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State v Narayan [2015] FJMC 19; Traffic Case 255.2013 (18 February 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Traffic Case : 255/2013

STATE

V

MUNESWAR NARAYAN

PC Josuha for the Prosecution
Mr.Naidu for the Accused

JUDGMENT

[1] The accused has been charged with following offences in this Court;

COUNT 1

DANGEROUS DRIVING OCCASIONING GRIEVEOUS BODILY HARM: contrary to Section 97(1)(c) and 114 of the Land Transport Authority Act 35 of 1998.

Particulars of Offence

Munesh Narayan on the 26th day of February 2013 at Suva in the Central Division, drove a truck registration number FF801 at the junction of Ratu Mara Road and Grantham Road in a manner which was dangerous and was involved in an impact thereby occasioning grievous bodily harm to another person namely Son Kaur.

COUNT 2

DANGEROUS DRIVING OCCASIONING GRIEVEOUS BODILY HARM: contrary to Section 97(1)(c) and 114 of the Land Transport Authority Act 35 of 1998.

Particulars of Offence

Munesh Narayan on the 26th day of February 2013 at Suva in the Central Division, drove a truck registration number FF801 at the junction of Ratu Mara Road and Grantham Road in a manner which was dangerous and was involved in an impact thereby occasioning grievous bodily harm to another person namely Sweta Prakash.

[2] The accused pleaded not guilty for this charge and the trial was conducted on 15th January 2015. For the prosecution's case 04 witnesses gave evidence and for the defence the accused testified and called one more witness. At the end of the trial both parties opted to file closing submissions which were filed accordingly . I have considered them also for this judgment.

Summary of Evidence
[3] PW1 was Son Kaur the 1st complainant and she said she is staying in Ratu Mara Road, Samabulla for more than 10 years and on 26/02/2013 was going to a shop at Nabua. She was crossing the road with her daughter when a truck came and hit her. Before she crossed she checked the light and it was green and after the accident she did not know what happened. When she woke up she was in the hospital and received injuries to her left leg and thighs. PW1 was in the hospital for 03 weeks . She did not see the driver of the truck. The witness also identified her medical report and this was tendered as MFI-01.

[4] In cross- examination by the learned counsel for the accused the witness said she was hit on the front part of the truck and before the accident did not hear the horn of the vehicle. There was no one in the road apart from her and the daughter and when she crossed the light was green. In re- examination also she maintained this position

[5] PW2 was Sweta Prakash , the second victim and said she was crossing the road with her mother (PW1) and was in the Island. The light was green and they started crossing when a truck came and hit them. Her mother was front and she was step behind and after the impact the truck did not stop. Some Fijian boys came and took them to the hospital. From the impact she and her mother got injured. PW2 got injured in her hand and she also identified her medical report and this was tendered as MFI-02.PW2 also did not see the driver.

[6] In cross- examination she said there were no vehicles in front of the truck and also there were no other people in the road at that time. She heard the horn just before the accident . In re- examination PW2 said the truck stopped only when a taxi stopped in front of the vehicle.

[7] PW3 was Sanjesh Prasad who was driving a vehicle at that time and was at the junction and saw the truck pulling in the red light. The driver saw the girls and hooted but it was late. The truck was going in the red light and was stopped only when a taxi pulled in front of that. The driver stopped and ran away. PW3 identified the accused as the driver of the truck.

[8] In cross- examination the witness said he was waiting for the green light and the truck pulled when it was red and he was speeding to get over that.

[9] PW4 was PC 3663 Jone, the investigating officer in this case and also conducted the caution interview of the accused(PE-01). He also drew the sketch plan( PE-02) and also tendered the medical reports of the victims as PE-03. The defence did not cross – examine this witness. The prosecution closed their case after that and I gave the accused his rights as stipulated in section 179 of the Criminal Procedure Decree. The accused elected to give evidence .

[10] The accused said he is a driver with 24 years' experience and working for Cargo Brokers Ltd as a driver. On that day he was in Ratu Mara Road and stopped at red light. There was a vehicle in front of him and as the color turned green he started driving and heard a sound from the right hand side of the vehicle and then saw a lady falling down. He was not driving when the light was red and also denied driving in a dangerous manner.

[11] In cross- examination the accused said there were 03 people in the island and he turned when the light turned green . He was driving 20-25kmph at that time and in re- examination said was driving from 1989.

[12] DW2 was Kiran Lata and she said she was not related to the accused and gave a statement to the police on 26/02/2013. She was opposite side and the complainants were in the island. The complainants crossed when the light was green and the truck came . She also identified the accused. In cross- examination she said she did not see the accident happened and in re- examination said it was red at that time. The defence closed their case after that.

[13] The prosecution in their closing submission submitted that the accused was driving dangerously on that day which caused this accident and therefore he needs to be convicted for this charge.

[14] In his detailed submission the learned defence counsel submitted that there is no evidence to show that the accused was driving in a dangerous manner on that day and therefore the Court should acquit the accused from this charge.

The Law
[16] 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).

[17] 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).

[18] Even though the charge sheet mention about section 97(1) ( c) the relevant section should be Section 97(1)(c of the Land Transport Authority Act . Section 97(1) (c provides:

"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."

[19] In view of the above section the elements in this offence are ;

a. The vehicle driven by the accused is involved in an impact

b. The impact occasions grievous bodily harm to the complainants

c. The accused at the time of the impact was driving the vehicle in a dangerous manner.

Analysis
[20] In his closing submission the counsel for the accused agreed that from the evidence presented in this case there was no dispute that the accused drove the vehicle which was involved in this accident. Based on that I find that the issues to be determined by this Court are whether the complainants suffered grievous bodily harm from the impact and at that time was the accused driving in a dangerous manner.

[21] PW1 (Son Kaur) in her evidence said she suffered injuries to her leg and thighs and was in the hospital for 03 weeks. PW2 said she got injuries in her hand . Both of their medical reports were marked as exhibits and these corroborated about the injuries. Based on these I am satisfied both complainants suffered grievous bodily harm from the accident.

[22] Next issue to determine in this case is the manner of the driving of the accused on that day. Was he driving in a dangerous manner at the time of the accident ? Before considering the evidence regarding that I would briefly consider the definition of dangerous driving as relevant for this charge.

[23] 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.

[24] In Semisi Lasike v The State [2002} FJHC 159; her Ladyship Justice Shameem said 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".

[25] Both victims said whilst they were crossing the road in green light the truck came and hit them. Even though they were cross- examined vigorously the defence failed to raise doubt about their evidence. Therefore after considering their evidence as well as the way they gave the evidence in this Court I find these two witnesses are truthful and credible witnesses . Also PW3 who I consider as an independent witness corroborated their version .

[26] The accused version was that he was driving in the correct signal and there was no fault on his part. To prove this he also called another witness who was supposed to be a pedestrian on that day. The defence in cross- examination of the two victims specifically asked about any other people in the road. I find that the purpose of that line of questions were to elicit some evidence about this defence witness from the two victims. But the two complainants denied there were any other persons at the crossing line.

[27] Unlike the defence the prosecution would not be aware of the witnesses the accused would be calling in this trial and their role in the defence. Therefore if this defence witness was really at the crossing at that time I would not see any reason for the two victims to deny that. Also I find it strange that this witness who is not related to the accused to go to the police station on her own and giving a statement in support of the accused. Therefore I would not accept evidence . Also even though the accused maintained throughout his testimony that he drove on the proper signal light I reject that version .

[28] Therefore the prosecution has proved beyond reasonable doubt that the accused committed these offences.

[29] I find the accused guilty for these offences as per charge and convict him accordingly.

[30] 28 days to appeal

18th February 2015

H.S.P.Somaratne
Resident Magistrate