IN THE MAGISTRATES’ COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 67 of 2018

STATE

-v-

INOKE TUILOALOA

For the State: Constable A. Lal
For the Defendant: Mr. A. Waqanivavalagi, of counsel instructed by the Legal Aid Commission

Date of Trial:	21 & 22 May 2019
Date of Judgment: 24 May 2019

JUDGMENT

1.	INOKE TUILOALOA you stood trial for DANGEROUS DRIVING CAUSING GRIEVOUS BODILY HARM: contrary to section 97 (4) (c) and 114 of the LAND TRANSPORT ACT No. 35 of 1998.

2.	The particulars of offence are that you “on the 13th day of July, 2018 at Seaqaqa in the Northern Division drove a motor vehicle registration number FS993 at Vucitoka along Labasa – Nabouwalu Road in a manner dangerous to another person causing grievous bodily harm to Manikam Goundar.”

3.	The Prosecution called Ankush Goundar, Manikam Goundar, Dr. Ashnil Prasad, Rafaele Gagaga and PC 3031 Dupendra Prasad. During the trial, models were used and Manikam Goundar’s  Medical Report and PC 3031 Dupendra Prasad’s Rough Sketch Plan were tendered.

4.	I ruled that there was a case to answer and pursuant to section 179 of the Criminal Procedure Act 2009 I explained to you the nature of the allegation against you and I advised you of your right to remain silent, your right to testify on your own behalf and your right to call evidence on your own behalf in full.

5.	After conferring with counsel, you then testified on oath and you called Serupepeli Draunimasi who testified on your behalf. That was your case.

6.	Counsel then submitted on your behalf and the prosecutor indicated that he would rely on the court record. I adjourned to today for judgment.
Presumption of Innocence

7.	I bear firmly in mind, as I did throughout your trial, that you are presumed innocent until proven guilty.

Burden & Standard of Proof

8.	The burden of proving your guilt rests with the State and it never shifts.

9.	As Viscount Sankey observed in Woolmington v. The Director of Public Prosecutions[1935] UKHL 1, 

“…throughout the web of the English criminal law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the [defendant’s] guilt beyond reasonable doubt.”

10.	To be precise, Section 57 of the CRIMES ACT 2009 makes clear that the prosecution bears the legal burden of proving every element of an offence relevant to the guilt of the person charged and section 58 of the CRIMES ACT 2009 makes clear that this legal burden must be discharged by the prosecution beyond reasonable doubt.

Elements of the Offence

11.	The elements that the State must prove beyond reasonable doubt are as follows:

(1)	You
(2)	drove a motor vehicle
(3)	which was involved in an impact
(4)	with another vehicle
(5)	and as a result, Manikam Goundar sustained grievous bodily harm
(6)	and at the time of the impact, you had been driving the vehicle in a manner that was dangerous to another person or persons.

What does it mean to be involved in an impact?

12.	Pursuant to section 97 (6) of the Land Transport Act of 1998:

“6. For the purposes of this section, a vehicle is also involved in an impact occasioning ...grievous bodily harm to a person if –

(a)	the ... grievous harm is occasioned through the vehicle causing an impact between other vehicles or between another vehicle and any object or person or causing another vehicle to overturn or leave the public street; and
(b)	the prosecution proves that the first mentioned vehicle caused the impact.”

13.	Clearly then, the word impact can mean:

(i)	direct impact between your vehicle and the alleged victim’s vehicle;
(ii)	impact between other vehicles that you caused through your dangerous driving;
(iii)	 impact that you caused between another vehicle and an object;
(iv)	an impact that you caused between another vehicle and a person;

 as a result of your driving.
 
14.	It can also mean causing another vehicle to overturn or leave the public street as a result of your driving.

What does the phrase “grievous bodily harm” mean?

15.	In R v LK; R v. RF [2010] HCA 17 (26 May 2010), Gummow, Hayne, Brennan, Kiefel and Bell JJ (which whom Heydon J. substantially agreed) held at paragraph [97]:

“…The words "conspires", "conspiracy" and "overt act" each had an established meaning in the criminal law at the time of the enactment of the Code. None is defined within the Code. The principle that the appellant calls in aid, that a code should be construed according to its natural meaning and without any presumption that it was intended to do no more than to re-state the existing law[195], is qualified with respect to the adoption in a code of a word or expression having an established meaning under the pre-existing law[196]. A number of the relevant authorities are referred to by Spigelman CJ in his discussion of the topic [197]. To these may be added the observations of Brennan J in Boughey v The Queen[198]:

"It is erroneous to approach the Code [the Criminal Code (Tas)] with the presumption that it was intended to do no more than restate the existing law but when the Code employs words and phrases that are conventionally used to express a general common law principle, it is permissible to interpret the statutory language in the light of decisions expounding the common law including decisions subsequent to the Code's enactment. The meaning of the words and phrases to be found in a Code is controlled by the context in which they are found but when the context does not exclude the common law principles which particular words and phrases impliedly import, reference to those common law principles is both permissible and required." (citations omitted)”

16.	The Cambridge dictionary defines “grievous bodily harm” to mean “a crime in which one person does serious physical injury to another.” I accept that this is what the phrase is intended to mean.

How do I assess the manner in which you drove on 13 July 2018?

17.	 I assess the manner of your driving objectively: see Attorney-General v Parmanandam [1968] FJSC 8; [1968] 14 FLR 6 (15 March 1968).

Evidence Led at Trial

	Prosecution Witness 1 – Ankush Goundar

18.	Mr. Goundar testified that on 13 July 2018, he and his father, Mr. Manikam Goundar, had travelled to Dreketi in FP 756 so that his father might attend a program hosted by Dreketi College as Chief Guest. That program ended and they left Dreketi College at around 5.00pm to return to Labasa. He drove FP 756 at around 60 kmph along the Labasa/Nabouwalu Highway. He was in the driver’s seat and his father was seated beside him in the front passenger’s seat. 

19.	They passed the Savusavu Junction and drove up a small hill at Vucitoka. At the peak of the hill, he saw a white 4 x 4 Hilux registration number FS 993 overtaking a black Hilux across the middle double line at a very high speed. He tried to turn the vehicle to the left to avoid impact but it was too late, he testified. FS 993 collided with his car along the right driver’s door and his vehicle was thrown off the road. It hit a wall by the side of the road before coming to a rest inside a drain by the side of the road. The front of the car came to a stop at slight angle toward Savusavu.

20.	He then got out of the vehicle and then tried to rescue his father. His father was badly injured he said. His father had been trapped inside the car. With the help of passers-by he managed to get his father out of the car and onto the road. A career from Nabouwalu stopped and took them to Seaqaqa Medical Center. 

21.	Under cross-examination, he testified that he had had a Group 2 driving licence on the day of the accident and that he had been a probationary driver at the time. He said that as he approached the hill he could see vehicles from the other side but the first he saw of the white Hilux was at the peak of the hill there at Vucitoka. The peak was flat at the top. He put on speed when he saw the white Hilux bearing down on them and he tried to turn to the left when he was hit. He reiterated that his vehicle was then thrown off the road and into the drain. 

22.	He denied counsel’s proposition that there had been no collision; that instead he had driven into the drain after having successfully avoided a head-on collision. 

Prosecution Witness 2 – Manikam Goundar

23.	Mr. Goundar is Ankush Goundar’s father. He testified that on 13 July 2018, he had been Chief Guest at Dreketi High. After the ceremony, he and his son left Dreketi High at around 4.30pm to return to Labasa. They travelled in their family car FP 756. His son was driving and he was in the front passenger seat. Just past the Savusavu Junction there was a small hill. At the peak of the hill, he saw two vehicles, a white Hilux and a black Hilux driving toward them. He saw the white Hilux FS 993 cross the white line onto their lane and coming toward them at a very high speed.

24.	He asked his son to move toward the grass in order to get out of its way. All of a sudden, Mr. Goundar testified, FS 993 hit them. Their car hit a rock on the road and landed facing Dreketi. He said that he had wanted his son to drive toward the left but in a matter of seconds the accident occurred. He lost consciousness briefly.

25.	 He testified that he had sustained a lot of injuries to the head. He broke his left clavicle. He lost some vision to his right eye he said as a result of the accident. Blood came out of his ears and his nose. He said that his son and some others helped him out of the vehicle and out of the drain. Some people took him to Seaqaqa and he received the first in a series of treatments there. He ended up being admitted in hospital over 5 days.

26.	Under cross, he agreed that he had told the Police that “At Vunitoka, Seaqaqa, I noticed a white twin cab van suddenly appear from the opposite direction. The van was overtaking one black twin cab vehicle. I quickly told me son to turn to the left side. Later I don’t know what happened to our vehicle.”

Prosecution Witness 3 – Dr. Ashnil Prasad

27.	Dr. Prasad testified that he examined Manikam Goundar at the Seaqaqa Hospital at around 6.00pm on 13 July 2018. He examined him for about 40 minutes. He took a quick history from the patient, examined him, assessed his injuries and moved to manage them. He then telephoned the surgical registrar on call at the Labasa Hospital and after receiving approval to have the patient sent to Labasa he called for an ambulance. The ambulance eventually arrived and transported Mr. Goundar to the Labasa Hospital.

28.	Dr Prasad testified that during the course of his examination, he found abrasions on the right side of the head. He also saw a 1 x 1 cm puncture wound at the top of the head. There was an extensive 5 x 7 cm abrasion along the right side of Mr. Goundar’s head. Moreover, Mr. Goundar had a loss of movement to the shoulder and his left clavicle was deformed suggestive of a fracture to the clavicle bone. 

Prosecution Witness 4 – Rafaele Dagaga

29.	Mr. Dagaga testified that he had left Labasa and was travelling to Bua at around 5.00pm on 13 July 2018. He said that he reached the Vucitoka Hill at around 5.45pm.

30.	He said that the white Hilux driven by the Defendant had been trailing him through most of that journey. He said that the white Hilux then tried to take past him as they were nearing the crest of the Vunitoka Hill. He described it as a blind hill in that you were not able to see oncoming vehicle as you  approached it. He testified that there had been a white double line in the middle of the road.

31.	He then accelerated when the white Hilux came abreast of his vehicle. He said that he had to accelerate or else they would all have been involved in an accident. However, he maintained from that point onward that he had not seen what happened after he had made it to the peak and over onto the other side of the hill. He said that he only learnt that there had been an accident after the driver of the white Hilux waved him down and told him of it. He followed the white Hilux back toward the site of the accident. When he got there the white Hilux was gone.  He found a car in a drain. He testified that he had not witnessed how it had gotten in there.

32.	He identified the Defendant in court as being the person driving the white Hilux on that day. He said that after the white Hilux had flagged him down, he and the driver of that Hilux spoke for about 2 minutes. He said that the driver was only 3 meters away from him and that there was nothing to obstruct his view of the driver’s face during the course of that conversation. He testified that the lighting had been good as it had been daylight still at the time. 

Prosecution Witness 5 – Constable 3031 Dupendra Prasad

33.	Constable Prasad testified that he had been called to attend the accident scene on 13 July 2018. He found a yellow vehicle registration number FP 756 in a drain by the side of the road facing Dreketi. 

34.	He found broken glass and yellow flaking that matched vehicle registration FP 756 on the lane toward Labasa near the double middle line. He made a note of that spot and drew it into his rough sketch plan as the “point of impact.”

35.	Under cross-examination, he confirmed that he had not witnessed what had happened and that he had only worked off what he had been told and what he himself had found at the scene.

36.	Constable Prasad testified that he then followed up with the driver of FP 756 and the passenger of that vehicle at the Seaqaqa Medical Center and after receiving the number plate of the white Hilux from a senior officer, he then followed up with the Land Transport Authority. He received the name of the owner of the vehicle and after speaking to that owner found out the name of the person who, according to the owner, had been driving the vehicle that day. 

37.	He asked the suspect to then come in for an interview and the suspect then came in for an Interview on 2 August 2018. The person he interviewed was Inoke Tuiloaloa, the person he pointed out as being in the dock on the day of trial. Your Record of Interview was then marked and tendered into evidence as Prosecution Exhibit 3. 

Defence Witness 1 – Inoke Tuiloaloa

38.	You testified that you had driven FS 993 on 13 July 2018. It was a white Hilux Twin cab that belonged to Reverend Lepani Rakoro. You were travelling to Dreketi and had Serupepeli in the vehicle with you. The vehicle was in good condition you said. As you were climbing up the Vucitoka Hill near the Savusavu Junction, you wanted to overtake a vehicle.

39.	You were trying to overtake another Hilux. Its registration number was HF 497. You were unable to because as you tried to take past, he blocked you twice. At the peak of the hill, you saw a yellow vehicle travelling toward you. You applied your signal and slowed down. You and that other vehicle did not collide you said. Your vehicles went past each other and did not touch at all.

40.	You continued to follow that other Hilux and you eventually flagged it down. You confronted the driver of that other Hilux about his driving you said. While you were talking to him a bus pulled up and people in that bus then informed you that there had been an accident at the top of the hill. You turned back. You saw a vehicle inside the drain but you saw no one inside the vehicle. You then went to the Police Station to report the matter. You testified that FS 993 had not been damaged at all on that day.

41.	Under cross-examination, you admitted that the hill was a blind spot and you admitted that there were double lines in the middle of the road which you understood to mean that you were forbidden from trying to take past at that spot. You had tried to overtake anyway because you thought that the black Hilux had given you permission to do so. You denied colliding with the yellow oncoming vehicle that day.

Defence Witness 2 – Serupepeli Draunimasi

42.	Mr. Draunimasi is a mechanic by profession. He was a passenger in FS 993 on the afternoon of 13 July 2018. He and his wife and children were in the vehicle with you and you were all travelling from Labasa to Dreketi along the Labasa/Nabouwalu Highway at that time.  He had been seated in the front passenger seat.

43.	You had been following a black Hilux through most of your journey. About 500 meters from where the accident happened, the driver of the other Hilux began toying with you he said. He would signal to you to take past but then the moment you tried to he would speed up, thus preventing you from successfully overtaking. While driving alongside him, he could see the driver of the black Hilux laughing as if this was all a joke to him.

44.	At the peak of the Vucitoka Hill, he saw a light green vehicle travelling toward them. You were on the same lane. However, he did not see what happened because his attention had been focused on the black Hilux. You continued to follow the black Hilux. You and he managed to flag the Hilux down and there he and you confronted him about his erratic driving.

45.	It was not until a bus stopped and the driver, a person he had known for a long time, had told him that an accident had happened that he realized that something had gone wrong. You then returned to the top of the Vucitoka Hill and there you saw the light green vehicle in the drain. He stopped a carrier which was driven by his cousin and it was this carrier that had conveyed Mr. A. Goundar and Mr. M. Goundar to the Seaqaqa Hospital. You and he then proceeded to the Seaqaqa Police Station to report the accident.

46.	He testified that FS 499 had sustained no damages that day.

47.	Under cross-examination, he testified that you had cross a double line in the middle of the road in your bid to overtake the Hilux in front of you. He denied the proposition that FS 499 had hit the light green vehicle travelling toward you that day causing it to fly into that nearby drain.

Analysis
	Identification
48.	You admitted under oath that you were driving FS 499 on the 13th day of July 2018 between the hours of 5.00pm and 5.45pm. You admitted that you were the driver of the white Hilux that Rafaele Dagaga spoke to that afternoon shortly after the accident involving Mr. Goundar’s car had occurred. 

49.	It is clear that you were the driver of the vehicle that Mr. Ankush Goundar and Mr. Manikam Goundar had seen immediately before they went off road. I am satisfied that the yellow vehicle you referenced was the same yellow vehicle registration number FP 756 that Constable Prasad had found in the drain on the evening of 13 July 2019. One man’s yellow is another’s light green; in the same manner that an aqua green might be a little girl’s blue. I am satisfied that it is the same car Mr. Draunimasi spoke of. 

50.	I am satisfied beyond reasonable doubt that you were driving FS 499 on the date and time in question.

Impact

51.	I believe Mr. Ankush Goundar when he says that your white twin cab Hilux hit their vehicle causing it to fly off the road, hit a rock and land inside the drain beside the road.

52.	 He struck me as clear and forthright. His testimony is fortified by evidence given by Constable Prasad who came upon the scene almost immediately after the accident had happened. He found broken glass and yellow flakes that matched the car lying in the drain beside the road. 

53.	I carefully weighed your evidence and Mr. Draunimasi’s testimony. You say that you were trying to overtake Mr. Dagaga as you both climbed up the Vucitoka Hill. You sped up and he sped up. It is clear that he had made you angry and you were intent on overtaking him. I accept Mr. Ankush Goundar’s testimony that you were travelling at a very high speed as you bore down on him that afternoon.

54.	I find as a matter of fact that you would have had no time to signal and safely pull back into your lane in order to avoid hitting FP 756. I do not accept your and Mr. Draunimasi’s account that you had not hit FP 756 on that day. You both say that FS 499 was not damaged in any way shape or form after the accident. I regret to say that I am unable to accept your word on the matter.

55.	It must be made clear, even had I disbelieved Mr. Ankush Goundar this element would still have been made out. It was your actions in driving onto Mr. Goundar’s side of the road in your efforts to overtake HF 497 that ran Mr. Goundar’s car off the road. Even if I accepted that you had not hit his car, but rather accepted that Mr. Goundar had turned, missed your vehicle but had then because of that momentum found the car he was driving bouncing off a wall and landing in a drain, it was your driving that brought that to pass.  In this scenario, it would be your driving that, by your own admission, had caused an impact between his vehicle and an object.

Dangerous Driving

56.	I find that you overtook on a double line while travelling at a high speed as you approached, climbed and crested a blind. There is a reason why the authorities prohibit overtaking on the approach to that hill. It is to prevent precisely this sort of thing from happening.

57.	You were the man behind that wheel. You had 18 years of driving experience under your belt. You knew what you were doing was prohibited by law. Not only that, I have every confidence after learning of your driving record that you knew what you were doing was unsafe.
58.	Whatever Rafaele Dagaga’s conduct on that day, you were the man behind the wheel of your own vehicle. Not him. Your actions were objectively very dangerous. Any vehicle travelling in the opposite direction to Labasa at that time would have met the same fate that Messrs. Goundar and Goundar had, or worse. 

59.	This element is met beyond reasonable doubt. 

Occasioning Grievous Bodily Harm

60.	Dr. Ashnil Prasad testified that Mr. Manikam Goundar presented with a deformity to the clavicle bone and limited movement to the shoulder. The deformity was suggestive of a fracture.

61.	Mr. Manikam Goundar testified that he had a lot of injuries to the head. He broke his left clavicle. He lost some vision to his right eye he said as a result of the accident. He had to be hospitalized for 5 days. I accept Mr. Goundar’s testimony as it related to his injuries. This was not a point of contention at trial.

62.	A broken left clavicle and a partial loss of vision to the right eye are objectively serious physical injuries. 

63.	This element is met beyond reasonable doubt.

Two Discrete Issues
64.	I placed no weight on the Medical Report tendered by the Prosecution as Prosecution Exhibit 1: see Lata v. The State [2000] FJHC 108; HAA0078j.2000s (16 October 2000) per Shameem J.

65.	Moreover, I placed no weight on Mr. Manikam Goundar’s testimony of events after he saw the white Twin Cab Hilux bearing down on them: see Ram v. The State [2012] 2 FLR 34 at 49, 50 at [59] – [62] per Marsoof J.

Result
66.	In the result, and for the reasons set out in this judgment, I find that the State has proven each element of the offence charged beyond reasonable doubt.

67.	I find you, INOKE TUILOALOA, guilty as charged and I convict you accordingly.

68.	I will now hear plea in mitigation from your counsel.

......................................
Seini K Puamau
Resident Magistrate

Dated at Labasa this 24th day of May 2019.