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State v Ali - Judgment [2014] FJMC 145; Traffic Case 45.2014 (13 October 2014)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS

Traffic Case No: 45 of 2014

State

v

Makbool Mumtaz Ali

For Prosecution: Cpl Vili (Police Prosecution)
Accused: Present – Ms Chetty (Legal Aid)

JUDGMENT

Introduction

The accused in this case is charged with Dangerous Driving, contrary to Section 98 (1) and 114 of The Land Transport Act 35 of 1998.

The particulars of the offence is that: "Makbool Mumtaz Ali on the 3rd day of August 2013 at Samabula in the Central Division drove a motor vehicle registration number EZ332 on Ratu Mara Road in a manner which was dangerous to the public having regards to all the circumstances of the case."

The Law and The elements of the offence

Dangerous Driving is defined by s. 98 (1) of the Land Transport Act.

Dangerous Driving is defined by s. 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".

In 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."

The elements of Dangerous Driving that the prosecution is required to prove beyond the reasonable doubts is;

1. That accused person,
2. Drove a motor vehicle on a public street,
3. Recklessly, or at a speed or in a manner which is dangerous to the public,
   

The Defence agreed in Court that he did not dispute the date, identification, time or that the accused person drove EZ332 on the day. The single most important issue for the Court to determine in this case is whether the accused drove dangerously or not.

The Evidences of the Witnesses

The Prosecution called 2 witnesses. PW- 1 – Vijendra Kumar, and PW-2 – Timoci Nadolo.
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 accused did not call any other witnesses.

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 and the keys tendered by the Prosecution.

From the agreed facts 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 and time of the offence and that the accused drove EZ332. The only issue for this Court to determine is whether the accused drove dangerously or not.

The 2nd prosecution witness, Timoci was an independent witness. He saw the accused's vehicle before the accident and the manner of his driving. His version to the Court was that the accused was speeding before the accident and he caused the accident. The accident according to Timoci could not be avoided by the accused as he was speeding and he could not stop his vehicle to avoid the accident. Timoci was a credible witness. He was truthful in Court. He was not discredited. He saw the events unfold before his eyes and he told the Court what happened. This Court believes his version of events.

PW-1 who was the driver of the vehicle which was involved in the accident with the accused's vehicle also gave evidence that he was hit from behind by the accused. He refuted the defence claim that he changed lanes and then the accused hit him from behind. PW-1 was thoroughly cross-examined. He was not discredited. This Court believes his version of events.
The accused gave evidence that he was driving at a speed of 40 km/hour and that PW-1 cut in front of him and he could not avoid the accident. This Court does not believe the accused from the point of impact, the injuries he received and the impact of the collision which caused him to be stuck in the vehicle would not be such if the vehicle he drove hit the vehicle in front of him at the speed of 40 km/hour. The accused bumped PW-1's vehicle from the back. The accused surely drove at a higher speed for him to receive the injuries that he received. This Court believes the prosecution witnesses.
From the evidence before it this Court is satisfied that the accused drove at a high speed, he drove dangerously and caused the accident. For the above-mentioned reasons this court is satisfied that the charge of dangerous driving against the accused is proven beyond reasonable doubt.
The accused is convicted as charged. This Court will now hear the accused's mitigation.

Chaitanya Lakshman
Resident Magistrate

13th October 2014