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State v Kumar [2013] FJMC 25; Traffic Case 4343.2012 (23 January 2013)

IN THE MAGISTRATE'S COURT OF NAVUA
Traffic Case : 4343/2012

STATE

VS

SHALESH KUMAR

For Prosecution : Sgt. Lenaitasi
For Accused : In person

Date of hearing : 15 Jan 2013
Date of Judgment : 23 Jan 2013

Judgment

[1] The accused is charged for the offence of Careless Driving contrary to Sec 99(1) and 114 of the LTA Act. The charge reads as follows.

Statement of Offence [a]

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

Particulars of Offence [b]

SHALESH KUMAR, on the 20th day of November 2011, at Navua in the Central Division, drove a motor vehicle registration number 'KACAU' on Queens Road, Vunaniu, Serua, without due care and attention and as a result the said motor vehicle overtook and scratched the right side of another motor vehicle registration number FE 583.

[2] When the charge was first read to the accused on 31/07/2012 he informed that he wanted to apply for the Legal Aid. Therefore the disclosures were served on him and the Court granted him time for that.

[3] When this case was mentioned again on 01/10/2012 the Court found that the accused had not applied for the Legal Aid. Therefore he was directed to take his plea again. The accused waived right to counsel and pleaded not guilty and the hearing was fixed on 15/01/2013.

[4] The prosecution called 02 witnesses and tendered 02 documents. For the defence the Accused and another 03 witnesses gave evidence.

SUMMARY OF EVIDENCE
PROSECUTION CASE

[5] Sisila Wati(PW1) – She said on 20 Nov 2011 she was coming from Nadi to Suva in her vehicle. She was driving the vehicle and in Vunaniu, Serua she heard a horn noise from behind. She was driving on her side and suddenly a Pacific Transport bus overtook her and bumped her vehicle. The PW1 identified the accused as the driver of that bus.

[6] The accused was given the chance to cross examine the PW1. In cross examination the PW1 said the accused did not give any signal to pass and also she did not give the way but the accused's bus overtook her causing the accident.

[7] PC Nitesh (PW2) - The IO as well as the officer who conducted the interview of the accused. He also drew the sketch plan of the accident. The PW2 said the accident happened in a bend and there was a double line in that place. He further stated that if the accused had taken the precaution the accident would have been avoided. The prosecution marked the sketch Plan as EX-01 and the interview notes of the accused as EX-02 as respectively.

[8] Answering to the questions raised by the accused PW2 said the PW1's vehicle was on the road and the accused should not have overtaken at that place.

[9] Thereafter the prosecution closed their case and the Court was satisfied that there was enough evidences against the accused to call his defence. The accused was explained about his rights and he elected to give evidence on oath.

DEFENCE CASE

[10] Shalesh Kumar( accused) - He said on that day he was driving a bus and saw a vehicle in front going slowly. The accused signaled and the vehicle went to a side. The road was clear and he overtook the vehicle and saw the vehicle coming near to his side. The accused denied cutting the double line when he overtook the PW1's vehicle.

[11] In cross examination the accused said there were only two lanes at that place and there were double lines also in the road. The accused also admitted the point of impact in the sketch plan.

[12] Shankar(DW2) - He said he was in the bus and saw a vehicle in front. Then later he heard a loud noise. In cross examination he admitted he did not see how the accident happened.

[13] (DW3) - He was also in the bus and saw the accused signal the vehicle to give way. As soon as the bus overtook the DW3 also heard a noise.

[14] Ronald (DW4) - He also saw the vehicle in front and saw the vehicle going to a side. Then the bus overtook. The defence did not call any other witnesses and also closed their case. Both parties were not inclined to file closing submissions.

THE LAW

[15] The accused is charged with the Offence of Careless Driving contrary to Sec 99(1) and 114 of the LTA Act. The Sec 99(1) reads as follows:-

A person who drives a motor vehicle on a public street without due care and attention commits an offence and is liable on conviction to the prescribed penalty.

[16 ] Therefore the prosecution needs to prove the following elements in this case.

[a] The accused drove a motor vehicle

[b] On a public street without due care and attention

[17] The test for careless driving tated in the case of Khan vhan 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 car driv160;imitted,tted, ted, the the test, as LORD GODDARD C.J. said in SIMPSON v PEAT (1952 1 AER 447 at p.449) is: "was D ising that degree of care and attention that a reasonable and prudent driver would exercisercise in the circumstances?"

The standard of proof is an objective one . . ."

[18] The burden is on the prosecution to prove the case. This was clearly described
by Viscount Sankey L.C in the Woolminton v DPP [1935] A.C. It was 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. Where the burden of proof remains on the prosecution throughout the trial, in that circumstance, the accused need only to raise sufficient evidence to cast reasonable doubt on the issue.

[19] In State v LIVAI TAMANALEVU [2012] FJHC 1295; HAC 344 OF 2011S) his Lordship Justice Temo told to assessors (summing up);

The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.

[20] In Miller v Minister of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt as follows. '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 the shadow of the doubt. The law would fail to protect the community if it admitted 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 favor, 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, but nothing short of that will suffice.'

ANALYSIS OF THE EVIDENCE

[21] In this case following facts were not disputed by both parties.

[a] The accused drove the vehicle

[b] On a public street.

[22] The only issue to be decided in this case is whether the accused was driving the vehicle without due care and attention at the time of the accident.

[23] The PW1 said she was driving on her lane and she heard a horn noise. And without any warning the accused's bus overtook her. She also denied giving way to overtake her. I am satisfied with her evidence and the way she gave it in the witness box. The pw2, the IO in this case also said if the accused had taken care and attention this accident would not have happened.

[24] On the other hand the accused stated in his evidence that the PW1 gave way and he overtook because of that. But he denied cutting the double line and going to the other lane which could have been an offence too at that place.

[25] I have noted from the evidences and sketch plan that the accident happened in a bend. As admitted by the accused the road consists only of two lanes with double line in the middle. Therefore to overtake the accused can't go to the other lane. The accused also denied doing that.

[26] As I noted above the accused said the PW1 gave way and he overtook her. Even if the PW1 gave the way I believe the accused should not have done that in a bend.

[27] But I am satisfied with PW1's evidence. Therefore I accept the prosecution's version that the PW1 did not give way and the accused overtook her disregarding that. From the sketch plan it is obvious that there is space enough for only one vehicle and being also a bend it's dangerous to overtake in that place. Therefore the accused had not acted wisely trying to overtake in that place.

[28] Also the other witnesses called by the accused failed to raise doubt about the
prosecution's version.

[29] From the evidence I find that the accused had acted without due care and attention to the other vehicles driving like that thus causing this accident.

[30] Based on the above grounds I find that that the Prosecution has proved beyond
Reasonable doubt that the accused committed this offence.

[31] Accordingly I decide that the accused is guilty for the offence of Careless Driving and convict him for the offence as charged.

[32] 28 days to appeal.

23/01/2013

H.S.P. Somaratne
Resident Magistrate, Navua