State v Biu [2011] FJMC 99; Traffic Case 3453.2006 (5 September 2011)

IN THE MAGISTRATE’S COURT OF NASINU

TRAFFIC CASE NO.3453/2006

STATE

VS

MISAELE BIU

Police Sgt Volavola for the State
Accused unrepresented and absent.

Formal proof 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]

MISAELE BIU on the 19th day of November, 2005 at Nasinu in the Central Division drove a motor vehicle on Kings Road 7 ½ miles without due care and attention.

[2] Case record indicates on 03rd December 2010 the accused was served. The accused never came to the court and formal proof date was fixed. On 22nd July 2011, formal proof evidence was led before me and it is fixed for judgment today.

Summary of evidence

[3] At the trial, prosecution called following witnesses.

[4] PW 1- Niklesh Navin Chand; He said he was on duty on 19th November 2005. At 7.30 pm the accident was reported. Then he went to the scene and he recorded the statement of the victim. The victim is in Funafuti Northern Island and cannot be called as a witness. It was tendered as Ex-1. When the accused statement was recorded, he was present. The officer cannot be called as a witness, but it was tendered as Ex-2. Then, he marked the Sketch plans as Ex-3. He said that he drew those plans. Then prosecution closed the case.

[5] I consider whether Ex-1 and Ex-2 can be considered as evidence. Those are police statements and it was recorded under ordinary course of business and in particular, in the discharge of professional duty of that officer; it was acknowledged by the author/ speaker of those documents and written or signed by him. I therefore hold it could be admissible evidence under the common law.

Analysis of the evidence

[6] Now I evaluate the evidence adduced before me. PW 1 Saiyad Faizal Aslam Khan, is in Ex-1, in his statement said “I reached Laqere Bridge Traffic lights passed the traffic lights then suddenly one Mini bus made “U” turn in front of my vehicle and my vehicle bumped into rear part of that mini bus... it did not give the right hand signal. After the accident my vehicle was turn around... I do not have a Fiji Driving Licence but I have a Tuvalu Driving Licence”

[7] The accused in his statement Ex-2 said “I was on the bus stop and had indicated with my right side trafficator to turn right I looked on my right side rear view and there was no approaching vehicle... I turned on the outer lane and I was bumped from the side (back) by that vehicle”

[8] It showed that the victim PW1 had no control over the vehicle at the material time. He had not taken due care while driving and due to the victim’s speed his vehicle was turn around. Both statements are contradictory to each other.

The Law on Careless Driving

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

[10]The test for car driving is stis stated in ase case of Khan v State, High Court of Fiji Criminal Appeal No. 1 of 1994 (2ober, 1994) as follows:

"In order to determine whether the offence of&#16f carelessing is committmmitted, 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 cnd aton that a reasonable and prudent driver would exed 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)

[11] The burden of proof is vested on the state in this matter and they should prove this charge beyond reasonable doubt. This matter that main witness was not called and his statement was tendered as evidence. Further the accused statement also tendered as evidence. Though this matter went ex parte as formal proof, the burden to prove the charge beyond reasonable doubt is not escaping from the prosecution. The evidence from police statement clearly shows that the victim driver was excessive speed and sketch proves that the victim was on excessive speed. His evidence was not cross examined and statement made to police was not under oath. Therefore it is unsafe to convict the accused on available evidence.

[12] I therefore hold that prosecution has not discharge its burden beyond reasonable doubt.

The accused is acquitted and discharged.

On 05th September 2011 at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate- Nasinu