State v Lal [2012] FJMC 135; Traffic Case 183.2008 (18 June 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI ISLANDS
AT SUVA

Traffic Case No. 183/2008

STATE

v

SHYAM LAL

Prosecution: WPC Fisher, Police Prosecutor.
Accused: Not appeared.
Date of Hearing: 16 May 2012.

JUDGMENT

1. The Accused, Mr. Shyam Lal, has been charged with Careless Driving, contrary to Section 99(1) read with Section 114 of the Land Transport Act No 35 of 1998 (as amended).
   
2. The charge arose from an accident which occurred on 25th of September 2007 at Grantham Road, Suva, when the vehicle driven by the Accused collided with the vehicle of the complainant.
   
3. The accused had been served with summons to appear before the Suva Magistrate's Court on 23.02.2009. Affidavit of service dated 3.12.2008 filed by PC 4299 Atish Prakash of Raiwaqa police station.

4. On 23.02.2009 a Bench Warrant was issued due to non appearance of the accused.
   
5. At a later stage the case was fixed to proceed in absence of the accused. The Criminal Procedure Decree of 2009 provides authority to hold trial in absentia. Section 167 states;
   

167. — (1) This section applies to any case in which an accused person is charged with any offence punishable with imprisonment for a term not exceeding 12 months and/or a fine not exceeding 10 penalty units, and where the accused person —

(a) does not appear at the time and place —

(i) appointed by the summons; or

(ii) by any bond for his appearance that he or she may have entered into; and

(b) personal attendance has not been dispensed with under section 83.

(2) Notwithstanding section 165, where the matters specified in sub-section (1) apply in any case, the court may —

(a) proceed to hear and determine the case in the absence of the accused; or

(b) adjourn the case and issue a warrant for the arrest of the accused in accordance with the provisions of section 84.

(3) A court shall only proceed in accordance sub-section (2) upon production of the bond entered into by the accused, or upon —

(a) it being proved that there has been proper service of the summons a reasonable time before the date fixed for the case, or on production of the relevant bond; and

(b) the court being satisfied that the accused was informed verbally or by the documents served upon the accused, that the case might be proceeded with if the accused did not attend the court as notified.

6. The evidence of the following witnesses was led by the prosecution on 16.05.2012.
   
   • (i) Mr. Rajinesh Kumar – the complainant
   • (ii) PC 3660 Gasio – investigating & interviewing officer.
     

Following Exhibits were marked by the prosecution.
Exhibit # 1 - The Caution Interview of the Accused
Exhibit # 2 - The Rough Sketch Plan

7. The complainant (hereinafter referred to as PW-1) stated that he had come to Court to give evidence in a case where an accident occurred involving his vehicle and a taxi.
   
8. PW-1 could not recall the date of the offence. He stated that the accident happened in 2008 at Grantham Road, around 07.30am. A taxi driven by a person called Shyam Lal has bumped in to his vehicle when he was about to drop his wife at her work place. He further stated that the taxi hit from the left side rear door of his vehicle.
   
9. PW-1 went on to testify that there were no obstacles in the place of incident and the weather was fine. The matter was later reported to Grantham Road police post.
   
10. PC 3660 Gasio (hereinafter referred to as PW-2) had been the second and final witness of the prosecution.
    
11. On the day of the incident he had been on duty in the traffic section of the Reiwaqa Police Station and visited the scene of accident.
    
12. PW-2 had drawn the rough sketch plan on to which both drivers had placed their signatures. PW-2 marked the caution interview of the accused as Exhibit 01. He stated that there is no formal admission made by the accused on culpability. The accused has only admitted the fact that he bumped in to the vehicle registration number EZ 746 at Auto city junction in Grantham road.
    
13. Section 99 (1) of the Land Transport Act states, 'A person who drives a motor vehicle on a public street without due care and attention commits an offence and is liable on conviction to the prescribed penalty.
    
14. The burden of proof is vested on the prosecution to prove these elements of the charge beyond reasonable doubt even in the absence of the accused. In State v Seniloli [2004 FJHC 48]; HAC0028.2003S (5 August 2004) Her Ladyship Justice Shameem told the assessors in her summing up;
    

"The standard of proof in a criminal case is one of proof beyond reasonable doubts means thas 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 counsels asked you if you had the slightest doubt about the guilt of the accused. That is not the correct test. The correct test is whether you have any reasonable d#160;about the the guilt of the accused."

15. There are ample authorities which say that tst for both Danb>Dangerouving&#1b> and Careless Dr is whet whether the accused has departed from the standard of a reasonable, prudent, competent and experienced driver in all the circumstances of the case. The accused is guilty of either offeven if he committed an errn error of judgment (Simpson -v- Peat [1952 1 AER 441] or was an inexperienced driver (McCrone -v- Riding [1938 1 AER 157] The difference between Careless Driving and Dangerous Driving in Fiji, is whether the manner of driving (which fell below the requisite standard expected) created a dangerous situation. Thus a careless driver is also a dangerous driver, if his careless driving caused a pile-up of vehicles on a busy motorway resulting in death and injuries. The question of what is careless as opposed to dangerous is one of fact, usually best left to the trial court to decide, on the evidence.
    
16. The approach of the Court on standard of proof is an objective one. And there must be some evidence of fault on the part of the driver charged.
    
17. PW-1 is the best person to explain this incident and to testify whether there was any fault from the accused since he went through the incident. I note that his evidence was not properly led by the prosecution to establish the charge. It appears that the prosecution relied on the fact that an accident itself indicates carelessness. The fact of accident is not determinative of careless driving.
    
18. The prosecution should have explained the precautionary measures took by the complainant to avoid this accident. There is no evidence whether he indicated by his indicators of the vehicle that he is making a turn to Auto city road. And what were his speed and the speed of the accused vehicle.
    
19. Further there is no evidence on the actual impact of his vehicle and the damage caused. The only fact prosecution established is that he drove the vehicle that met an accident with Shayam Lal's taxi. It is to be noted that the witness PW 01 said that this incident occurred in 2008.
    
20. There was not an iota of evidence by PW-2 who held the caution interview and investigation. The accused did not make any formal admission that he was at fault. I am unable to arrive any conclusion whether the accused was at fault by the sketch drawings of the police officer.
    
21. The Court is unable to find any incriminating evidence against the accused. Benefit of this situation directs towards the accused. I conclude that the prosecution has failed to prove the charge beyond reasonable doubt.
    
22. Thus the accused, Shyam Lal is acquitted from further proceedings.
    
23. Prosecution has 28 days to appeal against the judgement.
    

Pronounced in open Court,

YOHAN LIYANAGE
Resident Magistrate

18th June 2012