State v Chand [2012] FJMC 131; Traffic Case 6916.2011 (18 June 2012)

IN THE MAGISTRATE’S COURT OF NASINU

Traffic Case No. 6916/2011

STATE

-v-

SUBASH CHAND

Police Inspector Joji for the State
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]

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

Particulars of Offence [b]

[3] SUBASH CHAND on 9/6/11 at Suva in the Central Division drove a bus on Harish Road without due care and attention.

Summary of evidence

[4] At the trial, prosecution called following witnesses to prove the charge.
PW 1-PC 2594 Josefa Rakascta; The witness said on the date of incident he was based in Nabua Highway Patrol. On 09th June 2011 he was on duty at Harish Road. The accused drove a Central Transport Bus on Harish Road and he went through the Red Light. There were two car lengths between them. The witness saw that the accused committed the offence. So the witness followed the accused later issued a TIN and warned for prosecution.

[5] No cross examination was done. This means the accused accepted the evidence undisputedly.

[6] Thereafter prosecution closed their case. Since there is a case to answer, Defence was called and the accused rights were explained. The accused opted to give sworn evidence but he did not call any other witness on his behalf.

[7] DW1 Subash Chand: The accused said He did not cross the red light instead the police officer crossed the red light. He was standing to the Red light and he cross green light.

[8] In Cross examination the accused said that there is no reason that the witness to tell a lie that he crossed the red light. he further said that the officer was lying and he is telling the truth. The accused said that he knows the fine for careless driving, it is $200. He does not want to pay the fine as he does not cross the red light and he further said he knows the road rules. The police strongly suggested that because of $200 fine that the accused is denying the charge. But the accused refused that suggestion saying he had paid plenty fines before this and if committed this one he would definitely pay the fine.
The Law on Careless Dr

[9] CareDrivi60;is definedfinedfined 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 (21 October, 1994) as follows:

"In order to determine whether the offence of&#16eless driving is commicommitted,test, as , 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)

[11] 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.
[12] 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 doubts 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 guilf you have any reasonable doubt as to whether the accused psed 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 rable doubt about the the guilt e accu accused."

[13] In State v Tuiloa [2008] FJHC 251; HAC007 (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 doubb>Proof roof beyond reaso doubt means eans what it saou. You must be sure; you must be satisfied of g/u>, before you can express an opinion about it. Only if you are sure, if you are sare satisfied beyond reasonable doublet of guilt then it is your duty to sato say so. If you are not sure, not satisfied beyond a reasonable , then you myou must give your opinion that the accused is not guilty. This assessment, this determination, rests with you – with each of you – your individual assessment of the evidence." b>." (Emphasises is mine)

[14] 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.

[15] 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

[16] Now I evaluate the evidence adduced before me. The PW 1 told to the court that the accused crossed the red light. PW1 is eye witness. The accused told that he did not cross the red light. He is also an eye witness. But, the accused did not cross examine the police witness when he was offered to cross examine. The police witness gave under oath and he had no reason to give evidence against the accused. There was no previous enmity revealed between them; the accused in his cross examination admitted there is no reason police witness to tell a lie. By not cross examining the PW1 the accused undisputedly accepted the prosecution witness's evidence. On the other hand the prosecution suggested to evade $200 fine the accused gave false evidence. The accused said that he knew the fine is $200 for careless driving. That mean the accused lied to court on oath. By conduct the accused accepted the prosecution version. This is word to word assertion by PW1 and the accused. I have no hesitation to accept prosecution version. I accept the prosecution witness's evidence is of truth. I declined to accept the defence evidence and I reject them as above given reasons. I hold the prosecution has proved the case beyond reasonable doubt.

[17] The Court finds that the Accused SUBASH CHAND did not drive with the due care and attention of a prudent and reasonable driver in the circumstances.
I therefore convict the accused as charged.
On 18th June 2012 at Nasinu, Fiji

Sumudu Premachandra
Resident Magistrate- Nasinu