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State v Rao [2010] FJMC 192; CRC6354.2008 (21 January 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 6354/08

BETWEEN

THE STATE

AND

LALENDRA PRAKASH RAO

JUDGEMENT

1. The accused in this case is charged with one count of careless driving.
   
2. The statement of offence and the particulars of offence are as follows;
   

Statement of Offence

Careless driving contrary to Section 99 and 114 of the Land Transport Act 1998.

Particulars of offence

Lalendra Prakash Rao on the 01/10/08 at Lautoka in the Western Division drove a motor vehicle on Queen's Road Saweni without due care and attention.

3. The accused is a bus driver. The alleged offence is committed on the 01st October 2008. He was charged on the 13th January 2009. The trial started on the 29th May 2010 and was concluded on the 27th September 2010. The accused was unrepresented and the prosecution was conducted by DPP officers. Initially the prosecution called the complainant and closed the case informing that the investigating officer is out of the country. Subsequently the court held that there is a case for the accused to reply. The accused gave evidence and no other witnesses were called for the defence. Later it was transpired that the Investigating officer is in the country. Since it appeared that the investigating officer's evidence is crucial to the case, the court allowed the prosecution to call the investigating officer after the defence case was closed,.
   
4. The complainant gave evidence that on the 01st October 2008 between 8am to 8.30 am, when he was driving his vehicle registration number DP 996 towards Lautoka, a bus pulled out on to his path. The complainant said he applied brakes and he swerved to the right to avoid collision. However he said that the right side of his vehicle collided with right rear of the bus.
   
5. The complainant said there was considerable damage to his vehicle. Further he said he travelled at a speed less than 50 kmph and the road was wet. The complainant said that the bus driver told him that he was in a rush to go to the Magistrate's Court for a case against him for careless driving.
   
6. The accused asked only two questions and the cross examination of the complainant by the accused was as follows;
   

Q: That place is a 60 Km zone?

A: Yes

Q: The bus was parked at the bus bay?

A: I accept that.

7. After the evidence of the Complainant, the prosecution closed its case without adducing any other evidence. The Court held that the prosecution has made out a case for the accused to reply. The accused gave evidence that when he pulled out from the bus bay the complainant came and hit him from the back. Following is the evidence given by the accused;
   

"I pulled out the bus from the bus bay. Haroon Shah hit me from the back and Police charged me. Before taking the bus from the bay I gave the trafficator three flicks. Then I pulled out. I took the photos of the accident happened. According to the LTA Fiji Road Code book preference has to be given to a bus when it pulls out from a bus bay. The impact was on the right back side of the bus and left front side of Mr Shah's vehicle. "

8. Further the accused tendered a copy of the sketch plan prepared by the Investigating Officer. He said that the particular Police Officer has returned from abroad and he saw him, the previous week.
   
9. The accused was cross examined extensively by the prosecution and following are some excerpts;
   

Q: That's a straight stretch of the road?

A: yes

Q: You could see if a vehicle is coming?

A: Yes

Q: What is the speed limit?

A: 60 Kmph

Q: Do you know that Mr. Shah was travelling in 50-55 Kmph?

A: No

Q: How long were you in the bus bay?

A: 5 minutes

Q: Did you pick passengers?

A: Yes

Q: You dint look from the rear mirror?

A: Yes

Q: If you looked through rear mirror you should have seen Mr.Shah?

A: It was clear that's why I took it to road.

Q: Where did Mr. Shah come from?

A: There is a hill and then the flat road.

Q: How long did you look through the rear mirror?

A: I looked for 3 flicks of signal. I have done my defensive driving course.

Q: You did not signal?

A: I did signal

10. The position of the accused was that he waited until the road is clear and pulled out from the bus bay. Further he reiterated that he gave signal before doing so. In reply to the questions put during the cross examination the accused denied that he was in a rush.
    
11. The accused did not call any other witnesses. However he informed Court that he has no objection if the prosecution is allowed to call the Police officer who did the investigation, to give evidence for the prosecution. Accordingly the prosecution was allowed to call the Investigating officer.
    
12. Accordingly the investigating Officer, PC 174 Anil Chand and he gave evidence that he worked for the Police for 30 years and on the 01st October 2008 he attended a traffic accident at Saweni between vehicle registration numbers DP 996 and CK 836. The Police witness tendered the sketch plan prepared by him as Exhibit 1. However apart from merely tendering the sketch plan the witness did not describe the sketch plan. The witness did not explain to Court as to why he decided to charge the bus driver or he did not explain the carelessness of the bus driver. It should be noted that when the sketch plan itself does not explain the wrong doing of an offender it is the duty of the Police Officer who did the investigation to explain to Court about the carelessness of the offender. Also It should be noted that the sketch plan pertaining to this accident, does not lead to an inference of Res ipsa loquitur.
    
13. It appears that according to the sketch plan the point of impact is beyond the bus bay and towards Lautoka. It is 3 meters from the left side boundary of the road. Thus it appears the vehicle registration no DP996 collided with the bus only after the bus came out fully, from the bus bay. The sketch does not depict a situation where the collision occurred in the process of pulling out from the bus bay.
    
14. The accused extensively cross examined the Police witness. The Police Officer admitted that he charged the accused without knowing the road rules. Following are some excerpts of the cross examination;
    

Q: Do you know the rules of LTA?

A: Yes I know

Q: Tell me what's the rule regarding the right of way?

A: He pulled out from the bus bay and the other vehicle hit from the back. That's why I charged him.

Q: Do you know the LTA rules when a bus pulling out of a bus bay?

A: The bus should wait until the road is cleared.

Q: I suggest the LTA rule is the bus should be given the right of way by other vehicles?

A: I did not know.

Q: If you don't know the rules how could you charge me for careless driving?

A: At that particular time I did not know the rules.

Q: For how many years are you in traffic duty?

A: 18 years

15. The accused showed the witness the Fiji Road Code book. The Police officer admitted that the bus should be given preference according to those rules. It should be noted that the prosecution did not ask a single question in re examination. In the circumstances it appears that the Investigating Officer charged the bus driver without knowing the particular rules. In any event it should be noted that the prosecution did not adduce enough evidence to prove carelessness of the accused.
    
16. I am not satisfied that the prosecution discharged its burden to prove the charge against the accused beyond reasonable doubt. In the circumstances I acquit the accused.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka

21.01.2010