State v Bogitini [2012] FJMC 56; Traffic Case 07.2009 (12 April 2012)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Traffic Case No: 07/2009

THE STATE

V

EPELI BOGITINI

Prosecution : Cpl Temesi, Police Prosecutor.
Accused : Appeared in Person.

JUDGEMENT

1. The charge against the accused person reads as follows;
   

CHARGE:

Statement of Offence [a]

DANGEROUS DRIVING– Contrary to Section 98 (1) and 114 of the Land Transport Act 35 of 1998

Particulars of Offence [b]

EPELI BOGITINI on the 15th day of August, 2007, at Suva in the Central Division drove a motor vehicle on Foster Road, in a manner which was dangerous to the public having regards to all the circumstances of the case.

2. The case proceeded to trial on 07th February 2012 before me.
   
3. At the trial, the prosecution called two police officers as their witnesses and the accused remained silent during the defence case.
   

Summary of evidence

4. Police Constable 2966 Jone Mavutu of Navua police station was the first prosecution witness.
   
5. This witness came to the witness box with 11 years experience in the police force of Fiji. During August 2007 he was attached to the Navua police station. He had come to Suva on 15.08.2007 (the day of the incident) in the vehicle registration number GN 191 for some dispatching duties. The vehicle was driven by Constable Aliki.
   
6. Having completed his dispatching duties the witness returned back to Navua in the same vehicle. Unfortunately this vehicle met with an accident in Walu Bay at around 2.30 pm.
   
7. Witness Jone stated that a vehicle of the PWD (registration number GN 372) came and collided with their police vehicle at the junction near Rona Street. The police vehicle was heading towards Lami in the inner lane of the road. The witness has seen the PWD vehicle stopped at the junction to take the turn to their opposite side(Suva side)
   
8. Witness stated that all of a sudden the PWD vehicle came out from the Rona Street where driver of his vehicle could not apply breaks. Left fender and the bonnet of the police vehicle damaged due to the impact. The PWD vehicle had stopped near the driver's seat of the police vehicle after the accident. The witness was not in a position to explain the speed of the PWD vehicle.
   
9. Although the accused was explained on his rights to cross examine the witness, he did not pose any questions.
   
10. Police Constable 347 Josua Shaw was the second and final witness testified for the prosecution. He had 13 years experience in the Fiji police Force. At the time of the incident he worked in the Central police station. He has performed duties as the 'investigating and interviewing officer' of this case.
    
11. He has received a report of an accident of two government vehicles on 15.08.2007 at around 3.30 pm. The place was in Foster road, Walu Bay. Constable Josua visited the place and witnessed the two vehicles at the scene. As a prudent officer firstly he checked for any victims. Then he found that the driver of the PWD had been admitted to the hospital. Later he prepared the sketch planes of the scene.
    
12. According to sketch plans (marked as E1-E4), the PWD vehicle has come from the by- road (Rona street) to enter Foster road (main road). The police vehicle was heading towards Lami.
    
13. As per the rough sketch plan, the width of Foster road is 13 metres. This had been divided by scattered white lines. The back end of the police vehicle had stopped 1.8 metres from the Rona street edge of the road after the impact. It had stopped more towards to the Rona Street.
    
14. After the impact, the PWD vehicle had stopped on the middle lines of the Foster road. This means it had travelled more in to the Foster road to take the turn on to his right.
    
15. Further it appears that the two vehicles had stopped touching each other. The right side of the police vehicle had been completely blocked by the right side (driver's side) of the PWD vehicle. The two faces of the vehicles were heading opposite.
    
16. This Witness stated that he interviewed the driver of the PWD vehicle (Accused) in the Central police station. This was after one month from the incident. He marked the caution interview as E5. The accused did not put any questions during the time of cross examination. With this evidence, the prosecution closed their case.
    
17. The court was of the view that there was a case for the accused to answer. After explained his rights and options the accused remained silent.
    
18. Section 98(1) of the Land Transport Act states;
    

' Any person who drives a motor vehicle on a public street recklessly, or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the public street and amount of traffic which is actually at the time or which might reasonably be expected to be on the public street, commits an offence and, subject to sub sections (2) and (3), is liable upon conviction to the prescribed penalty'

19. The task on the prosecution is to prove the following facts which I consider as the elements of the offence.
    
    1. That the accused drove a vehicle;
    2. On a public road/ street;
    3. Recklessly.
       
20. Recklessness can be determine depending on the,
    
    1. Speed of the vehicle; or
    2. The manner it drove.
       
21. The legislature is required to consider, all circumstances of the case including the nature, condition and use of the public street and amount of traffic which is actually at the time or which might reasonably be expected to be on a public street.
    
22. The burden of proof is vested on the prosecution to prove these elements of the charge beyond reasonable doubt.
    
23. What is proof of beyond reasonable doubt? This had been discussed in several cases.
    
24. 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 doubt. This meaas 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 ad persons committed the offe 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 doubt the guilt of the accused."sed."

25. A fact is said to be p whener considering the matters before it, the court eurt eitherither 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.
    
26. So it is the duty of the prosecution to ensure that the Court is fully informed of all the relevant circumstances of the offence.
    

Did the Accused drive the vehicle?

27. The only eye witness of the prosecution did not identify the accused as the person who drove the PWD vehicle. The prosecution relied on the caution interview to prove the identity of the accused. Prosecution marked the caution interview of the accused as E5. In that the accused had admitted that he drove the PWD vehicle registration number GN 372.
    

Was it on a Public Road/ a Street?

28. The eye witness Police Constable 2966 Jone Mavutu stated that the incident took place on Foster road which is a public road. Further this is confirmed and admitted by the accused in his interview.
    

Can the act of the Accused considered as Reckless/ Dangerous?

29. Police Constable 2966 Jone Mavutu stated initially that he saw the vehicle of the accused at the Rona street junction when they were approaching from Suva. At this time the police vehicle he travelled was in the inner lane of the main road. Then he said that the PWD vehicle came suddenly and his driver could not apply breaks.
    
30. This witness is silent on the speed of either vehicle. The answer was ...
    

'I could not say on the speed. But he (PWD driver/Accused) was hurried to go to Suva...'

31. The prosecution did not lead witness on the circumstances and the condition of the road. Whether there was any rain or other substance on the road which could have caused an accident.
    
32. Further it was not explained from which place the witness saw this incident. It is always safe to confirm these issues when the court is acting on a sole eye witness's testimony. This will allow the Court to determine the credibility of the witness. Whether he actually witnessed the incident.
    
33. One of the main documents of prosecution's case is the caution interview marked as E5. It is to be noted that the accused has stated in his interview that he stopped his vehicle before enter in to the Foster road and saw the police vehicle coming towards him. At this time the police vehicle has indicated that it is going to take a turn on to left by switching on the left reflector.
    
34. He has further mentioned that the police vehicle was in the outside lane. The left reflector has given him the wrong message. He admitted that he took the PWD vehicle on to Foster road intending the police vehicle would take a left turn from the junction. But what he thought was wrong. The police vehicle did not slow down or take the turn. And the accident occurred.
    
35. In my view the prosecution has presented facts relevant to a one incident, in two different manners. Main eye witness of the prosecution did not speak anything on the left reflector of the police vehicle. He said that the police vehicle came in the inner lane.
    
36. As per the sketch plans the police vehicle had been stopped more towards the Rona Street. This creates a doubt whether the police vehicle came in the inner lane or the outer lane?
    
37. To verify these issues, the prosecution did not call the driver of the police vehicle. He would have been the best person to explain.
    
38. In R -v- Gosney [1974] 3 A ER 220, it was held that a charge of is p when the drie driver drives in a way which falls below the standard of a competent and prudriver, and thereby causes a situation, which viewed objectively, is dangerous.
    
39. However in England, the subjective test for the offence of Reckless Driving as defined by the House of Lords in R -v- Lawrence led to d to a number of motorists being convicted of the lesser offence of Careless Driving because of the higher threshold for prosecution. In 1989, a White Paper was producalled "The Road User and thnd the Law" which recommended a new offence of 'Dangerous Driving' wi objective test as to theo the manner of driving.
    
40. There are manhorities which say that the test for both DangeDangerous ng&#1b> and Careless Drivs whet whether the accused has departed from the standard of a reasonable, prudent, competent and experienced driver in all the circumstances of the case. ccuseguilty of either ther offence even if he committed an errorerror 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
41. In this case there is no evidence of undue speed. It appears that the prosecution relied entirely on the fact of accident to indicate dangerousness. The fact of accident is not determinative of dangerous driving.
    
42. Accused was questioned by the investigating officer on the facts that were prevailed just before the accident.
    

Q; how far was it (referred to the police vehicle) from you when making that turn?

A; 8 m

43. If the police vehicle came in the allowed speed of the road, it will take some time to reach that distance of 8 meters. On the other hand if the police driver saw the PWD vehicle from that distance, then why didn't he apply breaks? As per the sketch plans there were no breaks on the scene.
    
44. If any prudent driver sees a vehicle from a distance of 8 meters approaching to you on the main road from your right side when you are stopped at a junction to take a right turn, what can be his reaction? The probable answer should be that 'he will stop for the other vehicle to pass him.'
    
45. If the same prudent driver sees a vehicle in the same circumstances, but coming in the outer lane with the left reflector switched on?
    
46. I am of the view that the answer for the second instance will be different from the first. I do not see any wrong for him to take his vehicle on to the road in order to have the turn.
    
47. It is my view that the facts presented before me have not indicated a lack of skill or falling below the standard of a reasonable prudent driver if he had been misdirected by the approaching driver.
    
48. This reasonable doubt continues to remain at the end of the prosecution case due to the non availability of the driver's testimony of the police vehicle.
    
49. There is no evidence to indicate that the accused drove his vehicle in a reckless manner.
    
50. Accordingly I find that the accused is not guilty for the offence. He is acquitted.
    
51. 28 days to appeal.
    

YOHAN LIYANAGE
Resident Magistrate
Suva
12th April 2012