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State v Abhinesh [2009] FJMC 3; Criminal Case 481.2008 (25 August 2009)

IN THE RESIDENT MAGISTRATES COURT
CENTRAL DIVISION, SUVA

Criminal Case No. 481 of 2008

STATE

V

ABHINESH S/O BUDHRAM

Prosecution: Corp. Yasin, Police Prosecutor
Accused: In person

Date of Hearing: 28 July 2009
Date of Ruling: 25 August 2009

JUDGMENT

[1] The Accused, Mr Abhinesh, has been charged with Dangerous Driving contrary to s 98(1) and 114 of the Land Transport Act.

[2] The hearing of this charge was held on 28th July, 2009, with the Accused representing himself. The Accused was suitably cautioned by the Court concerning the onus of proof being on the State and his right to remain silent, and on that basis the Accused chose not to give evidence.

[3] The State called three witnesses, being the complainant Mr Joji Waqasaqa [PW1], his passenger Mr Rusiate Tamani [PW2] and the investigating officer PC 3617 Ravikesh [PW3].

[4] The evidence given by PW1 Mr Waqasaqa was that he was involved in a collision with the Accused’s taxi on the evening of 5th October 2008 on Laucala Bay Road.

[5] PW1, a security officer, said he was driving the security company’s van and he had one crew with him.

[6] He said he was driving down towards Suva Point, the Accused’s taxi was ahead of him on the road and he saw it pull to the left and slow down.

[7] PW1 said he thought the taxi was going to stop but it suddenly made a U turn.

[8] PW1 said his vehicle was to the side of the taxi by then, he braked and tried to avoid the taxi, but it was raining and his vehicle slid in a forward direction.

[9] PW1 said he steered to the right to the middle of the road to avoid the taxi but the front of his vehicle hit the back wheel of the taxi on the driver’s side. His vehicle was damaged in the collision but he did not know the cost of the repairs as that was with the company’s accountants.

[10] PW1 said his vehicle stopped a short distance past the point of impact, while the taxi was swept to the other (right) side of the road facing Flagstaff.

[11] PW1 said it was a dark night, the road was slippery with rain, and the Accused gave no indication or signal before turning.

[12] PW1 said he made a complaint with the police, and they attended the accident scene.

[13] PW1 identified the Accused in court as the driver of the taxi.

[14] PW1 identified his signature on the rough sketch plan prepared by the investigating officer.

[15] In cross examination it was put to PW1 that he was speeding at the material time, and that there was considerable distance between the taxi and PW1’s vehicle when the taxi started turning.

[16] PW1 denied that he was speeding and said the distance between the vehicles when the taxi started turning was only 2 meters.

[17] It was put to PW1 that he could have stopped his vehicle in time, but PW1 denied this, saying his vehicle slid and the taxi was still on his side of the road.

[18] It was also put to PW1 that the taxi was making a 3 point turn not a U turn.

[19] On re-examination PW1 reiterated that the taxi went to the left side of the road and slowed down and then turned right without signalling, and that he had steered his vehicle to the right side of the lane to pass the taxi.

[20] He said the road had only one traffic lane per side at the place where the collision occurred.

[21] Mr Rusiate Tamani [PW2] also gave evidence for the State. He said he was a passenger in PW1’s vehicle at the time of the accident as he was PW1’s crew.

[22] He said their vehicle was coming down the road to USP towards Suva Point, the taxi was in front, it went to the left and made a U turn without making cautions.

[23] He said it was raining, the distance between the 2 vehicles was not far, and that the front of PW1’s vehicle hit the taxi.

[24] He identified the Accused as the driver of the taxi.

[25] On cross examination PW2 said he saw the taxi make a 3 point turn.

[26] When it was put to him that he could have told PW1 to slow down, PW2 responded that the vehicles were very close. PW2 said PW1 was not overspeeding but travelling at a reasonable speed.

[27] PW2 confirmed that it was raining and that PW1 had braked.

[28] The investigating officer was PC 3617 Ravikesh [PW3].

[29] PW3 said he had been a police constable for 12 years, and that he was assigned to the traffic section.

[30] He gave evidence that he received a report of a traffic accident near Vodafone Arena on Laucala Bay Road on 5th October 2008 at 7:45 p.m.

[31] He attended at the accident scene with one Corporal Jitend.

[32] He saw vehicles on the road and the drivers outside talking.

[33] He said the taxi had its left rear on the pavement, and it was facing towards Flagstaff.

[34] The other vehicle was in the center of the road facing towards Suva Point.

[35] PW3 identified the rough sketch plan he had drawn which was witnessed by both drivers, as well as the fair sketch plan and the key to fair sketch plan.

[36] The rough sketch plan was tendered as State’s Exhibit 1, the fair sketch plan as Exhibit 2 and the key to fair sketch plan as Exhibit 3.

[37] PW3 said the point of impact was in the right lane, near the center line.

[38] PW3 said he took both drivers to the police station, took their statements and the caution interview of the taxi driver.

[39] He said he had advised the taxi driver of his right to counsel, but the taxi driver said he didn’t want legal counsel. He identified the caution interview of the Accused.

[40] When shown the caution interview, the Accused identified his signature but objected to the same being tendered into evidence on the grounds that it was taken on the same day of the accident and he was excited and didn’t have time to cool down. When asked by the Court, the Accused said he was not punched, mistreated by the police or promised anything.

[41] The Court overruled the Accused’s objection as there was no evidence of oppression and admitted his caution interview into evidence as State’s Exhibit 4.

[42] The Accused chose not to give evidence from the witness box as is his right. He also chose not to make an unsworn statement to the Court. The evidence as to his defence is found in the questions he put to the State’s witnesses in cross examination, namely that he alleged that PW1 was speeding, that the distance between the 2 vehicles was far at the time he began his turn, and that he was making a 3 point turn, not a U turn.

[43] In his closing submissions, the Accused stated that he was making a 3 point turn, he had taken precautions and seen around, and that if he had seen the vehicle approaching he wouldn’t have made the turn.

Analysis of the Evidence

[44] There are certain significant factors present in the evidence.

[45] One factor is the condition of the road at the time of the accident. It was raining and it was dark. These conditions call for extra caution in executing any manoeuvre such as a U turn or 3 point turn because of reduced visibility.

[46] Another is the necessity to give a signal before turning. The evidence before the Court is that the Accused did not signal his turn.

[47] A third factor is the Accused’s driving just prior to the U turn or 3 point turn. The evidence of PW1 is that the Accused went to the left side of the road and slowed down as if stopping just before making his rught turn.

[48] PW1 thought the Accused was stopping his vehicle, which is a reasonable assumption given that the Accused was driving a taxi.

[49] That the Accused pulled to the left and stopped is confirmed by the Accused in his caution interview [Exhibit 4] which reads as follows:

"Q9. How the accident happened?

Ans: I was stopped on the left side of the road facing Suva Point, near Vodafone Arena. I stopped my taxi and saw from my side mirror that one vehicle was coming behind my vehicle and the distance was approximately 40 metres, I decided to make a right "U-Turn" when all of a sudden the same van came and bumped on my right rear panel."

[50] In his closing statement the Accused submitted that if he had seen PW1’s vehicle he would not have made the turn, and that he taken precautions and seen around.

[51] Those submissions are inconsistent with the Accused’s caution interview, and with the questions he put to PW1 and PW2 on cross examination about the distance between the vehicles and their speed. If he hadn’t seen PW1’s vehicle then how could he put it to the witness that the distance between the vehicles was far and that PW1 was overspeeding?

[52] The rough sketch plan and fair sketch plan [Exhibits 1 and 2] are consistent with PW1’s evidence. PW1 said he tried to avoid the collision by steering to the right. This is in the context of the Accused coming from the far left side of the lane and suddenly turning right, instead of turning right from next to the center line.

[53] PW1 also said that he thought the Accused was stopping by the side of the road and he steered to the right to go past him.

[54] The sketch plans show PW1’s vehicle stopped in the middle of the road after impact.

[55] The damage to the Accused’s vehicle was on the right rear panel, indicating that the Accused had proceeded from the left side of the road most of the way across the left lane before the collision.

[56] Although it was PW1 who hit the Accused’s vehicle, the evidence before the Court is clear that the Accused was changing direction at the time by making either a U turn or a 3 point turn.

[57] Although the Accused said in his closing submissions that he was making a 3 point turn not a U turn, his own caution interview refers to a U turn, and in point of fact a 3 point turn is as risky as a U turn. It is simply another way of changing direction when the road is not wide enough to permit a U turn.

[58] When a vehicle seeks to change direction in such a manner, the driver has a duty to look for other vehicles on the road, signal his turn, and proceed only when it is safe to do so.

[59] If there is approaching traffic, the driver should wait for it to pass and for the road to be clear before proceeding with his U turn or 3 point turn, the reason being that a U turn or 3 point turn blocks the road while it is being performed and other vehicles cannot pass.

[60] In his caution interview, the Accused said he saw PW1’s vehicle. He also said he was stopped on the left side of the road.

[61] Coming from a stationary or near stationary position the Accused’s vehicle would be moving slowly while PW1’s vehicle would be proceeding at normal speed.

[62] PW1’s evidence was that he was about to overtake the Accused’s vehicle where it was stopped or nearly stopped on the left side of the road when the Accused suddenly and without warning turned right.

[63] There is sufficient evidence in the testimony given by PW1, which was corroborated by PW2, and the evidence of PW3, who was the investigating officer, as well as the rough sketch plan [Exhibit 1] prepared by PW3 and the caution interview of the Accused [Exhibit 4] for the Court to conclude that the Accused commenced a U turn or 3 point turn from the left side of the road (facing Suva Point) when it was not safe to do so due to presence of other traffic on the road, and that the Accused failed to use his right turn indicator to signal his intention to turn.

[64] There is no evidence that PW1 was speeding at the time, only an accusation of speeding by the Accused which was denied by both PW1 and PW2.

[65] PW1 did brake when he saw the Accused turning in front of him, but the road was wet with rain and his vehicle was unable to stop in time. Both PW1 and PW2 described the Accused’s turn as sudden and said the Accused did not signal his intentions.

The Law as to Dangerous Driving

[66] 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".

[67] The particulars of the charge against the Accused state that he drove a motor vehicle on Laucala Bay Road in a manner, which was dangerous to the public having regard to all the circumstances of the case.

[68] In the case of 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."

[69] The standard for dangerous driving was also addressed in the case of Kumar v State, High Court of Fiji Criminal Appeal No HAA 14 of 2001 (12 April 2002), which involved a charge of dangerous driving causing death. The High Court addressed the difference between careless driving and dangerous driving, stating as follows:

"The next ground of appeal is that there was no evidence of dangerous driving. In court, counsel submitted, that even on Mr Buksh’s version of the facts, the Appellant’s driving was only careless.

The evidence which the learned Magistrate accepted was that the Appellant was negotiating a bend at a high speed on the wrong side of the highway. He was driving a cargo truck and in going to the wrong side of the road created a dangerous situation. In R -v- Gosney (1974) 3 ALL ER 220, it was held that a charge of dangerous driving is proved when the driver drives in a way which falls below the standard of a competent and prudent driver, and thereby causes a situation, which viewed objectively, is dangerous.

The test for a charge of Dangerous Driving is an objective one, as is the test for Careless Driving. The difference between the Careless Driving and Dangerous Driving is not the manner of driving, (which has the same test) but the situation that has been caused thereby. In other words, a person who drives carelessly, also drives dangerously, if viewed objectively, his/her manner of driving creates a dangerous situation. Thus a person who drives carelessly, drives dangerously if he/she thereby causes a death. Therefore, counsel’s submission that the Appellant (on the version of the facts given by PW1) was only driving carelessly, has no validity."

[70] In the civil case of Nand v Vatuwaqa Transport Co. Ltd. High Court of Fiji Civil Action No. HBC 0159 of 1995 (2 May 1997), the High Court said as follows of a collision involving a bus pulling out of a bus bay into traffic:

"In my view a driver who is pulling out of a bus-bay into a road is executing a potentially hazardous manoeuvre often in the face of approaching traffic with the right of way and whose speed can only be guessed at through a rear vision mirror, and therefore, such a driver has a clear duty to ensure that he is in a position not merely to begin (as the second defendant appears to suggest in this evidence), but also to safely complete the manoeuvre without endangering other road users that are or might reasonably be expected to be present on the road at the time."

[71] Although that was a civil case with a lower onus of proof, it illustrates the standard of driving required of drivers making similar manoeuvres as that made by the Accused.

[72] In the case of State v Ravula, High Court of Fiji Criminal Appeal No. HAA 40 of 2004 (30 June 2004), the High Court acting in its appellate capacity addressed itself to an appeal on a conviction for dangerous driving, challenging the sentence of partial disqualification. There the accused was overtaking a bus, the bus pulled out of the bus bay cutting off the accused and he swerved and lost control of his vehicle in the rainy conditions.

[73] The High Court found that the offence was on the lower order of the scale, stating as follows:

"I would find that the standard of driving shown on the offending was barely dangerous and in reality careless. This incident was created by the bus but continued by the driver’s lack of skill in wet conditions in response to an emergency situation."

[74] In the case of Pal v Reginam, [1987] 33 FLR 52, the High Court of Fiji in its appellate jurisdiction declined to interfere with a conviction of dangerous driving given by the Magistrates Court in a matter in which the original charge was careless driving. The charge was amended to the more serious charge of dangerous driving.

[75] No one was injured in that incident and there was no collision, but the Appellant was convicted of dangerous driving because he had deliberately swung his vehicle to the wrong side of the road to frighten the complainant who was coming from the other direction.

[76] A conviction of dangerous driving does not require that there be injuries, or even a collision, just that the driving of the accused cause a dangerous situation and be below the standard of a prudent driver.

[77] Here the Accused created the dangerous situation because he went to the left side of the traffic lane and stopped and then made a sudden U turn by proceeding to the right across the traffic lane which cut off PW1’s vehicle, and he did so suddenly and without signalling.

[78] His driving falls in between the driving of the offender in State v Ravula [supra] and that of the offender in Pal v Reginam [supra], both of whom were convicted of dangerous driving.

[79] The Court finds that the State has proved beyond a reasonable doubt that the Accused departed from the standard of a reasonable, prudent, competent and experienced driver at the material time. The Accused swung his taxi to the far left of his lane then made a right turn across his lane of traffic in order to change direction without signalling even though he knew there was approaching traffic coming from behind him.

[80] The Court finds that the State has proved beyond a reasonable doubt that the Accused created a dangerous situation by his driving because he knew there was a vehicle approaching, he knew it was raining and dark thus affecting visibility and he made his U turn from the left side of the traffic lane anyway instead of waiting for the other vehicle to pass, and he didn’t signal his intentions. The Accused created a situation with a very high risk of collision between the two vehicles, and in fact a collision did occur as a result of his manoeuvre.

[81] The Accused may well have committed an error of judgment. That does not excuse the offence. The Accused was not charged with driving recklessly but with driving in a manner which was dangerous to the public having regard to all the circumstances.

[82] The Court finds the Accused Abhinesh s/o Budhram guilty and convicts him of Dangerous Driving contrary to s 98(1) of the Land Transport Act.

DATED this 25th day of August, 2009

Mary L Muir
RESIDENT MAGISTRATE, SUVA