State v Naguivalu [2018] FJMC 143; Criminal Case 337 of 2016 (4 December 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 337 - 2016

STATE
-v-
JOSATEKI NAGUIVALU

For Prosecution : WPC Chand [ Police Prosecution ]

Accused : Ms Samantha [ A K Lawyers ]

Date of Trial : 2^nd day of October 2018

Date of Judgment : 4^th day of December, 2018

JUDGMENT

1. The defendant is alleged to have committed the following ( pursuant to the amended charge filed on the 29^th of October 2018 ) :
   

Statement of Offence

DANGEROUS DRIVING OCCASIONING BODILY HARM: Contrary to section 97 ( 3 ) ( 4 ) ( c ) ( 5 ) ( c ) and 114 of the Land Transport Act Number 35 of 1998.

Particulars of Offence

JOSATEKI NAGUIVALU, on the 20^th day of October, 2014 at Tavua in the Western Division drove a motor vehicle registration number FR 699 at Garampani, Tavua in a dangerous manner and caused an impact with a pedestrian namely BARMA NAND causing him grievous bodily harm.

2. The defendant first appeared for the matter on the 11^th of October 2016 and was granted bail.
   
3. After securing legal representation ,the defendant pleaded not guilty to the charge on the 10^th of April 2017.
   
4. The matter did not proceed for trial on the 2^nd of October 2018 as amongst other reasons, some disclosures were yet to be made.
   
5. The trial was subsequently held on the 29^th of October 2018.
   
6. Before the trial commenced, leave was granted to prosecution to file the amended charge to which the defendant maintained his ‘not guilty’ plea.
   
7. As usual, prosecution called their witnesses first.
   

PW1

8. Prosecution witness 1 [ PW1 ] was Mr. Barma Nand.
   
9. He noticeably had one of his arm in a sling. He motioned and demonstrated in court that he found it hard to move his arm, hand and his fingers on that arm.
   
10. PW1 is over 65 years old, a farmer and has been residing at Garampani since his birth.
    
11. He testifies that on the day in question around 6am, he went on horseback to load some cane.
    
12. After loading the cane, he returned on horseback using the main road in that area.
    
13. This main road is not tarsealed but is a dirt road.
    
14. PW1 describes that the width of the dirt road is about 8 to 10 meters, comparing it to the width of the road outside of the courthouse here at Tavua.
    
15. PW1 explains that when on this road, he was bumped from behind on his right side by a lorry driven by the defendant.
    
16. PW1 fell down. His horse died soon after the incident.
    
17. PW1 was travelling on horseback on the left side of the road before he was bumped.
    
18. PW1 describes that he fell down at the same place where he was bumped.
    
19. He received injuries as a result and his arm in a sling and his difficulty in moving his hand and his fingers is a result of that.
    
20. During cross-examination, PW1 said that he was treated at the Lautoka hospital and he gave a statement to police after he felt better.
    
21. PW1 said that the vehicle that bumped him was a ‘Gold Mine’ truck.
    
22. PW1 denied that the horse was frightened which caused PW1 to fall. PW1 said that his horse was 15 to 16 years old and he uses the horse to plough his land.
    
23. PW1 said that the horse fell after being bumped. PW1 fell too.
    
24. PW1 maintained that the lorry hit him.
    
25. It was a fine day on that day.
    
26. The stretch of road where he was bumped is on a bend and there is sugarcane growing on both sides of the road.
    
27. PW1 was on the left side of the road where people normally walk.
    

PW2

28. The second witness or PW2 was Mr. Rajendra Reddy.
    
29. In 2014 he was working at the mine.
    
30. On the day in question, PW2 said that he caught the Company transport or the pool truck to take him to the mine at around 6.30am.
    
31. The driver of the vehicle was the defendant.
    
32. PW2 sat at the back of the pool truck on the passenger side, facing the front.
    
33. On the way, they heard a noise or someone yelling. The noise came after passing the ‘accident’. It was from the side of the vehicle.
    
34. PW2 cannot see the side of the vehicle as the view is blocked.
    
35. The vehicle stopped and PW2 went to Barma Nand and wiped blood from Barma Nand’s forehead.
    
36. PW2 said that the vehicle was not in rush during that time.
    
37. During cross examination, PW2 said that he heard yelling when the truck went 2 to 3 meters ahead.
    
38. PW2 maintained that he did not see PW1 falling from the horse.
    
39. PW2 says that he knows Barma Nand or PW1 as they are neighbours.
    
40. PW2 said that after wiping blood from PW1’s face, PW2 saw the horse standing next to Barma Nand.
    
41. PW2 didn’t pay much attention to the horse as they were focussed on Barma Nand.
    
42. PW2 says that there were other people too inside the pool truck on that day.
    
43. That was the end of the prosecution’s case.
    
44. The court found that there was a case to answer and after advising the defendant of his options, the defendant elected to remain silent but still call a witness.
    

DW1

45. Defence witness 1 [ DW1 ] was Mr. Satish Chand.
    
46. He too caught the pool truck on the day in question.
    
47. DW1 sat at the back of the truck, behind the driver
    
48. The defendant was the driver.
    
49. On the way, they saw a horse on top of a man and they yelled for the truck to stop.
    
50. DW1 didn’t pay much attention to the horse but they made their way to the man who was on the ground.
    
51. DW1 knows the man that was on the ground and it was Barma Nand and DW1 refers to him as his brother.
    
52. They were about to take Barma Nand to the hospital but were informed that another person will come and take him.
    
53. Barma Nand informed DW1 that his side was painful.
    
54. DW1 describedthe noise he heard as a ‘bump’.
    
55. DW1 said that he didn’t see any damage to the truck.
    
56. DW1 said that the side of the truck is covered with mesh grill. Although you can see through, you will not be able to see clearly.
    
57. DW1 said that he did not see the truck go over Barma Nand.
    
58. There was no cross-examination of this witness.
    
59. That was the end of the defence case and the case was adjourned for judgment.
    

ANALYSIS

Burden and Standard of Proof

60. The defendant is presumed innocent until proven guilty.
    
61. The burden is on the party that seeks to rebut this presumption. In this case, it is the prosecution.
    
62. Even if I reject the evidence given on behalf of the defendant or I don’t accept his denial that he is at fault or did not drive dangerously, it doesn’t necessarily mean that the prosecution has proven their case.
    
63. I remind myself too that the prosecution’s evidence must satisfy me beyond a reasonable doubt or make me sure that the defendant committed the alleged offence, before I can find him guilty.
    
64. The defendant elected to remain silent.
    
65. That is his right and I draw no negative inference from his act of exercising his right.
    
66. He has however called a witness who has given evidence. The evidence for the defence is still evidence and it can be used for and even against the defendant.
    
67. Off course, the evidence for the defence will be considered in the light that that he has no burden to prove his innocence.
    

Elements of the Offence

68. The elements of the offence for driving dangerously causing grievous bodily harm contrary to section 97 ( 3 ) ( 4 ) ( c ) ( 5 ) ( c ) and 114 of the Land Transport Act No. 35 of 1998 are:
    
    1. The defendant;
       
    2. Drove;
       
    100. A vehicle;
         
    4. Which was involved in an impact;
       
    5. That caused grievous bodily harm to the victim or PW1 Mr Barma Nand;
       
    6. And at the time, the defendant was driving in a manner that is dangerous in relation to PW1 Barma Nand.
       
69. I must be sure that all the elements are proven beyond a reasonable doubt.
    
70. Section 3 of the Land Transport Act defines a vehicle to include a description of a vehicle designed to move or to be moved on one or more wheels or revolving runners, or any truck, barrow, carriage or similar vehicle but does not include a vehicle excluded by regulations.
    
71. In deciding whether someone drove dangerously, the English Court of Appeal case of R v. Gosney [1971]3 All ER 220 is helpful.
    
72. The test enunciated in that case is accepted here in our jurisdiction, see for example Kumar v State [2002] FJCA 12; AAU0014U.2002S (30 August 2002).
    
73. In a per curiam judgment of the court in Gosney in paragraph 2 of page 224, the court said:
    

... there must be not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. ‘Fault’ does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a naturally poor driver, while straining every nerve to do the right thing, falls below the standard of a competent and careful driver. Fault involves a failure: a falling below the care or skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case. A fault in that sense, even though it might be slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient. The fault need not be the sole cause of the dangerous situation. It is enough if it is, looked at sensibly, a cause...

74. In summary, to attribute dangerousness to the way the defendant drove, there must be some fault on his part and the standard to be used is whether the defendant’s driving fell below that of the care or skill of a competent and experienced driver in relation to the manner of driving and the circumstance of the case.
    
75. Section 4 of the Crimes Act 2009 stipulates:
    

"harm" means any bodily hurt, disease or disorder (including harm to a person’s mental health) whether permanent or temporary, and includes unconsciousness, pain, disfigurement, infection with a disease and physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time);

76. Grievous harm is encapsulated in the same section. It reads:
    

"grievous harm" means any harm which—

(a) amoun a ma daor dangerous hous harm; or

(b) seriously rmanently injuresjures health or which is likely so tore he or (c) extends ends to permanenfigisfigurement, or to any peny permanermanent or serious injury to any external ternaan, m or senr sense;

FINDINGS

77. There is no dispute and I find sufficient evidence to prove elements a. to c. of the charge beyond a reasonable doubt.
    
78. I am sure that it was the defendant, who was driving and that he was driving a vehicle at the time in question.
    
79. The determination of the guilt of the defendant rests on any of the remaining elements.
    
80. Was there an impact between the vehicle driven by the defendant and PW1 Mr Barma Nand?
    
81. Direct evidence of this comes from PW1 himself. He said that the lorry driven by the defendant bumped him and his horse.
    
82. PW2 said that he heard a noise or yelling after they passed PW1.
    
83. There is evidence from DW1 that he heard a bump when they passed PW1.
    
84. Circumstantial evidence can be powerful evidence but it must be considered with care. It is evidence from which a reasonable inference can be drawn linking the defendant to the offence. It should not be confused with conjecture. At the end of the day, the court must be convinced beyond a reasonable doubt [ Varasiko Tuwai v. The State Criminal Appeal Number CAV 13 of 2015 ( 26^th August 2016 ) at paragraph 51 to 53 ].
    
85. I accept the evidence of all these witnesses in relation to this point.
    
86. I observed and listened to PW1.
    
87. I believe him when he said that he was bumped by the vehicle driven by the defendant. I believe and accept that he was not mistaken.
    
88. I don’t accept the proposition made by the defence that his horse fell without any causation by the defendant.
    
89. In this case, it is of little or no significance whether the vehicle first hit the horse or PW1 or both were hit simultaneously. PW1 was on his horse and they are inextricably linked just like a passenger inside a vehicle.
    
90. I am convinced that both PW1 and his horse were hit by the lorry or truck driven by the defendant.
    
91. I accept that both PW2 and DW1 were not mistaken and were telling the truth when they heard a noise or a bump.
    
92. I accept that this audio was as a result of the impact between PW1 and or his horse with the vehicle driven by the defendant.
    
93. The vehicle driven by the defendant was moving past PW1 and this would have given the impression to both PW1 and DW1 that the noise may have come from behind them.
    
94. I am convinced that the noise came from the side of the truck that impacted PW1 and or his horse.
    
95. I have seen PW1’s arm and when he tried to move his hand and fingers. He showed and demonstrated it in court.
    
96. It was hard for him to move them and I saw that it took a lot of effort just to move his fingers.
    
97. I am convinced and I accept that he has lost some control of his limb, hand and fingers.
    
98. I accept that PW1 fell as a result of being bumped by the defendant’s vehicle.
    
99. He fell on his side.
    
100. That this has caused him serious injuries and he is living with the consequence to date.
     
101. I don’t need PW1’s evidence to be corroborated by a medical report.
     
102. I accept PW1’s evidence and his exhibition of his arm, hand and fingers which proves that he suffered grievous bodily harm.
     
103. There is evidence that the area where PW1 was bumped is near a bend with sugar cane around. It is a dirt road with no evidence of a footpath.
     
104. I would expect that a competent and experienced driver would expect pedestrians, even farmers on horse-back to be using the road. This is more obvious in our Division here where the presence and use of a horse by a farmer and the use of dirt roads is ubiquitous.
     
105. I believe or I am convinced with PW1’s evidence that he was on the side of the road and on horseback with his horse.
     
106. I am sure that the defendant saw PW1 on the side of the road but it was too late. When the defendant turned the bend and saw PW1, the defendant failed to manoeuvre his vehicle further from PW1 and as a result, hit PW1 with the side of his vehicle.
     
107. A competent and careful driver would have been aware of the likelihood of PW1 or someone in his position, on horseback on the side of the dirt road.
     
108. This likelihood is more obvious especially when there is no foot path or paths for horses to tread on or some clear demarcation on the road for where man, machine or animal should travel.
     
109. I am convinced that the defendant’s manner of driving fell below the skill and care of a competent and experienced driver and that there was some fault on his part.
     
110. This means that I reject the denials of the defendant that he did not drive dangerously or that he did not cause any grievous harm to PW1.
     
111. I’m satisfied beyond a reasonable doubt that the remaining elements are proven and I find the defendant guilty.
     

Conclusion

112. Based on the aforementioned reasons, I’m sure that the defendant committed the offence of dangerous driving occasioning grievous bodily harm contrary to section 97 ( 3 ) ( 4 ) ( c ) ( 5 ) ( c ) and 114 of the Land Transport Act No. 35 of 1998.
     
113. I will hear mitigation hereafter.
     

....................................................
Lisiate T.V. Fotofili
Resident Magistrate

At Tavua this 4^th day of December, 2018.