IN THE RESIDENT MAGISTRATE'S COURT
AT NADI WESTERN DIVISON

Nadi Criminal Case No. 991 of 2010

BETWEEN:

THE STATE
PROSECUTION

AND:

CAROLINE JANE WEST of 22 Fairway Palms, Denarau Island,
Nadi, Company Director
ACCUSED

JUDGMENT

Cpl Naidu for Prosecutor
Lowing Associate for Accused
Date of Judgment: 02. 12. 2011 

1. BACKGROUND

On 11 October 2010, the Accused was formally charged with:

a). count one: Careless driving contrary to Section 99(1) and 114 of the Land Transport Act 1988 (the Act); and

b). count two: Refusing to take breath analysis when required to do so by a police officer contrary to Section 103(1)(b) and 114 of the Act.

The Defence counsel made an application on the day of hearing to have count two dismissed as complainant police officer failed to appear in Court to give evidence. The court dismissed the count two pursuant to section 166 of the Criminal Procedure Decree 2009. Count one proceeded to trial.

2. EVIDENCE OF PROSECUTION

Prosecution produced two witnesses:

a). Ranil Ravindra Patel (PW1); and

b). PC 3219 Hem (PW2).

Evidence of PW1

A summary of the evidence of PW1 is as follows:

"On 10 October 2010 at approximately 8pm, he got up from sleep to get food from Port Denarau/Port Marina (the Port). He travelled there by car registration number EK569. It is a 3 to 4 minutes drive from PW1's home to the Port.

On his way to the Port, as he passed the round-about to Fairway Palms and Marina Street, he saw the accused's car registration number PWRFL coming at high speed on his side of the road. He tried to move to the side but the accused's car came and bumped his car in the back right-hand side. As a result of the collision, his car spun across the road and sat right in the middle of the road. To ease the flow of traffic, PW1 moved his car to the side of the road near the entry into Fairway Palms.

PW1 noticed that the accused smelt of liquor and she was alone. The accused's car was stationary on the road after impact and was parked horizontally on the middle of the road.

The accused, two police officers and a friend of the accused travelled together to the Nadi Police Station.

It cost PW1 about $30,000 to fix his car but after awhile it was of no use and could not be driven anymore. He was present when PW2 drew Rough Sketch Plan (RSP). He did not sign the RSP".

In cross-examination, he said: he had a valid driver's licence; he was not on the wrong side of the road; she did not stop his vehicle because his tyre fell off; the accident occurred around 8.30pm.

Evidence of PW2

A summary of the evidence of PW2 is as follows:

"He joined the police force in 1997.He is a general traffic investigator with the traffic department of the police officer. On 10 October 2010, he was on shift until 11pm that night. He received an accident report and attended to the scene at the Port. At the scene of the accident, he noticed that the accused car registration number PWRFL was stationed on the wrong side of the road.

He drew the rough sketch plan of the scene and then attended on the two drivers. The rough sketch plan was exhibited at trial. The accused smelt of liquor and was staggering. He checked the driver's licence of the accused and PW1 and both were tested on the alcotest. The accused was tested first. The accused was then taken to the Nadi Police Station".

Under cross-examination, PW2 admitted that the rough sketch plan did not show the position of the vehicles straight after the accident as PW1 had moved his car away to ease traffic flow. Both Accused and pw1 refused to sign the RSP.

3. EVIDENCE OF THE DEFENCE

Defence adduced two witnesses:

a). the accused; and

b). James McArthur (DW2).

4. Evidence of the accused

On her way home that night, as she was approaching the round-about into Fairway Palms, a car hit her from the front right-hand side. She had to use her brakes when coming to the round-about as she had to turn left. Her home is approximately 1km away from the Port at 22 Fairway Palms, Denrau. She was travelling at 10 to 15km/hr because she was approaching the left turn into her cresent.

PW1 was driving his vehicle too fast and everything happened fast. PW1 described the accident as "bump" but it was much more than that. It was a huge loud impact collision. The rear driver's end of the other vehicle was broken off. At the police station she noticed PW1 come into the station and produced his driver's licence.

Under cross-examination, the accused admitted that:

She was making a left turn into Fairway Palms and not a right turn; she could not drink too much as she had a lot of responsibility at the Weighing event as the secretary. She did not answer all the questions posed to her during her caution interview because legal counsel at that time, advised her not do so unless he was there with her. Her caution interview was as evidence upon consent.

Evidence of DW2

A summary of the evidence of DW2 is as follows:

On 10 October 2010, he was at Port Denarau at around 8.30Pm. On his was home, he saw small RV parked towards the centre of the road at an angle pointing to the other side of the road.

The other vehicle was at the edge of the road but on the road near the entry into Fairway Palms and in a damage state. He saw that this other car had been shifted and was damaged at the rear right-hand side. The right rear tyre was missing.

He was there when the police took the accused to the police truck and had her breath tested. He noticed that the accused was treated badly by the police. The police was very rude to her but did not treat PW1 the same way.

When he was at the police station he heard the entire conversation between the police officer and other driver but only understood one word-"expired". The officer was holding the other driver's license in front of his face when he said the word "expired".

Under cross-examination, he DW2 said that:

He arrived after five minutes of the accident. He did not witness the actual accident. He had a business relationship with the accused but became friends as a result of the accident. The accused and he did not meet on a daily basis. They were friends but not in an intimate way.

The exhibit drawing of the accused was not how the cars were positioned when he arrived. He explained the other car was parked far away near the round-about when he arrived at the scene.

5. THE LAW ON CARELESS DRIVING

The test for careless driving is stated in the case Khan v The State [1994] FJHC 155; HAA0001j. 1994b (21 October 1994) and followed in State v Mohini [2011] FJMC 56; Traffic 110.2009 (23 March 2011): 

"In order to determine whether the offence of careless driving is committed, the 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 would exercise in the circumstances?"

 The standard of proof is an objective one..." 

In State v Vamosi [2011] FJMC 30; Criminal case 190 of 2008 (22 march 2011) where the court upheld a no case to answer submission, the court noted at paragraph 19 and 20:

"19 Due to absence of a sketch plan and a damage report it is very difficult to determine the force of impact and the positions of vehicles after the accident. As a result of this failure on the part of the prosecution, this court not in a position to have an idea as to the impact points on both vehicles which in most cases helpful to determine the veracity of witnesses.

20 It is the duty of the prosecution to prove all elements of the charge and if accused is successful in creating a reasonable doubt, prosecution must fail."

Adverse inferences cannot be drawn from an accused's partial silence during a caution interview. In the summing up of the case Fiji Independent Commission Against corruption v Mau [2011] FJHC 208; HAC089.2010 (11 April 2011), His Lordship Justice Daniel Goundar highlighted to the assessors at paragraph 77:

"[77] Llaisa Bacau caution interviewed the second accused. The record of interview is Exhibit P37. In his interview the second accused said that he is a shareholder in Motibhai Group of Companies. To the remaining questions the second accused elected to remain silent. I remind you that you must not draw any adverse inference against him for exercising his right to remain silent." [Emphasis added]

As Lord Devlin mentioned in the Privy Council Jayasena v The Queen reported in 72 New Law Reports 313 (Sri Lanka)

"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all fact placed before them, the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probation." On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted." 

6. ANALYSIS OF EVIDENCE

The accused is charged with one count of careless driving. The prosecution must prove beyond reasonable doubt four elements, namely a. the accused, b. drove motor vehicle registration number PWRFL, c. on a public road and without due care and attention. The accused disputed the element of without due care and attention. She did not dispute other elements.

The accused need not prove anything because his innocence has legally been presumed. Therefore it is the duty of the prosecution to prove each element of the charge beyond reasonable doubt.

It is to be noted that the prosecutions solely relying on the PW1's evidence to prove their case.

PW1 stated in evidence that he saw the accused's vehicle coming at high speed on his side of the road. He tried to move to the side but the accused's car came and bumped his car in the back right-hand side. As a result of the collision, his car spun across the road and sat right in the middle of the road to ease the flow of traffic.

The accused contends that she was driving as a reasonable prudent driver would have done in the circumstances. She could not have been driving on PW1s side of the road she was on her way home to Fairway Palms. She had to stop her car because the gate to Fairway Palms is always closed.

The caution interview: The accused's caution interview was tendered and marked as Exhibit 2 with the consent of the defence wherein the accused had answered "no comments" to certain questions during caution interview. Namely:-

Q.26-How this accident happened?
A- No comments.

Q.27-Which side of the road you driving?
A- No comments.

Q.29-Who caused the accident?
A – No comments.

Q.30-According to other driver Ronil Ravindra Patel you drove towards his lane and bumped the rear side of his vehicle on driver's side. Do you wish to say anything?
A- No comments.

Therefore the prosecution submitted that in the caution interview the accused was given opportunity to explain about the accident where she remained silent and offered no comments which suggest her guilty.

On the other hand the defence submitted that silence during caution interview does not amount to guilt. The accused was simply exercising her right to remain silent as advised by her former counsel, Mr. Eroni Maopa. Prosecution is not entitled to draw any adverse inference from the accused silence as outlined in Fiji Independent Commission Against Corruption v Mau [2011] FJHC 208; HAC089.2010 (11 April 2011)

As submitted by the prosecution, the court cannot draw any adverse inference from the accused's partial silence during the caution interview.

Corroboration: As I mentioned earlier the prosecution solely relies on PW1's oral evidence. The prosecution did not adduce evidence to corroborate the oral evidence of PW1.

If the prosecution does not produce evidence to corroborate the oral witnesses of its witnesses, or produces insufficient evidence, there will be other versions of the accident.

The rough sketch plan: PW2 drew the rough sketch plan which was exhibited as P/Exh-1. PW2 visited the scene after the accident. At that time PW1 had already moved his vehicle out of the impact to ease the traffic. There was no evidence before the court the accused moved her vehicle after the accident. PW1 pointed out the point of impact to the PW2. PW1 also told to PW2 that he had moved the vehicle to the other side of the road to ease the traffic and as it was a busy road. PW2 drew the P/Exh-1 accordingly.

The accused disputed the RSP. The P/Exh-1 was defective and not properly drawn out to assist the court. PW2 told to court that both PW1 and the accused refused to sign it. Even the accused refused to sign it though it was drawn as explained by him. The prosecution has tendered a defective unsigned rough sketch plan. The court cannot safely rely on it. P/Exh-1 did not show the correct position of the vehicles after the accident. I therefore disregard P/Exh-1.

The rough sketch plans and damage reports are vital to the prosecution case. These documents assist the court in determining:

a.	The force of impact;

b.	The position of vehicle after the accident; and 

c.	The authenticity of witnesses.

The damage report: In there is no damage report produced during trial to corroborate PW1's account of the accident and to prove the accused's guilt beyond reasonable doubt.

PW1 in evidence stated that the damages sustained by his car cost $30,000.00 for him to fix it. PW1 said that after spending $30,000.00 on fixing the car, he could not still drive the car because it was giving trouble. There was no other evidence led to show the damages sustained by PW1's car.

Conclusion

For the aforementioned reasons I find the charge against the accused has not been proven beyond reasonable doubt and find the accused not guilty to charge of careless driving. I acquit the accused from the charge accordingly.

M H Mohamed Ajmeer
Resident Magistrate

[02. 12. 2011]