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State v Rehmen [2011] FJMC 149; Traffic Case 3851.2009 (9 November 2011)

IN THE MAGISTRATE’S COURT OF NASINU

TRAFFIC CASE NO.3851/2009

STATE

VS

AZEEZUL REHMEN

Police Constable Ravi for the State
Accused Present and appeared in person

Judgment

[1] The accused is charged with the following offences. The charge read as follows;

CHARGE:

Statement of Offence [a]

First Count

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

Particulars of Offence [b]

AZEEZUL REHMAN on the 3.7.09 at Naboro in the Central Division drove a taxi LT 6333 on Queens Road, Naboro without due care and attention.

Statement of Offence [a]

Second Count

EXCEEDING SPEED LIMIT: Contrary to Regulation 24 (2) and 87 of Land Transport (Traffic) Regulation 2000.

Particulars of Offence [b]

AZEEZUL REHMAN on the 3.7.09 at Lami in the Central Division drove a taxi LT 6333 on Queens Road, Naboro at a speed of 91 kmph such a speed being an excess of the road permitted on the said and namely 80 kmph by 11 km.

[2] This case was heard on 21st September 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-PC 2838 Peni Vesikula; He said on 03-09-2009 at 5.30pm, he was operating Radar machine at Queens Road, Nabua. He said the maximum speed is 80kmph. He said he used the Radar Machine. Before he used he checked it and it was working properly. The machine was calibrated by Safeway Electronics and Ministry of Commerce, Weigh and Measure Unit. He said he stopped LT 6333 for high speeding. It was travelling 91kmph and permitted speed is 80kmph. He further said that the driver of vehicle overtook and crossed the Zebra line. Zebra line prohibited overtaking both ways. He then showed speed metre to the accused. He was booked for Careless Driving and Exceeding Speed limits. He issued relevant TINS.

In cross examination the witness said that the accused was booked for two counts. He said he issued TIN for both counts and the accused was issued two TINS. The witness answered the accused overtook bus and crossed the Zebra line. The accused suggested that there was an animal on the road he evade it. But witness said there was no animal on the road at that time. The witness said he cannot the number of the bus and company of the bus.

[5] Thereafter prosecution closed their case. Since there is a case to answer, then, Defence was called and Rights of the accused had been explained. The accused opted to give sworn evidence and but he did call one defence witness on his behalf.
The accused gave evidence as follows;

DW1-Azeezul Rahiman; the accused said on that date he drove vehicle from Suva to Nadi. When he reached the point of detection he saw 15 Animals, cows on the road. He said oncoming track was clear so he went that side. Then officer stop him and charge him for offence. When He saw animals he slowed down, the officer did not show him the Radar Machine. He crossed the zebra line to avoid an accident. But officer did not hear him.

In cross examination he said he was a frequent traveller of Suva Nadi corridor. The animals were on left side. He was questioned why he cannot stop the vehicle without crossing the Zebra line. The witness said he was afraid that cows may damage the car. He admitted that he cross the Zebra line. The prosecution suggested that the accused was travelling at high speed and therefore he was over speeding and he could not stop the vehicle. But the accused denied it, but said he saw the cows and slowed the vehicle. He said the officer did not show the Radar Machine.

DW2- Murshand Ali: The witness said they were going from Suva to Nadi. When they reached Naburo Bridge, some of animals were on the road. Then, Driver went outside and he was booked by the police officers.

In the cross examination the witness said he doesn’t know this accused but he went with him. One of his cousins told him there is driver he can come with him. So he joined him. He rang and informed that case is today and he came to give evidence by bus. He said his cousin’s phone number 9876289 and name Artiff Khan. The witness’s mobile was checked in open court see whether any incoming call from this number for veracity of this evidence. But there were no phone call then this witness changed the stance and said call come to his wife’s mobile number. It seems to this court the witness lied to court. Thus this evidence is unreliable.

The Law on Careless Driving

[6] Css Driving is defs defined b9 (1) (1) of the Land Transport Act as driving "on a public street without due care and aton".

[7]The test for css driving is stis stated i case case oase of Khan v State, High Court of Fiji Criminal Appeal No. 1 of 1994 (21 October, 1994) as follows:

"In order to determine whether the offence of&#areless driving is coms committee test, as , 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 . . ." (As cited in State v Lovo [2009] FJMC 7; Traffic Case 31.2009 (24 September 2009)

[8] Maximum Penalty to EXCEEDING SPEED LIMIT (Contrary to Regulation 24 (2) and 87 of Land Transport (Traffic) Regulation 2000) is $500 fine and 3 months imprisonment and one demerit point to be added.

[9] 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.
[10] 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 doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubto whether the accused persopersons 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 reaso doubt about the the guilt of tcu accused."

[11] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 June 2008) Justice JocelA. Scn Her Ladyship's summing up said;

"Tp> "The question then is what the standardndard of proof is. That is, when the onus rests on the State as it does here and generally in criminal trials, what is the standard the State must meet? The State must prove all the necessary ingredients of the charge.... beyond reasonable doubt. Proof roof beyond reasonablbt means eans what it says. You must be sure; you must be satisfied of guilt, before you can expresspiniout it. Only if you are sure, if you are satisfatisfied beyond reasonable doublet of guil guilt, then it is your duty to say so. If you are not sure, not satisfied beyond a reasonable doub> then you myou must give your opinion that the accused is not guilty. This assessment, this determination, rests with you – with each of you – upon your individual assessmenthe evidence." (Emp (Emphasises is mine)