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State v Lutu [2012] FJMC 216; Criminal Case 3930.2007 (10 September 2012)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI
CRIMINAL JURISDICTION

Criminal case No. 3930 of 2007

THE STATE

V

EMOSI NAWAIKALOU LUTU

Ms. Suveni for the state
Mr. Akuila Naco for accused
Date of Judgment: 10.09.2012

JUDGMENT

INTRODUCTION

1. On 7 September 2007 the accused was charged with the offence of "aggravated dangerous driving occasioning death" contrary section 97 (1) (2) (c) of the Land Transport Act, the offence of "dangerous driving occasioning bodily harm" contrary to section 97 (4) (c) and 114 of the Land Transport Act and the offence of "failed to stop after an accident" contrary to Regulations 63 (5) and 87 of the Land Transport (Traffic) Regulations 2000.
   
2. This is a part heard matter before my predecessors. Nonetheless, they could not complete the proceedings and deliver judgment. As such both the parties consented for the proceedings to commence de nova before me. Accordingly proceedings commenced before me de nova on 21 February 2011. The court was unable to conclude the proceedings on the same date because of the non-availability of the state witnesses.
   
3. At the close of the prosecution case the Defence submitted a no case to answer submission. I ruled on it and found there was a case to answer. However, in my no case to answer ruling I noted that I had not decided on whether the elements of the charges had been proven beyond reasonable doubt.
   

The Charge

First Count

Statement of Offence(s)

Aggravated Dangerous Driving Occasioning Death: Contrary to section 97 (1) (2) (c) and 114 of the Land Transport Act, 35 of 1998.

Particulars of Offence(s)

Emosi Nawaikalou Lutu on the 4th day of September 2007 at Nadi in the Western Province drove a motor vehicle registration number DT 357 on Queens Road, Nawai, Nadi in a manner dangerous to the public having regards to all circumstances of the case and caused the death of Joseph Salayavi Saucoko Vunisa.

THE CHARGING SECTION

4. Section 97 (1) enacts that:-
   

"A person commits the offence of aggravated dangerous driving occasioning death if the person commits the offence under subsection (2) in the circumstances of aggravation".

Section 97 (2) states that:-

"A person commits the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle (c ) in a manner dangerous to another person or persons".

Second Count

Statement of Offence

Dangerous Driving Occasioning Bodily Harm-contrary to section 97 (4) (c ) and 114 of the Land Transport Act, 35 of 1998.

Particulars of Offence

Emosi Nawaikalou Lutu on the 4th day of September 2007 at Nadi in the Western Province drove a motor vehicle registration number DT 357 on Queens Road, Nawai, Nadi in a manner dangerous to the public having regards to all circumstances of the case and caused bodily injuries to Timoci Kaisuva.

Section 97 (4) states that:

"A person commits the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle (c ) in a manner dangerous to another person or persons".

Third Count

Statement of Offence

Failed to stop after an accident-contrary to Regulation 63 (5) of the Land Transport (Traffic) Regulation 2000.

Particulars of Offence

Emosi Nawaikalou Lutu on the 4th day of September 2007 at Nadi in the Western Province drove a motor vehicle registration number DT 357 on Queens Road, Nawai, Nadi owing to the presence of the motor vehicle on the said road, an accident occurred and did fail to stop after an accident.

Regulation 63 (5) states that:

"If a motor vehicle accident occurs on a public street which causes injury to any person, other than a passenger in the motor vehicle and the vehicle fails to stop, the person injured must report particulars and the circumstances of the accident at a police station or to a police officer as soon as practicable and in any case within 24 hours after the accident".

5. The prosecution must prove five elements for the charge under count 1 namely (i) that the Accused, (ii) drove, (iii) his vehicle (DT 357), (iv) in a manner dangerous to the public (v) caused the death of Josefa Vunisa.
   

THE LAW

6. 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]

7. 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."

EVIDENCE OF THE PROSECUTION

8. The State called three witnesses in support of the charges. They are Mohammed Hazrat Khan, Timoci Kaisuva and the investigating officer Cpl. 3376 Nilesh. The first two witnesses are civilians who were travelling in the van registration No.LM 188 with the deceased which was driven by the second witness, Timoci Kaisuva.
   
9. The following documents were tendered by the prosecution without objection:
   

10. PW1 who is an electrician was a passenger in the vehicle LM 188. He sat in the front passenger's seat beside the driver. He stated in his evidence that:
    

"I know why I'm here today. On 04/09/2007 we were involved in an accident before Namata Police Post. I was travelling towards Nadi from Suva in LM 188, a mini-van. Three other passengers were there in the vehicle. I was sitting in front beside the driver, others were seated at the back.

Accident happened at around 3.30pm. When we were coming we saw a vehicle – DT357. This vehicle slowly changes the track and trying to hit our vehicle. Our driver tooted horn and flicked the light. He didn't take any action. He was about to hit front. Our driver was trying to safeguard but he hit at back tyre. He already crossed the white mark to come to our lane. Our van turned around and went into drain. My legs were up. I unfastened my seat belt and fell down. The driver was underneath the drain. I saw driver was coming from the window.

Two of our passengers got injured on the head and hand. They were lying on the ground bleeding. A Vehicle came from Sigatoka took them to Nadi Hospital. Our driver also got injured on chest and head. DT 357 driver was there. He ran off. I didn't see him. The boy was lying on the ground. I saw him first and the last".

11. Under Cross Examination PW1 stated that he saw the other vehicle 5 metres away. It was slowly moving. He is driving for 15 years. The van he travelled in was travelling at 80kmph but he didn't know the speed limit of passenger carrier van. He told that it was not a corner and they could see the other vehicle. He saw the TD 357 clearly 5 metres away. It was speeding over 100kmph. He said that he didn't tell to police that the driver of LM 188 flicked the light and tooted horn. He gave statement after the accident at around 1730hrs. When asked how you know the other driver hit at the back tyre, he said "Yes I know and the tyre blew".
    
12. PW1 was not re-examined by the state.
    
13. PW2 gave evidence and he in examination in chief stated that:
    

"I'm employed. I'm driving a van for 18 years. Married have 4 children. I was involved in an accident on 04/09/ 2007. I left Suva for my way down to Nadi in min-bus registration No. LM188.

Four passengers were in my bus, all male. One vehicle was coming towards Suva. I can't describe the car. I can't recall the colour. It was coming into my lane passing the white mark in the middle. When it was coming closer, I flicked my head light and pressed the horn. It was coming close. It was just coming towards my lane. I was just taking my vehicle to the left side. Just to avoid it, I turn the vehicle. When I swirl I heard a bump in the middle, right side. One passenger was sitting beside me in the front. Other passengers were seated at the back. After that the bus slid, tumbled and stuck into the drain. I was unconscious about 5 minutes. I was last to get out of the bus. I had some injury on my head. Medical Report was issued for me. [Medical Report was shown to witness. He was examined at 7.00pm – paragraph 12 reads... – Exhibit 1].

When I got down one of my passengers was lying on the ground unconscious. One passing vehicle took him to hospital. That was last I saw him. The Driver of other vehicle was not seen at the scene. He didn't come to offer any assistance".

14. Under Cross Examination PW2, the driver of LM 188 stated that he left Suva at midday 12.00. He admitted the Sketch Plan as the proper drawing. He saw first the other vehicle 500 metres away. He admitted that he was travelling between 70 and 80kmph. Speed limit for minibus carrying passengers is 60kmph. He started tooting the horn about 500 metres away. His van is an old model minibus. It has no seat belt at the back. He wanted to return to Suva after completing this journey. He tried to avoid when the other vehicle was 50-80 metres away. He pressed the horn couple of times. He was hit on the right side. He applied the break in between 500 metres. He did pull over his vehicle but he didn't pull over to stop. He said the accident happened in the middle of the road. He finally ended up 42-46 metres away after the accident. He admitted that he was speeding and he didn't have opportunity to avoid.
    
15. In Re-Examination PW2 stated that he switched lights and tooted horn because the other driver was on his lane. He also told that he tried to avoid the accident and pulled over his vehicle.
    
16. PW3 in Examination in Chief stated that:
    

"I'm currently based in Sabeto in Uniform branch. I have 12 years service. I worked in Traffic Branch for 3 years at Nadi. In 2007 I was in Traffic Branch. I recall an accident at Queens Road Nawai. I was Investigating Officer. I visited the scene. I was in charge of overall investigations. 20 – 30 minutes I was at the scene after accident. I receive a report of accident. Report was received by Sgt, and it was referred to me. I have to take tapes etc. to the scene. I drew sketch plan. I recognize my sketch plan – Exhibit 2. [Witness points out the impact of the accident. This has been the middle of the road].

When I visit only one van was there – Eland. I inquired the people of the other vehicle. They said it went far away. I went and inspected other vehicle DT357. There was no one in other vehicle.

I didn't know who the driver was. When I went there, there was no passenger in the van, but people said passengers were there. When I was there I was told the driver has been taken to hospital. There was casualty. I know a victim died – Joseph Salayavi. We received Post Mortem Report [EXH 5].

17. PW3 under Cross Examination stated that his sketch drawing is proper one. He said he has shown actual distance of impact. He said there is a corner but stated it is not that much sharp corner. He told that it is not possible to see coming down vehicle 500 metres away, however it is possible to see on coming vehicle 50-60 metres away. He could not see any peculiar signs. He could not recall whether or not he checked the seat belt of the minivan. He said the van was examined by LTA. The other vehicle was also located later and examined by LTA.
    

EVIDENCE OF THE DEFENCE

18. The defence called two witnesses. The accused gave evidence on his behalf and called Corporal Rajendra Kumar, the Post Officer from the Vatudradra Police Post (DW1). The Defence also produced the entry made by him at Vatudradra Police Post on 4 September 2007 (D/EXH 1).
    
19. The accused gave sworn evidence. He in Examination in Chief stated that:
    

I have been driving for 35 years. Tow or three times I was booked in my driving for exceeding speed limit in the 60kmph zone.

I was interviewed by police. I signed the record of interview. I recall my statement and the response to the questions. [Q.7] I recall the date, 4th September 2007.

I left Suva in early morning to attend a meeting at 10.00 am. I left at 5 o'clock. I travel from Suva to Nadi regularly. That's my part of job. 5 o'clock is normal time for me to leave. It normally takes 5 hours to reach Lautoka. I had business in Sigatoka. I have to spend 2 hours.

I was in Lautoka close to 10 o'clock. I met one officer at 10 o'clock regarding my client's work. I finished my work at 12.30pm. I did not have other meeting. I rang my brother to meet and have lunch at 1.00 at Lautoka. I dropped Doctor Mua at Lautoka Court house and left towards Suva.

I didn't have any other commitment in Lautoka or along the way towards Suva or meeting any where. I've finished for the day.

[Q. 29] – I didn't drink or smoke before driving. I arrived at Nadi around 3 o'clock. I was checking on time.

After left Nadi, I was still way back to Suva at 62kmph. This was our speed limit. 80kmph is the national speed limit.

[Q. 33] – my answer is not correct – I have no recollection of that. Normally I travel on my lane unless overtaking.

I'm not aware of accident happened nor actual collusion. Later I came to know.

[Q: 36] – I was in the pothole. I couldn't stop the vehicle. My right leg was on brake pedal but couldn't stop. In front of me there was a container truck so I pulled the vehicle on the left. If not I would have gone under the truck. There was a culvert. There was side wall – middle of it there was hump. Both sides there were walls.

I hit the head wall and stumbled. By that time a passing vehicle stopped to see what has happened. I stuck in my right ankle. The passer driver's name is Sayed Ali from Suva. He stopped and picked me up.

On the way to Suva we stopped at Vatudradra Police Post towards Sigatoka. I reported the accident.

I can't remember who took my statement – a police officer took – From there we travelled to Suva. My wife took me hospital.

[Rough sketch plant – Exhibit 2]. The point of impact is indicated as the middle of the road].

[Q. 41] – point of impact – I said no comment to that question.

[Q.44]– There was a van I conform.

My own assessment – a van travelling at 80kmh can see me 500 meters away. They were able to see me 500 meters away.

[Q. 52] – Answer – I indicated at the time of interview – After accident Vatudradra is the first police post.

20. Under Cross Examination the Accused stated that that day he was tired because he woke up early and travelling few hours. He told that he had no recollection of the accident and came to know about it later. He also told that he went about 1 km and went off the road. His break was in good condition. He did not wait for the police to arrive at the scene. He was able to see oncoming vehicle. He didn't see the minivan on the opposite that day. Though he has eye sight problem that day he was able to see clearly. He couldn't recall the accident with the minivan but recalled the bump before the accident. He denied the suggestion that he is lying about the recollection of the accident with the van. He didn't wait for the police to arrive at the scene after the accident at vatudradra.
    
21. In Re-Examination he stated that he answered all questions during caution interview. His normal speed is 60kmph. He also stated that the other driver could have stopped when he see a vehicle some 500 metres away. He further said that he was answering about the accident with bump during the caution interview but they were referring to the alleged accident with the minivan.
    
22. DW1, the Officer in Charge of the Vatudradra Police Post gave evidence on behalf of the accused. He in evidence stated that the accused had come in and reported the accident him going off the road at Bavu and that report had been noted in the Station Diary. He confirmed that SC Meshaar Khan had recorded the entry and it had been recorded on the 4 September 2007. He tendered copy of that entry marked as D/EXH 1 and confirmed that is a correct entry.
    

DETERMINATION

23. It is for the court to determine whether or not he is guilty to the charges levelled against him in these proceedings. It is for the court to decide whether each element has been proven beyond reasonable doubt. This is the course I will adapt in this judgment as I stated in my no case to answer ruling.
    

THE ANALYSIS

24. The accused has been charged with one count of dangerous driving occasioning death, one count of dangerous driving occasioning bodily harm and one count of failure to stop after an accident.
    
25. The elements of the charges in count 1 & 2 are as follows:
    
    1. The Accused, Emosi Nawaikalou Lutu
    2. Drove
    100. His vehicle registration No. DT 357
    4. In a manner dangerous to the public
    5. Caused the death of Josefa Vunisa / injuries to Timoci Kaisuva.

For count 3 the elements are:

1. an accident happens on a public street
2. there is an injured person
3. who is not a passenger on the vehicle
4. the vehicle fails to stop
5. The injured person must report the accident to the Police Station or the Police as soon as practicable or within 24 hours of accident.
   
26. The onus is on the prosecution to prove all of these elements beyond reasonable doubt and if they are not able to do so, then the Court must proceed to acquitting the accused.
    
27. PW1 who was a passenger in the vehicle LM 188 and sat in the front seat beside the driver. He stated in evidence that the driver of LM 188 tried to avoid the accident when he tooted the horn and flicked the van lights. He also stated that it was only about 5 metres when the vehicle DT357 changed the line and it was coming slowly in front of the mini van. According to him there was an impact wherein the minivan turned, tumbled and went into drain. He further said the driver of DT 357 did not stop to assist any of them. He sated that the vehicle DT 357 hit at the back tyre and the tyre deflated.
    
28. Interestingly, it is to be noted that PW1 under cross examination admitted that he did not say to police that the driver of LM 188 tooted the horn and flicked the lights. The impact occurred at around 3.30 pm. He made statement to police at around 1530hrs. He made statement to police some few hours after the accident. Even though he could not tell about the minivan driver tooted horn and flicked the lights. But PW1 told this in court for the first time. It appears to me that PW1 has given afterthought evidence in this regard. Under cross examination he also admitted that LM 188 driver was speeding.
    
29. PW2 was the driver of minivan LM 188. He confirmed that there were three passengers travelling with when he left Sigatoka. He stated the he saw the vehicle DT357 coming uphill and travelling at a fast speed. He stated that he tooted the horn a couple of times and flicked his lights before he turn to the far left and tumble. He told that DT 357 hit him in the right middle of the minivan.
    
30. In cross examination he confirmed that the van he was driving is an old model minivan which had no seat belt in the back seat of the van. He stated in cross examination that when the oncoming DT 357 was some 50-80 metres away before he decided to turn far left to avoid collision. He stated that he was travelling at around 70-80 kmph and conceded that the legal speed limit for the passenger vehicle he was driving was 60 kmph. Under cross examination he also admitted that he had also passed another vehicle around the bend before the accident.
    
31. PW2 recognized the sketch and also confirmed the point of impact (middle of the road). He also admitted in cross examination that they had landed some 42.6 metres away from the point of impact.
    
32. It is noteworthy to mention that that PW1 and PW2 contradicted to each other on the point where the other vehicle hit the minivan. PW1 stated that the other vehicle hit at the back tyre and tyre blew but PW 2 stated that the other vehicle hit in the middle of the van. I am of opinion that this is a material contradiction between PW1 and PW2 that affect credibility of the state witnesses.
    
33. PW2 the driver of the minivan did not drive as a reasonable driver. He was over speeding at the time of accident. PW1 in cross examination told the minivan driver was speeding. PW2 himself conceded that he was over speeding of the legal speed limit 60kmph for the passenger van. The minivan tumbled and ended up in drain some 42.6 metres away from the point of impact and the deceased was thrown out of the van. These aspects clearly show that PW2 was over speeding and driving dangerously. The van would have tumbled due to deflation of the rear right side tyre of it and over speeding.
    
34. According to prosecution witnesses there should have been a head-on collision. They said the car was coming on their lane. The impact was in the middle of the road. PW2 told the car hit on the middle of the minivan. That means the car has already passed half of the minivan. PW2 could not stop when he saw the car on his lane some 50-80 away. Because he was over speeding and he could not control his vehicle.
    
35. Prosecution witnesses' account of the accident which seems very unlikely to have happened given the position of the minivan and the distance it ended up after the accident.
    
36. The accused denied the charges he maintained that he could not recall anything about this accident. But he told that he had an accident on 4 September 2007 where his leg got stuck in the paddle of the break and his vehicle went off the road at Bavu. He has reported this matter at Vatudradra Police Post, the next Police Post after Bavu towards Suva. This report has been noted in the Station Diary. DW1, the Officer in Charge of the Vatudradra Police Post who gave evidence that the accused had come in and reported the accident ( the accident at Bavu) [D/EXH 1].
    
37. The accused maintained during the caution interview and right through the hearing that he had no recollection of the accident where the minivan tumble and ended up in the drain. As stated above prosecution is not entitled to draw any adverse inference from the accused silent as outlined in the Fiji independent Commission Against Corruption v Mau (as above).
    
38. Prosecution witnesses could not positively identify the accused as the driver who hit the minivan. They said they did not see the driver and he ran off. However, the accused did not dispute that he is the owner and driver of DT357.
    
39. There was no damage report tendered to show the extent of damages of impact. PW 3 told in court that the vehicles were examined by LTA but failed to tender such report at the trial.
    
40. The accused was caution interviewed by police. During the caution interview he had maintained that he could not recall anything about the accident for which he has been charged with. The accident he had after this at Bavu has been reported by him. The accused gave straightforward evidence in court. He answered cross examination questions clearly and promptly and without any hesitation. I therefore prefer to accept his evidence.
    

CONCLUSION

41. The state has failed to prove beyond reasonable doubt the accused was guilty of the charges of dangerous driving occasioning death and causing bodily harm and failure to stop after accident.
    
42. The accused is not guilty to the offences in considering all the facts placed before me. I acquit and discharge the accused from all three charges.
    

.........................................
M H Mohamed Ajmeer
Resident Magistrate
10/09/2012
At Nadi