IN THE MAGISTRATES COURT AT NASINU

Traffic Case No. 8502/2007

STATE
-v-

SWADESH PRAKASH CHAND

Sgt Volavola and Inspector Joji Cakau for the State
Mr. Emmanuel Narayan and Ms. Swastika Narayan (DIVEN PRASAD LAWYERS) for the accused

Judgment

1] The accused is charged with following counts namely; 

CHARGE:

FIRST COUNT

Statement of Offence [a]

DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97 (2) (c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

SWADESH PRAKASH CHAND s/o PREM CHAND on the 08th day of November, 2007, at Nasinu in the Central Division, drove a motor vehicle on Nasinu Road, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby caused the death of Priyanshu Priti Sharma d/o Saten Sharma.

2] The trial was held on 01st November 2001, 15th January 2013, 10th May 2013 and 13th May 2013. 

3] To prove this case the State called following witnesses. The first witness (PW1) was Payal Preethika Sharma. She is a Form 5 student of Rishikul Sanathan College. She lives with her parents and 3 sisters. She said that she can recall events of 08th November 2013. She did not go to school but they went to town. She went with mother and her two sisters. On their way back to home, they got off the bus and cross the road. She said "As soon as we got off the bus, the bus left. One vehicle was parked there. The driver of that vehicle asked us to cross the road. And we nearly crossed the road. One vehicle came and overtook the parked vehicle there. He was over speeding, he cannot stop and bumped my sister and he wanted to run away. Some Fijian boys stopped it". The witness said that she saw the driver at the scene. The accused was positively identified by the PW1. 

4] In cross examination, the witness said that she did not see any vehicle coming from right. She said the truck was parked left side of the road; they were standing in front of the truck and driver asked to cross the road. The witness admitted that there was no Zebra crossing. She said that they were going to grandmother's place, they crossed the road. Priyanshu was her left hand side and Pooja was her right hand side. The witness said that she only came to see the vehicle after the accident. 

5] After this evidence, the court ex meru moto visited the scene to get a clear picture with the prosecutor and the defence counsels. 

6] The PW2 was Vulase Ubitau: she said on that particular day she was sitting her verandah, trimming old lady's hair. She said "I heard child was crying. Van was coming so fast. It hit one of the children. She was flown away. When it hit, it did not stop, it went other side of the road, it hit the child, went out of the road…After the accident, I came down to the main road. I saw girl's shoe was lying beside our drain and other one was in the middle of the road."

7] In cross examination the witness said that verandah faces towards the road and it is double story building, she has clear visibility. She said there was a truck parking the back of bus. She said "I saw after the accident. When it hit the small girl, it went pass. It nearly hit the gate of the other side". She said that since 1982, she was staying there but there was no bus stop. She said that she is using reading glass for 3 years. She also said the road was wide enough to pass two vehicles. Answering to the court, the witness said that she did not see the exact impact, but after the sound she saw what had happened. 

8] PW3-Saten Kumar; he is the father of the deceased. He said that at the moment she got 4 daughters. The deceased was his daughter. He identified her death body at the inquest. . 

9] There were no cross examination with regards to PW3. 

9] PW4- Pita Qiolevu: He said that on 08th November 2007, he was on duty, traffic stand by. He received a report of accident. He visited the scene. He said it was straight road. He said that PW2 showed the impact place at the scene. He drew the rough sketch plan and PC Parm drew the fair sketch plan. Rough Sketch tendered as EX-1. 

10] In cross examination the witness said that EX-1 was drawn on the same day. The witness said that the victim was bumped while she was walking on the gravel. There was blood spot in the middle of the road. The witness said investigation reveled that she was thrown 18.6 metres and the vehicle was over speeding. He further said that he did not see any tyre marks, zebra crossing or bus stop. 

11] PW5- PC 3052: Pram Sivam.: This witness said that on that day, he was on duty and he interviewed the accused Caution interview tendered as EX-2. 

12] When cross examined this witness said that he visited the scene after one hour of the accident occurred. He relied on rough sketch plan which was drawn by PC Pita. 

13] PW6- Rakeshwar Singh: He said he can recall the 8th day of November 2007; he was at work in Starest Furniture Valelevu. He was driving 3 tonne truck, was going towards 8 Miles through Nasinu Road at about 2 o'clock. It was sunny afternoon. He said "I was going towards 8 Miles through Nasinu Road. While I was driving I saw some passengers getting off the bus and they wanted to cross the road to go onto the other side. Then I stopped my vehicle and they crossed the road. Whilst they were crossing the road I saw one van which overtook some vehicles, which overtook my vehicle and it hit one of the pedestrian who are crossing." He said that the bus just drop off the passenger and the bus took off. Passengers were girls, 4 of the girls. He further said "The bus moved and the girls were trying to cross. I slow down the truck and stop while they were crossing. And suddenly I saw in the side mirror the vehicle coming in speed, …While I stop they were crossing and I saw the van coming over speeding…Then I tried to stop the girls not to go far and I tried to stop the driver with my horn and with my hand to stop the vehicle. Then he could not stop because he was quite a fast….he overtake me. As soon as I stop I on my hazards and I try to stop the driver…He was trying to stop but he was that much fast that he applied the break he could not stop the vehicle…Then he hit the girl." The witness said that he was driving more than 20 years and the vehicle speed was over 85 or 90Kmph. The witness identified the accused. 

14] In cross examination, the witness said that when he saw the bus, it was moving and the passengers were already off the bus. It was long stretch road and 4 girls were crossing. They were just one after the other. The 2 was together and 2 was 1 was right in front and 1 in the middle. When he beeped the horn, 3 of them stopped. The other one was quite further right near to the end towards the road and 3 of them ran back to this end. There were no vehicles opposite direction at that time. He said that if girls were altogether then they would run back then they could have been saved. He did not know the speed limit. 

15] PW 7 - Jone Gotovulelei: On the 8th day of November 2007, he was working at Pacific Transport. He was on his way to the Coca Cola factory at Nasinu Road they were using the Company's vehicle .the driver was Swadesh Prakash, the accused. Witness identified the accused. He said "we were going the Nasinu Road. Then we saw a carrier in front…Bus was in front of us and the carrier was behind it. And the other lane was empty no vehicle none of the vehicle was on the other lane…We saw the carrier parked. Then we pass on to the right side. Then we saw 3 girls standing in front of the carrier. They were holding hands, the 3 girls. When we approach them then one of the girl one of the 3 girls they ran away. Then the one in the middle grab hold of her but she run to the left side. Then she ran. Then we bump into the girl that ran to the left side. Then we stopped. After we bumped her then we stopped. And we pick her up and took her to the hospital. To the Valelevu Health Center" he said that he was sitting in the front seat. But he did not know the speed of the vehicle on that day. He further said "the Company vehicle veered off to the far right side of the road. I think he want to avoid bumping into the avoid the accident".

16] The witness was cross examined. The witness said in his police statement he has said "I saw 3 young Indian girls whom they got off from S. Nair bus coming towards where the carrier is stopping. My workmate driver then swerved the vehicle to the right side going past beside the carrier. When suddenly these 3 young Indian girls went across from the front of the carrier to the other side of the road. That is from Momo Place side whish is on the left side of the road across the road. 2 of the 3 Indian girls stopped when they saw our vehicle coming towards them but 1 of them pulled off her hand from the one in the middle who was holding her hand and ran across the road, whereby our vehicle bumped straight on to her". He confirmed this. The witness agreed that had this victim girl not run across she would been saved.

17] PW8: PC 3740 Prakash: The witness said that there was post mortem conducted at CWM Hospital with regards to victim's death. 

Post mortem report was tendered as Ex-4, and he said the cause of death is "Shock due to injuries to vital organs as a result of multiple injuries to secondary motor vehicle accident". 

18] There was no cross examination.

19] After calling these witnesses, the prosecution closed its case. Since there was a case to answer, right to call defence was explained. The accused opted to given sworn evidence. 

20] DW1: the Accused: Swadesh Prakash Chand: He said that up to now the accused is working with Pacific Transport Limited. On 8th November around midday he was at his workshop and he was ordered by his Supervisor to drop some bottles at Coca Cola factory and come back. He said "From my work I went to my father's place at Ura Place, Valelevu to drop some stuffs, so I took Nasinu Road to reach Coca Cola factory…I just used Nasinu Road I was going towards Coca Cola factory….I was on my way when I saw this 3 tonne truck parked on the middle of the road and I saw 1 S. Nair bus parked on the side of the road and this truck was parked parallel but at the back. Little bit back of the bus….I was travelling in my company vehicle. I was between 40 to 50 km per hour… because it's a residential area you cannot drive fast in that area." He then explained how the accident occurred. "When I approach almost the face of the truck then I saw these 3 little girls crossing the road running from that side from my left to the right. They were probably Primary School students. They were in outings. They were almost on the middle of the road. Almost on the middle of the road, all 3 of them. I saw them I slowed down. When I slowed down then 1 of the girls 1 of the small girls from the left hand side she tried to she ran across the road. When I slowed down I saw these girls. When she ran then she ran across I tried to save her so I went swerved forward further to the right. Over there I just could only hear a little bit bang sound so I moved in front and parked my vehicle on the left lane….I just heard the bang sound so I went in front and stopped I saw it on the side mirror I saw the girl on the road facing up."The accused said that girls were not supervised. He said when they stopped and I moved. He further said if this victim had not run across she would have been saved.

21] In cross examination he said when he was first saw the girls, It's over 4 meters. He said "When I saw them I stopped on the road. So I just slowed down…Well I could have stopped. If the girls I could have stopped if the driver could have told me to stop. Because he didn't say anything. He didn't indicate me anything". He said he did not stop but when he saw the girl leaving the hand and crossing the road then he swerved to his right to avoid it.

22] Thereafter the defence closed the case. They filed closing submission and I am mindful of that. 

23] It is pertinent, what the State has to prove, beyond reasonable doubt is that the manner of driving of the accused at the relevant time was dangerous in all the circumstances. If the State is unable to prove the element of dangerous driving then the accused should be acquitted.

24] 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."

25] 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." (Emphasizes is mine) 

26] As Lord Devlin mentioned about evidentiary burden of proof in the Privy Council in Jayasena v. The Queen 1970 AC 618 also 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.

27] 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. 

28] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

29] In this case, the accused is charged of having committed dangerous driving occasioning death Contrary to Section 97 (2) (c) and 114 of the Land Transport Authority Act Number 35 of 1998.

Section 37 (2) (c) states;

"a person commits the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person, and the driver was at the time of the impact, driving the vehicle: - (c) in a manner dangerous to another person, Section C (4) is similarly worded except it is confined to a situation where a person is injured as a result of the impact as opposed to a death".

30] Dangerous Driving is defined by section 98 (1) of the Land Transport Act as "driving on a public street recklessly, or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the public street and the amount of traffic which is actually at the time or which might reasonably be expected to be on the public street".

31] The particulars of the charge against the Accused state that he drove a motor vehicle on Nasinu Road in a manner, which was dangerous to the public having regard to all the circumstances of the case. 

32] In the case of Lasike v State, Fiji Court of Appeal Criminal Appeal No HAA 58 of 2002 (13th September, 2002) the Court of Appeal defined dangerous driving as follows:

"Dangerous driving is the causing of a dangerous situation by a manner of driving which falls below the standard expected of a prudent driver."

33] The standard for dangerous driving was also addressed in the case of Kumar v State, High Court of Fiji Criminal Appeal No HAA 14 of 2001 (12 April 2002), which involved a charge of dangerous driving causing death like this case. The High Court addressed the difference between careless driving and dangerous driving, stating as follows:

"The next ground of appeal is that there was no evidence of dangerous driving. In court, counsel submitted, that even on Mr Buksh's version of the facts, the Appellant's driving was only careless.

The evidence which the learned Magistrate accepted was that the Appellant was negotiating a bend at a high speed on the wrong side of the highway. He was driving a cargo truck and in going to the wrong side of the road created a dangerous situation. In R -v- Gosney (1974) 3 ALL ER 220, it was held that a charge of dangerous driving is proved when the driver drives in a way which falls below the standard of a competent and prudent driver, and thereby causes a situation, which viewed objectively, is dangerous.

The test for a charge of Dangerous Driving is an objective one, as is the test for Careless Driving. The difference between the Careless Driving and Dangerous Driving is not the manner of driving, (which has the same test) but the situation that has been caused thereby. In other words, a person who drives carelessly, also drives dangerously, if viewed objectively, his/her manner of driving creates a dangerous situation. Thus a person who drives carelessly, drives dangerously if he/she thereby causes a death. Therefore, counsel's submission that the Appellant (on the version of the facts given by PW1) was only driving carelessly, has no validity."

34] In this case there is no dispute that the accused drove the vehicle along Nasinu Road, on 08th November 2007. Furthermore there is no dispute that the accused's vehicle bumped the deceased at the time of the incident. What is in serious dispute, between the parties, is the state's allegation that on the day in question, the accused drove his vehicle in a manner which was dangerous to the public and caused the death to persons named, Priyanshu Priti Sharma. This is the only element to be proved by the prosecution and other all elements have been admitted and they have been already proved by admission. 

35] The prosecution called 8 witnesses to prove its charge. The PW1 said "As soon as we got off the bus, the bus left. One vehicle was parked there. The driver of that vehicle asked us to cross the road. And we nearly crossed the road. One vehicle came and overtook the parked vehicle there. He was over speeding, he cannot stop and bumped my sister and he wanted to run away. PW2 in her evidence said "I heard child was crying. Van was coming so fast. It hit one of the children. She was flown away. When it hit, it did not stop, it went other side of the road, it hit the child, went out of the road…After the accident, I came down to the main road. I saw girl's shoe was lying beside our drain and other one was in the middle of the road." PW6 in his evidence "I was going towards 8 Miles through Nasinu Road. While I was driving I saw some passengers getting off the bus and they wanted to cross the road to go onto the other side. Then I stopped my vehicle and they crossed the road. Whilst they were crossing the road I saw one van which overtook some vehicles, which overtook my vehicle and it hit one of the pedestrian who are crossing." All these evidence shows that the accused drove the vehicle excessive speed. The PW7, the one with the accused said "We saw the carrier parked. Then we pass on to the right side. Then we saw 3 girls standing in front of the carrier. They were holding hands, the 3 girls. When we approach them then one of the girl one of the 3 girls they ran away. Then the one in the middle grab hold of her but she run to the left side. Then she ran. Then we bump into the girl that ran to the left side. Then we stopped. After we bumped her then we stopped. It shows that the accused did not try to stop the vehicle instead he swerved the vehicle just to avoid the impact. He stopped the vehicle after the impact. The accused said that he was 40-50 kmph speed. If so, why he could have stopped the vehicle? The deceased was hesitating and she went across the road, if the accused at the speed 40 to 50 kmph, if he hit the girl, she would have been injured and not killed in such a speed. Because according to the post mortem the brain was unremarkable, there was no brain damage. The accused was driving in excessive speed and overtaking. He was driving on straight road and PW2 said that the victim was thrown after accident. The accused did not address this issue but he said since he was overtaking he did not stop the vehicle at once. It is seen, the accused did not even apply brakes to stop the vehicle. These all proves that he was in excessive speed.

36] In Lasike v State [2002] FJHC 159 Her Ladyship Justice Shameem confirmed English House of Lords in R v Lawrence (1982) AC 510 which identified two limbs in dangerous driving:

a)	Driving in a manner as to create an obvious and serious risk of causing physical injury to some other person…or of doing substantial damage to property; and

b)	That in driving in that manner the defendant did so without having any thought to the possibility of there being any such risk, or having recognized there was some risk involved, had nonetheless, gone on to take it. 

37] The accused's evidence it revealed he was on duty mission to Coca Cola factory but he went a private trip, to his father in law's house. He said that he got the permission to do it, but it seems that he was in hurry and driving over speeding. There was no pavement and while he was over taking he did not act as prudent driver. The truck driver stopped the vehicle allowed children to cross the road, but the accused did not stop behind the truck, he was speeding, without seeing the children, he overtook the 3 tonne truck without caring other pedestrian. The accused's driving, at this moment, created an obvious and serious risk of causing physical injury to some other person, in this case 9 year old girl lost her life. There were some minor contradictions in prosecution version, but those did not topple the prosecution's version as the witnesses cannot recall photographic memory. 

38] In Miller v Minister of Pensions [1947] 2 All ER 372 Lord Denning described the standard of proof. He notes;

"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "Of course it is possible but not in the least probable", the case is proved beyond reasonable doubt; nothing short will suffice."

39] Thus, it needs not 100% sure of probability but should reach a high degree of probability. In this case the prosecution proved that the accused drove the van in an excessive speed, caused the accident. He was not error of judgment, while he was over speeding, he should have known, if somebody crossed the road, he would have unable to stop the vehicle, pedestrian would have been hit. Thus, his manner of driving created dangerous situation. Though, the children were unsupervised, there is no bus stop, there is no zebra crossing will not exonerate the accused, the duty of care as a prudent driver. 
40] In this case the only disputed element was dangerous driving at the time of impact. Driving in an excessive speed on a public high way is obviously dangerous and the accused knew if anything goes wrong some serious thing could happened. In this case it was a mishap, caused serious accident, child lost her life. I therefore hold the prosecution has proved its case beyond reasonable doubt. 

41] The accused is convicted as charged. I now call mitigation before sentencing.

42] 28 days to appeal

On 05th July 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu