State v Ali [2013] FJMC 373; Traffic Case 79.2011 (15 October 2013)

MAGISTRATE’S COURT
SUVA
CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
Traffic Case No. 79 of 2011

State

v.

Nur Ali

For State: Sgt Jiten
Accused : Present – in Person

RULING – No Case to Answer

Introduction

The defendant is charged with One Count of Careless Driving, contrary to Section 99 (1) and 114 (a) of the Land Transport Act 1998.

At the close of the prosecution case, the defendant made a submission for a no case to answer.

The Law – No Case to Answer

Part XIII - of the Criminal Procedure Decree 2009 provides for the Procedure in Trials before Magistrates Courts. Division 1 of Part XIII deals with Provisions Relating to the Hearing and Determination of Cases. Section 178 of the Criminal Procedure Decree 2009, falls within Part XIII and it provides that”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 acquit the accused.”

Section 178 of the Criminal Procedure Decree 2009 is identical to Section 210 of the Criminal Procedure Code, Cap 21, which it has replaced.

This Court is guided by a long standing Criminal Practice Direction, cited as A Practice Note [1962] 1 All ER 448 which provides that:

"A submission that there is no case to an#160;may pmay properly be made and upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b)hen the evidence adduced by the prosecution has been so diso discredited as the result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Apart from these two situations a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If however, a submission is made that there is no casenswer, the decisdecision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but onher the evidence is such that a reasonable tribunal might cght convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."

This Court also takes note of R v. Jai Chand [1972] 18 FLR 101, where Justice Grant stated that:

"the decision as to whether or not there is a case to a&#160should depe depend notd not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether thdence is such that a reasonable tribunal properly directing its mind to the law and the evie evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not 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".

The Law and The elements of the offence

Careless Driving is 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 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 . . . "

The Prosecution Witnesses Evidence
The Prosecution called 2 witness. The Caution Interview and the Charge Sheet were tendered by consent.

Submission

Only the Defence has made written submissions which this Court has carefully considered. In summary, the Defence submitted that "accident happened because the complainant did not check the traffic on his right and drove at a fast speed from Waimanu Road to get to Brown Street."

Analysis

This Court has noted all the evidence that was tendered in this Court. Having considered the evidence of the prosecution witnesses, the Court at this stage is not so much concerned at this stage on conviction or acquittal but on whether the evidence is such that the Court properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. From the evidence tendered in Court at the close of the prosecution case the Court has adopted an objective test as distinct from the ultimate subjective test as adopted at the close of the trial.

This case basically hinges on the issue whether the accused drove carelessly or not. In essence the crucial question in this case is whether a case for careless driving is made out for the accused to be put to his defence. The other elements of the offence are not in dispute. The complainant in examination in-chief told the Court "had accident at T junction, was taking a job going straight. Give way sign. Give way to left... DL Vehicle bumped me. DL came from front. I was going straight. I tooted my horn. DL kept on moving and collided with my vehicle. Vehicle made turn without stopping... vehicle turning right has right of way. No right hand rule there." In cross-examination he told the Court "accused has to look at 3 lanes, 3 directions and 3 lanes... know right hand rule... uphill go at speed. Gave way to left side accelerated to go up hill. Not that I did not see accused vehicle. Did follow right hand rule as vehicles there." In re-examination the complainant stated "I looked left was clear had glance in front, nothing in front. Was going straight. Give way sign at my side. Give way to those on left. DL made right turn. DL applies right hand rule."

In this case, the crucial issue is of the right of way at the junction. The road in question is a T-junction as is alluded to by the complainant and noted by this Court from the sketch. The Land Transport (Traffic) Regulations 2000 deals with giving way in such situations. The complainant in his evidence told the Court that a give way sign was at his side. The complainant further told the Court he was to give way to the vehicles on his left.

Regulation 10 provides for giving way at T-Junctions states that "when approaching a T-junction from a terminating carriage-way, the driver of a motor vehicle must give way to any vehicle on the through street or carriage-way, at which the first-mentioned carriage-way terminates, unless complying with any traffic sign, signal or road marking." In this case there was a give way sign at the side of the complainant and therefore Regulation 10 does not apply but Regulation 9 of giving way to the right applies.

Regulation 9, which is known as the "Right Hand Rule" states that "if 2 or more vehicles are approaching the same place in a manner, and on a course, or at a speed, that if the vehicles continued in that manner, on that course, or at that speed, as the case may be that the vehicles might collide or create a dangerous situation, the driver of a vehicle who has any other vehicle on his right must slow down or stop and allow the other vehicle to proceed, except as otherwise prescribed by traffic signs, signals or road markings or regulation 10."

The give way sign on the side of the complainant meant that he was to give way to the traffic approaching from his right. This is the right hand rule. The accused's vehicle approached the complainant's vehicle from the accused's right, the accused had the right of way. The complainant told this Court he looked left and straight, he did not look right. If he had looked right he might have avoided the accident. From the evidence in Court either the accused is misleading the court or he does not understand the right hand rule that needs to be applied in the given circumstances.

For the fore-going reasons this Court finds that the evidence of the complainant is so discredited and unreliable that this Court will not rely on it. This Court finds that the accused has no case to answer. The accused is acquited. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate

15th October 2013