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Magistrates Court of Fiji |
IN THE MAGISTRATES COURT AT NASINU
Traffic Case No. 15941/2010
STATE
-v-
NAWIN PRASAD
PC Ravi Narayan for the prosecution
Mr. Pita Niubalavu and Ms. Keli Vulimainadave for the accused
Judgment
1] The accused is charged with following offence, namely;
CHARGE:
Statement of Offence [a]
DANGEROUS DRIVING: Contrary to Section 98 and 114 of the Land Transport [Traffic] Regulation 2000.
Particulars of Offence [b]
NAWIN PRASAD s/o REUBEN PRASAD on the 4th day of November 2010 at Nasinu in the Central Division drove a motor vehicle registration number EV428 on Kings Road, 7 Miles in a manner which was dangerous to the public having regards to all the circumstances of the case.
2] At the very outset, the parties have filed agreed facts and bundle of documents, are as follows;
Agreed Statements to Tender
3] Issues to be addressed by the court at the end of the trial are as follows;
recklessly?
4] PW1 was Bijnesh Raul Rattal,: He said he can recall the 4th day of November 2010. He was in Nadawa from there he went to drop his brother in law at Laucala Beach. From there he was going towards Nausori. He was driving Hyundai Getz registration number Juzzle. He was coming from Ratu Dovi Road to Suva Nausori corridor Kings Road heading towards Wainibuku. He explained the incident "As I came to Quarry and Company I saw one vehicle coming towards me, speeding towards me. I applied brake. As I stop my vehicle I thought I could save my vehicle but the vehicle was in so fast, it spin towards me hit left side, front side of the passenger side. After hitting it tumbled 3 times, hit the fence, with the 50 signs, speed limit hit the fence". The witness said that vehicle hit left side of the front side and the bumper, the headlight, the fender and the door was damaged. The witness said after the accident "All the four tyres was looking upwards. It was overturned". He said he saw the driver of the accused, he is Indo Fijian. The witness positively identified the accused. He said that the cost of damage was around $8700. The witness said that the vehicle was over-speeding and tried to save himself from the water and turn towards his vehicle and caused the accident and damages.
5] Under cross examination the witness said that accident occurred around 8 to 8.15am morning. He did not receive any injuries. He further said that the vehicle hit him first and it was moved from the inner lane into the outer lane. He said "after hitting me, it hit the footpath tumbled 3 times, hit the 50 sign speed limit, hit the fence". The witness said that he cannot say that vehicle was over speeding but he saw the vehicle coming towards him spinning.
6] PW2 is Penaia Roko He said he is working for the PWD Quarry at Laqere. He said from his work shed to main road about 5 – 6 meters away from the main road. He can recall the 4th day of November 2010, he was working, he was right on top there. He said he saw the car, a white car just coming down from Nausori towards Suva. It was wet and there was water on the road and it was not that quite busy. He said that this car just overtook one and it was coming to the same line saw some water on the road. And when it came to the inner line it lost control from there, coming towards the other line and it hit one black car. Just tumble over and fall. The witness said it came quite speed, more than 100. He said the car hit PWD fence and it was a concrete fence.
7] In cross examination he said that he was just standing because the place where the car was coming he was standing and he was just looking. He was sitting at the shed and facing towards the Police Station. His shed was right on the beside the fence on the hill. It was around 8.10 to 8.15 that the accident happened. The witness said it was white, a small car very light. He said although other vehicles coming down together with his vehicle but the accused just overtook one and that's all nothing been hit from behind or side nothing, only he just overtook.
8] The prosecution tendered by consent PW1's statement as Exhibit 2, PW2's statement as Exhibit 3 .Caution Interview as Exhibit 4. The Rough Sketch the Fare Sketch and Keys are Exhibit 5.
9] Thereafter, the prosecution closed the case. Since there is case to answer right to call defence is explained. The accused opted to give sworn evidence.
10] DW1- the accused: Nawin Prasad: In his evidence the accused explained what happens on the 4th of November 2010. He said "I left home at twenty to eight. 7.40. Going on my outer line suddenly a white truck with yellow tarpaulin came beside me. It was coming beside me suddenly turn the vehicle in my line. Hit my right front causing my vehicle to swerve to the left and at the same time there was a hit from the back". He was driving a Toyota Echo 2006 model, colour White. It was busy time.
He described the 3 tonnes truck. After the accident the accused said he came out of the car and he was taken to Bhanabhai Medical by Police Officer. He said that his speed was 35 – 40 km. It was busy road.
11] In cross examination the accused said he is a Senior Finance Officer at Williams & Goslings. His office situated in Suva next to Bayly Clinic, Rodwell Road from it home to work place it about 15 km. he travels every day. He said to go to his work place it takes mostly 45 minutes. He starts at 8.30am. He was with his wife and she works in Nabua, She is a school teacher at Suva Muslim College in Mead Road. He admitted he drops wife at school it will take another 5-10 minutes time. The yellow truck was travelling parallel to him and it was on the outer line he was going down towards Laqere. . Truck hit him from the side. He said "After the truck hit me I tried to control my vehicle at the same time there was a hit from the back. That is what I am trying to say...I tried to control there was same time there was a hit from the back."
12] In re examination the accused said that because on that day it was day of Diwali, he had to go and give Prasad to my grandmum's place. He went and gave Prasad there, and then from there he proceeded. He started journey at 7.40am.
13] DW 2 is Renuka Pratap: She is the wife of the accused. She said "Yes actually we were going to work and when we were going down the hill we were on the outer side towards the footpath we were going towards Suva. And suddenly we saw a truck hit towards passenger my husband's side the car it hit that side. And the car suddenly swapped towards some distance and there was a bang at the back. And after that I couldn't remember what all happened and when I was in my conscious then I realized that I was in the car and when my husband got off the car from my side to the mirror then he took me out as well. And then we realized that the car was tumbled over"
14] Under the cross examination the witness said they started at 7.40 or 7.35 morning and accident happened at 8 o'clock. 8 o'clock. She said it was late to school. From Nakasi to Suva Muslim it's about 25 – 30 minutes drive, there were no other place plans they just go directly to school. But they did not reach the school. She said in between they never went to any other place not even stop at grandmother's place to give something. They were not rushing to work they had Diwali before. She admitted she came to give evidence in favor of husband.
15] The Defence closed their case. They filed written submission. I am mindful of that. I now consider the decision.
16] 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.
17] 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 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 of the accused."
18] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 June 2008) Justice Jocelynne A. Scutt in Her Lap's sg up said;
"The question then is whas what thet 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 reasonablet. Proof roof beyond reasonable doubt means what ys. You must must be sure; you must be satisfied of guilt, before you can express an opinion about it. Of yousure,f you ayou are satisfied beyond reasonable doublet of guilt, then it is your your duty duty to say so. If you are not sure, not satisfied beyond a reasondoubt, then you myou 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." (Emphasizes is mine)
19] 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.
20] 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.
21] These are the common rules of burden of proof. 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".
22] 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."
23] In Lasike v State [2002] FJHC 159 Her Ladyship Justice Shameem confirmed English House of Lords in R v Lawrence (1982) AC 510 which identified two limbs in dangerous driving:
24] The Elements of Offence can be identified as:
- The accused drove a vehicle;
- On a public road;
- dangerously.
25] In this case the first witness clearly says that he stopped the accused's vehicle was in so fast, it spin towards him hit left side, front side of the passenger side. After hitting it tumbled 3 times, hit the fence, with the 50 signs, speed limit hit the fence. The second witness confirmed this evidence. Both witnesses identified the accused positively. They did not admit the yellow3 tonnes truck story of the accused. The accident itself shows nature of the offence. This is a situation in common law doctrine of res ipsa loquitur. The thing itself speaks. The accident speaks itself how dangerous driving it was. The accused said that one yellow tarpaulin truck came beside him and suddenly turn the vehicle in his line and hit his right front causing his vehicle to swerve to the left and at the same time there was a hit from the back. But this truck was not detected by anyone and PW1 and PW2 did not confirm this accident happened this way. But the accused's wife evidence tally with this version. But she admitted she is favouring the husband. On top of that the accused said on their way they went to give "Prasad" to his grandmother as it was day after Depaawali. The accused's wife did say they came direct without going anywhere and they met with this accident. This is a contradictory version by both defence witnesses and this proves deliberate falsehood of the accused version. What actually happened was the accused and his wife were late and they were over speeding and as PW1 and PW2 said and this was happened. On the face of the evidence, it is apparent that the accused was dove a vehicle on a public road dangerously. This Driving in a manner created an obvious and serious risk of causing physical injury to some other person. It has done substantial damage to the PW1's car and the accused car as well. I have no doubt with prosecution witnesses and I hold the prosecution proved its case beyond reasonable doubt.
26] I convict the accused as charged.
27] 28 days to appeal
On 02nd July 2013, at Nasinu, Fiji Islands
Sumudu Premachandra
Resident Magistrate-Nasinu
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