State v Chand [2013] FJMC 171; Traffic Case 11143.2011 (17 April 2013)

IN THE MAGISTRATE’S COURT OF NASINU

Traffic Case No. 11143/2011

STATE

-v-

MUKESH CHAND

PC J.F. Raymond for the State
Accused Present and appeared in person

Judgment

[1] The accused is charged with the offence of Careless Driving. The charge read as follows;

CHARGE:

Statement of Offence [a]

[2] CARELESS DRIVING: Contrary to Section 99 (1) and 114 of Land Transport Act 35 of 1998.

Particulars of Offence [b]

[3] MUKESH CHAND, on the 27th day of October 2011 at Samabula in the Central Division drove a motor vehicle registration number DN 765 on Ratu Mara Road without the care and attention.

Summary of evidence

[4] At the trial, prosecution called following one witness to prove the charge. They called Police Constable 3030 Dharmendra Kumar. The witness said that he can recall 27th October 2011. He was on duty at Samabula police station. Around 9-10 am he received a report of accident. When he reached there were no vehicles. The complainant was at the scene. The complainant told a forklift swirled his vehicle. He told the vehicle number. Then he traced the driver and questioned him. The forklift registration number is DN 265. The forklift was coming on Delos Street and PW1 was coming towards Samabula. . Pw1 had the right of way. The accused failed to stop and the blade of forklift has 1.25 metres. The forklift bumped the side of the complainant’s vehicle. The accused admitted that he could not control his vehicle. So, he issued TIN against the accused.

[5] There was no cross examination.

[6] Thereafter prosecution closed their case. Since there is a case to answer, Defence was called and the accused rights were explained. The accused opted to give sworn evidence.

[7] DW1 Mukesh Chand , the accused gave sworn evidence. He said on that day he was coming out from the Sakura Cars, he was standing at the junction. Then, he saw a Mini Van was coming from Nausori to Suva at a high speed. The Minivan came towards the left side and scratched the forklift blades. After that the driver of the minivan informed he is at fault. Then police came. After hitting, the minivan stopped 50 metres ahead. He said they did not book him at the someday. He was charged on following Sunday.

[8] In Cross examination the accused said that the he checked both side before he enter the Road, when accident occurred the blade of the forklift was on the road.

[9] The defence closed his case. I now consider the judgment.

The Law on Careless Driving&#16>

[10] Carelriving is defs defined by s ) (1) of the Land Transport Act as driving "on a public street without due care and aion".

[11]The test for careless ngiving is stated in tse case of Khan v State, High Court of Fiji Criminal Appeal No. 1 of 1994 (21 October, 1994) as follows:

"In order to determine whether the offence of&#160less driving is commitommitted, est, as , as LORD GODDARD C.J. said in SIMPSON v PEAT (1952 1 AER 447 at p.449) is: "was D exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances?"

The standard of proof is an objective one . . ." (As cited in State v Lovo [2009] FJMC 7; Traffic Case 31.2009 (24 September 2009)

[12] The burden of proof is vested on the state in this matter and they should prove this charge beyond reasonable doubt. What is proof of beyond reasonable doubt is described in several cases.
[13] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonaoubt. This mhis 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 havereasonable doubt as to whet 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 the guilt of the accused."

[14] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 Jun8) Justice Jocelynne A. Scutt in Her Ladyship's summing up said;

"The question tion then is what the standard of proof is. That is, when the onus rests on the State as it does here and generally in criminal trials, what is the standard the State must meet? The State must prove all the necessary ingredients of the charge.... beyond reasonable doubt. roof beyond reasonable doubt;means eans what it says. You must be sure; you must be satisfied of guiltif you are satisfied beyd beyond reasonable doublet of guilt, then it is your duty to say so. If you are not sure, not satisfied beyond a reasonable doubt,then you myou must give your opinion that the accused is not guilty. This assessment, this determination, rests with you – with each of you – upon yndividual assessment of the evidence." (EmphaEmphasises is mine)

[15] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen reported in 72 New Law Reports 313 (Sri Lanka)

"A fact is said to be proved when, after considering the matters before it, the court either 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.

[16] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted.

Analysis of the evidence

[17] Now I evaluate the evidence adduced before me. The PW 1 was the investigating officer. The prosecution did not call the minivan driver. The PW1 did not see what actually happened rather he is repeating the minivan driver's story. This is purely hearsay. The accused denied the charge and he said when he entered the road the minivan came with excessive speed, scratched itself and it stopped 50 metres ahead. This was an undisputed fact. It proves that minivan came very fast and scratched itself. The minivan driver should have seen that the forklift was entering the road. I hold that prosecution failed to prove its charges beyond reasonable doubt. If the prosecution called minivan driver, the outcome of this case would have been different. But they failed to do so. The court cannot rely on hearsay evidence and convict the accused.

[18] Hence, the accused is acquitted and discharge.

[19] 28 days to appeal

On 17th April 2013 at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate- Nasinu