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State v Rokosuka [2012] FJMC 310; Criminal Case 19.2010 (18 September 2012)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 19/2010

STATE

-v-

ATUNAISA KORORUA ROKOSUKA

Police Constable Ravi Narayan for the Prosecution
The accused appeared in person.

01] The accused is charged with following offence namely;

CHARGE:

FIRST COUNT

Statement of Offence [a]

RECKLESS AND NEGLIGENT ACT: Contrary to Section 237 (a) of the Penal Code Act 17.

Particulars of Offence [b]

ATUNAISA KORORUA ROKOSUKA, on the 5th day of May 2009 at Nasinu in the Central Division being in charge of motor vehicle number LT 4430 drove the said motor vehicle in a reckless and negligent manner as to endanger the life on RUPENI RAVONU.

02] He pleaded not guilty to the charge and the trial was heard on 18th May 2012.

03] At the trial the prosecution called following witnesses to prove their charge.

04] PW1 Rupeni Ravonu: he said he can recall 05th June 2009. He attended night function in Marist Club, flagstaff and it was held between 8.45pm to 10.30pm. Then he took LT 4430 to go to Maqbool Road. When they came he asked Driver to go to Reba Circle. He wanted to see a friend. He said that they stopped at Manulevu Junction. When he was going towards to see his friend the driver reversed the vehicle and hit him. He said that the driver asked him to got off and his destination was Maqbool Road. The victim said "he told me we supposed to take Maqbool, but you have come here. When I standing on the junction, he reversed the car, he hit me left leg. The reason that he thought that I was going to run away not paying him. My left leg was underneath the taxi. It was stuck under the taxi." The victim said his friend came and pulled him out. The witness said he was taken to the hospital. There was an open fracture wound and he was hospitalized for two months as inward patient. Medical tendered as EX-1. The witness identified the accused at the trial.

05] The victim was cross examined by the accused. Answering to his questions that victim said that he was not that much drunk. The accused hit him twice. He said that when he got off the car, he did not try to escape. The witness was questioned that as a habit he is dodging taxi fare, which was denied by the PW1. The accused suggested;

"I did not mean to hurt you, I just wanted to come closer to you and hold you? Then why you hit me?"

"When you got off the taxi, where did you go? I went towards the steps behind the car, he hit me my leg was stuck on the bottom of the taxi"

06] The witness said he is not lying to the court. In re examination the PW1 said incident occurred close to the police post Nadera. The accused hit him twice.

07] PW2 William Biumaiwa: He said he was staying in Reba Circle when incident occurred. At about 10.30pm he saw the incident. He pulled out the Pw1. Pw1 was underneath the taxi. When he pulled out him, he was cut injuries on left toe. He saw the driver of the vehicle.

08] PW2 was cross examined and he said he saw the accident in his own eyes.

09] By consent Caution interview tendered as Ex-2 and charge statement marked as Ex-3. Then the prosecution closed its case.

10] Since there is a case to answer all rights were explained. The accused opted to give sworn evidence.

11] DW1 Atunaisa Kororua Rokosuva: The accused said the victim got on to his vehicle at Flagstaff. Then victim directed him to go to Maqbool road. On their way the accused said the victim aid that he wanted to go to Reba Circle. The victim was unusal, he did not speak to him, looked down. He said he stopped at Reba Circle then victim got off from the car and went backside of the car. He said "he did not talk to me. When I saw him, I turn the car around. I put on my lights. I saw he was walking near to the rental flats. I thought he is going to run away without giving y fare because; he did not talk to me. I tried to come near to him. So I can get hold off him where he was standing. When I stand on the brake, the grass were there . it was wet, I did not mean to hurt him. When this accident happened, I talked to PW1 and told him "what you have done:has introduced us this accident" " The accused said earlier also the victim was his client but dodged this taxi fare when he dropped in Mandir Road.

12] The accused also said that when he went to Police sation they said the victim is being running without payment. The accused said "I admit the accident, but I did not mean to do this". He further said "I would like to ask forgiveness, because I did not mean to do this."

13] The accused was cross examined at length. The accused said that victim was drunk, but he is not really drunk. He did not speak to him. The victim was standing near the drain. He did not run away. There is a hill he could not run away. He was questioned:

"You could have got off the car and walked out him? I can't I wanted to go near and stop him. Once I got the car, car slipped and knocked him down, because it was wet grass there. It was tar sealed road.

You did not get any precautions: that's why car slipped away? No I deny. He should have pay $6 to me. $6 has no value to me than man like"
14] The defence closed thereafter. I now consider law and my judgment.

15] The accused is charged with section 237(a) of Penal Code.

"237. Any person who, in a manner so rash or negligent as to endanger human life or to be likely to cause harm to any other person-

(a) drives any vehicle or rides on any public way; or

(b) navigates, or takes part in the navigation or working of, any vessel; or

(c) does any act with fire or any combustible matter, or omits to take precautions against any probable danger from any fire or any combustible matter in his possession; or

(d) omits to take precautions against any probable danger from any animal in his possession; or

(e) gives medical or surgical treatment to any person whom he has undertaken to treat; or

(f) dispenses, supplies, sells, administers or gives away any medicine poisonous or dangerous matter; or

(g) does any act with respect to, or omits to take proper precautions against any probable danger from, any machinery of which he is solely or partly in charge; or

(h) does any act with respect to, or omits to take proper precautions against any probable danger from, any explosive in his possession,

is guilty of a misdemeanour."

16] The elements of charge are;

a) a person

b) Act in a manner so rash or negligent

c) to endanger human life or likely to cause harm to any person

d) drives any vehicle or rides on any public way

17] In this case the accused's identity is not challenged. The accused admits that he drove the vehicle and he caused injuries to the victim. His defence is that he did not mean to harm or hurt him. Would that be a defence and exonerate the accused from this charge?

18] The rash and negligent act was not interpreted in Penal Code. But the Crimes Decree interprets Recklessness and negligence.

19] Section 21 interprets "Recklessness" as;

"21. — (1) A person is reckless with respect to a circumstance if —

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2) A person is reckless with respect to a result if —

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(3) The question whether taking a risk is unjustifiable is one of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. "

20] Section 22 defines "Negligence" as;

"22. A person is negligent with respect to a physical element of an offence if his or her conduct involves —

(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b) such a high risk that the physical element exists or will exist—

that the conduct merits criminal punishment for the offence."

21] The accused said that he thought the victim was trying to escape without paying his taxi fare. He said that the victim had done previously one occasion. So, he suddenly reversed the vehicle to prevent victim being escaped from him. While vehicle was in action, he stood on the brakes to stop the vehicle but the vehicle did not stop, since it was on the grass and grass was wet and eventually vehicle bumped onto the victim.

22] It seems to me the accused action was great falling short of the standard of care that a reasonable person would exercise in the circumstances. His action was a high risk of that the victim could be injured. On the other hand the accused is aware of a substantial risk that the result will occur if brake does not apply properly. The accused took law onto his hand and tried to apprehend the victim. The accused's caution interview and evidence proved and strengthened the prosecution case.

23] Though the accused did not have intention to hurt the victim his act is rash and negligent and created an offence. I hold that prosecution has proved its case beyond reasonable doubt.

24] I convict the accused as charged.

25] 28 days to appeal

Delivered in open court,
On 18th September 2012 at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu