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Magistrates Court of Fiji |
IN THE MAGISTRATE’S COURT OF NASINU
TRAFFIC CASE NO.8859/2007
STATE
VS
MOHAMMED SHAMEEM
Police Sergeant Volavola for the State
Accused Present and represented by Mr. Raman Singh (KOHLI & SINGH)
Judgment
[1] The accused is charged with the offence of DANGEROUS DRIVING OCCASIONING DEATH. The charge read as follows;
CHARGE:
Statement of Offence [a]
[2] DANGEROUS DRIVING OCCASIONING DEATH – Contrary to Section 97 (2) and 114 of the Land Transport Act 35 of 1998
Particulars of Offence [b]
[3] MOHAMMED SHMEEM s/o MOHAMMED TAUHEED on the 19th day of October, 2004, at Nasinu in the Central Division drove a motor vehicle registration number EE988 on Kings Road, 7 miles, in a manner which was dangerous to the public having regards to all the circumstances of the case and thereby caused the death of PRAKASH WATI d/o HARI RAM.
[4] This case was heard on 14th June 2011 and case was fixed for judgement today.
Summary of evidence
[5] At the trial, prosecution called one witness to prove the charge.
[6] PW 1-Vidya Sagar; He said on 19-10-2004 at about 7.00pm the incident occurred. The witness said at that moment 2 kids, bob and his mother in law this him. They got off from a Taxi and were going to home. They were crossing the road. His mother in law was just ahead of him. They all crossed the one lane and then they came to the middle of the road (Island) then his mother in law was bumped by a vehicle. He said he could not remember his mother in law’s name. He said the vehicle came suddenly.
[7] In cross examination the witness said that they crossed one lane and came to the island which was in the middle of the road. His mother in law was not that much old and no one guided her to cross the road. He said that road was straight. He was questioned
“Q: the accused’s car was 4-5 metres, when she (Mother in law) crossed and accident could not be avoided? A; No, I deny it. I agree that accident was occurred on the road. There was no pedestrian crossing. That is Suva to Nausori Highway and it was dark.
Q: cause of the accident is your mother in law crossed the oncoming car? A: I am not sure about that.”
[8] In re examination the witness said that they were middle of the road and he did not notice any car coming towards them. He said if car was 4-5 metres, they would be able to see it. By answering to the court the witness said his mother in law was 55 or 56 years old at the time of her death.
[9] PW2- Bob Asad: This witness said that he can recall the day. It was on 19-10-2004 about 7pm. They got off from a Taxi and crossed one lane.
“We got off the Taxi we crossed to the island. It was very speed, car was coming. It was about 40 metres. It was very fast. I hold my two kids. I did not cross, but lady thought she can cross, she went suddenly, car bumped her she was flown away and her head banged on the windscreen. It was bit dark and happened so fast”.
[10] The witness identified the accused as driver of the car.
[11] In cross examination the witness said that lady did not misjudge. When she was crossing he did not warn her. He was holding sons’ hands. He said there was no another vehicle was on the road. He said that the accused came very high speed that’s why it happened. Answering to the court, the witness said that the accused applied brakes after the accident and it was dark the car lights were on.
[12] PW 3- Rajesh Chand: This witness said that he identified the dead body of the deceased as his mother. Statement tendered as Ex-1.
[13] PW4- Posiana Cokanasiga: witness said he was on duty at Valelevu police station on that date. He was on traffic duty and accident was reported. Then he went to the scene and met witnesses at there. He was in full of blood. The he drew the rough sketch plan and fair sketch plans. Plans tendered as Ex-2.
[14] In cross examination he said that point of impact showed by the witnesses. There was no brake marks. He said that he recorded the statement of Titilia Rokovuma and he is an independent witness. But he was not called as a witness. This statement was shown to the witness and he identified it. It was tendered as D EX-1.
[15] Answering to the court that the witness said that after impact vehicle stopped 0.7 metres. (Distance of Point A to C)
[16] PW5-Mohammed Atiq-PC 1488: By consent of the parties witness tendered interview notes and charge statement as EX-3 and Ex-4 and medical Report as EX-5.
[17] 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 not call any other defence witnesses on his behalf. The accused gave evidence as follows;
[18] DW1- Mohammed Shameem (the Accused); the accused said that on 19-04-2004, he can remember. He started journey from Samabula Mosque and he was fasting. He had gone for prayers and he was coming back from Mosque. When he approached the Nasole, there was a car in front of him. That car slowed down because of drain (chamber) on the road. Then he also slowed down. From the other side an old lady crossed the road, after the passing the front vehicle that lady straight away crossed the road. He tried to avoid the accident, but unsuccessful. Then car bumped her and she landed on the windscreen. He said that he stopped the vehicle. It happened suddenly therefore he cannot stop. His speed was nearly 30-35km. he stopped the vehicle straight away.
[19] In cross examination he said he was fasting but before the incident he had meals from Mosque. His brother was with him. He said that he saw that lady was crossing the road but she straight away crossed the road. She did not stop at all. There was a vehicle in front of him. Then prosecution questioned if she came straight away why not she bumped that vehicle. The accused said it went passed. He said that he is not lying the PW1 was not in the middle of the road that he was holding children in the opposite side of the road. Prosecution suggested that the accused drove very fast, but the accused said he dove slowly and slowed down because of the chamber.
[20] Thereafter the defence closed the case. They filed written submission. I am mindful of that.
The Law on dangerous Driving occasioning death
[21] The accused was charged with an offence under section 97(2). Section 97(2) reads as follows:
"(2) A person commits the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle –
(a) under the influence of intoxicating liquor or of a drug;
(b) at a speed dangerous to another person or persons; or
(c) in a manner dangerous to another person or persons."
[22] Elements of charges are to be proved discussed in Rao v State [2007] FJHC 81; HAA102J.07S (6 December 2007) Her Ladyship Justice Nazhat Shameem;
"The elements of the offence under section 97(1) are not described with clarity in the legislation. There is a blurring of the boundaries between section 97(1) and (2) which does not assist either the accused or those expected to enforce the law. The elements are:
1. The Accused drove a vehicle;
2. He occasioned death;
3. In an impact;
4. At the time of the impact the accused was either drunk or speeding or driving in a manner dangerous to other road users.
5. In circumstances of aggravation which mean either –
(a) he had excessive blood alcohol; or
(b) he was driving at more than 45 kmph in excess of the prescribed speed limit; or
(c) he was escaping official pursuit."
[23] 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.
[24] 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 exprn opinion that they are guilty. If you have any reasonable doubt as to whether the accused used 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 guilthe accused."
[25] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 June 2008) Justice Jocelynne A. Scutt in Her Ladyship's summing up said;
[26] As Lord Devlin mentioned in the Privy Council in 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.
[27] 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 as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then 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 probatio". 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.
Analysis of the evidence
[28] Now I evaluate the evidence adduced before me. The prosecution witness said that the accused drove very fast. But they admitted that accident on the road not on the middle pavement of the road. Further they admitted that the deceased crossed the road. The charge sheet mentioned only section 97(2) of the Land Transport Act. It can be noted that there are 3 limbs in this section. But the prosecution failed to aver under what section they are charging the accused. Limb (a) says "under the influence of intoxicating liquor or of a drug;" Limb (b) says "at a speed dangerous to another person or persons;" and limb (c) says "in a manner dangerous to another person or persons." Thus it is unclear what section the accused is charged. But it could be assumed that they have charged under limb (b) driving at a speed dangerous to another person or persons.
[29] In the case of Chandar Pal v Reginam 20 F.L.R. 1 at 2 Grant A.C.J. said as follows:
"Where death has resulted from a traffic accident it is necessary for the prosecution, on a charge of causing death by dangerous driving, to show that the accused's dangerous driving was a real cause of the accident and something more than diminish (R. v Hennigan [1971] 3 All E.R. 134) and to establish the accused's dangerous driving it is necessary for the prosecution to show that there was some fault on his part causing a situation which viewed objectively, was dangerous (R. v Gosney [1971] 3 All E.R. 220)." (Emphasis is mine)
[30] In Kumar v Reginam [1978] FJSC 146; Criminal Appeal 122 of 1978 (7 November 1978), Supreme Court of Fiji, Hon. Justice J.T. Williams discussed that things need to be considered in these type of cases are what was the quality of the appellant's ( accused's) driving? What evidence is there of recklessness or drink, or a selfish disregard for the safety of others? (Emphasis is mine)
[31] Therefore the main issue is whether the accused drove the vehicle speed that dangerous to another person or persons. According to the sketch plans there were no brake marks. After the incident car position was "A". The point of impact is "c". The according to the investigating officer the distance between position of car and point of impact is 0.70 metres. It shows that after the accident that accused managed to stop the vehicle at once. As prosecution witness said if the accused drove an excessive speed then how can he stop the vehicle at once? Then there should be some visible brake marks.
[32] I note investigation started short after the accident and there were independent witness. This witness was not called by the police prosecution but his statement was tendered as D EX-1. This witness is Titila Rokovuiva. His statement was recorded just after one hour of the incident on 19-10-2004 at 7.55pm. The accident occurred nearly 7.00pm. Thus, there was no chance to concoct a story. The deceased was in a rush and it was an unfortunate incident indeed. He says in his statement;
"I looked to my left and saw two Indian ladies at the centre line about to cross over to the other side. I then saw a car that drove by and after that car then Indian lady crossed over to the other side but little did she know that another car was just driving at the back of the first car. All of sudden I heard a loud bang just in front of me and saw this Indian lady being thrown to the ground and she did not make any move"
[33] In PREMASIRI V OFFICER-IN-CHARGE, POLICE STATION, MATARA [1993] 2 Sri Lanka Law Reports 23 Ananda C.Grero, J held;
"To establish liability for negligence in a criminal case, a very high degree of negligence should be established. In other words, the accident should have been due either to the recklessness of the accused or due to the reckless driving of the accused. Where the accident is attributable to an error of judgment, it is not sufficient to establish criminal liability by negligence or by a rash act." (Emphasis is mine)
[34] In Rex v. Bateman 94 LJKB 791 Lord Atkin observed thus:
" The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough, for purposes of criminal law, there are degrees of negligence and a very high degree of negligence is required to be proved before the felony is established." (Cited in Premasiri case (supra))." (Emphasis is mine)
[35] In the same case Lord Hewart, L.C.J. held as follows:
" In order to establish criminal liability the facts must be such that in the opinion of the jury the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the state and conduct deserving punishment. *(Cited in Premasiri case (supra))." (Emphasis is mine)
[36] This rule was applied in Andrew v. Director of Public Prosecutions [1937] 2 All ER 556. (Cited in Premasiri case (supra))
[37] According to the evidence adduced before me the accused said he drive slowly. He further said that there was a chamber and he had to slow down the vehicle. It was proved by the sketch plans and he managed to stop at once after the incident. If he drove fast it is impossible to stop vehicle. That is common sense. The prosecution witnesses said that there were no vehicles apart from the accused's vehicle. But in Titila Rokovuiva's statement clearly says that there was a car in front of the accused vehicle and the deceased crossed the road without noticing it. Therefore the accident is inevitable. As the accused said in his statement the deceased suddenly crossed the road and it was about 3-4 metres. He said that he drove the speed of 30-35 kmph. The prosecution did not prove that he was driving at more than 45 kmph in excess of the prescribed speed limit (town speed limit). As I mentioned above, those Commonwealth and common law cases are persuasive me to reach a justifiable conclusion. The burden lies on the prosecution and the defence has no burden to prove of innocence. His innocence is presumed by law and that presumption should be rebutted by the prosecution on beyond reasonable doubt.
[38] I hold that the prosecution has not proved its charge beyond reasonable doubts. I reject the prosecution version and accept the defence version.
[39] The accused is acquitted and discharged.
[40] 28 days to appeal.
On 05th August 2011, at Nasinu, Fiji Islands
Sumudu Premachandra
Resident Magistrate- Nasinu
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