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State v Chandra [2013] FJMC 118; Traffic Case 1594.2010 (22 March 2013)

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

Traffic Case No. 1549/2010

THE STATE

V

SHANEEL CHANDRA

ASP Tuwaqa for the prosecution
Messrs Patel & Sharma for the accused
Date of Ruling: 22.03.2013

RULING
[On no case to answer]

The Application

1. This is an application by the defence counsel under Section 187 of the Criminal Procedure Decree 2009. At the close of the prosecution case, the defence counsel submitted that there was no case to answer sufficiently enough to put the Accused to his defence and as a result the Accused should be acquitted.
   

The defence submitted that:-

(a) The prosecution has failed to prove the ingredients of the offences and as a result the Accused should be acquitted from all counts.

Prosecution's Response

2. The prosecution submitted as follows:
   
   1. There is prima facia case and there is a case to answer.
   2. The prosecution has proved all elements of the offence.
   3. The defence has not discredited the evidence adduced in court by the prosecution.
      

The Governing Section

3. The provisions for a no case to answer submissions in the Magistrates Court is found in section 187 of the Criminal Procedure Decree which reads thus:
   

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused".

The Charge

FIRST COUNT

Statement of Offence

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

SHANEEL CHANDRA on the 23rd day of April, 2010 at Nadi in the Western Division drove a motor vehicle registration number DZ 339 on Queens Road, Namaka, in a manner dangerous to the public, having regards to all circumstances of the case and caused the death of ILATIA LABALABA.

SECOND COUNT

Statement of Offence

Failed to stop after an accident contrary to section 63 (1) and 87 of Land Transport (Traffic) Regulation 2000.

Particulars of Offence

SHANEEL CHANDRA on the 23rd day of April, 2010 at Nadi in the Western Division drove a motor vehicle registration number DZ 339 on Queens Road, Namaka and an accident occurred and did fail to stop after an accident.

THE CHARGING SECTION

4. Section 97 (1) (2) (c) provides that:-
   

"(1) 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.

(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 an intoxicating liquor or of a drug; or

(b) at a speed dangerous to another person or persons; or

(c) in a manner dangerous to another person or persons."

Section 97 (7) provides:

"In this section, "circumstances of aggravation" means any circumstances at the time of the impact occasioning death or grievous harm in which-

(a) more than prescribed concentration of alcohol was present in the accused's blood; or

(b) the accused was driving the vehicle concerned on a public street at a speed that exceeded, by more than 45 kilometres per hour, the prescribed speed limit (if any) applicable to the length of that street; or

(c) the accused was driving the vehicle to escape pursuit by a police or authorized officer."

Section 63 (5) of Land Transport (Traffic) Regulation 2000 reads as follows:

"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 the 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. ELEMENTS OF THE CHARGES
   

For count 1: The prosecution must prove four elements for the charge 1: (i) that the Accused, (ii) drove, (iii) his vehicle (DZ 339), (iv) in a dangerous manner and caused the death of Ilia Labalaba.

For count 2: the prosecution must prove that (i) the Accused (ii) drove (iii) his vehicle (DZ 339) (iv) accident occurred (v) failed to report after accident.

THE LAW

6. The general principles governing a no case to answer application in the Magistrates Court was set out in the long standing case of R v Jai Chand (1972) 18 FLR 101. In upholding a submission that there was no case to answer in the Magistrates Court Grant CJ stated at p.103.
   

"It seems clear that the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution's case the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. However, the question does depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence."

7. In Moidean v Reginam Criminal Appeal no. 41 of 1976, the Court of Appeal also set out the incidences when a submission of no case to answer may be properly made and clarified to a greater extent what the learned Magistrate is to focus on.
   
8. Moidean (supra) pointed out the following instances in which a no case to answer application may be upheld:
   
   1. When there is no evidence to prove an essential element in the alleged offence;
      
   2. When the evidence adduced by the prosecution has been so discredited as a result of cross examination or;
      
   100. The evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it.
        

The Evidence of Prosecution

9. Prosecution called four witnesses in support of the charges. They include three police witnesses and one civilian witness. They are Cpl Arunesh (PW1), Sgt Jayendra Singh (PW2), PC Amlash Singh (PW3) and Kala Wati (PW4). Record of the caution interview, charge statement, post mortem examination report and map of the scene of the accident were tendered by consent.
   
10. PW1 in evidence in chief stated that: On 23 April 2010 he received a report of a fatal accident and proceeded to attend the scene of the accident. He was coming from roundabout towards Martintar, saw one white car with its right side fender damaged and its windscreen damaged heading towards votualevu roundabout. He drew a rough sketch plan. The old man who was driving that car was Shaneel's (Accused's) father who informed them he was going to the station as his son was involved in an accident at Namaka. They brought the vehicle to the station.
    
11. In cross examination PW1 told that he did not see the vehicle they brought to station involving in accident. He admitted that in the course of drawing the scene map he become aware that another minivan was involved in this collision.
    
12. PW2 stated in evidence that the vehicle was not located after the accident. The driver of the vehicle drove away the vehicle from the scene. He organized a search party to search for the driver. As they went to Votualevu public school they saw the same vehicle coming from the opposite direction. He could not recall the registration number of the vehicle. They stopped the vehicle and then found one Shiu was driving the vehicle. Mr. Shiu told them that his son involved in an accident and he was taking the vehicle to the garage.
    
13. During the cross examination PW2 maintained that he was not informed that another minivan was involved in this accident.
    
14. PW3 is the investigation officer in this case. He caution interviewed the accused. He said the accused did not make any statement regarding the allegation.
    
15. Under cross examination PW3 said that station sergeant (PW2) was informed that another minivan was involved in this accident. He further stated that the Accused refused to answer all the questions.
    
16. Finally PW4 gave evidence and stated that that night one car came to their house. She woke up and asked her husband who came. Her husband said that Shaneel came to their house. She did not see the car.
    
17. PW4 was neither cross examined nor re-examined.
    

The Determination

18. It is for the court to determine whether there is sufficient evidence in respect of each element of the offence to put the accused to his defence. It is not for this court to decide whether each element has been proven beyond reasonable doubt. That is the course that I will adapt at the end of the trial if I find a case to answer. If there is no evidence in respect of any one element of the offence then the charge should be dismissed and the accused acquitted under section 187 of the Criminal Procedure Decree.
    

The Analysis

19. The accused has been charged with one of aggravated dangerous driving occasioning death. As stated earlier the prosecution must prove four elements namely:
    
    • (i) that the Accused,

(ii) Drove,

(iii) His vehicle (DZ 339),

(iv) In a dangerous manner and caused the death of Ilatia Labalaba.

20. Element (i) there has been dispute in this. None of the prosecution witnesses saw the accused driving the vehicle registration number DZ 339 at the time of the accident. The accused was not positively identified as the person who drove the vehicle at the time of the accident. As a result there is no sufficient evidence to establish elements (i) (ii) and (iii). All that PW1 and PW2 told that they saw the vehicle and stopped it and then saw one Shiu (Accused's father) driving and he told that he is taking the vehicle to the garage as his son was involved in the accident.
    
21. Mr. Shiu who drove the vehicle which was allegedly involved in the accident was not called by the prosecution. So what the prosecution witnesses stated in this regard is hearsay evidence.
    
22. There is a dispute also with regard to element (iv) that he drove the vehicle dangerously. The charge is one of aggravated dangerous driving occasioning death. Hence the prosecution must prove the accused was driving in a manner dangerous to a person. There is no evidence to show how the accused drove the vehicle in a dangerous manner.
    
23. The charge arose out of a motor vehicle accident which occurred on 23 April 2010 at Nadi on Queen's road Namaka. It is to be noted that the prosecution produced no eye witnesses in this case. PW1 and PW3 confirmed that another vehicle was involved in this accident. However, PW2 denied this. He said he had no knowledge of another vehicle's involvement in this accident. Whereas PW3 stated in court under cross examination that he informed of another vehicle's involvement in this accident to PW2. PW2 has deliberately denied it.
    
24. The other charge is that failed to stop after accident. The accused and vehicle was not positively identified by the prosecution witnesses. Hence there is no sufficient evidence to establish elements of this charge as well.
    
25. In my judgement prosecution failed to produce sufficient evidence touching all essential elements of the charges.
    
26. Therefore, in my opinion no reasonable tribunal properly addressing its mind to the evidence so far led by the prosecution would convict the accused for the charges laid in the information.
    

Conclusion

27. In my judgment there is insufficient evidence in respect of each element of the offences that the accused was driving in an aggravated dangerous manner and failed to stop after accident to require the accused to be put to his defence. I dismiss the charges and acquit the accused from both the charges.
    

.............................................
M H Mohamed Ajmeer
Resident Magistrate
22/03/2013