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State v Mohini [2011] FJMC 56; Traffic 110.2009 (23 March 2011)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SIGATOKA
FIJI ISLANDS

Traffic Case No: 110 of 2009

STATE

V

ASHWINI ANSHUMALA SINGH MOHINI

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution : PC 2493 M S Chetty
Accused : Present – In Person

JUDGMENT

Introduction

The accused is charged for Careless Driving, contrary to Section 99 (1) and 114 of The Land Transport Act 35 of 1998.

The particulars of the offence is that: "Ashwini Anshumala Singh Mohini on the 13th day of March 2009 at Sigatoka in Western Division drove a vehicle registration number EW 196 on the Queens Road, Cuvu, Sigatoka without due care and attention"

The elements of the offence

The elements of the offence the prosecution need to prove in order to prove its case are as follows:

1. That Ashwini Anshumala Singh Mohini,
   
2. on 13th day of March 2009, at Cuvu, Sigatoka in the Western Division,
   
3. drove motor vehicle Registration number EW196
   
4. without due care and attention.
   

The Evidence

The Prosecution called 3 witnesses. PW- 1 – Satish Kumar, PW-2 – James Vinit Prasad and PW-3 Constable 3782 Rohit Kumar.

Prosecution Witnesses Evidence

Evidence of PW- 1 – Satish Kumar– sworn on Ramayan in Hindi.

Examination in Chief- "employed with Pacific Transport as a Bus Driver for 11 years. Recall 13th March 2009, 5.40pm. Driving a bus. At Cuvu Road had an accident. Accident at Fijian Hotel junction. On the Old Queens Road towards Nadi. Accused was driving towards Fijian Hotel. Saw a white vehicle come it did not stop. I was on main road. Accused was at the junction. The white vehicle was 10m from my bus when I first saw. I was driving at 40km/hr. I was on main road. I was straight. She did not stop. Bus cannot stop. White car came on my lane. I tried to turn towards left had accident. [witness pointed to accused in accused box as driver of white car] registration # of bus DP360 and registration # of Car EW196 "

Cross-Examination – "going from Sigatoka towards Nadi. I was on left side of the road. Bus cannot stop at 40 Km/hr. I tried to stop big bus cannot stop. No problems with brakes."

Re-examination- Nil.

Evidence of PW- 2 – James Vinit Prasad – sworn on Ramayan in Hindi.

Examination in Chief- "at 5.40pm on 13/3/09 in bus going home. At junction from the right side a vehicle came, driven by lady. She was fast. Bus driver tried to brake. Seated left side of bus. Bus driven by Satish. Car driven by lady. [witness pointed to accused in accused box as driver]"

Cross-Examination – "saw the accident"

Re-examination- Nil.

Evidence of PW- 3 – Const. 3782 Rohit Kumar – sworn on Ramayan in Hindi.

Examination in Chief- "4 years in traffic. Recall 13/3/09 received accident report. Attended to accident. EW196 and DP360 involved. Did rough sketch and interviewed the drivers. Drew rough sketch and made fair sketch plan and keys to fair sketch plans. [Rough Sketch, Fair sketch and keys tendered as PE-1 (a), (b) and (c)]. From scene of accident can see 50m of road. Where bus was is old Queens Road. Car was at a light white lane – continuous vehicle is to stop. 14/3/09 interviewed accused. [Caution interview of accused tendered as PE-2]. Summoned accused to Court."

Cross-Examination – "I spoke to accused. Asked how accident happened. Accused cannot see 300m only 50m. I did not harass the accused. Instructed by bosses to charge. Accident in March. Charged in September 2009.

Re-examination- "driver of DP360 was caution interviewed. Same day as accused."

This was the prosecution case. Court ruled case to answer. The accused was put to her defence and the options available to her were explained to her. The accused chose to give sworn evidence.

Defence Witnesses Evidence

DW-1 – Ashwini Anshumala Singh Mohini (the accused) – Sworn evidence (Ramayan
in English)

Examination in Chief- "I came on my side. I stopped did not see any vehicle come. Both sides lots of branches. Could not see far away. It was an intersection. I was traveling from Main Road Highway to Fijian Hotel. 5.30pm I start at Fijian, had ample time. I was relaxed. I was not at a speed. I reached about halfway. Bus bumped me. I realized the accident. I reversed the car I moved to another side. Bus went on and the stopped. Subrail approached me and told me to move out of the vehicle. He called the police. He asked me if I wanted to call anyone else. Husband came and we waited for the police.

Two Police Officers came and went straight to Pacific Driver they talked and laughed. They did not talk to me. I asked Rohit. He said no need. Rohit was in touch with bus driver. Rohit asked me my name and vehicle # and told me to go to station next day and give statement. Next day went to police station. Rohit interviewed bus driver first and me later. I came 1st to station but bus driver was interviewed first. Was told by Rohit I was charged for careless driving before the interview."

Cross-Examination – "I saw right and left and drove across the road. I stopped at junction. Can see 50m towards left. Bus was really fast. Do not agree bus was at 40 km/hr. When I looked to left did not see the bus. I would cross the road. Driver since 2003. 3rd year at Fijian. Originally from Nadi. I am familiar with the road. I travel by that road. I did not cause the accident."

Re-examination- "I was slow, bus was not coming. I went along".

D-2 – Subrail Narayan (sworn on Bible in Hindi)

Examination in Chief- "Branch manager – Subrails Furniture. Accused involved in accident. I heard a bang sound saw Pacific Bus running onto a Car. I ran out of my van offered to take accused to hospital. Accused asked me to call the police. Bus towards Cuvu, car towards Fijian Resort from main Highway. I did not see Pacific Bus. I was not even 1 chain from her car. Did not see Pacific Bus. Accused was not fast. She got off from loop road. Pacific Bus was bit fast. Saw the bus bang the car. Accused was slow. Accused braked at the junction. I braked. Accused then took off."

Cross-Examination – "Car was close to the middle of the road. Accused tapped the brake at the junction and took off. I tapped and stopped by the time I stopped I heard sound of accident. Car can see 30 to 40m after that a bend. Driver for 25 years"

Re-examination- nil.

The Law on Careless Driving and Analysis of the Evidence

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

The test for careless driving is stated in the case 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 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 . . . "

The Court has noted the evidence of all the witnesses. The Court has also scrutinized the rough sketch plan and the fair sketch plan and the keys tendered by the Prosecution.

The Rough Sketch Plan and the Fair Sketch Plan show the point of impact of the accident on the right side. The bus was traveling on the left side. The evidence given by the witnesses is that the accident took place on the left lane or closer to the center of the road. The Rough Sketch and the Fair Sketch Plan are not properly drawn out to assist the Court in this case. The Police Officers at the scene drawing sketch need to be mindful of the width of the road, the center of the road and other crucial details when drawing sketches. They come in handy when Courts decide traffic cases. The more detail they provide the easier it becomes for the Court to analyze the sketches and plans. In this case the sketch shows the point of impact on the right lane, which would mean the bus, went onto the other side if it was traveling along the left lane. The Police Officer drawing the sketch should have shown the sketch to the accused and the other driver and if they agreed with it he should have asked them to sign or initial the plans. This was not done.

The evidence of the bus driver is that he was driving at a speed of 40 km/hr and could not stop the bus once he saw the accused's car from about 10m. The Court does not believe the bus driver that he could not stop his bus at a speed of 40 km/hr once he saw the car from about 10m. If the bus driver was in fact driving at 40 km/hr he would have been able to stop the bus once he saw the car from about 10m. The Court does not believe the driver was driving at 40Km/hr.

The accused told the Court that she checked the left side, the side from which the bus approached her. She did not see the bus and she proceeded to move her vehicle along when she was bumped by the bus. The accused told the Court that the bus was fast. The 2nd witness for the defence who was following the accused told the court that "Accused was not fast. She got off from loop road. Pacific Bus was bit fast. Saw the bus bang the car. Accused was slow. Accused braked at the junction. I braked. Accused then took off." From the evidence of the accused and the 2nd defence witness who was right behind the accused the Court finds that the accused took all reasonable care and was attentive. The accused was not careless in her driving.

The Court also noted the demeanor of all the witnesses. The Court believes the accused and the other defence witness. They were truthful. The Court from the evidence finds that the accused as a driver exercised that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.

The prosecution in this case has not proved that the accused drove without due care and attention.

The accused is acquitted of the charge.

28 Days to appeal.

Chaitanya Lakshman
Resident Magistrate

Sigatoka
23/03/11