State v Buksh [2013] FJMC 67; Traffic Case 2781.2008 (7 February 2013)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI
CRIMINAL JURISDICTION

Traffic Case NO. 2781/2008

STATE

VS

SAIYAD ALI BUKSH

Sgt Naidu for the prosecution
Mr. D. S. Naidu for the accused
Date of Ruling: 07.02.2013

RULING [No case to answer]

The Application

[1] This is an application by the defence counsel under Section 210 of the Criminal Procedure Code (CPC), Cap 21. At the close of the prosecution case, the defence counsel submitted that there was no case to answer and as a result the accused should be acquitted.

The Governing Section

[2] Section 210 of the CPC 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 forthwith acquit the accused"

The Charge

[3] The accused is charged as follows:-

CHARGE

FIRST COUNT

Statement of Offence (a)

CARELESS DRIVING: - Contrary to section 99 (1) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence (b)

Saiyad Ali Buksh, on the 1st day of March 2008 at Nadi in the Western Division drove a motor vehicle on Nadi Market Car Park without due care and attention.

SECOND COUNT

Statement of Offence (a)

FAILED TO REPORT AFTER AN ACCIDENT: - Contrary to Regulation 63 (2) (b) and 87 of Land Transport (Traffic) Regulation 2000.

Particulars of Offence (b)

Saiyad Ali Buksh, on the 1st day of March 2008 at Nadi in the Western Division drove a motor vehicle on Nadi Market Car Park, a road owing to the presence of the said road, an accident occurred and did fail to report after an accident.

THIRD COUNT

Statement of Offence (a)

FAILED TO STOP AFTER AN ACCIDENT: - Contrary to Regulation 63 (5) and 87 of Land Transport (Traffic) Regulation 2000.

Particulars of Offence (b)

Saiyad Ali Buksh, on the 1st day of March 2007 at Nadi in the Western Division drove a motor vehicle registration ... Nadi Market Car Park, a road owing to the presence of the said motor vehicle on the said road, an accident occurred and did fail to report after an accident.

The Charging Section

[4] Section 99 (1) of the Land Transport Act States as follows:-

"A person who drives a motor vehicle on a public street without due care and attention commits an offence and is liable on conviction to the prescribed penalty".

Section 63 (2) (b) of Land Transport (Traffic) Regulation 2000 reads as follows:

"Causing injury or death to an person or animal the driver of the motor vehicle must report the particulars and circumstances of the accident at a police or to a police officer as soon as practicable and in any case within 24 hours after the accident".

Section 63 (5) of Land Transport (Traffic) Regulation 2000 reads as follows:

"If a motor vehicle accident occurs on a public street which causes injury to any person, other than a passenger in the motor vehicle and the vehicle fails to stop, the person injured must report the particulars and the circumstances of the accident at a police station or to a police officer as soon as practicable and in any case within 24 hours after the accident"

The Ground

[5] It was submitted by the defence counsel that there was no case to answer on the following grounds:-

(1) That the prosecution produced no evidence to establish carelessness on the part of Accused.

(2) There must have been injury or death to a person or animal in case of fail to report whilst in case of fail to stop there must be injury to person.

[6] In response to the submission made by the defence counsel, the prosecution did not file any submission.

The Test

[7] The court is called for making a determination of whether or not a prima facie case has been made out at this stage. I think I must be guided by the well settled principles of no case to answer from the following authorities:-

(i) R V Jai Chand 18 FLR 101 at page 103;

(ii) Rohit Ram latchan V The State Criminal Appeal No. AAU0015 1996S [High Court Criminal Action No. HAA0032J of 1996]; and

(iii) Practice Note [1962] All ER 448.

[8] Justice Grant in R V Jai Chand 18 FLR 101 at page 103 states 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 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".

[9] In Rohit Ram Latchan V The State, the appeal judges were guided by the principles set out in the Practice Note [1962] All ER at page 448:-

"LORD PAKER, C.J:- Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, the court has had on many occasion to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think as a matter of practice justices should be guided by the following considerations.

A submission that there is no case to answer may properly be made and upheld:

(a) when there has been no evidence to prove an essential element in the alleged offence;

(b) when the evidence adduced by the prosecution has been so discredited as a 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 on 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 acquit but on whether on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer'.

[10] In order to decide whether there is sufficient evidence to put the accused to his defence, it is important to determine the elements of the offences and the evidence adduced in support of the said elements.

The Elements of the Offence

[11] (i) One count of CARELESS DRIVING. To establish a charge of careless driving, it must be proved:-

(a) That the accused;

(b) That he drove motor vehicle registration number ... on a public street; and

(c) Without care and attention.

(ii) One count of FAILED TO REPORT AFTER AN ACCIDENT. This offence carries the following elements:

(a) The accused, driver of the motor vehicle registration number ...

(b) Caused injury or death to a person or animal; and

(c) Failed to report the accident at a police station or to a police officer within 24 hours.

(iii) One count of FAILED TO STOP AFTER AN ACCIDENT. This offence carries the following elements:

(a) Accident occurred on a public street which caused injury to any person, other than a passenger in the motor vehicle and failed to stop;

(b) The injured must report the accident to police station or to a police officer within 24 hours.

The evidence

[12] At trial prosecution produced 02 witnesses namely Dargeshni Nandani Arachi (PW1) and PC Sanjay (PW2). The prosecution also tendered the statement of PC Sanjay (Ex-1), the caution interview of the accused (Ex -2) and rough sketch Plan (Ex 3). The statement made to police by PW1 was marked by the defence as D/Ex-1.The submissions of no case to answer would be determined on the evidence so far laid before the court. I would therefore state what each witness has testified.

[13] PW1 testified in Examination in Chief that she is a teacher. On 1 March 2008 she was trying to park her car in the Nadi Market Car Park. She could not find a parking place so she came out. She stopped the car as she got stuck. The driver of the van started reversing. She alerted him by hooting horn. He then started reversing faster than earlier and bumped in her bumper. Her vehicle sustained damage in the sum of $280.00. She stopped her car and came out. He (Accused) also came out and told her he will be coming back. She waited for about one hour and called the police. They told since the other driver was not there we have to go to the station. She brought her car to police with a lady police officer.

[14] Under Cross examination PW1 stated that before the accident the Accused stopped. She admitted tooting the horn is not in her statement although she told everything (her statement was marked as D/Ex-1 by the defence). PW2 called him and he came to police.

[15] PW2 was investigating officer. He in evidence in chief stated that: He caution interviewed the Accused. He marked the record of the interview as P/Ex-1 without objection. He said the Accused denied the allegation. He drew an imaginary rough sketch plan (P/Ex-3). He said the accused didn't report the accident anywhere within 24 hours. He also told Nadi Marked Car Park is a public car park and produced gazette notice (P/Ex-4).

[16] Under Cross Examination PW2 stated that he recorded everything the complainant told and didn't leave anything out. He couldn't say which side of the complainant's bumper got damage.

The Determination

[17] It is for the court to determine whether there is sufficient evidence in respect of each one element of the offences 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 offences, then the charges should be dismissed and the accused acquitted pursuant to section 210 of the CPC.

[18] Now I must analyse whether there is any evidence in respect of each element of the offences.

[19] The accused has been charged with one count of careless driving. To establish a charge of careless driving the prosecution must prove three elements as stated in paragraph 11 (i) above. The first two elements are not disputed. Therefore the first two elements will not be discussed in this analysis/determination. However, the defence vehemently disputed the third element that the accused was driving without due care and attention. It is the duty of the prosecution to prove that the Accused was driving without due care and attention.

[20] The Accused had reversed out of his parking space in the Market Car Park and was about to drive out when his vehicle and that of PW1's vehicle collided resulting in damage ($280.00) to PW1's vehicle. PW1 was looking for a parking space. PW1 saw the Accused was reversing his vehicle out of his parking space and she was attempting to get into the parking area vacated by the accused. PW1's vehicle was moving to find a parking space. The front portion of the PW1's vehicle sustained damage to its passenger side clearly showing it was the fault of PW1.

[21] In Cross Examination PW1 told that the Accused stopped his vehicle before the impact. This admission by PW1 clearly shows that it was PW1 who collided with the Accused's vehicle. PW1 told in court that she honked her car horn, whereas in the statement to police PW1 did not mention anything about honking the horn. PW1 is a school teacher and would have read her statement and corrected if anything was not recorded. However, PW2, the interviewing officer stated under cross examination that he recorded everything whatever PW1 told to him and he did not miss out anything. The front portion of PW1's vehicle sustained damage to its passenger side clearly showing it was the fault of PW1.

[22] There has been no evidence to prove that the accused was driving without due care and attention which is one of essential elements of the charge of careless driving.

[23] Now I turn to deal with other counts. The Accused has also been charge with one count of failed to report after an accident. As stated in paragraph 11 (ii), the prosecution must prove three elements to establish this charge. First element that the accused drove a motor vehicle was not in dispute. To charge a person for failure to report to police or to a police officer there must have been injury or death to a person or animal. In this accident no one got injured or died as such there is no evidence to prove that the Accused caused injury or death to a person or animal. Therefore the charge that the Accused failed to report after an accident cannot be maintained.

[24] The third count the Accused has been charged is that he failed to stop after an accident. Again, as stated above in paragraph 11 (iii), two elements must be proved by the prosecution. For convenience I reproduce them. They are:

(a) Accident occurred on a public street which caused injury to any person, other than a passenger in the motor vehicle and failed to stop;

(b) The injured must report the accident to police station or to a police officer within 24 hours.

[25] This was not an accident which caused injury to any person. There is no evidence to prove any of elements of the charge of failed to stop after accident. Nonetheless, the accused did stop his vehicle after the accident. PW1 in evidence stated that after the accident the Accused stopped, came out of his vehicle and told he will be back and went. Therefore under these circumstances the charge that the accused failed to stop after an accident is misconceived.

[26] In my judgment there has been no evidence to prove an essential element in the alleged offences

Conclusion

[27] I therefore find that a case is not made out against the accused person sufficiently to require him to make a defence. I therefore dismiss the case (all three counts) and acquit the accused accordingly forthwith.

M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 7th day of February 2013.