IN THE MAGISTRATE'S COURT AT LAUTOKA
Traffic Case No 2434/10

BETWEENTHE STATEANDANANTH AVIRAM REDDY
JUDGEMENT

1.	The accused is charged with two counts of careless driving. The statements of offences and particulars of offences are as follows;
1st Count
Statement of offence
Careless driving contrary to section 99(1) and 114 of the Land Transport Act no 35 of 1998.
Particulars of offence
Ananth on 3rd day of September 2010 at Lautoka in the Western Division drove a vehicle reg. no CIVIL on Queen's Rd, Saweni without due care and attention.
2nd Count
Statement of offence
Careless driving contrary to section 99(1) and 114 of the Land Transport Act no 35 of 1998.
Particulars of offence
Ananth on 3rd day of September 2010 at Lautoka in the Western Division drove a vehicle reg. no CIVIL on Queen's Rd, Velovelo without due care and attention.
2.	The case was taken up for trial on the 03rd August 2011. Two witnesses gave evidence for the Prosecution. After the Prosecution case was closed, the Court held that there is a case for the accused to reply. The accused gave evidence and no other witnesses were called for the Defence. The accused was unrepresented and the Prosecution was conducted by a Police Prosecutor.

3.	Section 99(1) of the Land Transport Act reads as follows;
"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".
4.	The prosecution has to prove the following ingredients in this case;
a)	The date and place of the alleged incident
b)	The identity of the accused
c)	The accused drove a vehicle on a public street
d)	The accused drove without due care and attention

5.	This is a case where the accused is charged by the Police upon information given by another Police officer. One ASP Livai had observed the accused allegedly driving a vehicle in a careless manner. Thus he had informed some other officers to stop the vehicle of the accused and test him for drunken driving. One of the officers who stopped the accused namely Cpl Rajendra Kumar had served him with two TINs for careless driving when the accused was found to be not drunk. 

6.	Prosecution witness, ASP Livai Gotegote gave evidence that when he was returning from Nadi on the 3rd September 2009 he observed the vehicle of the accused was driven in a careless manner and he instructed some Police Officers to stop him and check him for drunken driving. It appears from the evidence of the Prosecution that the accused was below the prescribed alcohol limit. Then he was charged for careless driving alleged to have committed in two places in Queen's road namely in Saweni and Velovelo.

7.	ASP Lewani gave evidence that he observed the accused overtaking a que of vehicles from the wrong side and squeezed in front of 4 vehicles. He said the registration number of the vehicle was "CIVIL". He said he continued to follow the said vehicle and he observed the accused overtaking a que of vehicles crossing unbroken double lines. He said there were vehicles approaching from front. The witness said that he is the Divisional Traffic Officer, Western since 2009. He said that he called the officer in charge of Highways and asked the officers to come to Natabua junction to intercept the said vehicle. The witness further said that he suspected the driver of the said vehicle to be under the influence of liquor.

8.	The witness further gave evidence that the said vehicle overtook a que of vehicles at Velovelo crossing white double lines. He said there were other oncoming vehicles in both places he overtook and further said that the accused overtook at bends. ASP Livai said that when he reached Natabua junction he saw the said vehicle was stopped by the Police and he also stopped there.
9.	The accused cross examined the witness at length. The accused did not dispute that he overtook the vehicles. He disputed the fact that he over took at a bend and the fact that there were double lines. The accused cross examined ASP Livai regrading the place where the alleged offence in the first count was committed as follows;

Q:	I put to you that there were no two lines unbroken between the first bend you are talking about and the top of the roll?

A:	There is an unbroken double line there.

Q:	I put to you that there is no double white line between the bend and the top of the roll?

A:	There is.

Q:	In your opinion over taking is illegal?

A:	If it is prohibited.

Q:	Overtaking within the speed limit when there is no unbroken lines is permitted?

A:	You can overtake when there is no unbroken line.
10.	There was no other evidence produced by the Prosecution to establish that the accused in fact crossed double lines. If the Prosecution asserts that there were double lines it is the duty of the Prosecution to prove it. When the accused gave evidence he said that he did not cross any double lines. Even then the Prosecution did not ask a single question from the accused when he gave evidence, to dispute that.

11.	The accused cross examined ASP Livai regarding the second count in the following manner;

Q:	That happens to be one of the sharpest bends in Fiji?

A:	Yes he overtook there.

Q:	There is a drive of 200-300 meters on the bend and there is no sight of oncoming vehicles?

A:	Yes.

Q:	I have driven pass that bend for the last 7 years. I have never overtaken that spot, Being a family man do you think that any person would risk by overtaking in that bend?

A:	That's the same thinking that came to me. I ran and told the officer that this man must be drunk.

Q:	I put to you that you are lying?

A:	I am telling the truth. He overtook on that particular bend.

Q:	You just admitted that there is 200-300 meters of a blind stretch. I put to you that in such a long stretch with such a heavy oncoming vehicles the chances of colliding with a vehicle is so high and if so I would not have been here?

A:	I m not lying. I am telling the truth.

12.	The accused vehemently disputed that he overtook at the Velovelo bend. Further he cross examined the second witness for the Prosecution, Cpl 1959 Rajendra Kumar in the following manner to establish that ASP Livai could not have seen what happened at Velovelo;

Q:	How far is it from that bend to the point where you stopped me? Is it around 1km?

A:	Yes.

Q:	So mathematically from that point to the place where you stopped me it will take one minute if a vehicle is driven at 60 kmph?

A:	Yes if the road is clear.

Q:	Driving at 60 kmph it takes one minute to cover 1 km?

A:	If the road is clear then you can.

Q:	When you stopped me, you came to my window and you asked me to step out and we talked a bit and I stepped out?

A:	Yes.

Q:	When I stepped out of the vehicle we talked again?

A:	You were talking to IP Ram Prasad.

Q:	From the time you stopped me to the time that I did the breathalyser test a good 7-8 minutes passed?

A:	It took about 4-5 minutes.

Q:	There was no traffic at Velovelo?

A:	The road was busy.

Q:	At that particular night at what speed a person would drive?

A:	Around 70-80 Kmph.

Q:	In your opinion was I driving at a speed of 70-80 Kmph?

A:	May be 70 Kmph

Q:	You admit given the traffic at that night any body could have driven at 70-80 Kmph?

A:	Yes.

Q:	If any body drives 70-80 Kmph then he can travel 1 Km in less than 1 minute?

A:	It depends on condition of the road. If there is no traffic, yes.

Q:	You earlier admitted that ASP Lewai reached the point after the breathelizer test?
A:	Yes.
Q:	You also admitted that it took 5 minutes to do the breatheiser test from the point you stopped me?

A:	Yes.

Q:	ASP Livai came to the spot after 4-5 minutes and you admitted that the distance from the bend to the point you stopped is one minute away. So I suggest that if he was 4-5 minutes late he could not have observed me?

A:	That question should be answered by him.

13.	The accused successfully created a doubt in the Prosecution evidence by cross examining the witnesses. In respect of the second count the accused submitted to court that he being a family man would not have taken the risk of over taking at one of the sharpest bends in Fiji. Further he established that ASP Livai could not have seen him at the second bend though he claims to have seen. 

14.	It should be noted that the offence of careless driving is not merely crossing double lines or overtaking vehicles. According to the Land Transport act careless driving is driving without due care and attention. The Prosecution has to prove that the accused drove in a manner without due care and attention.

15.	In this case there was no allegation that the accused drove at an excessive speed risking the lives of the other road users. In respect of the first count the allegation was that he crossed the double white lines and overtook few vehicles. However the accused disputed that there was a double line. The Prosecution did not make any attempt to establish that there are in fact double lines. Even if the Prosecution establishes that the accused crossed double lines that would not be sufficient to prove that the accused drove carelessly. The Prosecution has to further prove that he drove in such a way without due care and attention. However apart from ASP Livai merely saying that there were oncoming vehicles there was no evidence produced by the Prosecution to establish how could mere overtaking amount to driving without due care and attention. 

16.	In respect of the second count the accused denied that he overtook in a bend. Further he was successful in creating a doubt whether the witness in fact could observe him committing an offence at that particular place. 

17.	The Prosecutor who conducted the Prosecution did not ask a single question from the accused to challenge the evidence given by him, for reasons best known to the Prosecutor. Thus the evidence of the accused remains unchallenged. In a case of this nature the accused need not prove his innocence. The burden is on the Prosecution to prove the guilt of an accused. It is sufficient for the accused to create a doubt in the Prosecution case. 

18.	I have considered the evidence led in this case. I am not satisfied that the Prosecution proved the two counts against the accused beyond reasonable doubt for the foregoing reasons. 

19.	In the circumstances I acquit the accused from the first and the second counts.

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka
01.06.2012