DPP v Dutt [2013] FJMC 254; Traffic Case 6758.2011 (26 June 2013)

IN THE MAGISTRATES COURT AT NASINU

Traffic Case No. 6758/2011

DPP

-v-

SUMAN DUTT

State Counsel Mr. Josaia Niudamu 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 Authority Act 35 of 1998.

Particulars of Offence [b]

SUMAN DATT on the 5th day of June 2011 at Nasinu in the Central Division drove a motor vehicle along Daniva Road, Valelevu without due care and attention.

2] The accused pleaded not guilty to the charges and case was heard on 01st August 2012 and 20th May 2013. At the trial the prosecution called following witnesses to prove their charges.

3] PW1 is Moti Lal Karan Chand: he said he can recall 05th June 2011 at 1pm he was driving a Taxi. He drove LT 7043. He was taking two passengers to Valelevu Police Barracks. He said "When I entered the police barrack, I saw a police vehicle was reversing. I also had to reverse back. I was giving him to reverse, whilst he was reversing the police van bumped to my car. It bumped left-hand side head lamp. It was GN 470. It was 4 wheel drive". The PW1 said he cannot tell the exact speed. But he told that head lamp of the left side was damaged and bonnet scratched. He said after the accident, police driver argued and PW1 told he did not honk. It was a Sunday, the road was not that much busy. The witness said he was also reversing and he was concentrating. He identified the accused.

4] In cross examination the witness admitted that it happened in police drive way and it should be cleared all times. He could not turn the vehicle inside the police yard so he had to reverse the taxi. The witness said the drive way was narrow and the passenger had too many luggages so he had to enter the police drive way. He admitted that he saw the police vehicle was reversing but he did not honk.

5] PW2 is Akesh Prasad: He said that he can recall 05th June 2011 at 1pm. He came to Valelevu police barrack. When he approached he saw van and taxi were reversing. So he stopped his taxi for them to move out. Then he saw the police van bumped into taxi. The distance was car length between police van and the taxi.

6] Under cross examination he said that he saw the police van was reversing and it was more than the speed vehicles normally reverse. It was happened in corner of the police barrack drive way. He said that he knew that it is an offence to reversing drive way to main road.

7] By consent the sketch plan was tendered as Ex-1.

8] 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.

9] The Accused: Suman Datt: the accused said "on the mentioned date I was at work and I was the Unit Driver at that time. And there was a report of accident. There was a report of rape at Vesida and I was instructed by my Unit IC to go and attend that report. I was with the Crime lady DC Shereen and we went to attend. We went to attend the report. When I was in the Police vehicle out of the driveway and while I was reversing then the taxi came and park at behind. And as soon as I was reversing the taxi saw the vehicle reversing but he never peep the horn. If the taxi driver would have peep the horn the accident could not have happened. And there was only slight damage on the lights of the said taxi. The touch there was only touch there was no more accident. And I stopped the vehicle and I see the damage. Then there was a Police came and they make a sketch plan. That's all I have to say"

10] In the cross examination the accused admitted that there was report of rape and they were hurry to go to Vesida. He said he was reversing slowly not hurrying. He said the taxi came and parked on the junction of the driveway but he was not suppose to park there. The accused said there were other vehicles so he could not turn the vehicle within the car park. The accused told it was not any risk reversing onto main road.

11] Thereafter defence closed the case.

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

13]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 drivi60;is committmmitted, 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 attenthat a reasonable and prudent driver would exercise in the 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)

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 reasonable doubtmust 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 reasonablbt about the the guilt of the accused."

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

"The>"The question then is what the standard oard 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. Preyo beyond reasonable doubt&#160s 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, if you atisfiyond reasonable dble doublet of guilt, then it is your your duty to say so. If you are not sure, not satisfied beyond a rease doubt, then you must must give your opinion that the accused is not guilty. This assessment, this determination, rests with yo211; with each of you – upon your individual assessment of the evidence." (Emphasis is mine)

17] Keeping in above principles in my mind, I now consider the evidence. The PW1 said that the accused reversed the police van. The accused main contention was the PW1 should have peeped, if he would have done it, the accident wouldn't have happened. But the accused admitted that he reversed the vehicle. The reversing is method of driving, whether you go front or back, the driver should take care of other road users. Thus, there is no legal bounden duty to peep. The duty and care remains with the driver. If the accused took reasonable care as a prudent driver, the accident could have avoided. The accused firstly admitted he was in a hurry to attend a rape investigation. Later he changed he was not in a hurry. Therefore the accused evidence contradicted per se. The PW2, Akesh Prasad, independent witness told in his evidence, the accused's distance was car length. This witness further he said that he saw the accused's van was reversing and it was more than the speed that vehicles normally reverse. Thus, this proves that the accused was in hurry and he was in excessive speed than normal and not concentration on reversing. In this scenario, I hold the prosecution proved its case beyond reasonable doubt. The accused failed to exercise that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.

18] The accused is guilty as charged.

19] 28 days to appeal.

On 26th June 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu