State v Nabi [2013] FJMC 35; Traffic Case 1039.2009 (24 January 2013)

IN THE MAGISTRATE'S COURT OF FIJI AT NADI
[CRIMINAL JURISDICTION]

Traffic Case No. 1039 of 2009

THE STATE

V

ZAHID NABI

Ms. Savau for the state
Mr. Iqbal Khan for the accused

Date of Ruling: 24.01.2013

RULING
[On no case to answer]

The Application

1. This is an application by the defence counsel under Section 210 of the Criminal Procedure Code 2009. At the close of the prosecution case, the defence counsel submitted that there was no case to answer sufficiently enough to put the Accused to his defence and as a result the Accused should be acquitted.
   

The current Criminal Procedure Decree 2009 also carries similar provisions verbatim without the word 'forthwith' at the end under section 187. In the present case Criminal Procedure Code may be applicable since the charge was filed on 26 March 2009 based on the alleged incident that happened on 20 July 2008.

The defence submitted that:-

(a) The prosecution has failed to prove the ingredients of the offence. PW1's evidence is unreliable and untrustworthy.

(b) There is no evidence before the court that the accused drove the vehicle in a dangerous manner.

(c) The prosecution failed to prove mechanical defects which the accused raised and told the Police on the day of the Accident.

(d) There is no plan of the scene of the accident before the court to assist the court in coming to a conclusion.

State's Response

2. Court granted time for both the parties to file their respective submissions. The defence was granted 7 days to file their submissions and 7 days thereafter for the state to file its response and the matter was set for 3 December 2012 to check on the submissions. The defence filed their submissions on 16 November 2012 but the state did not file their response within the time granted for them. On 3 December 2012 the state indicated that they will file their submission in two days. The court allowing it set the matter for ruling on 24 January 2013. The state's response was not filed even by now.
   

The Governing Section

3. The provisions for a no case to answer submissions in the Magistrates Court is found in section 210 of the Criminal Procedure Code which reads:
   

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall forthwith acquit the accused".

The Charge

Statement of Offence
Dangerous Driving Occasioning Death: Contrary to section 97 (2) (c) and 114 of the Land Transport Act, 35 of 1998.

Particulars of Offence

ZAHID NABI f/n Saiyad Nabi on the 20th day of July, 2008 at Nadi in the Western Devision drove a motor vehicle registration number DQ 561 on the Naid Back Road, Nawai, in a manner which was dangerous to the public, having regards to all circumstances of the case and thereby caused the death of Wilson Rigamoto and Mohammed Hafiz f/n Mohammed Hanif.

THE CHARGING SECTION

4. Section 97 (2) (c) enacts that:-
   

"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 or persons".

5. ELEMENTS OF THE CHARGE
   

The prosecution must prove four elements for the charge: (i) that the Accused, (ii) drove, (iii) his vehicle (DQ 561), (iv) in a dangerous manner and caused the death of Wilson Forete Rigamoto and Mohammed Hafiz.

THE LAW

6. The general principles governing a no case to answer application in the Magistrates Court was set out in the long standing case of R v Jai Chand (1972) 18 FLR 101. In upholding a submission that there was no case to answer in the Magistrates Court Grant CJ stated at p.103.
   

"It seems clear that the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution's case the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. However, the question does depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence."

7. In Moidean v Reginam Criminal Appeal no. 41 of 1976, the Court of Appeal also set out the incidences when a submission of no case to answer may be properly made and clarified to a greater extent what the learned Magistrate is to focus on.
   
8. Moidean (supra) pointed out the following instances in which a no case to answer application may be upheld:
   
   1. When there is no evidence to prove an essential element in the alleged offence;
      
   2. When the evidence adduced by the prosecution has been so discredited as a result of cross examination or;
      
   100. The evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it.
        

Agreed Facts

9. The following facts are agreed between the prosecution and the accused:-
   
   1. That the accused was driving vehicle registration DQ516 at Maiganyah on 27.7.2008
   2. That Zynal Nabi was also in the vehicle registration no. DQ516 on 27.7.2008.

The following documents were tendered by consent:

3. Copy of Post Mortem of Mohammed Hafiz f/n Mohamed Hanif
4. Copy of Post Mortem of Wilson Rigamoto

The following statements:-

5. Mohammed Asraf Iqbal
6. Wilson Matanakibau Rigamoto
7. Tesnim Begum
   

The Evidence of Prosecution

10. State called three witnesses in support of the charge. They are Satish Singh (PW1), PC Salesi Matarea and LTA Officer Jimione Korovou.
    
11. PW1 in evidence in chief stated that:
    

"On 27 July 2008 I was in my car on the same line. There was an accident. I had to go to Vatualevu. I was driving and my wife sitting on the passenger's side in front. There was an orange car in front of me. It entered the main road without stopping there. There was a stop. There was no registration number on the plate where it should be. I could not see any number on the orange car. I was 8 metres away from that car.

The orange car turned left towards Lautoka. There was another car coming from Nadi Town towards Lautoka. Another vehicle was coming from Lautoka towards Nadi Town. It collided and went into the drain. The white metallic car collided. A boy came of the vehicle. I wanted to help them. The boy's born was out the leg. They were carrying a baby.

The orange vehicle did not stopp before the impact, because it was moving. I was behind that orange car.

I saw some got outside the orange car".

12. Under Cross Examination PW1 stated that the orange car was not slowed down, it entered the road slowly-it was moving. He admitted that he told police that it slowed down. He also told other vehicle bumped at the right hand side at the back of the orange vehicle. He said 'yes' when it was put to him that that vehicle hit some other vehicle and had head on collision.
    
13. PW1's statement made to police (Exhibit D1) on 20 July 2008 shown to him he then admitted that he told the police that the driver of the orange vehicle did slow down.
    
14. PW2 gave evidence and stated that he has 6 year service experience in Fiji Police Force. He said he familiar with facts of this case. He also told that on 20 July 2008 he attended and accident report, attended scene of accident at Nadi Back Road and drew rough sketch plan. He further told that he took necessary measurement of all three vehicles that involved in the accident. After measurements vehicle were brought to Nadi Police Station.
    
15. PW2 attempted to tender the rough sketch plan but the defence objected it being tendered on the ground that was not served on them. The prosecution then told the court that they are not tendering it. PW2 also attempted to tender the fair sketch plan. This was also objected to by the defence on the ground that it was not dated. The prosecution then informed the court that they are not going to tender it.
    
16. PW3, an LTA officer gave evidence for the prosecution. He has 12 years service in LTA in Technical Section. In evidence he stated that he examined the damage and defects that contributed to the impact. He inspected the three vehicles (DJ430, DQ516 and FB 800) and prepared his reports. He also told that he started all three vehicles to find out defects that contributed to the impact but no defects found. PW3 further told, when asked about the T-Junction, that the vehicle coming from the side road should stop to clear both side. PW3 produced three vehicle accident reports:
    
    1. Vehicle Accident Report of BJ430 (Exhibit 1);
    2. Vehicle Accident Report of DQ516 (Exhibit 2); and
    3. Vehicle Accident Report of EB 800 (Exhibit 3).
       
17. Under Cross Examination PW3 stated that vehicles coming from side road to Highway must stop. He also stated that a car coming from side road want to enter Highway if there no sign and sees the car 150 metre away. He agreed that to test whether the engine was jerking or the engine cutting off one has to drive the vehicle. He also agreed that he did not test drive the vehicle No. DQ516 and as such he could not have found the defect which the accused had told to police.
    

The Determination

18. It is for the court to determine whether there is sufficient evidence in respect of each element of the offence to put the accused to his defence. It is not for this court to decide whether each element has been proven beyond reasonable doubt. That is the course that I will adapt at the end of the trial if I find a case to answer. If there is no evidence in respect of any one element of the offence then the charge should be dismissed and the accused acquitted under section 210 of the Criminal Procedure Code Cap. 21.
    

The Analysis

19. The accused has been charged with one of dangerous driving occasioning death. As stated earlier the prosecution must prove four elements namely:
    
    • (i) that the Accused,

(ii) Drove,

(iii) His vehicle (DQ 561),

(iv) In a dangerous manner and caused the death of Wilson Forete Rigamoto and Mohammed Hafiz.

20. Elements (i), (ii) and (iii) are not disputed by the defence. However, there is a dispute with regard to element (iv) that he drove the vehicle dangerously.
    
21. The charge arose out of a motor vehicle accident which occurred on 27 July 2009 at Nadi Back Road at approximately 6.15pm (the accident). There were three vehicles that were involved in the accident:
    
    1. A white vehicle registration number BJ430;
    2. An orange sedan registration number DQ516 while being driven by the accused; and
    3. A silver vehicle registration number EB 800.
       
22. It is to be noted that the prosecution immensely relying on PW1's evidence.
    
23. PW1 gave sworn evidence. In evidence he said that the driver of the orange vehicle came from the side road did not stop and went to his left side of the main road. Then the other vehicles came from the right side hit his (accused) vehicle on the right back side and then had an head on collision with the 3rd vehicle.
    
24. Under cross examination PW1 agreed that he told to police that the orange vehicle slowed down and then took a left turn and entered the main road. However PW1 did not offer any explanation as to why he told in examination in chief that the orange vehicle entered the main road without stopping.
    
25. It appears that PW1 has made previous inconsistence statement. In the case of Praveen Ram V state (Supreme Court of Fiji) Petition No. CAV 0001 of 2011-9th May, 2012, Honourable Justice Saleem Marsoof at page 25 at Para.60 stated that:
    

"... it is also consistent with principle of the common law as expressed by Lord Parker CJ in Regina v Golder [1960] 1 WLR 1169 at page 1172 that "when a witness is shown to have previous statements inconsistent with the evidence given by that witness at trial, the jury should ... be directed that the evidence given at that trial should be regarded as unreliable...".

26. PW1 told in evidence that the other vehicle hit the orange vehicle at the right back and had a head on collision with the 3rd vehicle. According to PW1 the orange vehicle had already entered the main road. The other vehicle came from the side side hit the orange vehicle at the back at the right side and had a head on collision with the 3rd vehicle. The Vehicle Accident Report submitted in respect of orange vehicle (Exhibit 2) states that Right rear bumper, lights, boot lid, fender, rear panel,rear right tyre and dent rear right rim were damaged as a result of the accident. If the orange vehicle had a head on collision front portion of that vehicle would have damaged. Therefore it may be seen that the orange vehicle did not involve in the head on collision. It is clear that the vehicles that involved in the head on collision were the other vehicles. Maybe, due to over speeding.
    
27. PW3 who tendered the Vehicle Accident Report stated that he did not drive the vehicle to test the mechanical defect such as engine jerking or engine cutting off of the vehicle as such his reports are incomplete.
    
28. The prosecution does not produce the rough sketch plan (the Sketch) or the fair sketch plan to assist the court. The Sketch plan is vital to the prosecution case. This document may assist the court in determing the force of impact, the position of vehicles after the accident and the authencity of witnesses. It is very difficult of determine the force of impact and the postion of vehicles after the accident without the Sketch plan. The prosecution witnesses stated nothing about the force of impact and the position of vehicles after the accident.
    
29. Therefore, in my opnion no reasonable tribunal would convict the accused on the evidence led by the prosecution.
    

Conclusion

30. In my judgment there is insufficient evidence in respect of the important element of the offence taht the accused was driving in a dangerous manner to require the accused to be put to his defence. I dismiss the charge and acquit the accused forthwith from the charge of dangerous driving occasioning deaths.
    

..............................................
M H Mohamed Ajmeer
Resident Magistrate
24/01/2013