State v Farman [2014] FJMC 138; Traffic Case 139.2011 (25 September 2014)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS
Traffic Case No: 139 of 2011

State

V

Mohammed Romin Farman

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution: Mr Malcolm Maitava (DPP's Office - State Counsel)
Accused: Present – In Person

JUDGMENT

Introduction

The accused in this case is charged with Careless Driving, contrary to Section 99 (1) and 114 of The Land Transport Act 35 of 1998.

The particulars of the offence is that: "Mohammed Romin Farman on the 8th day of April 2011 at Taveuni in the Northern Division drove a motor vehicle registration number GN641 on the Qacavulu, Taveuni without due care and attention"

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 the charge in this case are as follows:

1. That Mohammed Romin Farman, (Identification)

2. on 8th day of April 2011 at Taveuni in the Northern Division (Date and Place)

3. Mohammed Romin Farman drove motor vehicle Registration number GN641, and

4. without due care and attention.

The accused agreed in Court that he did not dispute the date, identification, time or that he drove GN641 on the day. The single most important issue for the Court to determine in this case is whether the accused drove carelessly or not.

The Evidences of the Witnesses

The Prosecution called 3 witnesses. PW- 1 – Rakesh Narayan, and PW-2 – Mosese Faolo, and PW-3 – PC Avinesh.

At the close of the prosecution case, this Court ruled 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. The accused did not call any other witnesses.

Analysis of the Evidence in Relation to the Law

This Court has noted the evidence of all the witnesses. The Court has also scrutinized the rough sketch and the keys tendered by the Prosecution. The Court visited the scene with the Prosecutor, the accused, the complainant and the investigating officer. The Court was assisted by Clersk, Avinesh and Torika.

From the evidence agreed facts 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 of the offence and that the accused drove GN641. The only issue for this Court to determine is whether the accused was careless or not.

The material evidence of PW-1, the complainant in this case was "drove on left side on corner saw police vehicle come on my side applied the brake 5 metres before the accident. Was 5 metres from police vehicle when noticed police vehicle. Saw accused on the bend. Police vehicle at speed coming to my side. I managed to stop my car. Applied the brake pressed the horn. 5 metres away. He caused the accident... not enough space to left. Slope could go into the sea ....my vehicle was at 30 to 35 km/hour on number 3 gear, coming up the hill" In cross-examination PW-1 responded as follows ".. drove at 30 to 35 km/hour. saw police vehicle 5 metres before accident applied the brakes. Should be brake marks there. I managed to stop. ... not sure how wide the road is. Saw vehicle before the accident... accused was at very high speed."

Pw-2's material evidence was "...at scene both vehicles were stationary. ... taxi was on his side- right side. Police vehicle was over middle lane. Head on with the taxi. Police vehicle over centre lane. ... police vehicle on the center of the road. In cross-examination PW-2 responded as follows "..not sure where actual impact took place. Impact on the middle of the road...."

Pw-3's (who was the investigating officer and who drew the rough sketch) material evidence was "...went to scene drew rough sketch. ... both vehicles were at the scene and not removed. The taxi was ½ way on the road side. Police vehicle on the road. On the middle of the road.... brake marks not visible – gravel road. Front right tyre of police vehicle damaged – drivers side. Taxi had damages. ..." In cross-examination PW-3 responded as follows "... cannot recall exact distance of police vehicle. Width was 4.2 metres. Taxi is about 2 metres from the left side. GN641 was on the correct side of the road. Either of drivers could have stopped. Both vehicles on middle of the road. Could not say one vehicle on the other lane. On their own lane. One vehicle has to stop road was narrow. Point of impact close to bend. Side of road had long grass. Because of grass on coming vehicles could not be seen. If no grass accident could be avoided."

The accused's material evidence was "was not on the wrong side of the road. On correct side. I had stopped my vehicle. Taxi was at high speed it did not stop. I had stopped my vehicle. Due to gravel it had skidded. 2 vehicles cannot pass one other. Driver had to avoid grass. Grass thick and bush hanging onto the road. In cross-examination the accused responded as follows "...due to impact of accident tyre got punctured. Broken glass of right side head light. Accident at the bend. I was going slow due to the bend. I was very slow descending the hill. Gravel road if fast will go off. Was not fast – road has loose chips and gravel. I took all care and attention. I had stopped the vehicle. Taxi was speeding according to the passengers. Their statements are there. They gave a statement. After bumping my vehicle the taxi rolled back. My vehicle was stationery."

The evidence of the complainant and the accused is opposed with respect to who caused the accident. The complainant in his version stated that he was bumped by the accused when the accused came to his side and caused the accident. The accused in his version states that the complainant who drove the taxi was at a speed and did not stop. For this Court one version is correct while the other is a lie. In order to determine this the Court will need to review and analyse all the evidence in totality and the sketch plans of the accident, which were tendered and admitted as evidence.

While some other witnesses were present in both vehicles. They were not called. This case boils down to the evidence of the complainant, the accused, the investigating officer and the LTA Officer.

The evidence of the I/O and the LTA officer is that the accused's vehicle was in the middle or over the middle of the road, respectively. The road is unmarked and gravel road. From the sketch and evidence in Court (of the I/O) this court notes the accused's vehicle stopped 80 cm from the side of the road. The evidence of the I/O is that the accused's vehicle is in his own lane. The accident scene was at a bend. The width of the road at the bend was 4.2 metres. Given the fact that the accused's vehicle was some 80 cm from the edge of the road it is incorrect to state that it was in the middle of the road or over the middle when the width of the road is considered. Considering the position of the accused's vehicle from the side of the road the accused vehicle could not be on the middle or over the middle of the road. The accused's vehicle was facing in the direction it was heading. The vehicles at the point of impact could not pass through without careful manoeuvring and at a slow speed.

The measurements and the scene visit showed that the drivers at this position needed to drive carefully and with caution. The accident in this case therefore arose out of someone's carelessness and not exercising caution. The question in this case is was it the accused. Having noted the above-mentioned which is the position of the vehicles this court finds that the accused was on his lane and his side of the road.

From the visit of the scene this court noted one side arriving to the point of impact is ascending while the other side descends. The accused was descending and the complainant was ascending. The complainants evidence is that he was on 3rd gear and at about a speed of30 to 35 km/hr. This was a slow and careful speed if the complainant was driving his vehicle at this speed. A vehicle will quickly stop if break is applied.

The accused said in his evidence he had stopped his vehicle before the accident, it skidded and complainants vehicle which was at a high speed did not stop. The complainant's version is that the accused was at a speed. No other witnesses attested to the manner of driving of the two, the accused and the complainant. The skidding of the accused's vehicle means that he either applied the brakes suddenly that's why it skidded or it was at a speed and could not stop suddenly. This court in the absence of any other supporting evidence will not speculate what it was.

The other significant evidence of the complainant is that he applied the brakes 5 metres before the accident. He also told the court he was 5 metres from the accused's vehicle when he saw the accused's vehicle. The evidence of the complainant that he saw the accused's vehicle 5 metres before and he applied brakes 5 metres before the accident is crucial. Having visited the scene and also having noted the scenery, the grass even though it seemed cut and the Court also imagined the grass if it was long and as described in court. This Court finds that from both approaching sides to the point of impact the drivers each had clear vision of 50 metres or more. There were no obstructions or disturbances in between the driver's line of vision.

This Court finds that from the evidence before it that the complainant states that he saw the accused's vehicle 5 metres before the accident. He applied the brakes 5 metres before the accident. From this evidence this court finds that the complainant was either at a speed or he was not paying attention to the road. As the Court stated the line of vision of the drivers was clear how the complainant did not see the accused's vehicle approaching well before the 5 metres he mentions is not to his credit. This to the Court shows that he was not attentive. The accused was on his side of the road. He approached the point of impact in his side. He was some only 80 cm from the side of the road. He could only go slightly more. He clearly was as close as possible he could be to his road verge. He broked his vehicle when the complainants vehicle came towards him, it skidded and the accident happened. This Court believes the accused's version. His evidence was not discredited. This court finds that the accused took all care and was attentive and braked. The complainant was inattentive and saw the accused's vehicle late and the accident was unavoidable by then. The accused maintained his lane and side of the road.

For the above-mentioned reasons this court is not satisfied that the charge against the accused is proven beyond reasonable doubt.

The accused is acquitted.

28 days to appeal.

Chaitanya Lakshman
Resident Magistrate

Taveuni
25th September 2014.