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Magistrates Court of Fiji |
IN THE MAGISTRATES COURT AT NASINU
Traffic Case No. 4116/2009
DPP
-v-
UMLESH CHAND
Ms. Nancy Tikoisuva for the Director of Public Prosecutions
Mr. V. Maharaj (MC LAWYERS) for the accused.
Judgment
1] The accused is charged with following counts namely;
CHARGE:
FIRST COUNT
Statement of Offence [a]
DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97 (2) (c) and 114 of the Land Transport Act 35 of 1998.
Particulars of Offence [b]
UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby caused the death of Shalen Prakash.
SECOND COUNT
Statement of Offence [a]
DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97 (2) (c) and 114 of the Land Transport Act 35 of 1998.
Particulars of Offence [b]
UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby caused the death of Navneet Narayan.
THIRD COUNT
Statement of Offence [a]
DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97 (2) (c) and 114 of the Land Transport Act 35 of 1998.
Particulars of Offence [b]
UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby caused the death of Ratu Malakai Banuve.
FOURTH COUNT
Statement of Offence [a]
DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97 (2) (c) and 114 of the Land Transport Act 35 of 1998.
Particulars of Offence [b]
UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby caused the death of Salanieta Kotoimoala Miutamata.
FIFTH COUNT
Statement of Offence [a]
DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c) and 114 of the Land Transport Act 35 of 1998.
Particulars of Offence [b]
UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Litia Cagimaira.
SIXTH COUNT
Statement of Offence [a]
DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c) and 114 of the Land Transport Act 35 of 1998.
Particulars of Offence [b]
UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Sudesh Prasad.
SEVENTH COUNT
Statement of Offence [a]
DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c) and 114 of the Land Transport Act 35 of 1998.
Particulars of Offence [b]
UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Ratu Peni Muakalou.
EIGHTH COUNT
Statement of Offence [a]
DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c) and 114 of the Land Transport Act 35 of 1998.
Particulars of Offence [b]
UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Samanunu Kalouniceva.
NINETH COUNT
Statement of Offence [a]
DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97 (4) (c) and 114 of the Land Transport Act 35 of 1998.
Particulars of Offence [b]
UMLESH CHAND s/o Muni Lal on the 24th day of November, 2008, at Nasinu in the Central Division, drove a motor vehicle registration number GM 243 along Princess Road, 6 Miles, in a manner which was dangerous to the public, having regards to all the circumstances of the case and thereby occasioning grievous bodily harm to Renuka Prasad.
2] The following facts are agreed between the Prosecution and the accused under the provisions of Section 135 of the Criminal Procedure Decree of 2009.
3] The Parties is also tendered following statements and documents by agreement.
4] To prove this case the State called following witnesses. The first witness (PW1) was PC 3052 Pram Siwam. He said at about 1600 hours (4pm) on 24th November 2008 he received a report of fatal accident which occurred at Tamavua 6 Miles near Savutalele. He said he immediately attended the scene of the accident. He said three vehicles were involved in the accident, namely GM243, LM25 (Vitimini) and D7353. According to him one of the witnesses from the minivan showed him the point of impact. The witness identified the photos which he took.
5] When asked in cross examination, the witness said the investigation officer was Sgt 1391 Suresh. He said he did sketch plans and recorded the statements of the witnesses. The witness admitted that the accused had not signed caution interview. But the court notes this is agreed document. The witness could not give the name of the person who showed the point of impact. . He confirmed there was no white line on the middle of the road during the time of accident and because the road was recently sealed. When the court inspected the scene at the hearing, the court noted the road was recently tarred and road markings were drawn recently. But the witnesses said there was no double line in middle of the road. The witness said that he did not take length of minivan and other vehicles.
6] The PW2 was Vijayata: she said on that particular day she was travelling from Nausori to Suva through Princesses Road (back road). The vehicle number was LM 25 and she knew the driver. She sat in front seat parallel to the driver there was a Fijian lady next to her close to the driver. When they started, it was drizzling. They left 3.45pm and the time was 5pm when incident occurred. She said that weather changed and it was raining heavily and cloudy and bit darker. She said "there was one van in front of us. Our driver overtook...it came to the lane and it came Savutalele junction... then, nearing the junction, suddenly I saw a big truck came in front. It was raining heavily, a truck was coming down. The truck was coming right on us. I thought it gonna hit us right on the front. Our vehicle was its own lane there was mountain left side, he (driver) saved my life...it happened so suddenly. It did not hit right in front. It hit side of the van our vehicle was going almost speed. There was no traffic....after the impact the van went to the other side of the road, it was going downhill". The witness said she was not mistaken and the van was not drifted to the other lane. From this accident she only got blood clot in left shoulder.
7] In cross examination the witness said it was happened at 4.15pm. The driver overtook the vehicle before the accident she pointed out 200 metres (Court to MH –Nasinu). She said "it was very dark, cloudy, it was high mountain area. There was no mist. It was wet. It was raining heavily. When overtaking before the truck no vehicle came towards us. When the vehicle was hit, passengers shouted stop the vehicle." The witness further said "It did not point out the point of impact. But point of impact is very close to the mountain. In my opinion the yellow truck came very high speed. It came over 100 kmph. This truck came completely to my side we went to other side."
8] PW3-Sudesh Prasad; he said "when I was in the vehicle, I saw one truck coming towards us. Van came about 50kmph. I am a driver I am well aware of speed limit. Before the bang, PWD truck came side way and it hit the back part of minivan. When accident happened, I was unconscious. Van was on correct lane. " . The witness identified his medical report.
9] The witness said he got $17,500 for injuries as compensation. He said the accident happened after one hour. He said that he cannot remember the minivan did overtake other vehicle. But he said after regain the consciousness he saw another van was involving the accident. When he saw the truck it was half on his side.
9] PW4- Suresh Chand: He said on 24th August 2008, he drove 2 tones tip truck. Registration number was E 7353. In that afternoon he came to Nausori and was going back to Lacala Beach. He said "I was on my way there was a minivan in front of my truck. I was following it. When we reached Savutalele, I saw PWD truck was coming other side, it was over speeding. At the corner of the bend, PWD truck lost its control and it twisted on to both side. PWD truck hit the minivan. Vision was clear. ...I was following this vehicle from Sewani. I was 4 car distance behind when the truck hit minivan. ... I was going uphill. I was at speed of 40 kmph. I have been driving and experience driver. I can say what the speed of minivan is, was going up. It was going up 50kmph.manner of driving the minivan was ok. He was on his lane, driving properly. PWD truck was coming on the other side; driver lost his control...the impact point was beyond the tar seal. ". The witness said he was injured on his head, left knee and hips and he took medicine. He stressed before the accident the driver did not go the other side of the road and LM 25 did not overtake him.
10] In cross examination the witness admitted the road is winding out with sharp bends. There were white lines most of the parts on the road. But there was no white line at the point of impact. The time was 4.10pm when the accident was happened. There was bend before the accident. It was bit far from the point of impact. He was following minivan from Sawani about 20km. Minivan never overtook his vehicle. Minivan was in its lane and it did not go opposite side of the lane. PWD truck was overspending and driver lost control. He said the truck driver did not try to avoid the accident. He further said the truck was big he could oversee the accident. He said he could not say exact speed of the truck and the truck lost control and only rear portion of the truck hit the minivan. The defence suggested in his police statement the witness had failed to mention these things. The witness said the truck came in zigzag manner, he showed to the police.
11] PW5- Jekesoni Tawatutau.: This witness stays in Savutalele settlement and close to the vicinity. After dropping his wife to a bus he stayed till 4pm in his elder brother's house as it was raining. He said "I was standing inside the house. When I came out, I reached the door, I heard the sound of the tires and I was rushing to come out. It was too fast, he tried to brake. ...when the PWD truck coming down, I came two steps, it went pass my brother's house, there was a breadfruit tree and I heard something exploded. I thought a tire of PWD exploded. I ran to the main road". The witness explained what he saw thereafter. The witness said he did not look at the truck. He could not recall whether the accused sitting in the (PWD) truck. This witness told that the driver of the truck was not that much old. He was between 25 to 30 years. The witness further said "I did not see the impact of the vehicles".
12] When cross examined this witness said his statement was recorded in mobile by a Mr. Tuifagalele and he did not sign the police statement. After giving the statement he went to Lau. He denied the signature of statement. He said he saw the PWD truck going pass him in a zigzag manner. He said "I saw white van was coming. The minivan was coming right direction. I was able to see when minivan was coming. It was clear. When PWD truck's tire exploded, I heard the sound of impact. When I came out the minivan came towards me. I never saw the impact. I saw driver's side torn." He said that he cannot say that minivan was in wrong side. He said when the right side of the minivan was torn "those two fell down in the middle of the PWD lane". The witness was speaking about the deceased persons of the accident and he said the fell in middle of the PWD lane. He said he did not see the driver. The defence tendered this witness's police statement was tendered as DEX-1 to prove some contradictions and omissions.
13] PW6- Vilitali Waqasona: the witness said on that particular day he was at home and was talking to grandmother. He was sitting at the sitting room closer to a window. Then, he heard noise like tires sliding on the road. He then open the window and saw a white van heading towards the house and its right side was opened (torn). He then explained what he saw after the accident. He saw two dead bodies and he helped loading injured.
14] In cross examination, the witness said he did not see Jekesoni on that day. He was questioned; "Q: When you first saw the van? The van was still at the road (shown about 25 metres), that van was travelling at high speed. It was coming from Nausori towards Suva direction. It ended up opposite lane. When his police statement was shown he admitted that he did not see the impact. It seems the witness exaggerated the incident.
15] Thereafter DPP called official witness. They called PW 7 -LTA Vehicle Examiner Mr. Kishore Chand: He has given the condition of vehicles and reports after the accident. He said that he towed PWD truck to LTa. He said" Left rear wheel out of two, one was jammed. One was working. He said he put defective brakes at rear PWD truck. He said "Upon depressing the foot paddle, I could not see any moment. So, I hammer it back to release the brake actuators. As soon as I tap acutor, it did release. That's why I put defective brake at rear. Because of this happened "sudden braking"., system could lock inside. It could have been during application, driver must have applied the brakes then wheels blocked, I can't tell it happened before the impact or after the impact... when the driver put down the brake it is possible to change the vehicle zigzag manner".
16] The Examiner said he could not check the brakes of minivan. He confirmed that left rear wheel of the truck was jammed. The brake cannot be locked even the below speed of 50 kmph.
17] After calling these witnesses, the prosecution tried to close their case. But the defence objected that vital witness Ema Kaibau has to be called in the interest of justice. The court upheld the objection and the State called PW8-Ema Kaibau. She said she is school teacher at Dilkusha High School. On that particular day she was going to Suva to hand over marked exam papers. At 3pm she boarded to the Minivan at Nausori mini bus stand and bus was fully loaded. She sat in the second row at the minivan. The driver took Sawani Route. The driver was very young Indo Fijian. She said "When the van left Nausori, the driver went at top speed, very fast, because I was scared. That's why know he was fast. I travel minivan frequently. I was scared because the van was very fast. When we Nausori junction I began to pray myself quietly. ... being a strong Christian, I shared with the Lord. ..I totally believe the Lord would save me if anything happened. So, I prayed, I am the only one not hurt at all. When, van went very fast it overtook few vehicles on its way to Suva.... After that we were going fast, I saw oncoming vehicle. I could not make out the vehicle, but it was heavy vehicle that was coming towards us. ...our vehicle was my right side. Our vehicle was very fast. ..Everybody yielded inside the minibus. ..I did not see the point of impact." She described what happened after the incident. She said she was conscious at every time.
18] In the cross examination, the witness said short before the accident, the van overtook a vehicle. It went opposite lane just before the accident. But she confirmed that they were not overtaking at the time of accident. They were in the right side. She said "just before the accident, the van was on the right. It was not able to come to our lane. It overtook but it was not able to take correct lane. Passengers were yielding "Oh samate". We had fear that we are going to hit the truck. On that night nobody cares me. I stayed 2-3 hours in the police". She said her police statement is correct.
19] Thereafter the prosecution closed the case. The court held there is a case to answer. The accused opted to give dock statement and he made it under section 179(1) (b) ii of the Criminal Procedure Decree2009. But later it transpired that this provision for dock statement has been repealed in our law. Accordingly the court rescinded the dock statement and gave rights to call defence evidence. But the defence tried to file submission for no case to answer, but the court refused that application. The accused opted to remain silence.
20] Both parties have filed useful written submission. I now consider my judgment.
21] The accused has been charged of 8 counts of Dangerous Driving. First 4 counts relates to Death of Persons referred to in those charges. Remaining 4 relates to injuries caused to persons named in Counts 5 to 8. The prosecution says that the accused on 24th November 2008 at Nasinu in the Central Division drove a motor vehicle registration number GM243 along Princess road 6 Miles Nasinu in a manner which was dangerous to the public having regards to all the circumstances. They further allege that as a consequence of accused's manner of driving, he caused 4 deaths and 4 injuries.
22] It is pertinent, what the State has to prove, beyond reasonable doubt is that the manner of driving of the accused at the relevant time was dangerous in all the circumstances. If the State is unable to prove the element of dangerous driving then the accused should be acquitted of all 8 counts.
23] 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 mhis means that you must be satisfied so that you feel sure of the guilt of the accused persons before you es an opinion that they are guilty. If you have any reasonable doubt as to whether the accusaccused 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 guf the accused."
24] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 June 2008) Justice Jocelynne A. Scutt in Her Ladyship's summing up said;
25] As Lord Devlin mentioned about evidentiary burden of proof in the Privy Council in Jayasena v. The Queen 1970 AC 618 also 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.
26] 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.
27] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.
28] In this case, the accused is charged of having committed dangerous driving occasioning death Contrary to Section 97 (2) (c) and 114 of the Land Transport Authority Act Number 35 of 1998.
Section 37 (2) (c) states;
"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: - (c) in a manner dangerous to another person, Section C (4) is similarly worded except it is confined to a situation where a person is injured as a result of the impact as opposed to a death".
29] Dangerous Driving is defined by section 98 (1) of the Land Transport Act as "driving on a public street recklessly, or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the public street and the amount of traffic which is actually at the time or which might reasonably be expected to be on the public street".
30] The particulars of the charge against the Accused state that he drove a motor vehicle on Princesses Road in a manner, which was dangerous to the public having regard to all the circumstances of the case.
31] In the case of Lasike v State, Fiji Court of Appeal Criminal Appeal No HAA 58 of 2002 (13th September, 2002) the Court of Appeal defined dangerous driving as follows:
"Dangerous driving is the causing of a dangerous situation by a manner of driving which falls below the standard expected of a prudent driver."
32] The standard for dangerous driving was also addressed in the case of Kumar v State, High Court of Fiji Criminal Appeal No HAA 14 of 2001 (12 April 2002), which involved a charge of dangerous driving causing death like this case. The High Court addressed the difference between careless driving and dangerous driving, stating as follows:
"The next ground of appeal is that there was no evidence of dangerous driving. In court, counsel submitted, that even on Mr Buksh's version of the facts, the Appellant's driving was only careless.
The evidence which the learned Magistrate accepted was that the Appellant was negotiating a bend at a high speed on the wrong side of the highway. He was driving a cargo truck and in going to the wrong side of the road created a dangerous situation. In R -v- Gosney (1974) 3 ALL ER 220, it was held that a charge of dangerous driving is proved when the driver drives in a way which falls below the standard of a competent and prudent driver, and thereby causes a situation, which viewed objectively, is dangerous.
The test for a charge of Dangerous Driving is an objective one, as is the test for Careless Driving. The difference between the Careless Driving and Dangerous Driving is not the manner of driving, (which has the same test) but the situation that has been caused thereby. In other words, a person who drives carelessly, also drives dangerously, if viewed objectively, his/her manner of driving creates a dangerous situation. Thus a person who drives carelessly, drives dangerously if he/she thereby causes a death. Therefore, counsel's submission that the Appellant (on the version of the facts given by PW1) was only driving carelessly, has no validity."
33] In this case there is no dispute that the accused drove a truck registration number GM243 along Princess Road at 6 Miles, Nasinu on 24th November 2008. Furthermore there is no dispute that GM243 collided with a white Mini van at 6 Miles, Nasinu. What is in serious dispute, between the parties, is the DPP's allegation that on the day in question the accused drove his vehicle in a manner which was dangerous to the public and caused either the death or injuries to persons named in the 8 Counts. This is the only element to be proved by the prosecution and other all elements have been admitted and they have been already proved by admission.
34] The State called 8 witnesses and amongst them one Ema Kaibau was ordered to call. The defence heavily relied on this witness Ema. The defence remained silence, when, the court held there is a case to answer that means all ingredients have been touched by evidence. It means because of incriminative evidence a strong prima facie case has been made out against the accused by the prosecution. Then, the accused needs to give an explanation why he was acting in that manner.
35] The evidence adduced by the DDP in this court shows that the accused was coming down a steep and the minivan was climbing a hill. The defence suggested that the minivan driver was driving dangerous and negligent manner. This court did not deny it. Immediate before the impact the minivan overtook a truck. This evidence was adduced by Ema, a teacher; whoo gave police statement short time after the accident. This court can rely on this evidence. On the other hand the LTA examiner's evidence and rest of other witnesses of the prosecution proves that the accused was also driving an excessive speed and he was not in a position to control his vehicle. His vehicle went zigzag manner and road and weather conditions were very bad. It was raining and dark, cloudy at that time. The minivan was climbing and no one can say its speed at the time of impact, but it is seen at the same time the accused's vehicle was also speeding and was coming down at steep. According to the LTA Examiner's report (EX-3) the condition of brakes of PWD truck was OK, when tested. One wheel was jammed after the accident. This indicates the accused was in a position to stop the vehicle before the accident if he was driving in a prudent manner. It was a big truck and the weather condition did not support at all. But he was driving uncontrollable speed. This court admits the minivan driver was also driving in a dangerous manner. But it did not exonerate the accused. Two wrongs cannot make a right. Both drivers were at fault and one is dead and gone. But the accused's action is also contributed to this accident and it jointly claimed four lives and 4 injured, which is horrendous.
36] In Miller v Minister of Pensions [1947] 2 All ER 372 Lord Denning described the standard of proof. He notes;
"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "Of course it is possible but not in the least probable", the case is proved beyond reasonable doubt; nothing short will suffice."
37] Thus, it needs not 100% sure of probability but should reach a high degree of probability. In this case the prosecution proved that the accused drove the PWD truck in an excessive speed in a rainy, dark day on a steep. The defence favorable witness was also saying before the impact that minivan was driven correct side. It came to correct side. Thus, the driver of minivan was in his side (left) at the point of impact and other witnesses also took same stance. Then what had really happened was when the accused saw, the minivan was overtaking the other vehicle he got panicked and applied brakes the brake was jammed and due to excessive speed of the PWD truck it went zigzag manner and rear portion of the PWD truck minivan hit the minivan and due to excessive speed of both vehicles and weight of the impact, the right side of the minivan was torn and victims got injured. Meantime the PWD truck secondly hit the 2 tones truck and that truck was got tumbled due to high speed of accused's vehicle. Therefore the strong prima facie case was made out against the accused. In line with the Lord Ellenborough's presumption when an accused fails and omits to explain away incriminating evidence adduced by prosecution witnesses, the courts have cited with approval the famous Lord Ellenborough's dictum to drive home the conviction of the accused. The off quoted principles laid down by Lord Ellenborogh in Rex Vs. Cochrane in Gurney's Report at page 479 go as follows;
"No person accused of a crime is bound to offer any explanation of his conduct or of circumstances of suspicion which attaches to him, but nevertheless if he refuses to do so where a strong prima facie case has been made out when it is 'in his own power to offer evidence if such exists in explanation of such suspicious circumstances, which would show them to be fallacious and explicable consistently with his innocence, it is a reasonable and justifiable conclusion that he refrain form doing so only from the conviction that the evidence so suppressed or not adduced, would operate adversely to his interest."
38] In this case the only disputed element was dangerous driving at the time of impact. Driving in an excessive speed on a public high way is obviously dangerous and the accused knew if anything goes wrong some serious thing could happened. In this case it was a mishap, caused serious accident. I therefore hold the prosecution has proved its case beyond reasonable doubt.
39] The accused is convicted for all (9) count as charged. I now call mitigation before sentencing.
40] 28 days to appeal
On 10th May 2013, at Nasinu, Fiji Islands
Sumudu Premachandra
Resident Magistrate-Nasinu
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