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State v Prasad [2010] FJMC 197; Criminal Case 4911.2009 (11 June 2010)

IN THE MAGISTRATE'S COURT
NAUSORI
FIJI ISLANDS

Criminal Case No. 4911 of 2009

STATE

v.

ATISH VISHNU PRASAD

BEFORE MR. CHAITANYA LAKSHMAN
RESIDENT MAGISTRATE

For State: Sergeant Amelia
Accused : Present

JUGDMENT

The Accused is charged with Dangerous Driving, contrary to Section 98(1) & 114 of the Land Transport Act No: 35 of 1998.

The onus in this case is on the prosecution to prove its case beyond reasonable doubt that the accused on 14th of July, 2009 drove a motor vehicle registration # FG 000 at Nausori Bus Stand in a manner which was dangerous to the public having regards to all circumstances of the case.

The elements of the offence that the prosecution needed to prove included the following:

1. Identification of the accused.
2. The Accused drove Vehicle # FG 000 on 14th July 2009 at Nausori Bus Stand.

100. The Accused drove in a reckless and in a dangerous manner.
     

The Prosecution called 2 witnesses:

1. PW 1 – Daniele Tavele – Security Officer.
2. PW2 – Constable Emosi.
   

The accused gave sworn evidence.

PW1 told the Court that he saw the bus hit the victim. The victim fell to the ground. The tyre rested on his side – hands and legs went up. PW1 said he saw blood in the victim's mouth. PW1 also told the Court he was some 17 – 18 metres away.

PW2 attended to the report, took measurements, drew plans and caution interviewed the accused. PW 2 told the Court that the accused told him he bumped the complainant.

The Court has the Caution interview of the Accused and notes that the accused denied the accident – that he bumped the victim. The accused in his evidence told the Court that he was stationary and was told that someone was under his bus. The bus was not moving. In cross examination he told the Court he had to reverse to let victim come from underneath the bus.

The accused denied dangerous driving and that he bumped the victim. A medical summary by Doctor Josese Vuaki of the victim tendered to Court states that "a police autopsy was explored to find cause of death but they were reluctant and satisfied that a death certificate be issued after I fully explained about the probable cause of death taking into account his previous medical problem."

The Court noted all the evidence in this case. The Court cannot rely on the sole evidence of PW1 and he is unreliable and his version is not consistent with the injuries noted by the Doctor. PW-1 stated that the bus "hit the old man – he fell to ground – the tyre rested on his side – blood came from victim's mouth. The evidence of PW-1 is not supported by medical evidence or otherwise. It would have helped police and the prosecution if they got other witnesses at the scene to assist in their case.

The Court noted the medical summary by Doctor Josese Vuki – where he states that victim was taken to Nausori Health Centre complaining of chest pains and back pain with shortness of breath. This note of the Doctor does not state that he complained he had an accident.

The Doctor further notes that there was "no open wound or bruises on the head, chest or anterior abdominal wall". The Doctor noted that the victim had a previous by-pass. The Prosecution case does not support the evidence that the accused drove dangerously or recklessly. In any event if the accused caused the accident and the victim's death was caused by the accident the Prosecution would have prosecuted the accused for Causing Death by Dangerous Driving.

Having heard all the evidence this court is not satisfied beyond reasonable doubt that the accused drove dangerously. The Accused is acquitted. 28 days to appeal

Chaitanya Lakshman
RESIDENT MAGISTRATE
11/06/2010