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State v Naitau [2014] FJMC 60; Traffic Case 167.2012 (16 April 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Traffic Case : 167/2012

STATE

vs

SAMUELA NAITAU

PC Josuha for the Prosecution .
Mr. Fesaitu (Legal Aid ) for the Accused.

JUDGMENT

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

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

Particulars of Offence

Samuela Naitau on the 27th day of February 2012 at Lami in the Central Division drove a motor vehicle registration number LM/192 on Marine Drive, Lami Town in a manner dangerous to another person and was involved in an impact occasioning grievous bodily harm to ZELDA ROSYLIN KISSUN.

[2] The accused pleaded not guilty for the offence and the hearing was conducted on 24th February 2014 and 01st April 2014.

[3] For the prosecution side 06 witnesses were called and for the defence the accused gave sworn evidence. At the end of the hearing both parties made oral submissions which I have also considered carefully for my judgment.

SUMMARY OF EVIDENCE
THE PROSECUTION’S CASE
[4] PW1 was Roslyn Kissun who got in to the accused’s van in Nadi on 27/02/2012. She was sitting in the front seat and could not remember what happened before the accident. She was taken to the hospital after the accident and lost her leg. She identified the accused and her medical report was tendered as P-01.The defence did not cross- examine her.

[5] PW2 was Ravindra Kumar and he said in 2012 he was working for BW Holding and on that day was coming from Latutoka in a truck. There was a problem in his truck therefore he parked it and put 03 cones around the vehicle to indicate to other vehicles. There was street light near that place. PW2 was not there when the accident happened. In cross- examination he said he did not put hazard lights as there was street light on and also he put some cones near his truck. At that time it was not raining heavily.

[6] PW3 was Sanjeni Lata Prasad who was working in the Total Service station, Lami. Even though she heard the break sound she did not see the accident. The witness also said at that time the street light was on near to that place.

[7] PW4 , Issac Simpson was employed by the Land Transport Authority and inspected the two vehicles after the accident. He said there was no mechanical fault with the van and the reports of the truck and the van were marked as P-02 and P-03 respectively. In cross- examination the witness said there was no need to put hazard lights.

[8] PW5 was PC Jone who drew the rough sketch and fair sketch plan these were marked as P-04 and P-05.

[9] PW6 was Cpl Diven who interviewed the accused and this was tendered as P-06. He also recorded the statement of PW2 at his work place.

[10] The prosecution closed the case after that and the learned counsel for the accused made a no case to answer submission which was dismissed by this Court on 01/04/2014. Therefore the accused was given his rights pursuant to section 179 of the Criminal Procedure Decree and he opted to give evidence.

THE DEFENCE’S CASE
[11] In his testimony the accused said he had 10 years driving experience and on that day he was driving a mini bus. It was raining heavily and the road was slippery and he was driving around 50 to 60 kmph. The accused slowed down near the crossing but did not see the truck as there was no light in the truck. The accused further said that the accident happened because of the way the truck was parked. In cross- examination the accused said he was driving slowly and at that time there was a thick fog.

[12] The defence did not call any other witness and also closed their case.

[13] In his closing submission the prosecution submitted that they have managed to prove all the elements of this offence through the witnesses and therefore accused need to be convicted for this offence.

[14] The learned legal Aid Counsel argued that only issue to be determined in this case was whether the accused was driving in a dangerous manner on that day and there were no eye witnesses to prove that issue and therefore the accused need to be acquitted from this charge.

THE LAW
[15] In Woolmington v DPP [1935] AC 462 it was held that

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained” (per Viscount Sankey L.C. at pp. 481-482).

[16] The standard of proof where the judge has to decide an issue of fact in a criminal case where the burden of proof is on the prosecution is proof beyond reasonable doubt (ARCHBOLD CRIMINAL PLEADING, EVIDENCE AND PRACTICE 2010 page 542).

[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."

[18] The accused is charged with one count of Dangerous Driving Occasioning Grievous Bodily Harm contrary to section 97(4) (c) of the Land Transport Act NO 35 of 1998. Therefore the prosecution needs to prove the following elements in this case beyond reasonable doubt.

[a] The accused drove the vehicle

[b] It involved in an impact occasioning

[c] Grievous bodily harm to PW1

[c] At the time of the impact the accused was driving in a dangerous manner.

ANALYSIS OF THE EVIDENCE
[19] As submitted by the learned Legal Aid counsel in his oral submission only disputed issue in this case is whether the accused was driving in a dangerous manner at the time of the accident.

[20] In Archbold (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.

[21] In Semisi Lasike v The State [2002} FJHC 159; Her Ladyship Madam Justice Shameem noted that

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

[22] I agree with the legal aid counsel that there were no direct evidence (eye witnesses) to show the manner of the accused driving. Thrust of the defence case is that the accident was caused because the truck was parked without any hazard lights. At that time the defence submitted that the accused was not driving in a dangerous manner.

[23] PW2 and PW3 agreed that there was a street light near the place of the accident. Even though the truck driver did not put the hazard lights he put cones around the vehicles to warn other vehicles. According to him these would have been visible for a long distance. Therefore I do not see any fault in the part of the truck driver. He had taken safety measures to warn about the other drivers about his truck.

[24] Now I would consider the accused's version. He said he was driving slowly at the time of the accident. But if he was driving like that I do not see why he could not have avoided this accident. Also the injuries received by the victim indicate clearly that the accused was not driving slowly

[25] Another reason given by the accused was at that time it was raining heavily and there was a thick fog which prevented him from seeing the truck. Even though the prosecution suggested that in that kind of scenario the accused should have stopped his vehicle until the weather cleared I think what he should have done was to be extra cautious if he continued driving. All the evidence presented in this trial shows that the accused has not driven like that manner.

[26]] Therefore I decide that the prosecution has proved this issue also beyond reasonable doubt.

[27] I find the accused is guilty as charged and convict him accordingly.

[28] 28 days to appeal.

16th April 2014

H.S.P.Somaratne
Resident Magistrate, Suva