IN THE MAGISTRATES COURT AT NASINU

Traffic Case No. 10576/2012

STATE

-v-

SHANKARAN GOUNDAR

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 Land Transport Act 35 of 1998

Particulars of Offence [b]

SHANKARAN GOUNDAR on the 14th day of May 2012 at Nasinu in the Central Division drove a taxi registration number LT5537 on Kings Road 9 Miles without due care and attention by making a U-Turn in front of an oncoming vehicle. 

2] The accused pleaded not guilty to the charges and case was heard on 04th February 2013. At the trial the prosecution called following witnesses to prove their charges. 

3] PW1 is PC 4668 Raj Sharma Prasad. On 14th day of May 2012, he was on traffic duty. He was in the morning shift from quarter to seven to 3pm. He was detained to the traffic lights at Makoi from 7am .The witness said " I was diverting traffic in the morning at 7am and I saw taxi registration number LT 5537 heading towards Nausori on the right signal on the Kings Road and when I saw the signal I knew the driver was about a u-turn on the Kings Road and at the moment road was very busy and I just pointed at him and told him don't make a u-turn but he just smiled at me and went up in front at about 5 meters ahead and he made a u-turn and I turned back to see whether he was making a u-turn and he did and there was traffic flowing from Nausori side heading towards Suva that way was really very busy and because when he made a u-turn the vehicles had to toot the horn and they had to stop because he was making a u-turn". He further said "I stopped him I told him to stop. He went up in front at the bus stop he stopped I asked him didn't I tell you not to make a u-turn, and he said he was rushing, then I said it is an offence and the vehicles were plenty vehicles were travelling towards Suva and they just one of the vehicle which was in the inner line he had to stop and toot the horn just because you made a u-turn and informed him took his driving licence. I told him to come to Nasinu Police Station and but he said he is getting late; he got one passenger with him I think, I'm not sure and he went. So next day on 16th I send him the Tin". The witness identified the accused in open court. He said that there was one passenger with him one female Fijian.

4] In cross examination the witness said that he saw hi making –u-turn. It was 7.20pm. But he said he did not see the number of the vehicle. The witness said that he has seen him driving taxi. He saw him doing illegal operations and he had warned him not to do so.

5] 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: Shankaran Gounder. In his evidence the accused said "I went to the Service Station to fill the fuel. After filling the fuel, I just get the way I come out of that one and I went towards Nausori. So then I went to the bus stop Nausori bus stop then I turn left to the zebra crossing and the Police Officer was there, I don't know he saw me or no. And then I when I turned from there Sir and he just stop me. He stopped me and I stop on the other side where bus stop and he ask for the licence then I give him and I tell him that I did not u-turn but he never listen to me so we were take the thing few days. Even he put that what you call he said he put on the taxi but after few days then I saw him there and I said where is my Tin? Then he opened the book then he gives me the case where what time the case."

9] In the cross examination the accused said that he came out of the Station there was a zebra crossing so he saw no vehicle coming then he turn right to the zebra crossing. There were no vehicles coming. The accused tendered sketch plan as Defence Ex-1. He said that from service station he passed the PW1 and went up to bus stop. Then he came through zebra line. When he came he was booked. After 4 days the PW1 issued TIN to the accused's wife. She refused to accept. 

10] The accused called DW2: Uma Devi. She was the passenger of the vehicle. She said from Service Station they went towards the Nausori bus stand. Then there they changed their mind go to Suva and we right turn from the zebra crossing. And both sides were clear and from the light stop when we stop at the light the Police came.

11] Under cross examination the witness said she is not related to the accused but she knows his wife. She said that the accused turned right to the zebra crossing, both sides were clear we come going towards to Suva and the red light we stop and the Police coming. She can't remember the date and the time. 

12] Thereafter defence closed the case.

13] Careless Driving is defined by s 99 (1) of the Land Transport Act as driving "on a public street without due care and attention".

14]The test for careless driving  is stated in the 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, the test, 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) 

15] 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. 

16] 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 reasonable doubt. This 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 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 guilt of the accused."

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

 "The question 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. Proof beyond reasonable doubt means 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, if you are satisfied 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 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) 

18] I now consider evidence. The PW1 said that the accused suddenly took u-turn in the main road. The time was 7.20am and it was a busy time. The witness said the accused made u-turn endangering other vehicles and life. Needless to say the time of the offence is very busy time. The prosecution witness said that the accused was not booked on the spot as he was in a hurry to go. He was issued a TIN following day. The accused said that he was not booked that day itself. The accused said he did not make u-turn. The defence witness is also said that the accused did not make the u-turn. They went up to the bus stop and turn. The dubious manner is that they PW1 allowed the accused to go without booking him that day itself. The prosecution witness admitted that he knows the accused and several time he had warned the accused for prosecution. It is suspicious why the prosecution did not book the accused that day itself. That is the proper way to book the accused. The accused's wife has refused to accept the TIN thereafter. I give the benefit of doubt to the accused.

19] The accused therefore acquitted and discharged. 

20] 28 days to appeal.

On 24th June 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu