State v Kumar [2013] FJMC 255; Traffic Case 7190.2012 (26 June 2013)

IN THE MAGISTRATES COURT AT NASINU

Traffic Case No. 7190/2012

STATE

-v-

PRAVIN KUMAR

PC Ravi Narayan the Prosecution
Accused appeared in person

Judgment

1] The accused is charged with following traffic offences;

CHARGE:

FIRST COUNT

Statement of Offence [a]

CARE.ESS DRIVING: Contrary to Section 99 [1] and 114 of Land Transport Act 35 of 1998.

Particulars of Offence [b]

PRAVIN KUMAR on the 20/2/2012 AT Suva in the Central Division drove vehicle registration number DE563 along Kings Road Valelevu without due care and attention.

SECOND COUNT

Statement of Offence [a]

CARE.ESS DRIVING: Contrary to Section 99 [1] and 114 of Land Transport Act 35 of 1998.

Particulars of Offence [b]

PRAVIN KUMAR on the 20/2/2012 AT Suva in the Central Division drove vehicle registration number DE563 along Kings Road Kinoya Traffic Light without due care and attention.

THIRD COUNT

Statement of Offence [a]

CARE.ESS DRIVING: Contrary to Section 99 [1] and 114 of Land Transport Act 35 of 1998.

Particulars of Offence [b]

PRAVIN KUMAR on the 20/2/2012 AT Suva in the Central Division drove vehicle registration number DE563 along Ratu Mara Road Nabua By-Pass Traffic light without due care and attention.

2] The accused pleaded not guilty to the charges and case was heard on 19th April 2013. At the trial the prosecution called following witnesses to prove their charges.

3] PW1 is Saimone Cakacaka: The witness asid that he can recall on 20th February 2012. On that day he has been posted to conduct Highway Patrol and Radar Operation. His time was started at 6 o'clock, to 1800 hours .at 12pm he was conducting radar at Muanikoso bus stop. He did many detections. He was trying to stop a car the car did not want to stop and he was following him down. The maximum speed limit suppose to be 50km per hour at Kings Road. That car speed was 64, it was more than 14km up maximum speed limit. He said that he was wearing a reflector and he was also using the traffic light. He was using the flicking lights and he flagged him up. The witness said "I got into my vehicle then I was following this vehicle. The vehicle that was not stop. I followed him down. When we reach Nasinu Road I was coming in front of him. I manage to go beside him then I toot the horn. Then he saw my vehicle was a Police vehicle and I told him to pull on the side and he did not want to pull over. So we were continuing accelerating the speed. From there then we know that something is wrong inside. Then I was continuing follow him until I came to roundabout and from there he did not stop there at the roundabout to follow the right hand rule, because one Security vehicle coming from Valelevu. He did not manage to stop there then he continues on going and nearly bump that City Security vehicle". The PW1 said he did not lose sight of this vehicle. The witness said "from Valelevu roundabout he failed to stop and proceeded almost causing an accident with the Security vehicle, there we continue on following him. There was a red light at Kinoya traffic light. He fail to stop there. And he continue ongoing. Then when we reach Nabua by pass road Ratu Mara Road he fail to stop there too and the light is red. So I know there is something wrong with the driver because he saw the Police vehicle he did not stop" The witness said that he continued on to follow him until the accused reach his home at Jittu Estate. Then witness said what happened next "I was getting off the vehicle because he was stopping and getting off the vehicle and try to go to his home. And when I approach at him I can smell the liquor. Then I know that the driver was drunk. And I was asking him that why was he not stopping then he was acting in an unusual manner. And I was trying to get him over then from there I arrest him manage to arrest him. Then I brought him to our office in Nabua Police Station Highway. We tried to test him the dragger and the dragger machine was not working. We took him over to Totogo to be test in the dragger machine but dragger machine too in Totogo is not working. Both draggers are not working at that night. I don't know why. And the only choices I made I give him 3 careless driving for that matter." The witness identified the accused. The witness said that he wrot is stamente and in that he had mentioned "On the 20th day of February 2012 at about 01500 hours whilst conducting the operation and Highway Patrol with PC 2595 Rohit at Makoi. In Nasinu I tried to stop a vehicle Registration Number DE563 for speeding". This statement is tendered as Exhibit 1.

4] There was no cross examination.

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.

6] The Accused: Pravin Kumar: The accused adduced "That day I was walking at home with my friends. So it was late I went to drop them Narere near the New World Navasai. So I was returning back home. I dropped them and returning back. As I was coming I take pass the vehicle there on the Narere Road. One Hilux was coming. So I take pass some Fijian people were sitting make noise. I come to the junction here Nasinu Police Station then coming down I was going to the Kings Road. I was going to my home. I didn't recognize someone was stopping me. When I went up about 7 miles and up I hear the sound. I thought the vehicle I take pass they were making noise. So I was keep going. And I continue going home. I come straight to home. Then as soon as I reach my home one Police vehicle come. The officer came out he come and start to punching me. He said why you running away. From there he take me to the Police Station, Nabua Police Station. He take a breathalyzer. As I was not drunk. Then he take me there Totogo at Suva. There too same. I was not drunk so I ask me why you punch me. Then he gave me 3 counts of Careless Driving. That's all Sir".

7] In the cross examination the accused said that he did not see the Police flicking light. Even he said that he never see any road block. He said he was not drunk. He said he does not drink alcohol. He further said no police vehicle came beside him and asked him to stop. He said if that was the Police vehicle I would have stopped. The accused said he complained against the Police Officers next morning to Centerpoint, he further said "then when the case was going on then this Police Officer come to my work he harass me there. He said we apologize you reconcile. He returned my green copy for Tin. He said please be reconcile." The investigation is still on. The accused said that PW1 punched him.

8] I re-examination the accused said that he complained that he was assaulted by the police officer and he produced the Medical Report as Defence Exhibit 1

9] Thereafter defence closed the case.

10] Careless Driving&#16>is defs defined by s 99 (1) of the Land Transport Act as driving "on a public street without due care and attention".

]The test for careless drivin0; is stis stated in the case of Khan v Stat 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 driv160;is committmmitted, the test, as LORD GODDARD C.J. said in SIMPSON v PEAT (1952 1 AER 447 at p.449) is: "was D exercishat degree of care and attention that a reasonable and prudent driver would exercise in then 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 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 doubto whether the accused persopersons 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 reasonabubt about the the guilt of the accused."

14] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 June 2008) Justice Jocelynnecutt r Ladyship's summing up said;

"Thi>"The question then is what the standard dard 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. Pbeyo beyond reasonable doubt&#16ns what what it says. You must be sure; you must be satisfied of guilt, before you can express an opinion about it. if yo sure, if you are satisfied beyond reasonable able doublet of guilt, then it is your your duty to say so. If you are not sure, not satisfied beyond a reale doubt, then you must 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)

15] In this case the accused was issued three Tins for careless driving. The police witness said that he flagged the accused for over speeding but he did not stop. Then he gave him chase. Finally the accused was arrested at his home. The accused denied three careless driving charges and he said there was no road block at Muanikoso bus stop. The witness nearly gave 7 miles chase to arrest the accused. The accused, on contrary, denied the charges. He said he was assaulted after accident. He tendered medical as DEX-1. In that the back ground information, [A (4)], shows "The victim Pravin kumar is alleging that he was assaulted by police on 20th February 2012". The medical was done after few hours at 15.24 hours and D (10) of the medical says "patient went to drop off friend in 8 miles. On his way back, was followed by a vehicle( claims that he did not know it was a police vehicle), was followed until he reached his house in Gaji Road, when he got off he was approached and assaulted by a police officer in uniform" . This was happened in day time, the accused told that the police officer was in uniform, then, it is dubious why he did not identify the police officer and stop the vehicle at Muanikoso, when he was flagged. He was tested for drunken driving two places and unfortunately machines were not in order. The accused in his evidence admitted that the machines did not work. He said he was not drunk. But he only realized that he was chased by police when he got off at his house. This happened in day light. It is seen the accused was drunk, that is why he could not properly identify the police officer in uniform. The police officer said that when he gave chase the accused drove the vehicle three times carelessly. In evidence police witness how he drove carelessly three times. Therefore PW1 issued three TINs. This evidence was not cross examined by the accused and remains unchallenged. I note, after incident, the accused was assaulted. But that assault did not exonerate the traffic charges because those have been done by the accused prior to the assault. The accused was not exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.

16] The accused is guilty as charged for all three TINs namely 1350447, 1350448 and 1350449 for careless driving.

17] 28 days to appeal.

On 26th June 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu