State v Prasad [2011] FJMC 9; Traffic Case 83 of 2009 (27 January 2011)

IN THE MAGISTRATE’S COURT OF NASINU

TRAFFIC CASE NO.83/2009

STATE

vs

NIRBHAY PRASAD

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

Judgement

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

Statement of offence [a]

Careless Driving: - Contrary to Section 99(1) and 114 of the Land Transport act 35 of 1998.

Particular of Offence[b]

Nirbhay Prasad on 05th day of December, 2008 at Nabua on Ratu Mara road in the Central division drove a private motor vehicle registration no: FB 445 without due care and attention.

[2] This case was heard on 20th January 2011 and since accused is about to leave the country, case was fixed for judgement today.

Summary of evidence

[3] At the trial, prosecution called following witnesses to prove the charge.
PW 1-Jiujiua Bera: He said to the court on 05-12-2008, he was on duty with PW 2. At 12.25 pm, he saw the vehicle registration no: FB 445 crossed the Red lights and it was driven by this accused. Then, his team leader Joape Naimila stopped the accused and interviewed. Then witness was asked to issued a TIN to the driver of the vehicle by team leader, which he did so. Further he said ,

“This was happened at the Red Lights, the one next to the Nabua Police station. My distance was car length to the accused. I was a passenger and driver was my team leader. It was a good sunny, working day. When the accused did this offence, my team leader put the siren on to stop the vehicle. Pedestrians were waiting to red lights to cross the road and fatal accident may have been occurred by this offence”

This witness was cross examined by the accused at length. On cross examination, he said he cannot recollect the number of persons who were in the car. Car was white sedan and he cannot recollect the brand of the car. Further he said that the accused drove the car in the middle lane and vehicle was stopped after 50 metres from the place of infringement. The accused suggested it was after 250 metres where the witness denied it. The witness told this incident happened on in front of Nabua Police station traffic lights not the traffic first lights near the Chinese bakery. He told further that he did not recollect the speed of the accused and TIN was given near the bus stop which the accused suggested Herts Rentals and a foot path which he denied it. They drove LTA no: 06 car and they were in left lane and the accused was in middle lane of the road. Witness admitted apart from his team leader he cannot produce any witness or documentary evidence and he lacked some memories regarding the incident.

In re examination PW1 said this was taken place in front of Superdrug Pharmacy Traffic lights.

PW 2- Joape Naimila: He said that on 05-12-2008 at about 12.25 pm, he was on duty with other officer-Bera. They were patrolling on Ratu Mara road at Nabua. They noticed that vehicle no; FB 455 (later changed it to FB 445) did not obey the traffic light; Red lights and eventually they followed the car 50 metres and driver of the car was issued a TIN (Traffic Infringement Notice) and warned for prosecution. The TIN was issued by the other officer; PW 1 and he said it was fine weather. The action of the accused may have caused an accident as side roads motorists were moving on that time to the main road. He said that the accused drove the vehicle without due care and attention. Witness said that there were three road lanes and we were right behind him.

At cross examination he said that he cannot recall the colour of the vehicle since this was happened in 2008. He also said that he drove the vehicle not the PW1 Bera. The defence suggested that this was not present at the incident which he denied it. Further he told this took place at middle colour lights in front of Nabua Police station. He said that he did not recollect the car number or exact time as it happened in 2008. He confirmed that he was right behind the accused. He said that he did not put the siren on as he had to stop to the Red lights. After the red light he followed the accused car and stopped him at Herts Rentals. He said that he can’t remember the front vehicle of the accused and there were 3 or 4 passengers were in the accused vehicle.

[4] Then prosecution closed their case. Since there is a case to answer, defence was given an opportunity to adduce their evidence. Defence called following witnesses.
DW1- Nirbhay Prasad (The accused): The accused opted to give sworn evidence on behalf of him. He said on that day he was driving the vehicle on Ratu Mara road, was following a truck bearing registration no: CN 111 loaded with timber. The accused said that he did not cross the red lights though LTA officers booked him. He said that LTA officer’s vehicle was not right behind him and was four or five car lengths. He told that only PW1 was present at that time and PW2 was not at the incident. He was asked to stop the car by PW1- Bera and he did not put siren on. Then he was told that he did cross the Red lights. He said that he told to PW1-Bera that he did not cross the red lights and then PW1-Bera started threatening him as thinking that he (the accused) would provide his lunch money as it was almost lunch time. When he refused it turned other way round, he said. Accused further said that as an educated person he did not break the law or put into lives of others or himself in peril.

On cross examination, the accused admitted that he drove the vehicle at particular time of incident. But he denied the offence. Further the accused told that he was stopped and charged by PW1 and PW2 was not present.

In re examination the accused said that though the witnesses in this case are experience but they cannot recollect the material points. Therefore he said that police making a false case against him and he could prove it.

DW 2- Hemanth Kumar: He said on 05-12-2008 at 12.25 pm he was on duty. He drove a truck loaded with four packet of timber towards Nausori. While he was driving LTA officer booked him. The offence was he did cross the Red lights and was given a TIN. This happened close to Nabua Police station. He said he was booked by PW1-Bera and he came alone. The accused Mr. Nirbhay was there and he said that I did not cross the red lights.

On cross examination this witness said that he case will be calling for hearing on 09-02-2011. He said there was no siren at that time and when they approached the put the siren. Time was 12.25pm; he added.

DW 3 – Harish Kumar: He said he was with the accused as a passenger of that car and the accused did not cross the Red lights.

On cross examination he said that he cannot tell the exact time as he was not wearing a watch. I am in law of the accused and came from Tavua for a holiday; he told to the court. He said that the speed of the accused could be 15-20 kmph. Pw1 booked the accused and PW2 not present at that time. He told that he did not tell lies in this regard.

DW 4 – Sarojni Devi: She confirmed the defence version and said the accused did drive very slow and not cross the Red lights.

On cross examination, she said she was a passenger of the accused’s vehicle and car registration number was FB 445.

DW 5 – Navneet Nitendra Prasad: He too confirmed the defence version and said the accused did drive very slow and not cross the Red lights. At that time that accused was following a truck which loaded with packet of timber. Therefore vehicle was slow moving. They were going home and Mrs Sarojni, mr. Harish and the accused were accompanying him.

On the cross examination, he said he was a passenger of the accused’s vehicle and car registration number was FB 445.Time was after 1pm and he could not recollect the date. Though he is cousin brother of the accused he said that he did not tell lies. When LTA officer approached he said that there was no siren at that time and PW1 stopped the accused.

Thereafter defence rested.

The Law on Careless Driving

[6] Careless ng is defs 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 caredriving is stis stated in tse case of Khan te, High Court of F of Fiji Criminal Appeal No. 1 of 1994 (21 October, 1994) as follows:

"In order to deterwhethe offence of&#160 careless drivi60;is committmmitted, ted, 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 . . .” (As cited in State v Lovo [2009] FJMC 7; Traffic Case 31.2009 (24 September 2009)

[8] The burden of proof is vested on LTA 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 reasonable doubt. This mhis means that you must be satisfied so that you feel sure of the guilt of the accused persons before yoress an opinion that they are guilty. If you have any reasonable doubt as to whether the ache 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&#16ut the the guilt of the accused.”

[10] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 June 2008) Justice Jocelynne A. Scutt in Her Ladyship’s sumup 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 . Proof roof beyond rable doubt means eans what is. You. You must be sure; you must be satisfied of guilt, before you can express an opinion about it. On you ure, you arou are satisfied beyond reasonable doubletublet of guilt, then it is your duty tuty to say so. If you are not sure, not satisfied beyond a reasonaoubt, 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)

[11] 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.

[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. PW 1 and PW 2 are experienced LTA officers. They said that at the material time the accused drove the vehicle and crossed Red Light without stopping the vehicle and thereby caused careless driving. The manner or behaviour of the accused at that time would have been caused serious accident or fatal accident as pedestrians and other vehicles were approaching to the main road at that time. They said that the accused did not act expected manner as prudent driver. Initially, PW1 said this happened in front of Nabua Police station. But the accused suggested that he was booked for first set of traffic lights. Evidence revealed that there were three sets of traffic lights, one was in front of the Chinese Bakery, Second one was in front of the Nabua Police station and third one was in front of Super Drug Pharmacy. Prosecution told this took place in the middle traffic lights where in front of the Nabua Police Station. Admissibility of evidence on experienced/ practised witness has to be cautious.

[14] It is well-recognised that a heavy practical burden is involved in raising a reasonable doubt as to the truthfulness of police evidence ...McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468 at 475. In the context of the police witnesses "police witnesses are usually practised witnesses and it is not an easy matter to determine whether a practised witness is telling the truth", McKinney v The Queen at 476. This principle would apply to LTA official witnesses as well. They are experienced and practiced witnesses, therefore minor inconsistencies are also taken into account of impeaching these types of witnesses.

[15] Prosecution witnesses were cross examined at lengths. In evidence in chief, PW1 said this incidence took place in front of the Nabua Police Station. In cross examination he confirmed it. But in re examination he said" We were in first lane of the left side on our way to Nausori. The accused vehicle was stopped after 50 metres approximately. This was happened last crossing light in front of the Super Drugs. Time was 12.25pm. We put on the siren on " The witness was confused and said it was last light close to Super Drug Pharmacy. Thus, his evidence contradicts per se. But PW2 said that they did not put siren on at that day. PW2 said that they were right behind to the accused. But PW 1 said that the accused was in the middle lane and they were in left corner lane and not right behind the accused. Thus, prosecution evidence contradicts inter se as well. These inconsistencies diminish the value of the prosecution evidence.

[16] Defence called five witnesses; some of them are relations of the accused; but it does not vitiate the evidence of those witnesses. They were mostly consistence with each others. The accused said that he never crossed the Red lights but admitted the detection at that time. He said he was booked by the PW1 and he was the only officer who present at that time. But according to the prosecution the PW2 -team leader booked the accused. But this proposition was falsified by the defence witnesses. Especially DW2, Hemanth Kumar was an independent witness and he said that only PW 1 was present at the time of detection. This rise a doubt whether this witness was present at that time, moreover, most of the time this witness (Pw2) said that he cannot recollect the memories about the incidence.

[17] In this scenario, prosecution's evidence casts serious doubt whether this incident occurred in this way. Considering all above legal maxims, this court regrets that prosecution version is untenable and the accused cannot be convicted on adduced evidences. Therefore, I refuse prosecution's evidences. As I noted earlier the burden is lies on the prosecution to prove the charge. I hold all the elements of the charge have not been proved by the prosecution beyond reasonable doubt. On the present facts, I find the accused did not fall short of an expected prudent driver.

Verdict

[18] The Court finds that the Accused Nirbhay Prasad did drive with the due care and attention of a prudent and reasonable driver in the circumstances.
Therefore, the accused is acquitted and discharged from this proceeding.
On 27th January 2011

Sumudu Premachandra
Resident Magistrate- Nasinu