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State v Tuivomo [2012] FJMC 247; Traffic Case 2544.2007 (22 June 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 2544/07

BETWEEN

THE STATE

AND

PENIASI TUIVOMO

JUDGEMENT

1. The accused is charged with two counts of occasioning death by dangerous driving. The statements of offences and the particulars of offences are as follows;
   

1st Count

Statement of offence

Occasioning death by dangerous driving contrary to section 97(2)(c) and 114 of the Land Transport Act No 35 of 1998.

Particulars of offence

Peniasi Tuivomo on the 27th day of July 2007 at Lautoka in the Western Division drove a motor vehicle registration number DG 618 on Queen's Road Natabua in a manner which was dangerous to the public having regards to all the circumstances of the case and caused the death of passenger namely Marica Vunibaka.

2nd Count

Statement of offence

Occasioning death by dangerous driving contrary to section 97(2)(c) and 114 of the Land Transport Act No 35 of 1998.

Particulars of offence

Peniasi Tuivomo on the 27th day of July 2007 at Lautoka in the Western Division drove a motor vehicle registration number DG 618 on Queen's Road Natabua in a manner which was dangerous to the public having regards to all the circumstances of the case and caused the death of passenger namely Mohammed Efim.

2. The accused pleaded not guilty to both counts on the 28th August 2007 when he was represented by a counsel. Later on the 10th July 2008 the trial had begun. However due to the change of Magistrates, on the 04th August 2009 the Court had ordered a trial de novo.
   
3. On the 01st June 2010 the trial commenced afresh. The accused was represented by a counsel and the Prosecution was conducted by a Police Prosecutor. The Prosecution called 9 witnesses. After the Prosecution case was closed the Court held that the Prosecution has made out a case for the accused to reply. The accused and 4 other witnesses gave evidence for the Defence.
   
4. Section 97(2)(c) of the Land Transport Act reads as follows;
   

"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-

1. Under the influence of intoxicating liquor or of a drug
2. At a speed dangerous to another person or persons or

100. In a manner dangerous to another person or persons.
     

5. Accordingly the Prosecution has to prove beyond reasonable doubt;
   
   1. The date, time and place of the accident
   2. The accused drove vehicle registration DG 618
   100. He occasioned death of Marica Vunibaka and Mohammed Efim
   4. In an impact
   5. At the time of the impact the accused was driving the vehicle in a manner dangerous to other persons.
      
6. Constable 3189 Sevuloni Nakaleva was the main witness of the Prosecution. He gave evidence that on the 27th July 2007 at about 1 am he was on operation duty at Tui Street. He said the accused came out of the Hunter's Inn night club and was about to leave that place in a maroon colour car. The witness said that the accused was heavily smelt of liquor and had blood shot eyes. He said that there was a Fijian girl in the passenger seat. PC Sevuloni said that he warned the accused not to drive the vehicle and tried to remove the ignition key. He said despite his warning the accused took off saying "we will meet in Velovelo" to some persons outside. He further said that then he started following the accused with some military officers in their vehicle.
   
7. PC Sevuloni said that the accused was driving the vehicle in a dangerous manner. He said that they went beside his car at Navutu round about and he shone his torch at the accused and told him to stop. He said that the accused didn't stop the vehicle and he drove fast. Further he gave evidence in the following manner;
   

" He drove in a very high speed. When we passed Natabua junction we saw a grey vehicle parked on the road. And we saw the vehicle which we were following was upside down on the railway. We got off the vehicle. We saw the Fijian lady was there half of her body was under the vehicle. We took the passenger in the grey colour car which was on the road. We pulled the driver of the marron vehicle and took him to the hospital. The driver of the maroon vehicle is sitting there. ( Points out to the accused.) I have seen the accused in town before this incident. I knew him by his face. I came to know his name after the incident. I did not see any body else other than the accused and the Fijian girl. When I shone the torch at the marron car it was the accused who was driving the maroon car. When I shone the torch there was no one else in that car apart from the accused and the Fijian girl."

8. Vilitati Nasomi, Army Private gave evidence that on the 27th July 2007 he was on duty near Shirley park Police post with few other military officers. He said that he saw PC Sevuloni was talking to the accused. He said later PC Sevuloni came running and asked him to follow the maroon Honda Accord. Vilitati Nasomi corroborated the version of PC Sevuloni.
   
9. The main contention of the Defence in this case was that it was not the accused who drove the vehicle when the accident occurred. The Prosecution adduced evidence of two witnesses namely, Constable 3189 Sevuloni Nakaleva and military Private Vilitati Nasomi. Both these witnesses gave evidence that they saw the accused getting into the car when it left Hunters Inn night club and they saw the accused driving whilst they were in pursuit and they drove beside it in order to stop it. These Prosecution witnesses gave evidence that there was no one else in the car apart from the accused and the Fijian girl who died as a result of the accident. Further they gave evidence that soon after the accused went pass them by speeding up they found the vehicle met with an accident and lying up side down. The witnesses confirmed that there was no one else in the scene apart from the accused and the deceased Fijian girl.
   
10. The Defence extensively cross examined these two witnesses. It was suggested to PC Sevuloni that the vehicle was driven by an army officer named Joe Vitudua. However the witness positively denied the suggestion and confirmed that it was the accused who got into the drivers seat, whom he spoke to, whom he shone the torch at and who was found at the accident scene. Further PC Sevuloni denied that the accused was already sleeping inside the car. In reply to cross examination the witness further said that he had known Marica Vutibaka, the deceased Fijian girl before and he had seen her in the town. It should be noted that the Defence could not damage the credibility of this witness even after a long session of cross examination. The evidence of PC Sevuloni with regard to the identification of the accused as the driver could not be challenged by the Defence. The only contradiction the Defence could bring to the notice of the Court was that he had said in his statement that the accused was staggering when he came to the car while in court he said that the accused was drunk and swearing but walked straight to the car. However I am not of the view that the said contradiction has any bearing on the elements of the offences of this case and it render the evidence of the witness unreliable. The witness gave evidence 4 years after the accident and it is not surprising that a human will not meticulously remember each and every detail of an incident which happened a few years back.
    
11. Private Vilitati Nasomi was cross examined at length regarding the identification of the driver of the vehicle registration DG 618. Although it was suggested that it was one army officer by the name of Joe Vitudua who drove the vehicle, the witness positively rejected the suggestion and confirmed it was none other than the accused who drove it. The witness admitted that he knows an officer name Joe Vitudua. But he denied that Joe Vitudua was seen in that particular night. The witness confirmed in reply to cross examination that it was the accused who drove the vehicle. Further he said that he saw PC Sevuloni was talking to the accused in front of the Hunters night Club and reiterated that he saw the accused driving the said vehicle when they were travelling parallel to that vehicle signalling it to stop.
    
12. Prosecution witness, Mohammed Aiyaz gave evidence that on the 26th July 2007 he was involved with an accident when he was driving towards Lautoka in his vehicle registration DY 605. He said the other vehicle which came at a full speed collided with his car. The witness said that he later realized that the other car was also one of his cars which was given to his brother Mohammed Saijad. He further said that one day before the accident his brother called and asked him whether he could give the car to the accused. In reply to the cross examination this witness said that he got to know the accused only after the accident. But he confirmed that his brother sought permission from him to give the car to Tuivomo. However the Defence did not dispute the fact that the accused borrowed the car as it was claimed by Mohammed Aiyaz.
    
13. Mohammed Saijad gave evidence that on the 24th July 2007 Peniasi Tuivomo asked whether he could borrow his brother's car to attend a funeral. He said the accused, Tuivomo was his neighbour and he knew him for a couple of years. He said after the accident he received a call from his brother and he went to the scene around 2 am. He said that he met his brother and no one was in the cars when he went there. Further he said that he saw the accused at the hospital and he thought that the accused was drunk as he was talking too much and not behaving in the normal manner. The Defence did not dispute the fact that the car was borrowed from him by the accused.
    
14. Accordingly there was no dispute that the vehicle registration number DG 618 was a borrowed car by the accused. Further it was established that the vehicle registration number DG 168 was a maroon colour Honda Accord. This was further confirmed by the pictures marked by the Defence as exhibits. However it should be noted that one of the Defence witnesses gave contrary evidence on this issue. Defence witness Inoke Nabou Seruilumi gave evidence that he worked as a night manager for the Hunters Inn night club at Lautoka Hotel and on the 26th July 2007 he saw the accused after 12 in the night. He said that the accused is his uncle and his car was parked near the Shirley Park. He said he saw the accused sitting in the back seat of his car. However the defence witness said it was a mahogany colour Caldina car. The witness said that he knows his uncle's car very well as he picked him up twice in that car before the accident happened. He said one occasion was about half a year ago and the other occasion was about a year ago. It appears that this evidence of the Defence witness was per se incorrect. Even the Defence did not dispute the colour and the make of the car at any time until this witness gave evidence. Further it was not disputed by the Defence that the said car was only borrowed one day before the accident from another person. Thus I am not inclined to accept the evidence of Inoke Nabou Seruilumi due to the patent lack of credibility and inconsistency.
    
15. The accused gave evidence that he got a car from a person named Vicky and on the 26th July 2007 he went with his supervisor named Sireli Dawai to army barracks in Lautoka to pick up an army officer. He said when the army officer got in, he was introduced by Sireli Dawai as Joe Vitudua. Further the accused said that Sireli Dawai is his nephew and he came to know that Joe Vitudua is also related to him as his uncle. The accused gave evidence that they all went to Joe Vitudua's house in Drasa Vitogo for Joe Vitudua to change his clothes. He said after that they went to Marine drive and drank beer with Sireli Dawai. He said Joe Vitudua did not drink and he went to check on his girl friend in the accused's car. He said after Joe Vituda returned the accused was drunk and he sat at the back seat of the car and said that "then I was in the hospital". He further said Joe Vitudua had the car keys.
    
16. At no point of time the Defence disputed that the accused borrowed the car from Mohammed Saijar. When Mohammed Saijar gave evidence that the car was borrowed by the accused from him the Defence did not ask a single question during the cross examination to dispute that fact. However the accused gave evidence in the following manner during the cross examination;
    

Q: You were given the keys by Mohammed Saijar?

A: I don't know that person. I only know Vicky.

Q: Do you know Mohammed Saijan is named as Vicky?

A: I only know Vicky.

17. It should be noted that the accused gave evidence in a very evasive manner. The accused admitted that he gave the caution interview on his own freewill. During the cross examination he admitted that it was a true recording of his statement. How ever the accused contradicted his own evidence in different occasions while being cross examined in the following manner;
    

Q: You came on your own to the Police Station?

A: Yes. By crutches.

Q: When did you come to know the name Joe Vitudua?

A: When we picked him from the barracks

Q: Did you tell the Police at any time when you gave the statement that Joe Vitudua was the driver of the vehicle?

A: Yes.

( Caution interview is shown)

Q: When you gave the statement it was about 6 days later from the accident?

A: Yes.

Q: When you gave the statement things were clear in your mind?

A: A little bit. I was injured.

Q: The statement was taken on your own free will?

A: Yes.

Q: No body forced you to give the statement?

A: Yes.

Q: Can you go through the statement and confirm to Court that you have not mentioned the name Joe Vitudua in this statement?

A: I was not questioned who was the driver and who was the witnesses.

18. I have perused the caution interview of the accused. It was recorded on the 02nd August 2007 which is after about 6 days from the date of the incident. The accused has stated that he has already consulted a lawyer when he was inquired whether he needs legal advice. The accused has mentioned that an army officer who is a friend of Sireli Dawai was with them. However the accused has not stated his name or who drove the vehicle after he went to sleep. The accused has only said that he cant recall what happened and he does not know what happened after that. If the accused knew who drove the vehicle as he claims during the trial, I cannot find a reason as to why he did not mention that at the first opportunity specially when he had already got legal advice. Two persons had died as a result of this accident. I do not think that any reasonable person would take this so lightly and suppress about the real culprit when he or she is incriminated for causing the accident. However when the accused was cross examined as to why he did not inform about the driver he answered in the following manner;
    

Q: Had you known that Joe Vitudua was the driver you should have gone and inform the Police that Joe Vitudua was the driver?

A: Me and Sireli Dawai informed the Police officer that Joe Vitudua was the driver.

Q: When did you go and inform the Police?

A: After two weeks from the first court date.

Q: It is not correct that Joe Vitudua was the driver?

A: He was the driver.

Q: If you knew he was the driver why didn't you tell the Police during the interview?

A: I was not asked about that.

Q: Did you write and asked the Police that you were not the driver and Joe Vitudua was the driver?

A: They never requested me to write a letter.

19. The issue, whether the accused informed the Police about Joe Vitudua was raised during the cross examination of the investigating officer, Sgt Ram Prasad. First the witness Sgt Ram Prasad admitted that it was informed that it was one Joe Vitudua who was the driver of the said vehicle. However in further cross examination the witness said that the name of one Jone was given to him to check in the army barracks. After showing the investigation diary the witness said that on the 29th January 2008 the name of one Jone Tolou was given to him by the Prosecutor. He further said that his supervising officer only instructed him to look for Jone Tolou.
    
20. In any event I have perused the journal entries of 10th January 2008. It appears that the Counsel who appeared for the accused had informed Court that; " My client was not driving. Another person by the name of Jone Tawake was driving. He is in Iraq now."
    
21. It appears that it was six months later the Defence Counsel had informed court for the first time that the driver was a person named Jone Tawake. However at a later stage during the trial the name Jone Vitudua has surfaced instead of Jone Tawake. Further the credibility of this story was diminished with the introduction of different names at different stages. On the other hand it does not appear neither the Counsel nor the accused had taken any reasonable steps to divulge the name of Jone Vitudua if what the accused says is true before the trial commenced in a more responsible manner.
    
22. In any event I have considered the evidence given by the accused and the Defence witnesses Joana Tayaga Vunibaka regarding Jone Vitudua. I am not satisfied about the credibility and consistency of their stories. The evidence given by the accused and Joana Tayaga Vunibaka about Jone Vitudua sounded very unrealistic and improbable in the backdrop of the evidence given by the Prosecution witnesses.
    
23. There were few witnesses called by the Prosecution as well as by the Defence to give evidence as first persons to arrive at the scene. Prosecution called Mohammed Faiyaz and Mohammed Rafiq and the Defence called one Sikeli Waqairavakavaka. It should be noted that the Defence could high light some contradictions in their evidence with regard to the facts such as who arrived first at the scene, whether there were inflated air bags in the car and where was the accused lying. It should not be forgotten that these lay witnesses gave evidence at the trial after about 4 years from the incident. Secondly at a time where people are shocked and traumatized after seeing an accident of this level, it is acceptable that not every person can give exactly the same narration of the incidents. In that context it would be unreasonable to expect all the witnesses to exactly remember how were the air bags were placed and how the accused was lying in side the car. Therefore I disregard those contradictions as they do not have a bearing on the main issues of this case.
    
24. However the most important thing is that neither the Prosecution witnesses nor the Defence witness, who claimed to have come to the scene first have seen any person other than the accused and the deceased Fijian girl in side the car or at the scene. There was no evidence whatsoever even to suggest slightly, that there was a third person apart from the accused and the deceased Fijian girl.
    
25. It is the duty of the Prosecution to prove the elements of the charges beyond reasonable doubt. The accused need not prove his innocence. It is sufficient for the accused to create a doubt in the Prosecution case. But I am convinced that the Defence could not create any reasonable doubt regarding the identification of the accused as the driver of the vehicle registration number DG 618. I am satisfied that the Prosecution proved beyond reasonable doubt that accused drove the vehicle registration number DG 618 when the accident occurred.
    
26. The prosecution tendered the Post mortem reports of Marica Volau and Mohammed Efim. The cause of death of Marica is reported as subarachnoid and intracerebral haemorrhages consistent with motor vehicle accident. The cause of death of Mohammed Efim is reported as severed trachea due to a motor vehicle accident.
    
27. The Prosecution witness, Mohammed Aiyaz gave evidnce that when he was driving towards Lautoka in his car registration number DY 605, the vehicle registration DG 618 came at a full speed and collided with his car. He further said that he heard a noise of a vehicle going on the gravel and all of a sudden it came to his side. Further the Prosecution witnesses Vilitati Nasomi and PC Sevuloni confirmed that the vehicle DG 618 was driven at a very fast speed and in a dangerous manner by the accused. As far as the evidence of the Prosecution is concerned I am satisfied that the accused drove the vehicle in a dangerous manner.
    
28. For the foregoing reasons I am satisfied that the Prosecution proved beyond reasonable doubt that the accused drove the vehicle registration number DG 618 in a dangerous manner and collided with another vehicle whereby he occasioned deaths of Marica Volau and Mohammed Efim as a result of that impact.
    
29. In the circumstances I find the accused guilty of the offences and convict him accordingly for the first and the second counts.
    

28 days to appeal.

Rangajeeva Wimalsena
Resident Magistrate
Lautoka

22.06.2012