Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Kumar [2002] FJHC 119; HAA0008X.2002S (24 May 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0008 OF 2002
(Suva MC Traffic Case No. 11581 of 2001)

Between:

STATE
Appellant

And:

DALIP KUMAR
Respondent

Hearing: 22^nd May 2002

Judgment: 24^th May 2002

Counsel: Mr W. Kuruisaqila for Appellant
Mr M. Raza for Respondent

JUDGMENT

This is an appeal by the State against the acquittal of the Respondent on the following charge:

Statement of Offence

DANGEROUS DRIVING: Contrary to Section 98 and 114 of the Land Transport Act No. 35 of 1998.

Particulars of Offence

DALIP KUMAR SINGH s/o HAZARA SINGH, on the 3^rd day of February, 2001 at Nasinu in the Central Division, drove a bus on Kings Road 8 miles in a manner which was dangerous to the public having regards to all the circumstances of the case.

On the Respondent=s plea of not guilty, the trial proceeded on 16^th January 2002. The prosecution called four witnesses. PW1 was Bashir Khan, who said that he was driving his van from Vuci to Suva, when at 8 miles he saw a bus overtaking two cars and two islands coming from Suva. He tried to swerve but there was traffic on the left lane. He tried to turn between two islands in the middle of the road but there was a collision with the bus, causing damage to Mr Khan=s van on the passenger side. He received injury to his left leg and he was in hospital for 10 to 11 days. He said he had been travelling at 60kmph uphill.

Under cross-examination, he agreed that it had been raining heavily that night, that he was driving in the right Afast@ lane, and that his statement to the police did not mention traffic in the left lane or of the bus overtaking two islands.

PW2 was Nakita Khan, Mr Khan=s wife. She was in his van when the accident occurred. She said she saw the Dee Cees bus overtaking two vehicles coming onto the island. She said that her husband tried to go into the islands but the bus came straight at them and collided with the passenger side of the van. She also received injuries to her leg and head.

Under cross-examination she said she had discussed the case with her husband, and did not notice the speed at which he was driving. PW3 was Police Constable Wate of Nasinu Police Station who attended the scene of the accident. Neither driver was at the scene. He drew the sketch plans which show the position of the two vehicles after the accident. Both vehicles are shown as parked near the bus bay at angles to each other. The van was severely damaged. The bus was not damaged. He identified the Respondent as the driver of the bus, whom he had later caused to be interviewed by Police Constable Chetty.

Under cross-examination, he agreed that he did not know the length and width of the islands, or the point of impact, or any broken glass on the road. He said that a traffic sign post on the island had been damaged in the accident.

Police Constable Chetty tendered the Respondent=s caution interview. In that interview the Respondent said:

AWhilst going just 8 miles on Kings Road, one red private car was in front. Reaching at the junction of Kalokalo Crescent on Kings Road the front red car applied sudden brake as there was pool of water on the road. I also applied the brake but the bus pulled towards the right and climbed on the island. One van was coming from Nausori. I tried to save the head-on collision so I turned to my left and the van also came towards me as a result we bumped each other.@

The Respondent gave sworn evidence after the close of the prosecution case. His evidence was along the lines of his statement under caution. He denied driving at high speed.

The learned Magistrate after summarising the evidence led, said at p.29:

AI listened very carefully to all Prosecution witnesses and to the accused who gave evidence on oath. There are doubts in my mind as to who is at fault. The complainant=s vehicle was damaged on the left passenger side. The two vehicles ended up at the bus bay on the lane leading for Nausori. Was the complainant in his effort to avoid an accident, instead himself steered into the wrong lane? Doubts raised must go to the favour of the accused. I find the prosecution has not proved their case beyond reasonable doubt and I acquit the accused under section 215 of Criminal Procedure Code.@

The State appeals against this acquittal saying that:

(a) the weight of evidence was in favour of conviction;

(b) the conclusions arrived at based on her analysis of the evidence before the court was clearly and plainly wrong.@

I deal with these grounds in turn.

The weight of the evidence

Although there was no point of impact marked on the plan, or pointed out by either driver, there is really no dispute that the collision took place where neither vehicle was supposed to be. The impact was either between the islands, or on island J where there was also a damaged traffic light post. The complainant agreed that he swerved off his lane to his right to avoid an accident when he saw the bus drive onto the island, and the Respondent agreed that he swerved onto the island to avoid colliding with the red car in front of him. The driver of the red car was never traced or interviewed. Given the lack of dispute as to these facts, the real question for the learned Magistrate was whether, in swerving onto the island, the Respondent had driven in a way which was below the standard expected of a prudent driver. She did not ask this question.

However, if she had, it is unlikely that the result would have been any different from the result at the trial. Assuming that the red car did exist, could the Respondent have stopped in time to avoid a collision? Could a driver driving a bus at 40 kmph (as he told the police) have stopped in time to avoid a collision with a car which had braked suddenly? Was there any other option open to him other than going on the island?

On the evidence, it does not appear that the prosecution was able to prove lack of prudence, in these circumstances, beyond reasonable doubt. It was not alleged by the prosecution that the red car never existed. The Respondent denied that he was driving at a high speed. He was not asked if the accident had happened because he was overtaking another vehicle in addition to the islands. The complainant said this in his evidence, but said something different in his police statement.

Where then, was the element of fault? The prosecution might have been able to prove that the Respondent was driving dangerously close to the red car, but no evidence was led about the exact position of the red car and the Respondent was never cross-examined about this possible element of fault. As to the complainant=s evidence, the learned Magistrate had doubts about it, as she was entitled to have had, having heard the evidence herself.

In the circumstances, on the evidence on the court record, I do not consider the acquittal to be Aagainst the weight of evidence.@ This ground is dismissed.

Analysis

Both counsel at the hearing of this appeal agreed that the judgment of the learned Magistrate lacked analysis. As I have already said, in respect of Ground (a), she also erred in failing to consider whether the Respondent had been at fault in respect of the manner of his driving.

However, she had doubts as to the cause of the accident, and, on the evidence it is not surprising that she did. With no evidence from the driver of the red car, a caution statement entirely consistent with the Respondent=s sworn evidence, and an unhelpful sketch plan, her conclusion was logical and clearly indicated by the evidence. There was no conclusive evidence that the Respondent was at fault, and thereby caused the accident. As such, this ground also fails.

Conclusion

The decision of the learned Magistrate was justified by the nature of the evidence. This appeal is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
24^th May 2002