State v Dinavoso [2012] FJMC 349; Traffic Case 1126.2008 (7 January 2012)

IN THE MAGISTRATE'S COURT OF NAVUA
Traffic Case : 1126/2008

STATE

VS

ENERIKO DINAVOSO

For Prosecution : Mr. Singh from ODPP
For Accused : Mr. Tawake from the Legal Aid

Judgment

[1] The accused is charged for the offence of Dangerous Driving Occasioning Actual Bodily Harm contrary to Sec 97(4) (b) of the LAT Act. The charge reads as follows.

Statement of Offence [a]

DANGEROUS DRIVING OCCASIONING ACTUAL BODILY HARM:- Contrary to Section 97[4][b] of the Land Transport Act Number 35 of 1998.

Particulars of Offence [b]

ENERIKO DINAVUSO, on the 22nd day of November 2007, at Navua in the Central Division, drove a motor vehicle registration number GN 498 on Queens Road, Tokotoko, Navua in a dangerous manner involved in an impact causing grievous bodily harm to persons namely Semisi Seru, Temo Tuirabe and Katarina Tuimaisala.

[2] This case was first called on 13 May 2008 and adjourned numerous times for various reasons. Considering the time taken for the case this court fixed this for final hearing date on 11 Sep 2012.

[3] Therefore the hearing was taken on that day and concluded on 02 Oct 2012. By consent of both parties the Police Photographs and Vehicle examiner report were tendered as Ex-01 and Ex-02 respectively.

[4] The prosecution called 07 witnesses and tendered 06 documents. For the defence the
accused and another witness gave evidence.

SUMMARY OF EVIDENCE

PROSECUTION CASE

[5] Mohomad Shakar(PW1) – He said he is a bus driver by profession and on 22 Nov
2007 was going to pick school students. He stopped the bus at the Tokotoko junction
and saw a black vehicle coming at high speed in the main road. The vehicle was coming
towards him and suddenly it lost control and went out of the road. At that time the
PW1's bus was at the junction stationary. He also saw 04 passengers in the vehicle and
they were taken to the hospital.

[6] The learned counsel from the Legal Aid cross examined the PW1. During the cross examination the PW1 said he came to the junction and stopped since there were vehicles in the main road. His bus was on his lane and the accused lost control of his vehicle. The PW1 denied his bus was in the main road at the time of the accident or after the accident he reversed his vehicle back.

[7] WPC Katrina (PW2) – She said on that day she was travelling in the accused's vehicle.
There were 02 other passengers (Semisi and Temo) in the vehicle. The vehicle was going on a normal speed. She also said she did not know the speed limit of that area. As they were coming to the junction they saw a bus suddenly coming to their lane from the junction and then she could not recall what happened. In cross examination also the PW2 said at that time the bus was on their lane.

[8] PC Temo (PW3) - He was also a passenger of the accused's vehicle and also saw the bus coming to the highway from the junction. The accused pulled the vehicle away from that to prevent a collision. The Pw3 also did not see the speed limit of that area. He also got injured. In cross examination the Pw3 said the bus was halfway on their lane.

[9] SC Semisi (PW4) - He also saw the bus approaching to their lane and it was moving.
The accused swerved his vehicle to the right.

[10] Dr. Ali patel (PW5) - He tendered the medical reports of the PW2, PW3, PW4 and they were marked as EX-03, Ex-04 and Ex-05.

[11] PC Sunil Kumar (PW6) - He received a report about the accident and drew the sketch plans. At that time the bus was stopped before the main road. The sketch plan was tendered as Ex-06.

[12] The PW6 said in cross examination the speed limit at that area was around 60kmph.

[13] PC Apenisa (PW7) - The IO in this case. He visited the scene and conducted the interview of the accused which was tendered as Ex-07. He said the speed limit is around 60kmph in that area. The prosecution thereafter closed their case and the defence was given the chance to call their evidence.

DEFENCE CASE

[14] Eneriko( accused) - He said he was a police driver and on that day was instructed to take a police officer to an inquiry. The PW3 joined them too and on their way he also picked the PW2. At that time it was windy and a bit raining. As soon as he reached Tokotoko junction the accident happened. At that time the accused was travelling around 60kmph and saw the bus coming to the highway from the side road. The accused reduced the speed but the bus did not stop. It came to the highway and to avoid a collusion the accused swerved his vehicle to the right side. The accused further said at that time the road was slippery and if he applied breaks the vehicle would have collided with the bus. After the accident the bus driver reversed the bus.

[15] In cross examination the accused said at the time of the incident, he had 12 years driving experience and he was going around 60kmph. He saw the bus coming from the service station and he continued driving. As the bus was coming to the main road he swerved to the right to avoid an accident. The accused said he did that to save lives and after the accident he also tried to stop the bus reversing back.

[16] Arame (DW2) - He was walking on the road and saw the bus coming to the highway .
The bus stopped in the middle of the road and the DW2 saw the police vehicle going to the drain.

[17] The DW2 in cross examination said he saw the bus in the middle of the road and after the accident it reversed back. The defence did not wish to call any other witnesses therefore also closed their case.

[18] Both parties were given the chance to file closing submissions, but only the prosecution complied with that. The prosecution filed their submission in the registry on 24 Dec 2012.

THE LAW

[19] According to the charge sheet the accused is charged with the offence of Dangerous Driving Occasioning Actual Bodily Harm contrary to Sec 97(4) (b) of the LAT Act. The Sec 97(4) (b) says at the time of accident the accused needs to be travelling in a speed dangerous to other people.

[20] But when considering the particular of offence in the charge sheet the court notes that the accused was charged for driving in a dangerous manner, therefore the relevant section has to be Sec 97 (4) (c) not (4) (b). That's a mistake made by the prosecution but I believe the defence was not prejudiced by that.

[21 ] Therefore the prosecution needs to prove the following elements in this case.

[a] The accused Enrico drove the vehicle

[b] It involved in an impact occasioning

[c] Grievous bodily harm to Semisi, Temo and Katrina

[c] At the time of the impact the accused was driving in a dangerous manner.

[22] The burden is on the prosecution to prove the case. This was clearly described by Viscount Sankey L.C in the Woolminton v DPP [1935] A.C. 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. Where the burden of proof, remains on the prosecution throughout the trial, in that circumstance, the accused need only to raise sufficient evidence to cast reasonable doubt on the issue.

[23] In State v LIVAI TAMANALEVU [2012] FJHC 1295; HAC 344 OF 2011S) his Lordship Justice Temo told to assessors (summing up);

The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.

[24] In Miller v Minister Of Pension [1947] 2 AER Lord Denning explained the 'proof
beyond reasonable doubt' as follows. 'That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence "of course it is possible but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.'

ANALYSIS OF THE EVIDENCE

[25] In this case I believe both sides did not dispute the following points.

[a] The accused drove the vehicle

[b] It involved in an impact occasioning

[c] Grievous bodily harm to Semisi, Temo and Katrina

[26] The only issue to be decided in this case is whether the accused was driving in a dangerous manner at the time of the impact. 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

[27] 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".

[28] Now I will consider the evidences given before me. The prosecution called one civilian and 06 police officers as witnesses.

[29] From those the PW1 said the accused's vehicle was travelling at high speed before the accident. He also said suddenly the vehicle lost control causing this accident in a 60 km zone.

[30] Contrary to that WPC Katrina (PW2) called by the prosecution stated in her evidence that the vehicle was going only in a normal speed before the accident.

[31] Strangely out of all the prosecution's witnesses only one witness (PW1) has said the accused was driving at high speed at the time of the accident. No other witnesses mentioned anything about the speed of the vehicle.

[32] This is consistent with the accused's evidence. Whilst giving evidence the accused said he was driving around 60kmph before the accident.

[33] But if this court accepts only the PW1's evidence, it means that the accused was driving in a high speed at a junction on a rainy day. That evidence would be sufficient to put the accused's action on a category of dangerous driving. But I find there is serious doubt about the PW1's evidence.

[34] This doubt is created by the other witnesses called also by the prosecution. As I noted above the PW1 said in his evidence that he was driving a bus on that day and came to the junction and stopped the bus. He saw the accused's vehicle coming in high speed and suddenly that vehicle lost control causing the accident. He maintained throughout his evidence that his bus was not coming to the main road at that time neither was it in the main road.

[35] The defence taken by the accused in this case is that he was driving in the main road and suddenly saw the PW1's bus coming in to the main road from the junction. Therefore to prevent a collision he swerved to the right causing this accident.

[36] This position of the defence was confirmed not only by the DW2 but also by the prosecution's own witnesses. The PW2, PW3 and PW4 who were also in the vehicle at the time of the accident stated in their evidence that the PW1's bus was coming to the main road and to prevent collision the accused had to swerve to the right causing the accident.

[37] I am mindful that apart from the PW1 all the above prosecution's witnesses are police officers and they would have reasons to favour the accused since he is also a police officer. But on the other hand this court has difficulty in accepting the PW1 as an independent witness too. If the PW1's bus was coming to the main road as stated by the other prosecution's witnesses he would not have admitted that.

[38] But I believe there is one witness called by the defence who would shed some light on this accident. Even though he was called by the defence I believe he can be considered as an independent witness. The DW2 said in his evidence, he saw the PW1's bus coming to the main road and after the accident reversing back. This is in line with the accused's version as well as most of the prosecution's witnesses. Also it is totally contradictory to the PW1's evidence.

[39] Therefore I find that there is not enough evidence to prove that the accused was driving in a dangerous manner. Also there are serious contradictions between the prosecution's witnesses which create reasonable doubt about the prosecution's version.

[40] Based on the above reasons I find that that the Prosecution has not proved beyond reasonable doubt that the accused committed this offence.

[41] Accordingly I decide the accused is not guilty and acquit from the charge of Dangerous Driving Occasioning Actual Bodily Harm contrary to Sec 97(4) (c) of the LTA Act.

[42] 28 days to appeal.

07/01/2012

H.S.P. Somaratne
Resident Magistrate, Navua