State v Chand [2013] FJMC 233; Traffic Case 5324.2012 (7 June 2013)

IN THE MAGISTRATES COURT AT NASINU

Traffic Case No. 5324/2012

STATE

-v-

PRAKASH CHAND

Police Constable J.F. Raymond for the Prosecution
Accused appeared in person

Judgment

1] The accused is charged with following traffic offences;

CHARGE:

Statement of Offence [a]

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

Particulars of Offence [b]

PRAKASH CHAND on the 29th day of November 2011 at, Nasinu in the Central Division drove a motor vehicle registration number EY485 on Kings Road, Muanikoso without due care and attention.

2] The accused pleaded not guilty to the charges and case was heard on 26th March 2013. At the trial the prosecution called following witnesses to prove their charges.

3] PW1 is Cagilabu Virivirilau. Witness said that he can recall the day 29th day of November 2011 at about 9.20 am he was driving GN782. It belongs to Ministry of Agriculture Thw witness said on that day accident happened. He said "I was coming down from Muanikoso to Centerpoint. I was taking my director Miliakere Wainivula ... I pass the Muanikoso junction. I was in my left lane. A vehicle registration number EY485 was on the right lane. We were both going down towards Muanikoso. This vehicle EY485 was just little bit in front. About 1 meter ahead on the right lane, on the inner lane. Then suddenly he went to the left lane. And I tried to avoid that accident and I drive towards the footpath. The tyre at the back of the vehicle got broken because the footpath. The suspension broke. EY485 was carrying dalo He was carrying some bundles of dale and then 2 bundles of dalo fell from the vehicle and he wants to evade those 2 bundles of dalo and that's why he moved to the outer lane".

4] There was no cross examination.

5] PW2 is Constable 3415 Sikeli Rogocagi. He said on29th day of November 2011 he was on duty at the Nasinu Police Station. He was on the traffic stand by when he received a report of an accident at Kings Road, Muanikoso. He said "I went in our vehicle to attend the scene. I drew the rough sketch plan and take all necessary measurement." Plans tendered as Exhibit 1. Thereafter he recorded the statement of the Government vehicle and he interviewed under caution of the driver of the truck. The witness identified the caution interview. He read the caution interview question and answerers "Could you read out line 6, apologize line 8 to line 16 please? Question 8 – Who was driving this truck registration number EY485 along Kings Road Muanikoso this morning? Answer myself. Question 9 – Who was with you inside the truck? Answer my lorry boy namely Ilisoni Varasiko sitting in the front seat. Question 10 – Did you check the truck before driving this morning? Answer – Yes. Question 11 – Did the said vehicle have any mechanical fault to contribute in this accident? Answer – No. It's ok and in good condition. Question 12 – What speed were you travelling when this accident happened at about 45 kmph? Question 13 – Before the accident happened did you saw a white van the vehicle load with dalo came out from Matanikorovatu junction? Answer – Yes. What distant from your vehicle to the vehicle in front of you? Answer – About 5 meters 3 tonne land. Question 15 – Explain how did the accident happen? Answer – I was driving a truck registration number EY485 along Kings Road on the outside lane. As I was about to pass Matanikorovatu junction, 2 vehicles suddenly stopped in front, registration number EF368 and FL115. I slowed down, I on my trafigator towards the left lane, I looked through my left side mirror and I drove to the left towards Suva. After that one of my lorry boy namely Ilisoni saw a Government on our left went off the road and told me to stop. Then I stopped at Muanikoso bus stop. Question 16 – Did you saw the Government vehicle coming from the left lane through your left side mirror? Answer – No. ". This interview tendered as EX-2

6] No cross examination was done by the accused.

7] Thereafter, the prosecution called the case. Since there is case to answer right to call defence is explained. The accused opted to give sworn evidence.

8] The Accused: Prakash Chand. In his evidence the accused said "As a profession I am a truck driver. I have been driving still over 33 years now. I am driving heavy trucks prime over's and 10 wheelers. I never had such accident someone like that. I never had matter problems like that. I was going towards Suva in my load and my boys. As soon as we came down to Matanikorovatu, 2 vehicles they made a sudden stop in front of me, about 3 car length. Dalo or something fell from the truck. I looked from the left mirror, nothing was there on the left. So I stop my vehicle, change my gear to no. 2 then I took the left lane. I proceeded towards Suva. Not long then I had one vehicle going towards the footpath, somebody stop me. So I stop on the side and they blame me for not indicating on the left lane. That's what happened".

9] In the cross examination the accused tendered rough sketch which was drawn by him as Defence Exhibit 1.the complainant was dropped off opposite the bakery. The accused said PW1 didn't cross the road, he get off. The time was 8.30 morning. Answering the question the accused said "So you had to move your vehicle from there onwards? No, no I was still in the car, because that's a one way I look at the left side as soon as it was clear I want to turn right side and this bump. I haven't move, maybe 1 km per hour, just from the car park to the junction to look at the left. And I don't have to look at the right car coming, but just one to turn the he bump the side mirror and he fell down. So when he fell down you ran over? No, no. If I would have ran over he wouldn't be able to walk or anything, he is walk, he stand up, walk and he went to the his line Sir. Even if small tyre would have gone than his leg could have broken. I wasn't driving 5, 10 km hour, I was just at the junction and coming out, and he was wearing the black, maybe he didn't see the car". The accused said the victim did not use a stick, he was heavily bandaged may be 90 years, he was walking slowly. He said he never proceeded; he was sitting at the junction. He said "I never move it, that's what I am telling. I never move away". The accused said the complainant bumped into his car while he was standing. The accused he did not report this matter to the police. The reason being for not reporting is because PW1 wasn't hurt that much. He was walking.

10] In re examination the accused said that he was travelling down Matanikorovatu the Muanikoso and 2 vehicles suddenly stop and he stopped his truck. Then he moved on the left lane. He checked the left mirror then he moved to the left. Thereafter he just proceeded in front and somebody called him hey hey something happened at the back then saw a van on the side of the footpath. He went 30 metres. He said he didn't see that Government vehicle never saw it. He has been driving for long time, say about 30 years. He never had an accident on the road, never, over 30 years.

11] Thereafter defence closed the case.

12] Careless Driving fs de by s 99 (1) of thof the Land Transport Act as driving "on a public street without due care and attention".

13]est f careless driving is statedhe 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 careless driving is committed test, as LORD LORD GODDARD C.J. said in SIMPSON v PEAT (1952 1 AER 447 at p.449) is: "was D exercising that degree re anention that a reasonable and prudent driver would exercise in the circumstances?"ces?"<

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

14] 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.
15] 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 reasondoubt. This meansmeans 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 guf the accused."sed."

16] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 June 2008) Justice Jocelynne A. Scutt in Her Ladys sumup said;

"The question then is whis what that 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 d Proof beyo beyond reasonablbt means what what it says. You must be sure; you must be satisfied of guilt, before you can express an opinion about it. Only if you are sure,f yousatisbeyond yond reasonable doublet of guilt, then then it is your duty to say so. If you arou are not sure, not satisfied beyond a reasonable doubt, then you must give your opinion that the accused is not guilty. This assessment, this determination, rests with you – with each of you – upon your individual assessment of the evidence." (Emphasis is mine)

17] I now consider evidence. The PW1 said that the accused suddenly turned to left lane and to avoid major accident that he has to go footpath. Because of that his suspension broke up. The accused in his evidence said before he entered into left lane, he looked the mirror there was no government vehicle. He answered caution 16 as follows; Question 16 – Did you saw the Government vehicle coming from the left lane through your left side mirror? Answer – No. ". This interview tendered as EX-2. It proves if he really looked the mirror he would have seen the PW1's vehicle. The accused has been driving over 30 years. It does not say, because of his experience he did not commit this traffic offence. In the real sense he failed to observe traffic rules. This is not the behavior which expects from prudent driver. Therefore the accused is guilty as charged.

18] 28 days to appeal.

On 07th June 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu