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State v Chand [2014] FJMC 22; Traffic case 143.2010 (11 February 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Traffic Case No. 143/2010

STATE

VS

SHIVNEL CHAND

For Prosecution : PC Ravi
For Accused : Ms. Mataiciwa

Judgment

[1] The accused is charged in this Court for following offence.

Statement of Offence

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: contrary to Section 97(4) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

Shivneil Chand on the 27th day of October 2008 at Suva in the Central Division drove a motor vehicle registration number FF466 on Milverton Road in a manner dangerous to another person and was involved in an impact thereby occasioning bodily harm to Akuila Ratuloa.

[2] The accused pleaded not guilty for this charge and the trial was conducted on 09th January 2014. Only the defence opted to file closing submission which they filed accordingly on 03rd February 2014.

[3] For the prosecution’s case 03 witnesses gave evidence and for the defence the accused gave sworn evidence.

SUMMARY OF EVIDENCE

[4] PW1, Akuila Ratuloka stated that on 27th October 2008 he was driving a vehicle when he saw a twin cab approaching. At that time PW1 was driving on the left side of the road and after that he did not know what happened. He got injured in his shoulder and leg. The medical report of PW1 was tendered as Prosecution exhibit 01.

[5] In cross examination PW1 said he could not remember the accident or the registration number of the twin cab.

[6] PW2, Atika Marawa was sitting beside PW1 when the accident occurred and in his testimony said that the twin cab was coming very fast. At that time PW1 was on the left hand side of the road. PW2 saw that the twin cab could not control its speed and hit PW1’s vehicle. PW2 identified the accused as the driver of the twin cab.

[7] In cross examination he said that the twin cab was over speeding and lost the control. PW2 further stated that the accident happened in their lane.

[8] PW3, WPC Vula visited the scene and drew the rough sketch plan of the accident. This was tendered as Prosecution exhibit -02. She said that the accused refused to sign the plan. Fair sketch plan and LTA examiner report were also tendered as Prosecution exhibit-03 and exhibit -04 respectively. She further said the accident happened due to the speed or the carelessness of the accused.

[9] By consent the cautioned statement was tendered as Prosecution Exhibit -05 and after that the State closed their case. Having found a prima facie case against the accused he was given the rights pursuant to section 179 of the Criminal Procedure Decree and he opted to testify.

[10] The accused said at that time he was driving around 40-45 kmph and saw a van coming to his lane. To avoid the collision he swerved to the lane of the minivan and the accident happened in the middle of the road. He also refused to sign the sketch plan as the point of impact and the position of the vehicles were incorrect. In re-examination also the accused said the point of impact was wrong as the debris could have moved to allow the traffic and PW3 came late to the scene.

[11] In closing submission the defence argued that the prosecution has failed to prove the case beyond reasonable doubt and there were no evidence to show that the accused was driving dangerously. Therefore learned counsel for the accused submitted that the accused needs to be acquitted from this charge.

THE LAW
[12] The accused is charged with one count of Dangerous Driving Occasioning Bodily Harm contrary to sections 97(4) and 114 of the Land Transport Act No. 35 of 1998. Section 97(4) states that :

“A person commits the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle –

(c) in a manner dangerous to another person or persons.”

[13] Therefore the elements in this offence are

1. The Accused drove the vehicle
2. He occasioned grievous bodily harm
3. In an impact
4. At the time of the impact the accused was driving in a manner dangerous to other road users.
   

[14] In Archibold (1996) term dangerous has been described as danger either of injury to any person or of serious damage to property. Additionally, it states that a person is to be regarded as driving dangerously if:-

[a] The way or manner he drives falls far below what would be expected of a competent and careful driver,

[b] It would be obvious to a competent and careful driver that driving in that way would be dangerous.

[15] In Semisi Lasike v The State [2002} FJHC 159; Her Ladyship Madam Justice Shameem said :

“Dangerous driving is the causing of a dangerous situation by a manner of driving which falls below the standard expected of a prudent driver”.

[16] In Woolmington v DPP (1935) AC 462 it was observed 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".

[17] In State V Driti [2013] FJHC 644; Criminal Case005.2012 (26 November 2013) in his summing up His Lordship Justice Madigan stated :-

"The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you."

ANALYSIS OF THE EVIDENCE
[18] As observed by the learned counsel for the accused the only issue to be determined in this case is whether the accused was driving in a dangerous manner at the time of the accident. According to her there was no evidence produced in the Court to show that the accused was driving in that manner.

[19] The victim could say only that he was driving in his lane and he did not remember anything else about the accident. But PW2 who was an eye witness testified that the accident happened in their lane and the accused was driving in high speed before the accident. The defence failed to raise doubt about this evidence.

[20] I also note the sketch plan which was marked as an exhibit. In the plan the point of impact was marked in the lane of the victim. The accused refused to sign this plan. According to him the point of impact should have been in the middle of the road and as the debris was moved to allow the traffic PW3 failed to mark the correct spot. Even though PW3 testified this was never put to her in cross examination.
[21] According to PW3 the accident happened due to the careless of the accused. In cross examination she said this was her opinion.

[22] The accused whilst giving evidence denied driving dangerously and said the accident happened in the middle of the road. His evidence was consistent with the cautioned interview but this was recorded nearly one year after the accident.

[23] Even though the defence contended that there was no evidence about driving in a dangerous manner I find that PW2 has given evidence about that when he said in evidence in chief as well as cross examination that the accused was driving in high speed. Also point of the impact in the sketch plan confirms further about this.

[24] Therefore I find that there is enough evidence to prove this issue also. I decide that the prosecution has proved this charge beyond reasonable doubt and convict the accused accordingly.

[25] 28 days to appeal

11th February 2014

H.S.P.Somaratne
Resident Magistrate, Suva