State v Reddy [2011] FJMC 137; Traffic Case 3758.2009 (4 November 2011)

IN THE MAGISTRATE’S COURT OF NASINU

TRAFFIC CASE NO.3758/2009

STATE

VS

PARMESH NARAYAN REDDY

Police Sergeant Volavola for the State
Accused Present appeared in person

Judgment

[1] The accused is charged with the offence of DANGEROUS DRIVING OCCASIONING DEATH. The charge read as follows;

CHARGE:

Statement of Offence [a]

First Count

[2] DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97 (2) and 114 of the Land Transport Act 35 of 1998

Particulars of Offence [b]

[3] PARMESH NARAYAN REDDY on the 29th day of November, 2006 at Nasinu in the Central Division drove a motor vehicle along Cunningham Road, in a manner which was dangerous to the public having regards to all the circumstances of the case thereby caused the death of VILIAME COLATI.

[4] This case was heard on 09 August 2011 and case was fixed for judgement today. On the trial date the accused moved an adjournment to get legal assistance, but this case was fixed for trial on 25th January 2011 and nearly 7 months he has no sought legal assistance. The witness were present and as the right to counsel is not absolute (Eliki Mototabua v The State CAV 004 of 2005S, Seremaia Balelala v State- Criminal Appeal No AAU0003 of 2004 and Samuela Ledua v The State Criminal Appeal CAV 004 of 2007), I refused the adjournment but all rights of the accused were explained and given to meet a fair trial and avoid miscarriage of justice for the both side.

Summary of evidence

[5] At the trial, prosecution called following witnesses to prove their charge.

[6] PW 1- Ryan Grey-Pastor; He is an eye witness to this incident. He said that on 29th November 2006 at about 1pm he drove DD420 on Cunningham Road to Taciura. It was a straight road and he was going up to the hill. The accused drove a carrier and he was coming towards us. He said he cannot remember the number but there were no vehicles between them. He further said “I was coming up, he was coming down, and I can see exactly the accident. We were 50-75 metres from each other; there were three children on my right hand side, his left hand side, playing on the road, he was chased by other, the truck was very close, but boy did not see it, he was coming down, lorry was behind him. The boy went straight into the road the boy did not know there was a truck behind him; I can’t recall that he was carrying a ball. The truck hit the boy, the boy went front, and then truck went over him ...It was 3 to 5 metres when boy came into the rod...The truck came normal speed”. He said that he did not see any brake marks.

[7] There were no cross examination the witness.

[8] PW2-Takasa Leleiwaca; She said she is a student of Kalabau Secondary School and 16 years. She said on 29th November 2006 at about 1pm, she was on the road. There were 7 of them at the road. She further said Vili also with them. His name is Villiame Colati. The victim was 5 years. She said it was straight road and road is straight more than 100 metres. She said “ We were standing the edge of the road, the road was empty My cousin was in left, he walked to right hand side, when he crossed , there was oncoming Taciura Trans port bus about 50 metres. We had crossed with the victim, the carrier was coming behind the bus, carrier overtook the bus, when carrier was overtaking it came and bumped. I was edge of the road, the victim was crossing and then he got hit... He was over speeding”. The witness identified the accused and pointed out the accused at the trial.

[9] The accused suggested that the victim was playing on the road, but she denied it. The accused said there were only 3 and not 7, but she said 3 went front and 4 were behind them. The accused said that he did not overtake the bus and was on his line, but the witness denied and said “he is always speeding”. Further the witness in cross examination said “Q: I drove carefully, I know children are playing? Before the accident there was a van, he drove slowly, but the accused did not consider, he was speeding, Q: They tried to cross and they were playing with a bottle? We were in left, were coming to the right hand side. We were not playing with the bottle on the road; I have crossed already, Vili (Victim followed us” ( At this time, to evaluate the knowledge and trustworthiness, the witness was asked to tell the exact time from wall clock of the court, but witness failed to give any time, though see is a 16 years old student.)

[10] PW3- Senima Wati: This witness said that on that day she was at home the heard about the accident. She then went to the scene. The victim was lying middle of the road. He was severely injured. The victim’s back bone was broken and he was in half position. There were other witness, but they left the area. (But the accused said they are still in that area). The victim was her younger brother. She said she know the accused. They are occupying her grandfather’s Mataqali land.

[11] The accused suggested that the victim was lying left side on the road, but witness said he was lying middle of the road.

[12] PW 4- Kishore Chand: This witness said that he worked for the Land Transport Authority as Vehicle Examinar. On 30th November 2006, on the request of the police, he examined a vehicle and made a report. This was tendered as Ex-1. The witness said there was no brake or other defects. The buffer was damaged due to impact

[13] PW 5- PC 3052, Param Siwam: witness said he was on duty at Valelevu police station on that date. Now he is attached to Naua police. On 29-11-2006, he received this report. He visited the scene but no vehicle was at the place. The victim was taken to the hospital. He was under treatment. The witness explained. He said he drew the sketch plans. The witness tendered it as Ex-2. He said that he wrote interview notes and tendered as Ex-3. The accused statement tendered as Ex-4. The witness said victim passed away near on 03-12-2006. The Post Mortem report tendered as Ex-5. The accused was formally charged on 13-07-2009 and charge statement tendered as Ex-6.

[14] PW 6 Qlita Turagauivalue; she is the mother of the victim. She explained the incident and treatment given to her son, but son could not survive, died after 3 days and she said she identified the dead body.

[15] Thereafter prosecution closed the case. Since there is a case to answer the accused’s rights were explained. But he opted to remain silence.

The Law on dangerous Driving ocnisiodeath

[16] The accused was charged with an offence under section 97(2). Section 97(2) reads as follows:

"(2) A person commits the offence of dangerous ng ocning death if thef the vehi vehicle driven by the person is involved in an impact occasioning the death of 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."

[17] Elements of charges are to be proved discussed in Rao v State [2007] FJHC 81; HAA102J.07S (6 December 2007) Her Ladyship Justice Nazhat Shameem;

"The elements of the offence under section 97(1) are not described with clarity in the legislation. There is a blurring of the boundaries between section 97(1) and (2) which does not assist either the accused or those expected to enforce the law. The elements are:

1. The Accused drove a vehicle;

2. He occasioned death;

3. In an impact;

4. At the time of the impact the accused was either drunk or speeding or driving in a manner dangerous to other road users.

5. In circumstances of aggravation which mean either –

(a) he had excessive blood alcohol; or

(b) he was driving at more than 45 kmph in excess of the prescribed speed limit; or

(c) he was escaping official pursuit."

[18] 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.
[19] 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 reasonable doubt. This 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 doubt about the guilt of the accused."

[20] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 June 2008) Justice Jocelynne A. Scutt in Her Ladyship's summing up said;

"The question then is what the standard of 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. Proof roof beyond reasonablet means eans what it says. You must be sure; you must be satisfied of guilt, before you can express an opinion about it. Only if yousure,f yousatisfitisfied beyond reasonable doublet of guiltguilt, then it is your duty to say so.y 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 assessment of the evidence." (Emphasises is mine)

[21] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen reported in 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.

[22] 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

[23] Now I evaluate the evidence adduced before me. The prosecution witness, PW1 said that the accused drove normal speed. It happened instantly. He said the road was clear and straight. There were no other vehicles. He further said that he cannot remember that the accused applied brakes or not. PW! Says that children were playing on the road but victim did not see the truck. But contrary PW2 said that they crossed the road, victim was behind them. The accused overtook a bus came very fast and bumped to the victim. This is totally different to the PW1's version. The evidence contradicts inter se. This witness is unable to say correct time and her knowledge level is very low. Besides, the PW1 is an independent and pastor. His evidence was very clear and impartial. According to Ex-2, the impact was within the side of the accused and it was not middle of the road as PW2 said. Road is wide 7.8metres and after impact a blood spot noted in 12.10metres ahead. The charge sheet mentioned only section 97(2) of the Land Transport Act. It can be noted that there are 3 limbs in this section. But the prosecution failed to aver under what section they are charging the accused. Limb (a) says "under the influence of intoxicating liquor or of a drug;" Limb (b) says "at a speed dangerous to another person or persons;" and limb (c) says "in a manner dangerous to another person or persons." Thus it is unclear what section the accused is charged. But it could be assumed that they have charged under limb (b) and (c) driving at a speed dangerous to another person or persons and in a manner dangerous to another person or persons.

[24] In the case of Chandar Pal v Reginam 20 F.L.R. 1 at 2 Grant A.C.J. said as follows:

"Where death has resulted from a traffic accident it is necessary for the prosecution, on a charge of causing death by dangerous driving, to show that the accused's dangerous driving was a real cause of the accident and something more than diminish (R. v Hennigan [1971] 3 All E.R. 134) and to establish the accused's dangerous driving it is necessary for the prosecution to show that there was some fault on his part causing a situation which viewed objectively, was dangerous (R. v Gosney [1971] 3 All E.R. 220)." (Emphasis is mine)

[25] In Kumar v Reginam [1978] FJSC 146; Criminal Appeal 122 of 1978 (7 November 1978), Supreme Court of Fiji, Hon. Justice J.T. Williams discussed that things need to be considered in these type of cases are what was the quality of the appellant's ( accused's) driving? What evidence is there of recklessness or drink, or a selfish disregard for the safety of others? (Emphasis is mine)

[26] Therefore the main issue is whether the accused drove the vehicle speed that at a dangerous to another person or persons and in a manner dangerous to another person or persons. According to the sketch plans there were no brake marks. The Pw1 said that boys were playing on the road and the boy did not see the vehicle. It happened instantly and impact was inevitable.

[27] In common law jurisdictions, to prove this charge high degree of negligence must be there.

[28] In PREMASIRI V OFFICER-IN-CHARGE, POLICE STATION, MATARA [1993] 2 Sri Lanka Law Reports 23 Ananda C.Grero, J held;

"To establish liability for negligence in a criminal case, a very high degree of negligence should be established. In other words, the accident should have been due either to the recklessness of the accused or due to the reckless driving of the accused. Where the accident is attributable to an error of judgment, it is not sufficient to establish criminal liability by negligence or by a rash act." (Emphasis is mine)

[29] In Rex v. Bateman 94 LJKB 791 Lord Atkin observed thus:

" The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough, for purposes of criminal law, there are degrees of negligence and a very high degree of negligence is required to be proved before the felony is established." (Cited in Premasiri case (supra))." (Emphasis is mine)

[30] In the same case, Rex v. Bateman, Lord Hewart, L.C.J. held as follows:

" In order to establish criminal liability the facts must be such that in the opinion of the jury the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the state and conduct deserving punishment. *(Cited in Premasiri case (supra))." (Emphasis is mine)

[31] This rule was applied in Andrew v. Director of Public Prosecutions [1937] 2 All ER 556. (Cited in Premasiri case (supra))

[32] According to the evidence adduced before me, the prosecution evidence of PW1 and PW2 contradicted each other. I accept PW1's evidence. The burden lies on the prosecution and the defence has no burden to prove of innocence. His innocence is presumed by law and that presumption should be rebutted by the prosecution on beyond reasonable doubt. As I mentioned above, those Commonwealth and common law cases are persuasive me to reach a justifiable conclusion.

[33] In the available evidence, I especially rely on PW1's evidence. According to the PW1's the road is straight and there were no any other impediments to see the victim. When children were around the road, the accused should take precautionary steps. But in this case the accused failed to apply brake or even shout the horn. The child was stuck by the accused unnoticed. The accused did not exercise the degree of care and attention that a reasonable and prudent driver would exercise in the circumstance. It caused this accident and if he tried to stop this accident the results would have been different. According to the Medical Report Ex-5, there were 21 injuries to the deceased body. It shows that impact was hard. But the impact is mostly contributed by the deceased. They were playing around the road and suddenly child/victim came to the road. The small child was dead as the result of this accident and it was very unfortunate incident. But this court should administer the justice without emotion and partial. But I note there is some kind of negligence on the accused's hands. I now proceed to see what kind of offence that the accused had committed.

[34] I therefore hold that the prosecution has not proved its charge beyond reasonable doubt for DANGEROUS DRIVING OCCASIONING DEATH. I discharge the accused from that offence. But It appears to me especially on prosecution evidence establish another traffic offence careless driving. Careless Driving is stipulated in section 99 of the Land Transport Act and it says "on a public street without due care and attention".

[35]The test for careless driving& is stis stated in the case of Khan v State, High Court of Fiji Criminal Appeal No. 1 of 1994 (21 October, 199 follows:

"In order to determine whether the offence of careless dris 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 aion that a reasonable and prudent driver would exercise in e 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)

[36] This offence was done in 2006 and applicable procedure was set out under Criminal Procedure Code. Section 175 of the Criminal Procedure Code says;

"175. When a person is charged with manslaughter in connexion with the driving of a motor vehicle by him, or with an offence under section 237 of the Penal Code, and the court is of the opinion that he is not guilty of the offence charged, but that he is guilty of an offence under section 38 or section 39 of the Traffic Act, he may be convicted of that offence although he was not charged with it and whether or not the requirements of section 42 of the said Act have been satisfied as respects that offence."

[37] Therefore Court has power to convict him for lesser offence. As the forgoing reasons, the accused is discharged from original offence of DANGEROUS DRIVING OCCASIONING DEATH but he is convicted for Careless Driving.

[38] 28 days to appeal.

On 04 November 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate- Nasinu