State v Karavaki [2013] FJMC 391; Traffic Case 79.2012 (30 October 2013)

MAGISTRATE’S COURT
SUVA
CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
Traffic Case No. 79 of 2012

State

v.

Semesa Druavesi Karavaki

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 answer may pry be made and uphd upheld (a) when there has been no evidence to prove an essential element in the alleged offenc; b> when the evidence adduced by the prosecution has been so discredited as thes the resu 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 case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or a but on whether the evidence is such that a reasonable tribunal might convict. If a reasonaasonable 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&#160se to answer shoulshould depot so muso 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 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 elements of the offence the prosecution need to prove in order to prove this case are as follows:

1. That Semesa Karavai, (Identification)

2. on 1st day of February 2012 at Suva (along Verrier Road towards Mead Road) in the Central Division,

3. Semesa Karavai drove motor vehicle Registration number EM157, and

4. without due care and attention.

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 "it is clear from the evidence that PW-1 was responsible for the accident due to his negligence and as such must bear the responsibility ..."

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 "I do not know the road. I drove on a straight road. No side roads. Was driving straight and accused car came and bumped. Accused's vehicle came from right side. Accused vehicle bumped my right side, drivers side. Left side of accused vehicle hit my vehicle. Accident at cross road."

The evidence of PW-2 the Investigating Officer, PC Josua was "initial investigation that driver of car that came along Verrier Road had right of way. Because it was main road. The junction had dotted mark from Lower Ragg Avenue. PW-1 had right of way. Verrier Road is Main Road. Broken lane indicates stop." In cross-examination PW-2 stated "PW-1 had right of way. No traffic sign or poles. No road marking either on Verrier Road. Dotted land coming up Ragg Avenue. Accused travelled upper Ragg to Lower Ragg. Complainant had right of way. No law that road wider is main road. At intersection right hand rule applies. Marking was there before. No visible mark there. No marking, right hand rule does not apply. Stop at junction even if no marking. Driver should invent a marking."

From the sketch which was tendered and admitted as evidence in Court this Court notes that the accident occurred at an Intersection. In this case, the right of way of vehicles at the Intersection applies. The Land Transport (Traffic) Regulations 2000 deals with giving way in such situations. 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 complainant's vehicle was to the left of the accused vehicle. The defendant's vehicle was to the right of the complainant's vehicle at the intersection. From the evidence in Court and the sketches submitted there were no road signs or visible marking which would enable the defendant and the complainant to be subject to the road sign or marking.

The defendant and complainant were to apply the right hand rule at the intersection. In this case the complainant had to give way to the defendant who was to his right and not the other way around as is being suggested by the police officer. The Police officer has misconstrued the application of the right hand rule and he is also either mischievous or has no understanding of the road rules when he states that a driver should invent markings where there are no marking. Road markings cannot be invented by drivers. One can only imagine the chaos that can be caused when drivers start imagining or inventing road markings at such intersections. The road rules, in this case the right hand rule is to apply if no road signs and markings are on the road. Nothing else will suffice.

The evidence of the prosecution witnesses, especially evidence of PW-2 the Investigating Officer, PC Josua is totally discredited and are unreliable. His knowledge of traffic rules, especially the right hand rule and inventing of the road marking is peculiar. For the for-going reasons this Court will not rely on it. This Court finds that the defendant has no case to answer. The defendant is acquitted. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate

30th October 2013