IN THE MAGISTRATE'S COURT OF NAVUA

TRAFFIC CASE: 440/2009

STATE

V

SALESH SATEND LAL

For Prosecution : Mr. Niudamu from the office of DPP
For Accused : Mr. Samad

Judgement

[1]	The accused is charged with the offence of Dangerous Driving Occasioning 
Death. The charge reads as follows;

Statement of Offence [a]
DANGEROUS DRIVING OCCASIONING DEATH – Contrary to s.97[2] [c] and 114 of the Land Transport Act Number 35 of 1998.

Particulars of Offence [b]
SAILESH SATEN LAL, on the 09th day of September 2007, at Navua in the Central Division, drove a motor vehicle registration number FF 707 on Queens Road, Glaoa , Serua, in a dangerous manner occasioning death of FIPI LAGILAGI WAQALEVO.

[2]	Since the accused pleaded not guilty for the charge the matter was set down for hearing. The Prosecution's case began on 31/05/2010 and both parties finally finished the case before me on 26/07/2012. 

SUMMARAY OF EVIDENCE 

[3]	At the trial the prosecution called following witnesses. PW 1-Ravi Nand; He was the vehicle examiner. He said on 09/09/2007 he inspected the vehicle and found no mechanical fault in the vehicle. His report was marked as EX-1.

[4]	In his cross examination he said a 7 tonne bus driven at 50kmph can be stopped suddenly.

[5]	PW2 – Tevita Rabonu; He said on 2007 he was working in photographic unit of Fiji police force and attended to the accident and took the photographs. They were marked as EX-2.
 
[6] 	PW3-Dr. Jean Maria Pevera; He was a Consultant in Forensic Pathology. He was requested to peruse the Post Mortem Report and it was marked as Ex-3. He said the cause of death as Cramo Cerebral injuries due to blunt impact to head secondary to motor vehicle accident. 

[7] 	PW4- Epeli Batidumuni: He said on 09/09/2007 he was carrying a baby and standing near the road. He saw the accident. After hitting the deceased the bus stopped far away from where the incident occurred. He identified the accused from the dock. 

[8] 	In his cross examination he said that the victim was coming towards his house and he identified the point of impact from the sketch plan. 

[9] 	PW5- Iva Davetawalu; She said on that day she was washing her baby's nappies when she saw the Maharaj Bus stopping in front of her house. She saw the victim got off the bus. The victim was related to her. The victim had crossed the mid white lane and had been crossing and all of a sudden 'green' bus came from Suva towards Nadi. It was coming at high speed and could not avoid hitting the child. The highway patrol was following the bus. The bus stopped far away from the accident. The bus was stopped by the high way patrol.

[10] 	In his cross examination she said the driver could not stop the bus because he 
was driving at high speed.

[11]	PW6-Ashok Prasad; He was the driver of the bus in which the victim was travelling in before she got off. He said on that day he dropped her off at Galoa village. He met the accused's bus 20m away from that place and his passengers raised alarm. 

[12] 	In cross examination the PW6 said the green bus passed him and speed was 60-65kmph and the highway patrol was behind the bus. 

[13] 	PW7- Rupina Bua; He said at Galoa the child got off from the bus. He saw the green bus coming from opposite direction and heard a loud noise. He saw the victim lying on the road. 

[14] 	In cross examination the PW8 said he did not see the accident.

[15] 	PW8- Beniamino Tututau; He was inside the bus and the victim got off. He saw a bus coming at high speed and then saw the child lying in the ground. 

[16] 	In cross examination he said he assumed bus was travelling fast because when the bus passed him the wind was coming high pressure.

[17] 	PW9 WPC 3444 Karolina; She was member of the highway patrol who was following the accused's bus. When they came closer to the scene she saw a black bag and saw two little legs lying in the middle. They asked the driver to stop and she carried the girl to hospital. The victim was pronounced dead upon arrival. Before the accident they met the bus and it was rushing. 

[18] 	The PW9 in her cross examination said the bus passed their vehicle near the Maharj Bus Depot and at that time it was rushing. They followed the bus and they were following it around 70-80kmph speed.

[19] 	PW10 PC1311 Waisake; He was the driver of the highway patrol. They were following the accused's bus and it was speeding. The PW10 was going around 70-80kmph. When they approached the village they saw the victim and asked the accused to stop. 

[20] 	In cross examination the PW10 said the accused was driving at a speed of 70kmph and When he saw the victim he used the siren. 

[21] 	PW11- PC1750 Nair; He visited the scene and interviewed the accused. It was marked as EX-4 . 

[22] 	In cross examination the PW11 said the accident happened on the road.

[23] 	PW12-PC3080 Abinay; He draw the rough sketch plan and they were marked as EX-5a and 5b. 

[24] 	In cross examination the PW12 said the bus stopped 32.5m away from the point of impact and at the point of impact there were no brake marks. Thereafter the prosecution closed their case and since there was a case to be answered the accused was given the rights. The accused opted to give sworn evidence and also called another witness. 

[25] 	DW1- Salesh Satend Lal; He said on that day he was going to Serua and his wife and son were with him. He saw the girl crossing the road. She again crossed the road and the accused tried to save her. At that time he was travelling slowly since the highway patrol was behind him. It was too late and bus hit her. The accused stopped the bus in front and at that time he was not drunk.

[26] 	In cross examination he said he was travelling around 50-60kmph. When the accident happened he was travelling around 50kmph and he tried to stop. He further said he saw the child.

[27] 	In re examination he said he was worried about the accident. 

[28] 	DW2- Wati; She is the wife of the accused. She said at Galoa the girl crossed the road and at that time the accused was driving slowly. 

[29] 	In cross examination she said the accused was going to pick a job and he was not 
speeding. 

[30] 	Thereafter the defence closed the case. Both parties filed closing submissions which I have gone through carefully in addition to the evidences presented in the Court. 

THE LAW

[31]	The accused is charged with s. 97[2] [c] of the Land Transport Authority Act. That section reads as follows. 

A person commits the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle –

 (c)	 in a manner dangerous to another person or persons.

[32]	In Rao v The State, Criminal Appeal No HAA 102 of 2007 Her Ladyship Justice Shammem outlined the elements of the offences under Sec 97(2) of the Land Transport Act as 

I.	The Accused drove the vehicle
II.	He occasioned death
III.	In an impact
IV.	At the time of the impact the accused was either drunk or speeding or driving in a manner dangerous to other road users. 

[33]	Since in this case the accused is charged under s. 97(2) (c) the elements the prosecution Needs to prove are:-

I.	The Accused drove the motor vehicle
II.	That he occasioned the death
III.	In an impact
IV.	At that time of the impact the accused was driving in a manner dangerous to another person

[34]	In Archibold (1996) term dangerous has been described as danger either of injury to any person or of serious damage to property. Additionally, it states that a person is to be regarded as driving dangerously if:-

[a]	The way or manner he drives falls far below what would be expected of a 
competent and careful driver,

[b]	It would be obvious to a competent and careful driver that driving in that way would be dangerous. 

[35]	In Semisi Lasike v The State [2002} FJHC 159; Justice Shameem noted that
"Dangerous driving is the causing of a dangerous situation by a manner of driving which falls below the standard expected of a prudent driver".

[36]	In Woolmington v DPP (1935) AC 462 it was held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". 

[37] 	In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Justice Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This 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 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 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 about the guilt of the accused."

[38]	Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, that should be given to the accused.

ANALYSIS OF THE EVIDENCE

[39] 	There are no disputes about the accused drove the bus and it hit the victim. The victim died due to the accident according to the post mortem report (EX-3). The only point to be decided in this case is whether the accused was driving in a dangerous manner at the time of the accident. To decide that I will carefully look in to the evidences given by both parties.

[40]	The PW1 (vehicle examiner) said in his evidence there were no mechanical faults in the vehicle. Also most of the prosecution witnesses stated that the accused was traveling in high speed. But the accused in his caution interview and evidence in court said he was traveling around 50-60kmph. He denied going at high speed.

[41]	The accused in his caution interview also said he saw the victim getting off the bus and took precautions. According to the statement he applied the brakes. The sketch plan was marked as EX-5a by the prosecution. Interestingly there were no brake marks near the place of the accident which contradict the accused's version.

[42] 	I will turn to the PW1's evidence again. He is a vehicle examiner with 08 years experience at the time of the accident. He said a 07 tone bus with a speed of 50kmph (the speed the accused said he was traveling at the time of the accident) can be stopped suddenly. If the accused was traveling in that speed he could have stopped the bus suddenly, maybe even preventing the accident. The accused admitted seeing the victim crossing the road 4-5m way from his bus. 

[43]	Now I will consider the sketch plan which was marked as EX- 5a. The defence did not object marking that. According to the plan length of the brake marks were of 22.7m. This shows that the accused was traveling in high speed and it took some time for him to stop the bus. 

[44]	The distance from the point of impact to brake marks were 33.1m. It pointed that the accused even after the accident traveled some distance before applying the brakes. The accused said he saw the victim get off the bus and applied the brakes. But as I noted before there were no brake marks before the impact or even after the accident until 33m away from the point of impact. 

[45] 	The Highway patrol was after the accused. The PW9 and PW10 who were members of the patrol said the accused was traveling in high speed. They were after the accused and could not catch him until after the accident. They were also traveling around 70-80kmph but still could not manage to catch the accused which implicate that the accused was traveling in high speed. This was corroborated by the eye witnesses PW5 and PW8.

[46] 	The victim landed 4.07m away from the point of the impact. The photographs of the bus shows dent/crack on the front position of the bus where the victim hit. These also indicate that at the time of the incident the bus was going at high speed.

[47] 	The accused said he saw the victim crossing and tried to avoid the accident. Even after the accident the bus managed to stop some distance away. The reason given was that he feared about the accident and that's why stopped the bus so far away. But both PW9 and PW10 (high way patrol) in their evidence said they asked the accused to stop. I accept their evidences. This was confirmed by the PW5 an eye witness who said the police stopped the accused. 

[48] 	For the above mentioned reasons and sketch plan I come to the conclusion that the accused was driving at high speed at the time of the accident. Even though some of the prosecution witnesses did not give evidence before me I have gone through their evidences too and do not have any reason to doubt them. In addition the PW9 and PW 10 (members of highway patrol) gave evidence before me and I have found them giving evidence confidently even though this has happened nearly 05 years ago. Compared to them the accused was not much confident in giving evidence. 

[49] 	It was revealed in the evidence that the accused had 13 years experience at the time of this accident. This shows that he was an experienced driver. He should have been extra cautious and slowed his vehicle when he was entering the Galoa village. He was aware that the village was on the left hand side. The accused also saw the other bus. He should also have taken precautions. He should have been aware that people would cross to go to the village. 

CONCLUSION

[50]	For the above mentioned reasons I find that the accused did not take precautions when entering the village. In fact he was driving at high speed at the time of the accident. Therefore I note that the accused's driving falls far below the standard expected of a prudent and competent driver and at that time the accused was driving in a dangerous manner. 

[51] 	Therefore I find the prosecution has proved beyond reasonable doubt that the accused committed Dangerous Driving Occasioning Death.

[52]	Accordingly, I find the accused guilty for the count of Dangerous Driving Occasioning Death contrary to s. 97[2] [c] and 114 of the Land Transport Act no. 35 of 1998. 

[53]	28 days to appeal

19/09/2012

H.S.P.Somaratne
Resident Magistrate