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State v Narayan [2013] FJMC 399; Traffic Case 236.2011 (15 November 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Traffic Case No. 236/2011

STATE

VS

SHIU NARAYAN

For Prosecution: WPC Mere
For Accused: Mr. Sharma from Neel Shivam

JUDGMENT

1. The accused has been charged with the following offence;
   

Careless Driving contrary to Section 99(1) and 114 of the Land Transport Act, Number 35 of 1998.

Particulars of the offence

Shiu Narayan on the 27 day of November 2010 at Suva in the Central Division drove a Heavy Public Service Vehicle registration number BA470 on Suva Bus Stand without due care and attention.

2. The accused pleaded not guilty for this charge and the trial was taken on 8th November 2013.
   
3. Only the Defence opted to make closing submission after the trial and this was done before me on 11th November 2013.
   
4. For the Prosecution case 2 witnesses gave evidence and for the Defence the accused gave sworn evidence and also called one more witness.
   
5. PW-1, Seth Narayan said in his testimony that on 27th November 2010 around 10.30am he was about to take the bus out of the stand when he saw BA470 bus reversing. PW-1 beeped his horn and stopped his bus but other bus kept on moving. PW-1 could not reverse his bus as there was another bus behind him. Suddenly the BA470 bus came and bumped him. PW-1 reported the matter to the police. He also identified the accused as the driver of BA470.
   
6. In his cross examination he said on that day it was raining and he reported the matter to Suva Market Police. PW-1 also said the accident happened due to the fault of the accused and he stopped his bus with enough space between them.
   
7. PW-2, WPC/Vitalina conducted the Caution Interview of the accused and this was marked as Exhibit No. 1. Also she drew the sketch plan and this was tendered as Exhibit No. 2. She said the fault was with the accused.
   
8. In cross examination she said the first statement was taken from the accused on the date of the incident.
   
9. The prosecution did not call any other witnesses and closed their case. The accused was given his rights in pursuant to section 179 of the Criminal Procedure Decree and he opted to give sworn evidence.
   
10. For the defence 02 witnesses were called. DW-1 was Vijay Kumar a checker of the Citiline buses. In this evidence he said he was guiding the accused's bus that day and there was enough space to reverse. At that time the accused was driving slowly. Suddenly a bus came from behind and hit the bus driven by the accused.
    
11. The accused in his evidence said on that day he was reversing and DW-1 was guiding him from behind. He was not driving fast. Then a bus came and hit him from behind.
    
12. In cross examination he said there was enough space to reverse.
    
13. After that Defence closed the case they made oral submission on 11th November 2013. The learned defence counsel submitted that PW1 was not a credible witness and therefore the accused should be acquitted from this charge.
    
14. Before analyzing the above evidence I would briefly consider the applicable law in this case.
    
15. The accused had been charged with one count of Careless Driving contrary to 99(1) and 114 of the Land Transport Act, No. 35 of 1998.
    

Section 99(1) of the Act provides:-

"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. The test for carelriving is stas stated in the oase of Khan v State, High Court of Fiji Criminal Appeal No. 1 of 1994 (21 October, 1994) as follows:
    

"In order to dene wh the offence of&# of careless dr is committmmittemitted, 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 exerci the circumstances?"

17. The burden is with the prosecution to prove this charge and they have to prove this beyond reasonable doubt. (Section 57 and 58 of the Crimes Decree No. 44 of 2009)
    

18. In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Shameem in her summing up said :

"The standard of proof in a criminal case is one of proof beyond reasonable doubts meansmeans 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 ave any reasonable doubt as to whether the accused persons sons 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 about the the guilt of the accused."

19. In Miller V Minister Of Pension [1947] 2 AER Lord De explained the 'proof beyond reasonable doubt' as 'That degree is well settled It need not 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.'

20. PW-1 in his testimony said he saw the accused reversing the bus and stopped his bus with enough space. But the accused continued reversing and bumped his bus. PW-2 in her evidence said the fault lies with the accused. I am prepared to accept this version of the incident.
    
21. On the other hand the accused denied causing the accident and tried to shift the blame on PW1. To corroborate his evidence he called DW1, a supposed eye witness of the incident. In his cross examination the prosecution suggested that DW1 was not at the scene and this was objected by the defence counsel. In his closing submission also the counsel for the accused pointed out this and said PW1 in his testimony admitted DW1 present at that time.
    
22. I have gone through the proceedings which have been recorded as well as my notes. There is no place in his testimony in which PW1 mentioned about DW1 being present at that time.
    
23. Also in his Caution Interview which was tendered by consent the accused never mentioned about DW1 present at that time. It is difficult to understand why the accused failed to mention this part in his interview.
    
24. Even when this was challenged the defence did not tender any police statement of DW1. Normally out of court statement of a witness (police statement) can't be tendered to show the consistency of a witness's testimony. But in a scenario like this where it was alleged that DW1 was fabricating evidence the defence could have tender that statement. This was not done by the defence. Therefore there is doubt whether DW1 was really present at that time.
    
25. Another ground articulated by the counsel for the accused is that the first complaint was lodged by the accused about this incident. The accused had reported about the accident to his bus company. Only Bus company reported the matter to the police. Also PW-1 in his evidence said he also informed Suva Market Police Post on the same date, even though his statement was recorded few days later. Therefore this issue can't be taken decide the credibility of the witnesses.
26. I have also noticed the manner of main witnesses for both parties giving evidence and I am satisfied about PW1 who I believe was telling truth in the Court.
    
27. Based on all the above mentioned reasons I am satisfied that the accused was not excising the due care or attention of a prudent driver at that time. Therefore I decide that the prosecution has proved this charge beyond reasonable doubt.
    
28. Accordingly I convict the accused for this charge.
    
29. 28 days to appeal.
    

H.S.P.Somaratne
Resident Magistrate, Suva

15th November 2013