IN THE MAGISTRATE’S COURT OF NASINU

Traffic Case No. 14625/2012

LTA

-v-

KERBIN ALI

Ms. R. May 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]

CARELESS DRIVING: Contrary to Section 99 (1) and 114 of Land Transport Act 35 of 1998.

Particulars of Offence [b]

KERBIN ALI on the 3rd June 2012 at Nasinu in the Central Division drove vehicle registration number LT2374 on Kings Road, Nasole without due care and attention by making a U-Turn in a double opposite lane and also non separation lane. 

Summary of evidence

[4] At the trial, prosecution called following witnesses to prove the charge. Firstly they called Mr. Etika Mataisuva. The witness said that he said he can recall 30th July 2012. He is a team leader for LTA and he came direct to the field. That morning they left Nausori and their way this happened. He said “early morning when I when we were turning from Nausori myself and my others who was driving the vehicle Malakai I was sitting on the left hand side as a passenger. As soon as we reach the Nasinu Road the junction almost Nasinu Road junction we on the middle lane, there are two lane from Nausori to Suva and we are in the middle lane. As soon as we about to reach that junction a taxi came in from the opposite direction going towards Nausori. Turn all of a sudden in front of us and slowed to the left and without giving any signal without giving any indication to that is about to turn all of a sudden turn and we stop and all of a sudden all the vehicle on the far left hand side of the lane all stop. You mean he took a u-turn? Yes. He made a u-turn in front of us.” 

[5] In further evidence in examination, the witness said he it was a Monday early morning it is always busy. He further said that vehicle was rushing that morning to work where this incident happened. There’s a quite number of vehicles were running on the road that early morning. The witness confirmed that the act was very dangerous.

[5] In cross examination he said the accused was booked on a Kings Road opposite Nasinu Road at Delainasole. When the accused turn his vehicle he cannot measure the distance.

[6] In re examination the accused was identified and he said that he was driving a taxi on that day. 

[7] Thereafter, PW2 Authorized Officer Malakai Waqanokonoko was called. He said on that day he was driving vehicle registration no. LTA 28 towards Suva and he reached the Delainasole at about 8.26. When he saw the driver of LT2374 did make a turn as a u-turn at Delanasole where the merit urn lights states you may not to overtake or make any necessary turn to cross or opposite the double lane from Nausori to Suva. And the driver made a u-turn there and stops right in front of them to pick a couple. He tendered LTA EX-1 to 4. 

[8] In cross examination the witness said when the accused made a u-turn the car distance was Approximately 10 meters. And they followed the accused and he was booked at Delainasole Road at Rishikul Taxi stand. 

[9] Thereafter prosecution closed their case. Since there is a case to answer, Defence was called and the accused rights were explained. The accused opted to give sworn evidence. 

[10] DW1 Kerbin Ali, the accused gave sworn evidence. He said that he stays at Kewal’s Yard Nasinu. On that day he came out from that area and he went to Nasinu Road junction. He said that there’s a shop at the main road at Nasinu and he has to stop his car since two passengers were waiting for him. Whilst the passengers were getting into his taxi,he saw the LTA vehicle which took pass from him. He was taking the passengers to Suva. The LTA booking officers they followed him and they booked him. The accused said that the LTA officers were waiting for him at Rishikul taxi stand and they booked him at the taxi stand

 [11] In Cross examination the accused said that he was coming out from my home at Nasinu. He took the vehicle out because he is staying at Kewal’s Yard. He went towards the Suva direction. When he took the vehicle out from the junction, there were no vehicles there to see. That’s why he took it out. And by the time he was picking the passenger the LTA vehicles arrive, went pass him. He denied that he made a turn. He admitted that he did see the unbroken lines on the road. 

 [12] The accused closed his case. I now consider the judgment. 

The Law on Careless Driving 

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

[14]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) 

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

[16] 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."

[17] 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) 

[18] As Lord Devlin mentioned in the Privy Council in 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.

[19] 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

[20] Now I evaluate the evidence adduced before me. The PW 1 told to the court that the accused made a u turn in a dangerous manner on the Kings road at Nasinu junction. The PW2 confirms the version. The accused denied that he made a u turn but he admitted that he came across the main road. The PW1 and 2 said the purpose of u turn was to pick a couple who were waiting other side. 

[27] It was a Monday morning busy day. Both parties admitted that fact. PW1 and 2 are eye witnesses. The accused said that he was booked at Rishikul taxi stand and LTA officers were waiting for him. But LTA witnesses said they followed the accused. This story is word against to word assertion. That means one party is lying. The accused admits that he took passengers before he was booked. This supports LTA version. There is no reason to concoct a story against the accused by LTA officers. There is no previous enmity between them. LTA EX-4 is the list of previous convictions of the accused. It shows from 2009 to 2012 the accused had 7 TINs and it means that the accused has no say to road rules. This further strengthens the prosecution's story. I therefore disbelieve accused's evidence and reject the same. In line with the above judgments, I hold that the prosecution proved its charge beyond reasonable doubt. I further hold that the accused was not exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstance on that day at particular time. The accused's action could have led a serious accident. He is guilty of careless driving. 

[28] Hence, the accused is convicted as charged. I now call mitigation before sentencing. 

[29] 28 days to appeal

On 03rd May 2013 at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate- Nasinu