State v Rikaiwai [2011] FJMC 17; Criminal Case 7312.2009 (16 February 2011)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 7312 of 2009

STATE

v.

EPELI RIKAIWAI

For Prosecution: Mr. Singh J (DPP Office)
Accused: Present. In Person

JUDGMENT

1. Accused in this case was originally charged with 03 counts namely;
   

1. Careless Driving - contrary to sec. 99(1) and 114 of the Land Transport Act

2. Taking a motor vehicle without lawful authority - contrary to sec. 100 (1) and 114 of the Land Transport Act

3. Failure to comply with requirements of a Provisional License - contrary to Regulation 18 (2) and 146 of the Land Transport (Driver) Regulation 2000.
   
2. On 02nd February 2011, prosecutor conceded to the fact that the 3rd Count (Failure to comply with requirements of a Provisional License - contrary to Regulation 18 (2) and 146 of the Land Transport (Driver) Regulation 2000) is defective and in State's closing submission, addressed the Court regarding the first two counts.
   
3. Five witnesses testified for the prosecution and accused gave evidence on his behalf.
   
4. Onus is on the prosecution to prove all elements of the charges beyond reasonable doubt. If accused is successful in creating a reasonable doubt in the prosecution case, prosecution fails.
   

Evidence
PW – 1

5. Witness is the officer who received the report with regard to the accident involving the accused on 20th August 2007. At about 2.20 am witness had visited the scene of the accident and prepared sketch plans. According to the witness, police vehicle driven by the accused was up side down when he visited the scene and had sustained substantial damages. Witness said that there were some pot holes on the bend of the road where accused lost control of the vehicle. Accused himself had reported the accident to the police. According to the witness, pot holes were dangerous to the drivers but with due precautions drivers can avoid accidents.
   

PW – 2

6. Witness was with the accused in the police vehicle at the time of the accident. Witness informed that he is very sure accused slowed down the vehicle when he was reaching the bend. Statement of the witness had recorded just two days after the incident and according to the witness he was laying on the bed in his home injured. Answering the questions posed by the prosecutor during the cross-examination, witness said that despite of him informing that he was not fit enough to give a statement, officer who visited him made him to make a statement.
   

PW – 3

7. Witness was the station officer at Navua Police Station on 20th August 2007 and recalled accused coming to his home and reporting the accident. According to the witness, accused was not an authorized driver tested by the traffic unit and as the station officer witness had not authorized the accused to drive on 20 / 08 / 2007. During the cross-examination witness said that on 20th August 2007, accused was in-charge of the night shift and accused had capacity to act for commissioner of police and authorize the run of the vehicle. Later witness had come to know that the accused was in possession of a valid driver's license. During re-examination witness informed that even though accused was not authorized to drive a police vehicle in case of an emergency as the officer in-charge accused was empowered to take decision.
   

PW – 4

8. Witness was the investigating officer of the incident and had recorded the caution interview of the accused. Witness had interviewed the accused on 22nd August 2007 at Navua police station. According to the witness Special Constable Ravua was the authorized driver for the police vehicle and witness admitted Ravua starting his duty at 6.30 am on 19th August 2007 and working for extra hours with out a break. Witness informed that he cannot remember accused informing that he was on sick leave due to the body pains he received by the accident when accused was arrested to record his statement. Witness admitted accused having a valid driving license at the time of the accident but informed the court that the license was a provisional driving license valid only for two years. Witness re-iterated the fact that the accused was not an authorized driver for the police department.
   

PW – 5

9. Witness is an authorized officer for vehicle examination for Land Transport Authority and recalled inspecting GN 465. Witness submitted the vehicle test sheet based on his observations. Witness informed that he could not find any mechanical defects which could have contributed to the accident however admitted observing the rear tires were plain. Witness admitted that the plain tires are part of the mechanical defects and admitted making contradictory remarks in his report.
   
10. Calling above-witnesses to the stand prosecution closed its case. Accused opted to give evidence.
    
11. According to the accused he has started duty at 11 pm on 20th August 2007 and was surprised to find that the authorized driver was still driving from the morning. Accused with PW-2, had gone to driver's home to have his meals and refreshments as he was working extra hours continuously. Whilst having meals driver had informed the accused that he is very tired and cannot return for work. Accused found that he cannot leave vehicle at the driver's place. As accused was the station officer, accused had decided to drive the vehicle back to the police station. According to the accused he was driving up hill when he felt vehicle was tilting and the rear of the vehicle swinging. Accused had slowed down the vehicle and right on the bend there was a big pot hole. On the bend there were lose gravel. Accused then lost control of the vehicle.
    
12. According to the accused when he was arrested he was under medical leave and his residence was just 10 feet away from the police station. Accused had shown his medical report to the investigating officer but he had continued interviewing the accused. According to the accused, the second count is defective as he did not drive the vehicle from the station and back. Accused further informed that investigation officer was in hurry to conclude the investigation as he had to attend to a course in the Police Academy.
    
13. During the cross-examination accused admitted that he did not check the condition of the vehicle before he was driving and he was not an authorized driver for the police department. Accused informed that he went to the driver's home with the belief that the driver was going to return to the station and when he refused to come he had to take a decision.
    

Analysis of the prosecution's case

14. Accused admitted driving GN 465 on 20th August 2007. Duty of the prosecution to prove that accused drove that vehicle without due care and attention.
    
15. According to Shameem J in Ajnesh Kumar v. State [2002] FJHC 291 (12th April 2002)
    

"There are many authorities which say that the test for both Dangerous Driving and Careless Driving, is whether the accused had departed from the standard of a reasonable, prudent, competent and experienced driver in all the circumstances of the case".

16. According to the evidence of PW-2 accused slowed down the vehicle when he approached the bend and there is no evidence to show that accused was driving in excessive speed or reckless manner.
    
17. Other than the facts that the accused drove the vehicle without checking for its defects and accused was not an authorized driver, prosecution failed to prove that the accused was careless whist he was driving the vehicle.
    
18. Therefore, it is prudent to consider whether the above mentioned fats fall within the scope of Shameem J's interpretation of a "Careless Driver" in Ajnesh Kumar v. State.
    
19. According to the evidence of the prosecution it had been revealed that the Special Constable Ravua was the authorized driver for the Navua police. He has driven the police vehicle to his home and he had been driving the GN 465 during the day of the incident. There is no evidence to show that Ravua was aware of the plain tires of the vehicle. If what is mentioned in the report of the vehicle examiner was true, officer Ravua had been driving a mechanically defective vehicle for the whole day. The officer who had been authorized to drive an official vehicle therefore had not acted as a prudent driver when he agreed to drive that vehicle to his home.
    
20. When the official driver refused to return to work accused had left with a situation where either he had to take the vehicle back to the station or to leave the vehicle at the driver's home.
    
21. It is the duty of the prosecution to prove that leaving the police vehicle at the driver's home was the only option accused had at that time and it is not against the department regulations to leave a government vehicle at an officer's home. However there is no evidence to that effect and there is no evidence to show that there was an alternative authorized driver at the Navua police station other than officer Ravua during the time in question.
    
22. PW- 5 admitted making contradictory statements in his report. Hence there is a reasonable suspicion whether the witness had made a correct report. This Court cannot believe only a part of the evidence of a witness and disbelieve the same witness in the remaining part where it is unfavourable to the prosecution. Therefore, I refuse to consider the evidence of PW-5.
    
23. According to the evidence of PW-3 and PW-4, accused was in possession of a valid driver's license. It had been proved that the license accused held was a provisional license and such license is issued on a temporary basis for two years period. However, since the prosecutor admitted that the third count against the accused which was "failure to comply with requirements of a provisional license" is defective in law, there is no question about the accused person's ability to drive a vehicle with a provisional license.
    
24. Since, it had been proved that there is no question with accused person's ability to drive a vehicle; the only issue left to be resolved is whether the accused was driving GN 465 on 20th August 2007, without lawful authority as mentioned in the second count.
    
25. According to the evidence of PW-3, accused had been the officer in – charge of the night shift on 20th August 2007 and thereby was in a position to take decisions in case of an emergency. Accused was hence in a position to assume authority. Therefore, it is apparent that the driving of the police vehicle back to the police station was a decision taken by the accused as the officer-in-charge of the night shift.
    
26. Whether the accused had exceeded his authority is an issue to be resolved by an internal inquiry of the Police Department and does not fall under the ambit of the Land Transport Authority Act. For the above mentioned-reason, the second count against the accused must fail.
    
27. In the light of the evidence revealed from the PW-2, I think it is prudent to comment on the manner in which the investigation had conducted in this present case. PW-2 re-iterated the fact that he was not in a position to give a statement yet the officer had proceeded to record his statement disregarding of his protests.
    
28. PW-1, in his evidence revealed the fact that the police vehicle was up side down when he visited the scene and had sustained substantial damage. Therefore, it is not difficult to assume that people traveled inside of that vehicle at least had subjected to extensive body pains let alone serious injuries. Evidence revealed that the investigating officer had proceeded to record the statement of the accused within 02 days from the accident.
    
29. Considering these facts, it appeared to me that the investigating team had only one aim which is to conclude the investigation as soon as possible despite of the conditions of their own witness and the accused. Therefore, I have to conclude that the investigation had not been properly conducted in this present case.
    

Conclusion

30. As per the reasons mentioned above, it is apparent that the prosecution had failed to prove that the accused had departed from the standard of a reasonable, prudent, competent and experienced driver. There is no evidence to show that accused person's actions directly contributed to the accident on 20th August 2007.
    
31. As a result accused person is acquitted from all counts.
    
32. 28 days to appeal.
    

On this Wednesday the 16th day of February 2011

Kaweendra Nanayakkara
Resident Magistrate