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State v Prakash [2016] FJMC 188; Traffic Case 163.2014 (30 September 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Traffic CaseNo 163/14

STATE

-v-

ROYTESH PRAKASH

JUDGEMENT

1] The accused is charged with the following traffic offence.

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section 97(4)(c) and 114 of Land Transport Act No. 35 of 1998.

Particulars of Offence

ROYTESH PRAKASH on the 19th day of July 2012 at Suva in the Central Division drove a motor vehicle registration number “Bus 036” at Fletcher Road, Vatuwaqa in a manner dangerous to another person and was involved in an impact thereby occasioning grievous bodily harm to Joane Kean.

2] The complainant in this case is a school girl studied in class 3 when this accident took place. After the school she was going home at Vedego Settlement in Vatuwaqa. She used to cross the main road to reach her home. On 19/7/12 when she was awaiting to cross the road she noticed that a bus was coming on the same side where she was standing. The bus flicked the head lights and tooted the horn but she started to cross the road on the understanding that the bus indicated her to cross and she had sufficient time to cross.She noticed that there was no vehicle on the other side of the road. The accused flicked head lights again and tooted horn. The girl did not stop but continued crossing the road. The accused turned the vehicle to the other lane where the complainant collided with the bus. She received injuries as a result and admitted to hospital.

2] The Prosecution called an eye witnesses as PW2. He was walking along the road when this accident took place. According to this witness the bus flicked the lights and tooted the horn when the complainant was waiting to cross the road. The girl then started crossing the road. This evidence is totally consistent with the complainant’s evidence.

3] The accused well understood that the complainant was attempting to cross the road. As the accused says he indicated not to cross the road by flicking hishead light and tooting his horn. Can a reasonable person of the complainant’s age understand it as an indication for him to prevent from crossing the road. Will not he understand that he indicated to continue or continue as soon as possible? The complainant understood it was a signal for her to cross the road. PW2 who is an adult also said that he gave a signal for the girl to cross the road. That was his understanding too. I do not think this understanding of these two witnesses is wrong.

4] The Prosecution and the defence agreed that the complainant was trying to cross the road. It was also agreed that the accused observed it. The dispute is that the complainant did not use pedestrian crossing to cross the road. The complainant and PW 2 said that she was walking on the pedestrian crossing when collided with the bus. The position of the defence witnesses was that she crossed the road 5 meters away from the pedestrian crossing. Even if she did not use the pedestrian crossing the it is established that accused had driven his vehicle towards the complainant when she was crossing the road despite the traffic lights before the pedestrian crossing. He did not use the best option available to him that is to stop the vehicle but he kept moving towards the complainant. The accused had sufficient time to stop the vehicle. The accused himself said that the complainant collided with the bus after 1 – 2 minutes he flicked his lights. If the accused drove the bus at a speed suitable to the circumstances he had enough time to stop the vehicle.

5] Defence called 2 witnesses in addition to the accused. These two witnesses were school children who were sitting in the bus driven by the accused. One was sitting behind the driver’s seat. They confirmed that the complainant did not use the pedestrian crossing. Then she crossed the road 5 meters beyond the pedestrian crossing. Both of them said that the complainant was seen while waiting to cross the road. However the position of their seating is concerned the evidence of these two witnesses cannot be acted upon.These evidence only focuses on the defence position that the complainant did not use the pedestrian crossing. The 2nd defence witness a 15 year old student said that the bus was moving 30 – 40 kmph. It is very unlikely that a student of that age could give an opinion of a speed of a vehicle. The accused in his evidence took the same position in his evidence. However even 30 – 40 kmph speed is not suitable to pass a pedestrian crossing when a passenger is crossing the road even little beyond the pedestrian crossing. Therefore the speed and the manner in which he acted at the time of the accident are dangerous when the totality of the evidence is considered. Accordingly the defence has not created any doubt on the prosecution case.

6] For the reasons adduced above this court concludes that the prosecution has proved the charge beyond reasonable doubt and accordingly the accused is found guilty to the charge. I enter a conviction accordingly.

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

30/9/2016