case.

The Law on Careless Driving

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

[7]The test for careless dr is stis stated in the case of Khan v State, High Court of Fiji Criminal Appeal No. 1 of 1994 (21 Octobe94) as follows:

"In order to determine whether the offence of careleareless driving;is cois 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 tion that a reasonable and prudent driver would exercise inse in the circumstances?"

The standard of proof is an objective one . . ." (As cited in State v Lovo [2009] FJMC 7; Traffic Case 31.2009 (24 September 2009)

[8] The burden of proof is vested on the state in this matter and they should prove this charge beyond reasonable doubt. What is proof of beyond reasonable doubt is described in several cases.
[9] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reble doubt. This mhis means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable about the the guilt of the accused."

[10] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 June 2008) Justice Jocelynne Att inLadyship's summing up said;

"The quee question then is what the standard of prof proof is. That is, when the onus rests on the State as it does here and generally in criminal trials, what is the standard the State must meet? The State must prove all the necessary ingredients of the charge.... beyond reasonable doubt. reasonable doub0;means eans what it says. You must be sure; you must be satisfied of guilt, before you can express an op abou Only if you are sure, if you are satisfied beed beyond reasonable doublet of guilt,, then it is your duty to say so. If you are not sure, not satisfied beyond a reasonable doubt then you myou must give your opinion that the accused is not guilty. This assessment, this determination, rests with you – with each of you – upon your individual assessmenthe evidence." (Emph(Emphasises is mine)

[11] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen reported in [1970] AC 618, 72 New Law Reports 313 (Sri Lanka)

"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[12] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted.

Analysis of the evidence

[13] Now I evaluate the evidence adduced before me. The prosecution witness said that the accused made a sudden U turn and he drove careless manner. The witness saw that the accused made sudden U turn. The accused in his evidence admitted that he made the sudden stop, but said it was inevitable as his drive way was blocked. His evidence shows that the accused has not looked the drive way before he turned and entered and this act itself shows inconsiderate driving. Though he said he has 17 years clean licence he did not produce any document from the LTA and it cannot be taken as exculpatory evidence. It may be a mitigation fact. This was happened nearly mid noon and the Waimanu Road is situated in heart of the city of Suva. It is a busy street and also situated in business area. Since the accused accepted that he made U turn, it obvious under the circumstances he was driving "on a public street without due care and attention". I have no reason to disbelieve the prosecution evidence. I hold that prosecution has proved its case beyond reasonable doubt.

I therefore convict the accused as charged.
On 07th September 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate- Nasinu