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State v Chand [2006] FJMC 28; Criminal Case No 910 of 2001 (18 October 2006)

IN THE RESIDENT MAGISTRATE’S COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CRIMINAL CASE NO. 910 OF 2001

STATE

V

DEO CHAND s/o Paras Ram

For the Prosecution: Inspector R Reddy
Counsel for the Accused: Mr S K Ram & Mr P. Dalituicama

Date of Hearing: 17 and 18 October 2006
Date of Ruling: 18 October 2006

RULING

The accused is charged with the offence of causing death by dangerous driving, contrary to section 97(2) (c) and section 114 of the Land Transport Act. The particulars of the charge reads as follows:

PARTICULARS OF OFFENCE

Deo Chand s/o Paras Ram on the 31st day of March, 2001 at Lautoka in the Western Division, being the driver of a commercial vehicle on Kings Road Lovu, drove the said vehicle in a manner which was dangerous to the public having regards to all the circumstances of the case and caused the death of Pushpa Viwa Karan s/o Shiu Narayan.

Upon completion of the prosecution case counsel for the defence has made a submission of ‘no case to answer’. I refer to the case of R v. Satya Deo Criminal Case No. 36/83 unreported decision of Rooney J. where at page 1 it was stated as follows:

"In Chandar Pal v Ragina 20 FLR 1 at 2 Grant AC J said "where death has resulted from a traffic accident it is necessary for the prosecution, on a charge of causing death by dangerous driving, to show that the accused’s dangerous driving was a real cause of the accident and something more than de minimis (R v Hennigan 1971 3 ALL England 134) and to establish the accused’s dangerous driving it is necessary for the prosecution to show that there was some fault on his part causing a situation which viewed objectively was dangerous (R v Gosmey 1971 3 ALL England 220)".

On 31/3/01 the accused was a driver of a Toyota Hilux 4 Wheel Drive (single cab). At around 6.30 – 6.45pm he was driving on Kings Road towards Ba. He had 2 passengers with him namely Sanil Chand and Sunil Kumar who were seated next to him. It was raining and it was already dark and the accused had his head lights on.

At Lovu at the junction of Vatimai Road the accused felt that his motor vehicle hit something and he therefore stopped his motor vehicle to carry out an inspection. He found that Pushpa Viwa Karan (victim) was lying on the ground and he had received injuries. He also noticed that the side mirror of his vehicle as well as the quarter glass had come off as a result of the collision.

The victim was conveyed to Lautoka Hospital in a motor vehicle driven by Apimeleki Naisalatuka (PW1) who was behind the accused’s motor vehicle. The accused lodged a report at Vitogo Police Post and Corporal Abbas and Corporal Philips visited the scene of the accident and met the accused and his 2 passengers.

Corporal Abbas retrieved the side mirror and the quarter glass and a pair of canvas belonging to the victim. He drew a rough sketch plan. He established the point of impact by finding of glass pieces and with the assistance of the accused and his 2 passengers. The point of impact is 0.5 metres on the tarseal portion of the road.

Corporal Abbas said that the hard shoulder had been recently graded and because of the rain it had become very muddy.

The accused was interviewed by Corporal Philips on 31/3/01. No allegation was made against him that he either drove his motor vehicle in a dangerous or careless manner. It was only suggested to him that he had an accident with the victim who was walking on the road. The accused said that he did not see this victim. His 2 passengers also said that they did not see the victim.

The victim was admitted to Lautoka Hospital and on 3/4/01 he was transferred to CWM Hospital in an ambulance where some surgery was performed on him and he was transferred back to Lautoka Hospital on 26/4/01 again in an ambulance where he received further treatment. Unfortunately on 2/5/01 the victim died.

On 24/12/01 the accused was further interviewed by Corporal Philips. An allegation was made that he drove his motor vehicle in a dangerous manner and thus caused the death of the victim.

The prosecution called 1 witness who had allegedly witnessed the accident namely Apimeleki (PW1). He said that he was following the accused’s motor vehicle and at Vatimai junction a motor vehicle in front of the accused gave right hand indicator to turn right into Vatimai road and had to stop because of oncoming traffic and the accused overtook this vehicle from the left and hit the victim who was standing some 2 metres on the hard shoulder. Apimeleki’s two passengers a couple told the police that they did not see the accused.

If Apimeleki’s version is correct then the accused would be deemed to be at some fault. However Apimeleki’s version is in conflict with the evidence of Corporal Abbas. He established a point of impact to be some 0.5 metres on the tarseal portion of the road. If that is correct then the accused could not have gone off the road. The rough sketch plan contains all the minute details about the point of impact, pieces of glass, finding of a pair of canvas, puddles of water but contains no tyre marks on the hard shoulder. Corporal Abbas claimed that the hard shoulder was very muddy and if the accused had gone on to the hard shoulder then tyre marks would have been visible. This would mean that the version given by PW1 was indeed very exaggerated and cannot be relied upon so that leaves me with the only evidence that the accident took place some 0.5 metres on the accused’s side of the road.

The accused as well his 2 occupants and the occupants of PW1’s motor vehicle did not see the victim. The accused was driving at 60kmph. No evidence has been placed before me which would suggest that the accused was at fault. In the circumstances I uphold the submission of no case to answer and acquit the accused.

I refer to page 3 of Satya Deo’s decision where it was stated as follows:

"In Crim LR (1961) 579 reference is made to the remarks made by Mr Justice Stevenson as follows:

"there is a tendency to launch these prosecutions merely because a death occurs as a result of an accident without the authorities applying themselves as to whether the death was caused by dangerous driving....... I do think it is terribly important that these cases should be more carefully scrutinized before they are started and that people should not take the view that merely because there is a death there should be a prosecution."

Mohammed Shafiullah Khan
Resident Magistrate