State v Ali [2014] FJMC 130; Traffic Case 133.2008 (21 July 2014)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS

Traffic Case No: 133 of 2008

State

v.

Sultan Ali

For Prosecution: PC Yasin
Defendant: Present – With Mr Fesaitu and Ms Chetty (LAC)

JUDGMENT

Introduction

The defendant is charged as follows:

1st Count- Dangerous Driving – Contrary to Section (98) (1) of the Land Transport Act –

The particulars of the offence is that: "Sultan Ali on the 18th day of May 2007 at Suva in the Central Division drove a Motor Vehicle in a manner which was dangerous to the public having regards to all the circumstances of the case."

2nd Count – Failure to Declare other Transport Interest – Contrary to Regulation 9 (1) (2) and 58 of the Land Transport Act –

The particular of the offence is that: "Sultan Ali on the 18th day of May 2007 at Suva in the Central Division being the holder of the taxi permit no. LT 5432 at Brown Street failed to declare an interest."

3rd Count – Conduct of Driver- Contrary to Regulation 28 (1) (g) and 58 of the Land Transport (Public Service Vehicles) Regulation 2000.

The particular of the offence is that: "Sultan Ali on the 18th day of May 2007 at Suva in the Central Division drove a taxi reg no. LT 5432 on Waimanu Road and behaved in an uncivil and disorderly manner whilst carrying out his duty."

The Law and The elements of the offence

Count One

The elements of Dangerous Driving that the prosecution is required to prove beyond the reasonable doubts is defined by s. 98 (1) of the Land Transport Act is;

1. That accused person,
2. Drove a motor vehicle on a public street,
3. Recklessly, or at a speed or in a manner which is dangerou0;to the publicublic,
   

Count Two

Regulation 9 (1) the Land Transport (Public Service Vehicles) Regulation 2000 deith the requirement that other transport interests to be dibe disclosed. It is provided that "The Authority may require the holder of or an applicant for a permit to provide ...."
Regulation 9 (2) states that "it is an offence to refuse or fail to supply any information required under Sub-regulation (1)..."

Count Three

Regulation 28 (1) (g) of the Land Transport (Public Service Vehicles) Regulation 2000 provides that "the conductor of a road service vehicle must, when performing his or her duties behave in a civil and orderly manner."

Regulation 2 defines a conductor to mean "a person employed by the holder of a permit to perform the functions under Regulation 28 and includes a security officer or inspector employed by the holder of a permit."

The Evidences of the Witnesses

The Prosecution called 2 witnesses. PW- 1 – Lavenia Liqai, and PW-2 – Talei Lovodua.
At the close of the prosecution case, the Defence accepted that the accused had a case to answer. The accused was put to his defence and the options available to him were explained to him. The accused chose to give sworn evidence.

Analysis of the Evidence in Relation to the Law

This Court has noted the evidence of all the witnesses.

Counts 2 and 3

For the 2nd and 3rd Counts this Court notes that the accused person is charged under the relevant Regulations of the Land Transport (Public Service) Regulations 2000.

The 2nd Count deals with requirement that a holder of a public service permit is to provide evidence and disclose to the Authority other transport interests. If a permit holder fails or refuses to supply other transport interest or supplies false or misleading information he could be charged under the Regulations.

As to Count 2 no evidence was led by the prosecution to prove any elements of the charge that was laid against the accused person. No one was called from the Authority meaning Land Transport Authority to prove that the accused being a permit holder failed or refused to supply other transport interest or supplied false or misleading information to the Land Transport Authority. For this reason the prosecution has not proven the charge for this Count beyond reasonable doubt and the accused person is acquitted.

For the 3rd Count the accused person is charged with is the conduct of a conductor. For this Count the prosecution has not proven that the accused was a conductor. The accused person was a driver and not a conductor. The prosecution has not led any evidence to prove Count 3 and the offence the accused was charged with. For this reason the prosecution has not proven the charge for this Count beyond reasonable doubt and the accused is acquitted for Count 3.

Count 1

From the evidence tendered in Court this Court finds that there is no dispute in this case as to the following elements of the offence; the identification of the accused, the date and place of the alleged offence and that the accused drove Taxi Registration Number LT5432. The issues for this Court to determine are whether the accused drove dangerously. The complainant's evidence (PW-1) is that "accused sped off.... he drove fast down Brown Street. Just past T junction he made a sudden U- Turn." In cross-examination she told the Court ".. he sped after I did not want to get off. Short distance where I got on to the junction. Cannot confirm it is 500m. Was traffic. Not that dense was able to speed... had to go past zebra crossing... he sped and made a u-turn at Studio 6... gave way to vehicles going to town."

Pw-2 told the Court "heard him say could cause accident on our side. After U-turn sped ...." Later in cross-examination she stated "he drove fast. He did not stop at the junction. He did not stop to give way."The accused in his defence stated "a lot of traffic. Not true made sudden U-turn. Not true could have an accident."

This case is one which arose out of an incomplete trip. The complaints were not taken to their destination by the driver. They were dropped off at the same point where they were picked up from. The complainants allege that the driver sped and made a U-turn. The driver denied the offence. The prosecution witnesses just mentioned that the driver sped. It is not clear from their evidence what the accused persons speed was. The portion of the road the accused was in is not a straight road, and also has junctions and crossings.

From the evidence before it this Court is not able to comprehend how it was possible to speed on this portion of the road at the distance as is claimed by PW-1 and PW-2. The day of the alleged incident is Friday and it was afternoon time. It is a busy day and time when there is traffic is on that road. The complainant (PW-1) agreed that there was traffic on the road at the time. This Court notes that the road is winding and one where it is not possible to speed. If in any event the complainants are to be believed then what was the speed that the accused was speeding at? It is not enough for one to allege that someone was speeding without quantifying the driving speed or giving evidence from one's own driving experience of the speed of driving. This was not done in this case. No other person, which includes the other road users (pedestrians and drivers) who were on the road at that time, have come forward to report a speeding and report near miss or accident for that matter. This Court does not believe the prosecution witnesses version of events.

A charge of dangerous driving is a serious charge as compared to careless driving and it sets a higher standard and requires the prosecution to prove the charge beyond that of driving without due care and attention. Even careless driving has not been proven in this case. In this case the prosecution has not proven that the accused was driving dangerously, which is recklessly or at a speed or a manner which was dangerous to the public. For the reasons given herein all the counts are not proven beyond reasonable doubt. The accused is acquitted of all counts that he has been charged with.

28 days to appeal this judgment.

Chaitanya Lakshman
Resident Magistrate
Suva
21st July 2014