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State v Prasad [2013] FJMC 364; Traffic Case 638.2010 (16 August 2013)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS
Traffic Case No: 638 of 2010

State

V

Ramesh Prasad

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution: PC Pauliasi
Accused: Present – With Mr A Chand (Diven Prasad, Lawyers)

JUDGMENT

Introduction

The accused is charged for Careless Driving, contrary to Section 99 (1) and 114 of The Land Transport Act 35 of 1998.

The particulars of the offence is that: "Ramesh Prasad on the 16th day of October 2010 at Suva in the Central Division drove a vehicle registration number FL524 on the Queen Elizabeth Drive, Nasese without due care and attention"

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

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 . . . "

The elements of the offence the prosecution need to prove in order to prove in this case are as follows:

1. That Ramesh Prasad, (Identification)

2. on 16th day of October 2010 at Suva in the Central Division,

3. Ramesh Prasad drove motor vehicle Registration number FL524, and

4. without due care and attention.

The Evidences of the Witnesses

The Prosecution called 2 witnesses. PW- 1 – Navneet Narayan, and PW-2 – WPC Reshmi.

At the close of the prosecution case, this Court ruled a case to answer. The accused was put to his defence and the options available to him were explained to him. The accused chose to give sworn evidence. The Defence also called Romulusi Ratukana, and Shital Priya Kumar.

Analysis of the Evidence in Relation to the Law

This Court has noted the evidence of all the witnesses. The Court has also scrutinized the rough sketch plan and the fair sketch plan and the keys tendered by the Prosecution.

From the evidence tendered in Court this Court finds that there is no dispute in this case as to the following elements of the offence; the identification of the accused, the date of the offence and that the accused drove FL524. The only issue for this Court to determine is whether the accused was careless or not.

The material evidence of PW-1, the complainant in this case was "weather, bit rainy, road not busy. FL524 was parked on left side giving trafficator. It was trying to take a U-turn towards USP. I was going towards Suva. As I approached him i thought vehicle will turn. I tooted horn 3 times. As soon as I came towards vehicle it came into my lane. Collision happened. My vehicle due to the impact went into other lane. Left side of my vehicle damaged, bumper. I applied brakes tried to avoid the accident. After accident vehicle completely stopped. I was shocked....."In cross-examination PW-1 responded as follows "was at 40 – 50km/hr. No car in front of me. Apart from one car parked. 100m ahead no cars were driven in front of me. I did not overtake any vehicle. I am certain. It did not give way. It was my right of way. When I was driving vehicle did not come out, less than 10m it came into my lane, too short a time. .. I attempted to move aside the car came to my lane could not stop. It was making a U-turn. In my judgment it was making a U-turn. I saw the indicator."

The accused's material evidence was "my vehicle faced Suva, when we had dinner. We wanted to come to Suva, gave signal, right side, road clear, gave signal. Vehicles from back. 20-30metres, 1st vehicle white. Was at 40 km/hr saw green vehicle overtake from behind, other vehicle from front. Other vehicle at speed, could not stop, saved head on collision and hit my vehicle. He bumped right side of my vehicle. Green vehicles left front part bumped. Green vehicle went otherside of the road. My vehicle faced sea side. Vehicles behind me parked. Vehicle in opposite direction stopped. ... my vehicle facing sea-side gave statement to police, she did not listen. She said say in Court."

The evidence of the complainant and the accused is opposed with respect to who caused the accident. The complainant in his version stated that he was bumped by the accused when the accused turned into his path of driving, when he had the right of way. The accused in his version states that the complainant overtook from behind and upon seeing an approaching car turned into his lane causing the accident. For the Court one version is correct while the other is a lie. In order to determine that this Court will need to review and analyse all the evidence in totality and the scene plans of the accident, which were tendered and admitted as evidence

The evidence of DW-2, Shital Priya Kumar who was in the vehicle with the accused is "not dark, drizzling. Some other vehicles behind us. Was seated in front. Noticed road was clear for us to pull out. Other vehicles were far. Suddenly last vehicle from us, another vehicle overtook, one car from front. 3 cars behind us. The complainants vehicle tried to come in our lane. Accused drove normally 30-40 km/hr/ complainants vehicle bumped us. Vehicle passed us on right side. Opposite car at reasonable speed. Front part bumped our vehicle. Complainant tried to fit in and went to other side of the road after accident. .. after accident our vehicle turned around. The other vehicle went to other side. Our vehicle to sea-side. .. police was lady she did not talk to us.. ..she did not listen to us."

The version of DW-2, Priya is identical to the accused. She also stated that the complainant was the cause of the accident. While she was seated in front she saw the complainant overtake vehicles from behind. She told this Court that there were 3 cars behind their vehicle and the complainants vehicle was the last vehicle. This Court is not clear how this witness saw the last car as the complainants car, when she was seated in front, and facing forward unless she was seated facing the back. She also like the accused stated that their vehicle after the accident faced sea-wards.

The other defence witness, Romulusi Ratukana, told this Court "... bit drizzling, remember queue of cars, white Pajero of accused. My car behind accused vehicle. One behind me. Was travelling at 40 km/hour. When accident happened i stopped my vehicle. White car joined queue from front. I followed another car. Accused car joined the queue. My car 2 in front of me. A vehicle behind me, it took pass (green vehicle) an oncoming vehicle on other side. A long stretch. ... vehicle went past me, another vehicle and accused vehicle. The vehicle had joined the queue then accident happened. Other vehicle bumped the accused vehicle. I tried to manuevuer my vehicle saw accident. White vehicle to sea-side. The complainants vehicle to other side. ... I left before police came. The other vehicle was more than over-speeding." In cross-examination Romulusi Ratukana, told this Court "2 cars in front of me. My vehicle, another vehicle and the accused vehicle. Overtook on right side. I saw the accident. Did not see the actual impact. ... possible for accident if accused made U-turn."

The evidence of Romulusi is similar to that of the accused and the passenger with the accused, Priya. He had not given any police statement and did not stay at the scene after the accident for the police officers. From the evidence in Court how this witness was located some time after the incident as he only gave his contact to the accused and not assisted the police is baffling. The other vehicle that would be right behind the accused vehicle was never located or even stopped after such an accident as per the defence theory. All the defence witnesses seem to have come up with one version of events, but this version contradicts the position of the cars as per the sketch of the police officer and the evidence of the complainant. This Court takes the version of the police officer as she came to the scene and saw the cars as was positioned at the scene. Some discrepancies as to the measurements are noted by this Court but are not found to be detrimental to the prosecution case and in any way discredits the police witness.

The Court has also noted the demeanor of all the witnesses. The Court believes the complainant and the Police officers version of events and the sketch of the Police officer as to the positioning of the cars is taken as correct position of the cars after the accident. Given the size of the accused's and the complainants vehicle the Court finds that the vehicles will be found in the position they ended up as per the prosecution's witnesses version of events and not as per the version by the defence witnesses. The prosecution witnesses were truthful. They were tested in cross-examination and were credible. The Court from the evidence before it finds that the accused as a driver did not exercise that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances and caused the accident.

The prosecution in this case has proved that the accused drove without due care and attention.

The accused is found guilty of the charge.

Chaitanya Lakshman
Resident Magistrate

Suva
16th August 2013.