IN THE MAGISTRATE’S COURT OF NASINU

TRAFFIC CASE NO.782/2010

LTA

-v-

ROUPESH KUMAR RAM

Ms. Vinaya for the LTA
Accused Present and appeared in person

Judgment

[1] The accused is charged with the offence of Careless Driving. The charge read as follows;

CHARGE:

Statement of Offence [a]

First Count

CARELESS DRIVING: Contrary to Section 99 (1) and 114 of Land Transport Act No. 35 of 1998.

Particulars of Offence [b]
ROUPESH KUMAR RAM on 8.12.09 at Nabua in the Central Division drove a taxi registration no. LT4934 on Kings Road from Luke Street without due care and attention by proceeding through the traffic control light signal it went red. 

[2] This case was heard 31st January 2012 and case was fixed for judgement today.
Summary of evidence

[3] At the trial, prosecution called following witnesses to prove their charge.

PW 1-Joape Neimila : He said that he is a LTA officer for 9 years. On 08-12-2009 at about 6.40pm he can recall. He was traffic duty on Kings Road at Nabua Town. He said the Taxi Registration Number LT 4934 entered into Kings Road from Luke Street. They were in kings Road and light was green. But this Taxi entered while the Red light was on at that time and they acted defensively to avoid an accident. Then he was issued a TIN. The witness identified that the accused was the driver of LT 4934 who drove the taxi carelessly. 

[4] In cross examination, the witness said the light was green in his side therefore light must had been red in the accused’s side.

Thereafter prosecution closed their case. Since there is a case to answer the defence was asked to give explanation. After rights were explained the accused opted give sworn evidence. 

[5] DW1- Roupash Kumar (The accused): The accused said he was coming from Westpac. When he entered to Kings Road the light was amber and it came suddenly red. He said “I was middle of the road when it came Amber and suddenly Red. It was too fast” 

[6] In cross examination the accused admitted that he drove LT 4934 at that particular time, it was in Nabua road not in the Luke road. The prosecution suggested that the accused saying different things in the evidence. He said he did not cross the red light but there may be electrical faults in the light system. The accused said that when LTA officer booked him he told that he did not cross the red light but he booked him unnecessarily. Then Defence closed. 

The Law on Careless Driving

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

[8]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 . . ." (As cited in State v Lovo [2009] FJMC 7; Traffic Case 31.2009 (24 September 2009) 

[9] The burden of proof is vested on the prosecution in this matter and they should prove this charge beyond reasonable doubt. What is proof of beyond reasonable doubt is described in several cases. 

[10] 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 doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused 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 guilt of the accused."

[11] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 June 2008) Justice Jocelynne A. Scutt in Her Ladyship's summing up said;

 "The question then is what the standard of proof is. That is, when the onus rests on the State as it does here and generally in criminal trials, what is the standard the State must meet? The State must prove all the necessary ingredients of the charge.... beyond reasonable doubt. Proof beyond reasonable doubt means what it says. You must be sure; you must be satisfied of guilt, before you can express an opinion about it. Only if you are sure, if you are satisfied beyond reasonable doublet of guilt, then it is your duty to say so. If you are not sure, not satisfied beyond a reasonable doubt, then you must give your opinion that the accused is not guilty. This assessment, this determination, rests with you – with each of you – upon your individual assessment of the evidence." (Emphasises is mine) 

[12] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen 1970 AC 618 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.

[13] 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

[14] Now I evaluate the evidence adduced before me. The accused admits that he went through the traffic lights. He said that it was green and it turned it to Amber while he was driving. It was the middle of a crossing it came red but he drove through these lights. On contrary the LTA witness said that it was Red light. This is word to word. But, as a driver, this court understands the natural behaviours of the drivers. It may have been happened in normal practice of drivers. That is drivers normally drive through Amber if they cannot stop the vehicle. I hope, the similar situation happened this matter as well. Can a driver drive through the Amber lights? I now draw my attention to the "Fiji Road Code Book" which is issued by the Land Transport Authority –Fiji. This book was compiled in collaboration of Fiji Police, Ministry of Health, National Road Safety Council and Fiji Driving School Association. In that book under the topic of Traffic lights the answer for this question available. It mentions Red Light means "STOP, do not move until light changes green. Amber Light means 'STOP, if you are so close to the line that you can't stop safely, PLEASE PROCEDE WITH CAUTION". Green light means that you can go if it is safe. The accused in his evidence said he proceeded in the amber light. As I noted, if the accused cannot stop, he should proceed with caution. I cannot see any wrong in it. This "Fiji Road Code Book" has designed by LTA and LTA has formulated under Land Transport Act which is the governing law. Thus, these instructions cannot be lightly ignored. The evidence is word to word; hence I give benefit of the doubt to the accused. There is a serious doubt whether the accused drove this vehicle at the particular time through Red or Amber. If it was amber, still he could drive with caution. I therefore hold that prosecution has failed to prove its charge beyond reasonable doubt. 

Verdict

[15] Therefore Court finds that the Accused ROUPESH KUMAR RAM did drive with the due care and attention of a prudent and reasonable driver in the circumstances.
The Accused is acquitted and discharged. 
On 27th March 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate- Nasinu