State v Prakash [2020] FJMC 133; Traffic Case 4056 of 2017 (27 November 2020)

IN THE RESIDENT MAGISTRATE’S COURT
AT NADI
CRIMINAL JURISDICTION

Traffic Case No: 4056 of 2017

BETWEEN : THE STATE

AND

KAVITESH JESHNEEL PRAKASH

Before : NILMINI FERDINANDEZ
RESIDENT MAGISTRATE

Date of Sentence : 27^th November 2020

Sergeant Vurukania for Prosecution
Ms. Chand for Accused

RULING ON NO CASE TO ANSWER

1. The Accused in this case Kavitesh Jeshneel Prakash is charged for the offence of Dangerous Driving Occasioning Death contrary to Section 97(2)(c), (5)(e),(8) and 114 of Land Transport Act No. 35 of 1998.
   
2. Particulars of the offences:

Kavitesh Jeshneel Prakash on the 13^th day of August, 2017 at Nadi in the Western Division drove a motor vehicle registration DX 474 on Sonaisali Road, Nadi in a manner which was dangerous to another person involved in an impact with a pedestrian namely Atunaisa Nawai Kovoronacakau that caused the death of the Atunaisa Nawai Kovoronacakau.

3. Accused pleaded not guilty for the charge on the 10^th October 2017 and the matter has been fixed for trial. The hearing has commenced before me on the 18^th May 2020 and prosecution concluded their case on the 31^st July 2020 after calling 6 witnesses to give evidence and tendering exhibits marked as Pr. Ex 1 to Pr. Ex 5. Thereafter, the Defence Counsel has tendered to court written submissions in support of an application for No case to answer. State has not opted to respond to the said application.
   
4. I have considered the submissions filed by the defence, wherein the counsel has, inter alia, pointed out that the evidence at the hearing are not directing the mind of court to the law and they do not convict the accused due to the following reasons;
   1. PW1 Williame has agreed that it was a very dark night and there were no streetlights. He has not testified anything on how the accused was negligent in falling below the standard of care required of him;
   2. PW2 Rusiate too has not seen anything at the time of the accident although he has advised the deceased to go home;
   100. Dr. Avikali Mate who conducted the Postmortem Examination has testified that the deceased has been heavily intoxicated and that since no Rigor Mortis test has been conducted the exact time of death could not be ascertained;
   4. PW Achuda Nand Reddy is the main culprit and that he is the first driver that had hit the deceased and in a state of shock he had waited for another vehicle to go over the deceased; and
   5. PW5 PC Koresi who has drawn the sketch plan has come to know from another witness that the accused was the driver of the vehicle and he has confirmed that there were no street lights, no road signs with speed limits at the time and place of the accident.

The defence has further stated that, whilst they do not deny the accused running over the deceased, the accused had not seen the victim until the vehicle ran over him.

The learned counsel has also referred to some relevant case laws.

The Law relating to ‘No Case to Answer’

5. Section 178 of the Criminal Procedure Decree states as follows;

"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 acquit the accused."

6. Justice Nazhat Shameem in Abdul Gani Sahib V. The state 2005] FJHC 95; HAA0022J.2005S (28 April 2005) discussing the tests that are applicable in considering whether there is no case to answer stated,

The test at no case stage in the Magistrates’ Courts, is different from the test at no case stage in the High Court. The test in R v. Galbraith (1971) 73 Cr. App. R. 124 is two-pronged, first whether there is no evidence that the accused committed the offence, and second if there is evidence, whether it is so discredited that no reasonable tribunal could convict on it.

7. In the case of State v Mahend Prasad HAA 019 of 2008, at paragraph 17, court commented that when dealing with the issue of No Case to Answer, the test to be applied in the Magistrates Court, was explained in Abdul Ghani Sahib v The State [2005] FJHC 95; HAA 0022 of 2005; 28 April 2005, as:

“In the Magistrates Court, both tests apply. So the Magistrate must ask himself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and second whether the prosecution evidence, taken at it‟s highest, a reasonable tribunal could convict. In considering the prosecution case, taken at its highest, there can be no doubt at all that where the evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a submission on no case. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case.‟

8. Accordingly, the court has to consider;
   1. Firstly whether there is no relevant and admissible evidence implicating the accused in respect of each element of the offence; and,
   2. Secondly, whether on the prosecution case, taken at its highest, a reasonable tribunal could not convict.
      
9. It should be noted that at this stage the Court is not expected to do a detailed analysis of evidence. All what the Court should consider is whether the evidence in its totality would touch all the ingredients of the offence and whether the Prosecution has produced reliable evidence.
   

The Law relating to the offence’ Dangerous Driving Occasioning Death’

10. The accused in this case is charged for Dangerous Driving Occasioning Death contrary to Section 97(2)(c), (5)(e),(8) and 114 of Land Transport Act No. 35 of 1998.
    
11. Dangerous Driving is defined by Section 98(1) of the Land Transport Act as driving "on a public street recklessly, or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the public street and the amount of traffic which is actually at the time or which might reasonably be expected to be on the public street".
    
12. In the case of Lasike v State, Fiji Court of Appeal Criminal Appeal No HAA 58 of 2002 (13th September, 2002) the Court of Appeal defined dangerous driving as follows:

“Dangerous driving is the causing of a dangerous situation by a manner of driving which falls below the standard expected of a prudent driver."

13. The standard for dangerous driving was also addressed in the case of Kumar v State, High Court of Fiji Criminal Appeal No HAA 14 of 2001 (12 April 2002), which involved a charge of dangerous driving causing death. The High Court addressed the difference between careless driving and dangerous driving , stating as follows:

"The next ground of appeal is that there was no evidence of dangerous driving . In court, counsel submitted, that even on Mr Buksh’s version of the facts, the Appellant’s driving was only careless.

The evidence which the learned Magistrate accepted was that the Appellant was negotiating a bend at a high speed on the wrong side of the highway. He was driving a cargo truck and in going to the wrong side of the road created a dangerous situation. In R -v- Gosney (1974) 3 ALL ER 220, it was held that a charge of dangerous driving is proved when the driver drives in a way which falls below the standard of a competent and prudent driver, and thereby causes a situation, which viewed objectively, is dangerous.

The test for a charge of Dangerous Driving is an objective one, as is the test for Careless Driving. The difference between the Careless Driving and Dangerous Driving is not the manner of driving, (which has the same test) but the situation that has been caused thereby. In other words, a person who drives carelessly, also drives dangerously, if viewed objectively, his/her manner of driving creates a dangerous situation. Thus a person who drives carelessly, drives dangerously if he/she thereby causes a death. Therefore, counsel’s submission that the Appellant (on the version of the facts given by PW1) was only driving carelessly, has no validity."

14. Section 97(2) under which the accused in this case was charged reads as follows:

"(2) A person commits the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle –

(a) under the influence of intoxicating liquor or of a drug;

(b) at a speed dangerous to another person or persons; or

(c) in a manner dangerous to another person or persons."

15. Section 97(5) of the LTA, provides that:

“For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following -

(a) the vehicle overturning or leaving a public street while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise);

(b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise);

(c) an impact between the person and the vehicle;

(d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact;

(e) an impact with anything on, or attached to, the vehicle;

(f) an impact with anything that is in motion through falling from the vehicle.

12. Her Ladyship Justice Nazhat Shameem has discussed in Rao v State [2007] FJHC 81; HAA102J.07S (6 December 2007) the elements of charge that are to be proved in this offence as followed;

"The elements of the offence under section 97(1) are not described with clarity in the legislation. There is a blurring of the boundaries between section 97(1) and (2) which does not assist either the accused or those expected to enforce the law. The elements are:

1. The Accused drove a vehicle;

2. He occasioned death;

3. In an impact;

4. At the time of the impact the accused was either drunk or speeding or driving in a manner dangerous to other road users.

5. In circumstances of aggravation which mean either –

(a) he had excessive blood alcohol; or

(b) he was driving at more than 45 kmph in excess of the prescribed speed limit; or

(c) he was escaping official pursuit."

16. Accordingly, in this case to prove charge against this accused, the prosecution must prove the following elements beyond reasonable doubt;
    1. The Accused, Kavitesh Jeshneel Prakash drove the motor vehicle registration DX 474 on the 13^th day of August, 2017;
    2. He occasioned death of a pedestrian namely Atunaisa Nawai Kovoronacakau;
    3. In an impact;
    4. At the time of the impact the accused was either drunk or speeding or driving in a manner dangerous to other road users.

Analysis of the evidence of the Prosecution

17. It is important to note that there is no dispute between the parties about the date or the place of the accident or about the facts that the accused drove the vehicle bearing registration number DX 474 on the 13^th day of August, 2017 and that there was an accident in which the said vehicle went over the deceased Atunaisa Nawai Kovoronacakau.
18. The key question is whether the accused drove the vehicle in a dangerous manner having regard to the Lasike v State (supra) and Kumar v State (supra) above.
    

19.1 PW1 Villiame Matarugu in giving evidence explained to court how he saw ‘Atu’(the deceased) who is his neighbour for 10 years, lying down on the road twice. On the first occasion the witness has been returning home in his vehicle when he saw ‘Atu’ lying on the Soneisali road, in front of a motionless vehicle. Then he has gotten off his vehicle, gone to ‘Atu’ and woke him up and told him to go home. ‘Atu’ has apologized to the witness and his wife before he started to walk towards his house. At that point, the witness has smelt liquor on ‘Atu’.
19.2 This witness after reaching his house has again looked towards where ‘Atu’ has been, to see whether he has safely reached his home. However, what he has seen was that ‘Atu’ was lying down again on the same road right in front of his drive way. At that time the distance between the witness and the place where the deceased was has been about 100 meters.
19.3 According to this witness at that time it has been very dark and there have been no streetlights. There has been a slight slope downwards from the place where ‘Atu’ was lying towards where the witness was standing. (From Nadi side to Soneisali side) While the witness was standing, a vehicle has moved past the witness towards Nadi and by its head lights the witness has seen ‘Atu’ lying down on the right side of the road. The vehicle which went up has not stopped near where ‘Atu’ was lying down and has gone past him when another vehicle has come down the slope running over ‘Atu’ who has been lying on the road.
19.4 When the witness saw what has happened he has immediately drove to where the accident happened and has spoken with the accused, who he has known for years. The accused has looked shocked that he has run over ‘Atu’.

20.1 PW 2 Rusiate Boseiwaga is also a neighbour of the deceased ‘Atu’. He too has seen ‘Atu’ lying down on the road right in front of his home. When he saw ‘Atu’ he has told him to go home. At that time ‘Atu’ has looked tired and heavily drunk.
20.2 On his way down the road towards Soneisali, after telling ‘Atu’ to go home, this witness has also seen PW1 standing near the road to see if ‘Atu’ has really gone home.

21.1 PW3 Achuda Nand Reddy is the driver who PW1 saw going up the road towards Nadi, just before the deceased was run over. He has been driving from Soneisali side towards Nadi. It has been dark at that time and the only source of light on the road has been the headlights of his vehicle. Through the light of his car, he has seen a man lying on the road and when he has come closer, he has noticed that the man lying on the road was moving his hands and has looked drunk.
21.2 Although he has stopped near the man, when he saw the lights of a vehicle that was moving down from the opposite direction towards the man, he has moved a bit further up and has tried to signal the oncoming vehicle by giving the ‘Head Dim” signal.
21.3 The vehicle seeing his signal has slowed down a bit, but not seeing the person lying down on the road it has run over him. After running over him the vehicle has stopped about 20m away. When the witness saw that the car did not stop but went past him slowly, the witness has turned around and seen how it ran over the deceased.

22. According to all these witnesses, it is very clear that the road has been very dark and the only source of light on the road has been the head lights of the vehicles traveling on the road.
23. Many witnesses upon seeing the deceased victim lying down on the road have removed him from the road many times prior to the accident, but he seem to have kept returning to the road despite such removals, due to some unknown reasons. It is not clear whether he had a motive to commit suicide or he was simply drunk.
24. Two witnesses namely PW1 and PW3 have witnessed how the car driven by the accused ran over the deceased. Most importantly, PW3 who has given the ‘Head Dim’ signal to the accused has noted that the accused has, in fact, slowed down upon seeing his signal. However, unfortunately he has run over the victim without seeing him lying on the road.
25. It is prudent to note at this point that there are many reasons for a driver to give another the ‘Head-Dim’ signal on the road. When such signal is seen, most of the time the driver of the other vehicle tend to look at the signaler to understand what is meant by the signal, and it might, at least momentarily, take the eyes of the driver off the road. On the other hand, a strong flash of headlights on the eyes of the oncoming driver on a dark road tend to make things that are lying on the road, go unclear and invisible. Especially, at a time and a place that a prudent driver would not foresee a man to be lying down, the accused in this case too would not expect the victim to be lying down there in the middle of a road.
26. On the other hand, the fact that the accused has slowed down seeing the signal by PW3, proves that he has been cautious and has taken due care whilst driving.
27. Further, there was no other evidence showing that the accused was either drunk or speeding or driving in any manner dangerous to other road users at the time of the impact.
28. Since it is very clear that the accused has exercised at the time of the accident a degree of care and attention that a reasonable and prudent driver would exercise in the circumstances and that he has not created any dangerous situation when he was driving his vehicle down the Soneisali road, this court finds that the prosecution has not managed to prove the elements of the charge against the accused, which is Dangerous driving causing death.
29. Since it is clear that a case is not made out against the accused person sufficiently to require him to make a defence, the charge is dismissed and the accused is acquitted as per Section 178 of the Criminal Procedure Act.
    

DATED at Nadi on 27^th November 2020.

.........................................
Nilmini Ferdinandez
RESIDENT MAGISTRATE