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State v Gounder [2006] FJMC 2; Criminal Case No 711 of 2002 (25 January 2006)

IN THE FIRST CLASS MAGISTRATES’ COURT
AT LAUTOKA IN THE WESTERN DIVISION

CRIMINAL CASE NO. 711 OF 2002

STATE

V

MUNENDRA GOUNDER

For the Prosecution: Inspector Shaukat Ali
For the Accused: Mr V. M. Mishra

Dates of Hearing: 15/09/05, 16/09/05; 17/01/06
Date of Judgment: 25/01/06

JUDGMENT

The accused is charged with the offence of causing death by dangerous driving. The charge reads as follows:

Statement of Offence

Causing Death By Dangerous Driving contrary to Section 97 (2) (c) (8) and 114 of Land Transport Act, 1998

Particulars of Offence

Munendra Goundar s/o Mun Sami Goundar on the 02nd day of July, 2002 at Lautoka in the Western Division drove a motor vehicle on Field 40 road in a manner which was dangerous to the public having regards to all circumstances of the case and caused the death of Sivani Chandra.

The burden of proof is on the prosecution which is beyond all reasonable doubt. It is not in dispute that there was an accident between a Pacific Transport bus registration no. CK 220 which was driven by the accused and a private car (Toyota Cressida) driven by Ashok Sahai (PW1) on Field 40 Road (road), Lautoka on 02/07/02 at 3.30 p.m. At the time of the accident it was drizzling.

Except for the accused there were no passengers in the bus and PW1 had 3 passengers namely his wife Prem Sheela Sahai who was seated in the front passenger seat and his sister-in-law Kusum Chandra (PW3) who was seated behind him and his niece Sivani Chandra (PW3’s daughter) who was seated behind his wife. It is also not in dispute that all the occupants of Toyota Cressida received injuries and were subsequently taken to the Lautoka Hospital and on 03/07/02 Sivani Chandra died as a result of injuries she received in the accident.

As I said earlier the burden of proof is on the prosecution which is beyond all reasonable doubt. In R-v-Gosney (1971) 3 All ER 220 it was stated as follows:

"In order to justify a conviction 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’ certainly does not necessarily involved deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involved moral blame. Thus there is fault if an inexperienced or 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 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 be slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient. It is enough if it is, looked at sensibly, a cause. Such a fault will often be sufficiently proved as an inference from the very facts of the situation. But if the driver seeks to avoid that inference by proving some special fact relevant to the question of fault in this sense he may not be precluded from seeking so to do."

The accident was indeed a violent one. This is the account given by the accused. It was not an accident where both vehicles just came in contact with each other but the impact was so severe and the two vehicles got entangled with the other. I think the severity of the impact is borne by the fact that immediately after the accident a Fiji Electricity Authority vehicle drove past and it was used to pull apart the two motor vehicles but it was unable to do so. Later on aWaste Management truck attempted to pull the vehicles apart but the bus moved as well and so the accused had to apply the brakes before the car and the bus could be separated.

After the vehicles were separated the occupants of the car were taken to Lautoka Hospital and the accused remained at the scene of the accident.

Sgt. 968 Satya Nadan (PW2) arrived at the scene of the accident at around 4.10 p.m. Even his first reaction was that it was "a severe accident". He noted that both vehicles were on the left hand side of the road facing Queens Road (that is on the accused’s side of the road). He also established that the accident took place on a bend on Field 40 Road. He spoke to the accused and asked him as to how the accident happened and the accused pointed out the point of impact on his side of the road and he took measurements and drew a rough sketch plan. He marked the point of impact as shown by the accused.

The accused was caution interviewed on 02/07/02 in a question and answer form. The allegation at the time was that he drove his bus in a dangerous manner and thus had a collision with PW1’s car.

On 08/07/02 PW1 was also caution interviewed. It was put to him that he drove his car in a dangerous manner and caused the death of Sivani Chandra (his niece).

I cannot understand as to why both drivers were caution interviewed when the police were still trying to ascertain as to how the accident took place. In my view conducting a caution interview first without first ascertaining how the accident took place is not a correct approach and this may not assist the police in obtaining crucial information. In this regard Judges’ Rules 1 would be applicable which reads as follows:

"When a police officer is trying to discover whether, or by whom, an offence has been committed he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it."

As soon as the caution is put to the person who is interviewed then he is not obliged to give answers and he may give answers which will protect his interest and that of course is his right. In this situation Judges’ Rules 2 applies which reads as follows:

"As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any question, or further questions, relating to that offence.

"The caution shall be in the following terms:

‘You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.’

"When after being cautioned a person is being questioned, or elects to make a statement, a record shall be kept of the time and place at which any such questioning or statement began an ended and of the persons present."

During the course of the caution interview PW1 showed the point of impact to Sgt. Satya and that is PW1’s side of the road and about 1.3m from the edge of the road.

The version given by the accused is that PW1 just veered off into his path and he had no time to avoid the collision and an accident took place. If of course the accused is to be believed than that is the end of this case.

On the other hand the version given by PW1 is that the accused had lost control of the bus and it was coming on his side (that is the wrong side). He said as follows in the examination of chief:

"The bus was coming on the wrong side so I swerved to the left and I could not do so because of the pavement and all of a sudden we had a collision and my car was thrown to the right."

In cross-examination he said he went to the extreme left and bumped the pavement. PW1’s version of the bus coming on the wrong side is supported by Kusum Chandra. She said that "the bus was coming straight on our motor vehicle," and later she said that, "the bus was on our side of the road", but she was unable to say as to how the accident took place.

PW1 was quite adamant that his car did not go on the wrong side of the road and his point of impact is 1.3m from the edge of the road which is about the width of the car. If PW1’s version is correct then the bus would have mounted the pavement and would have gone off the road for it to collide with the left hand side of the car. There is no evidence that any vehicles mounted the pavement so PW1’s point of impact cannot be correct.

In cross-examination it was not suggested to both PW1 and PW3 that the bus did not go on the wrong side of the road. PW3 said that apart from the bus coming on top of us she did not see how the accident happened and it was suggested to PW1 that he went on the wrong side of the road and collided with the bus. PW1 denied going on the wrong side of the road.

If both the drivers had remained on their side of the road then the accident would not have taken place and more importantly the damages could not have been sustained on their respective left hand sides.

There were at least 3 eye witnesses to the accident. Shanaz Shabnam Begum’s (PW 5) home is on Field 40 road. I cannot place much reliance on her evidence as she did not see the accident. She said she first heard a sound and then looked up.

Vijay Chandra (PW6) said that he was following the bus and it overtook him just prior to the collision and that the bus hit the left side kerb and collided with the car which he said was on the left hand side. He marked the point of impact in red which is more towards the centre of the road but still on the left hand side of the road and PW2 did not find any particles or debris on the left hand side of the road. He was quite adamant that the car never left his side of the road. He said that he did not see the car hit the left pavement. If he did not see the car hit the left pavement then may be he did not witness the entire accident.

Jerry Hempson (PW7) said that the bus moved around the corner and went to the right hand side and collided with the car. His version is in conflict with PW6. He said that the bus never overtook PW6’s van but he and PW6 agree on one aspect that the bus went over the kerb and the grass verge on the right hand side. I did not find (PW7) to be a very helpful witness.

Nilesh Karan (PW4) was right at the scene of the accident. He witnessed the entire accident. He was walking home with his friend and his attention was drawn by the noise of a bus. He said that the bus went past him and it was over speeding and it was out of control and it came on the right hand side and the car was coming up the hill and they came face to face and to avoid the collision the car went on the right hand side of the road and the bus went to the left hand side of the road and a collision took place and the car was dragged down the hill. In his cross-examination he readily admitted that he had not mentioned in examination in chief that the car hit the left hand side kerb. He gave evidence in a very confident and forthright manner and he maintained that the bus came on his right hand side. The rough sketch plan also has the tyre marks on the left hand side pavement. I accept his evidence as this is consistent with the damages sustained to the car and the bus. I accept the accident took place on the left hand side of the road (that is on the accused’s side of the road) and it was the accused who created the dangerous situation by coming into the path of PW1 and PW1 only took evasive actions to avoid the collision but of course he did not say so in his caution interview or in his evidence.

The accused was not a credible witness. He put his credibility in issue when he started to challenge the rough sketch plan. He showed the point of impact to Sgt. Satya after the accident and signed the same on 02/07/02. His counsel did not challenge the accuracy or positioning of the point of impact but when he gave evidence he said the point of impact was not where Sgt. Satya marked but it was further down closer to the bus bay. This was not put to Sgt. Satya. He said that he only signed the rough sketch plan and agreed to the position of the point of impact as he was told that it was not his fault and also that he was scared. Again this was not put to Sgt. Satya in cross-examination. The accused did not have to agree to the positioning of the point of impact but once he agreed to that then he is bound by it unless he is successful in challenging the same. For these reasons I am unable to accept the accused as credible witness and I reject his evidence and accept the evidence of Nilesh Karan (PW4) as to how the accident occurred. I find that the accused was totally at fault and that he caused the dangerous situation and I therefore find the accused guilty of the charge and convict him of the charge.

MOHAMMED SHAFIULLAH KHAN
RESIDENT MAGISTRATE