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State v Chand [2011] FJMC 104; Traffic Case 4508.2011 (12 September 2011)

IN THE MAGISTRATE’S COURT OF NASINU

TRAFFIC CASE NO.4508/2011

STATE

VS

DALIP CHAND

Sgt Volavola for the Police Prosecution
Accused Present and appeared in person

Judgment

[1] The accused is charged with the offence of Careless Driving. The charge read as follows;

CHARGE:

Statement of Offence [a]

First Count

CARELESS DRIVING: Contrary to Section 99 (1) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

DALIP CHAND on the 25th day of February (this year) at Nasinu in the Central Division drove his vehicle registration number EE935 along Ibo Road Nadawa without due care and attention.

[2] This case was heard on 12th August 2011 and case was fixed for judgement today.

Summary of evidence

[3] At the trial, prosecution called one witness to prove the charge.

[4] PW 1-Sasta Chand; He said that he works as Customer Care Officer of Fiji National University. He has been driving almost 10 years and he has a personal car bearing registration number DQ 541. On 25th February 2011 at about 8pm he went to a religious gathering at Nadawa. He took his car and he parked it on left hand side (Opposite) of the Ibo road. Their gathering house was on right hand side. There was ample space on the road. There were other friends of him who came for prayer, and they were about to go inside the house for sessions. Suddenly car entered to Ibo road and it was coming towards them. He said that car nearly bumped on his cousin who was standing near him. He jumped. After that the vehicle came to his side it went where his car was parked. It then hit front wheel of his car. He heard the sound. But that car did not stop. Witness said they saw that the pieces of wheel cap lying beside the road after the impact. The car went to the driveway and stopped. Then he talked to the driver. Driver denied the accident and he made fussy. The driver was under the influence of liquor. The witness noted it. Since the car driver denied the accident, his accompanied friends said that no point of arguing with the driver as he was drunk. Then they called to the police. Police came and took the measurements and made investigation. Despite the several attempts, but the driver’s gate was locked and police cannot open the gate. The witness identified the accused.

[5] The accused was given to cross examine the witness. On cross examination the witness said that he did not see that accused’s vehicle’s wheel cap came out, but he heard some noise. He said that road was wide enough for parking. It was 8-10 metres wide. The accused suggested that witness demanded $250 as compensation, but witness denied this suggestion. He said he did not demand single cent. Answering further to the cross examination he said it was dark, but the check the damage by mobile torch and external damage was minimal but he did the wheel alignment. Witness admitted that it could be his wheel alignment bad prior to the accident as the accident is very minor.

[6] PW2- PC 3708 R. Prasad; he said on 25th February 2011, he was based at Valelevu Police station. He was on duty. At about 8pm he received a complaint about traffic accident and he went to the scene. He met complainant at the place. He took the measurements. He said he tried to call the driver several times about 30 to 45 minutes. But he did not response or open the door. He tried from several directions but failed. The driver’s gate was locked. He further said that he was informed by the complainant because the accused was drunk; he did not open the door. Sketch was marked as Ex-1 and interview notes were marked as Ex-2.

[7] In cross examination, the witness said he did not enter the accused house but he tried all sides from neighbouring houses to call the accused. The witness said that he told to the accused that if he pays money to PW1, PW1 will settle the matter. He said he did not demand the money from the accused but said “if you are willing to pay”. Then he was questioned by the accused why he should pay if there were no damages. The witness’s answer was that he should ask that question from the complainant. It is to be noted that PW1 said he did not ask single cent. The accused suggested the witness did not record his statement and demanded money that Sunday though he had ample time to give a statement. When he refused to pay then police officer (PW2) asked him to come on next Tuesday just to harass him. The witness said that it was Sunday, but the accused said he is busy and was given time Tuesday 5pm. This is two contrary statements. The accused suggested because he refused to pay, his statement was not taken by the witness. But he denied. The witness admitted that he did no charge PW1for incorrect parking though his officer in charge ordered him to file charges against the both accused. It seems to me that PW2 has some soft corner and treated leniently to the PW1. Accused said it is illegal to write something after his signature in Ex-2(his Police interview statement). The witness said it was written in front of the accused. Therefore no harm was done. It is to be noted that normal procedure was not followed by the interviewing officer -PW2.

[8] Thereafter prosecution closed their case. Since there is a case to answer, Defence was called, rights of the accused had been explained to the accused. The accused opted to give sworn evidence.

The accused gave evidence as follows;

[9] DW1-Dalip Chand; The accused said that on that evening, he was coming home, there were many potholes at Ibo road. He said when his vehicle went to the pothole his wheel cap came out. He said then he stopped the car and searched the wheel cap. It was raining and he did not find it, then he went home. When he parked the car after 15 to 20 minutes the complainant came home and started demanding him to pay $250 as damages. The complainant claimed his (the Accused) vehicle hit the complainant vehicle. Then, he checked it; there were no damages to his car or complainant’s car. The accused said the complainant demanded the money then he said that he asked complainant to report the matter to the police station if he has any grievances. The accused further said it was raining so, he locked the gate and had his dinner after went to sleep. He said no one called him or knocked his door. Even his neighbours did not call him. The accused further in his evidence said that this was happened in a Friday then next Sunday one police officer came and asked about the incident. He said that police officer demanded $250 for matter to be settled. When the accused refused, the police officer asked him to come to the police next Tuesday 7pm for the interview. The accused in his evidence brought the wheel cap to the court. As this court noted, it has been slightly broken but not into pieces. The accused stressed if it hit the complainant’s tyre, it would have been broken into pieces. The accused said he did not hit the PW1’s car but he said the wheel cap may have come out and hit the complainant’s vehicle and made the noise.

[10] The accused was cross examined at length. In cross examination, the accused said that he was living for more than 12 years at Ibo road. He said he is 57 years and he got his driving licence 38 years back. He said the victim’s car was parked on the other side of his lane. His house was on opposite side. He said potholes were full of water and he did not dodge potholes. He said if he saved one pothole car will go to another potholes as there were plenty potholes. He said then wheel cap came out, he stopped the car and searched it. The prosecution suggested that the accused is lying, but he denied it. He said he did not hit the victim’s vehicle. He further said he did not hear that police calling him on that night. He said he did not know that police came. The prosecution suggested because he was drunk and he did not want to be arrested, he evaded the police on that night, but accused strongly denied it. The accused said even he went to meet Police Sergeant Suresh to Valelevu Police Station at that Saturday evening but the police did not arrest or inquire him the accident. The prosecution contention was because that the accused was a former police officer and he knew the repercussions well and therefore he evaded the police that night. But he denied it. The accused said that there was no accident. He said as a Hindu on Fridays and Tuesdays he does not drink liquor or eat meat and he stressed that he is on oath he is not lying. He said even the complainant said that was a Friday and he said it is their religious day for Hindus.
Then the accused closed his case.

The Law on Careless Driving

[11] Careless Driving is defined 99 (1) of thof the Land Transport Act as driving "on a public street without due care and attention".

[12]The test for careless driving Kof >Khan v State, High High Court of Fiji Criminal Appeal No. 1 of 1994 (21 October, 1994) as follows:

"In ord dete whether the offence of carelessing&#16g is 0;is 0;is committed,test test, as LORD GODDARD C.J. said in SIMPSON v PEAT (1952 1 AER 447 at p.449) is: "was D exercising that degree of care and attention that a reasonable and prudent driver woulrcise in the circumstances?nces?"

The standard of proof is an objective one . . ." (As cited in State v Lovo [2009] FJMC 7; Traffic Case 31.2009 (24 September 2009)

[13] The burden of proof is vested on the state in this matter and they should prove this charge beyond reasonable doubt. What is proof of beyond reasonable doubt is described in several cases.
[14] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubtmust be satisfied so that you feel sure of the guilt of the accused persons before you ss an opinion that they are guilty. If you have any reasonable doubt as to whether the accu accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt about the gof the accused."