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State v Chand [2011] FJMC 179; Criminal Case 2672.09 (29 November 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Traffic case No 2672/09

BETWEEN

THE STATE

AND

HARI CHAND

JUDGEMENT

1. The accused person is charged with one count of careless driving. The statement of offence and the particulars of offence are as follows;
   

Statement of offence

Careless driving contrary to Section 99(1) and 114 of the Land Transport Act.

Particulars of offence

Hari Chand on the 1st day of December 2009 at Lautoka in the Western Division drove a motor vehicle registration number BM 155 on Kings Road, Matawalu without due care and attention.

2. The accused was charged on the 05th January 2010 and the case was taken up for trial on the 20th September 2011. The Prosecution called two witnesses. After the Prosecution case was closed the Court held that there is a case for the accused to reply. The accused person gave evidence and no other witnesses were called for the Defence.
   
3. Section 99 of the Land Transport Act reads as follows;
   

99 (1) A person who drives a motor vehicle on a public street without due care and attention commits an offence and is liable on conviction to the prescribed penalty.

(2) A person who drives a motor vehicle on a public street without due consideration for other persons using the public street( including but not limited to driving at an unreasonably slow speed) commits an offence and is liable on conviction to the prescribed penalty.

4. The prosecution has to prove the following ingredients in this case;
   
   • (2) The date, time and place of the alleged incident
   • (3) The identity of the accused
   • (4) The accused drove a vehicle on a public street
   • (5) The accused drove without due care and attention
     
5. There is no dispute regarding the date, time, place and the identity of the accused. Further it is admitted that the accused drove the vehicle in a public street namely the Kings Road. The only issue the Court has to deal with is whether the accused drove without due care and attention.
   
6. The first witness, PC 1859 Wijay Kumar gave evidence that on the 1st December 2009 at a bout 8 am he was on Patrol duty with Cpl Theodore. He said that he saw vehicle registration number BM 155 overtook another vehicle on the Matawalu bridge. The witness said the road markings do not allow the vehicles to overtake. He further said that he stopped the said vehicle and booked the accused who drove it for careless driving.
   
7. The accused suggested to the witness that he was booked when another vehicle in front of him pulled to a side. However the witness denied the suggestion.
8. The Prosecution witness, Cpl 3456 Theodore gave evidence that he was on Patrol duty on the 01st December 2009 near Matawalu bridge when the accused was booked for careless driving. He said the accused person overtook another vehicle when the road markings show double lines.
   
9. The witness was cross examined in the following manner;
   

Q: The vehicle in front of me was pulling aside to pick up a passenger. Then do I have to wait or can I overtake that vehicle?

A: You must wait until the vehicle is fully pulled aside to overtake without crossing the lines.

Q: There was no space for that vehicle to park as it was not an appropriate place to stop. So I had to overtake and go?

A: You could have given time to pick up the passenger and allow the vehicle to go.

10. There was no re examination of this witness. It appears from the way the witness gave evidence that, the witness does not deny the fact that another vehicle was stopped in front of the accused person's vehicle. There was no evidence produced by the Prosecution regarding carelessness apart from crossing the double lines. It appears that even the accused does not deny that he crossed the double lines. However the accused person explains as to why he had to cross the double lines to over take another vehicle.
    
11. The accused gave evidence in the following manner;
    

" On the Matawalu bridge other vehicle signalled and pulled out. It was just passing the bridge. It was not an appropriate place to park his vehicle. He stopped there to pick one passenger. It was a double line. But the opposite side was clear so I overtook that vehicle. I went about 100 meters and one Police Officer stopped me."

12. The accused said that when he overtook the road was clear on the opposite side. The Prosecution even did not attempt to challenge the evidence given by the accused.
    
13. It appears that the accused person has crossed the double lines to over take a vehicle. However the accused's position was that he did it because the vehicle in the front stopped to pick up one passenger. Further the accused said that the road was clear on the opposite side. Although it was established that the accused crossed the double line, I do not think that the Prosecution was successful in establishing that the accused drove the vehicle in a manner without due care and attention. At least there was no evidence to say that the accused overtook the other vehicle when there were oncoming vehicles from the opposite side or he drove it in an excessive speed. It should be noted that mere crossing of road markings does not constitute careless driving. It needs more features to become the offence of careless driving. Also it should be noted failure to obey road markings constitute a separate offence.
    
14. However in this case the accused gave an explanation as to why he had to cross the double lines. The Prosecution failed to deny the suggestions put forward by the accused person. It should be noted that the standard of proof in traffic cases too is beyond reasonable doubt. At least it does not appear that the accused intentionally disobeyed the road markings.
    
15. In the circumstances I am not satisfied that the Prosecution proved the charge against the accused person beyond reasonable doubt. Accordingly I acquit the accused person from the charge against him.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

29.11.2011