IN THE MAGISTRATE’S COURT OF NASINU

Traffic Case No. 372/12

STATE

-v-

KUSHAL DEO NARAYAN

PC J.F. Raymond for the State 
Accused Present and appeared in person

Judgment

[1] The accused is charged with the offence of Careless Driving. The charge read as follows;

CHARGE
Statement of Offence (a)

[2] CARELESS DRIVING: Contrary to Section 99 (1) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence (b)

[3] KUSHAL DEO NARAYAN on the 8th day of November, 2011 at Nasinu in the Central Division drove a motor vehicle registration number DP 789 on Nakasi Road, Nakasi without due care and attention.

Summary of evidence

[4] At the trial, prosecution called following witnesses to prove the charge. Firstly they called Phul Singh. The witness said that he resides in 48 Nakasi Road. He had been therefore the last 15 years. He said he can recall on the 8th day of 11 of 2011, he was sitting on the porch. He said the accused person was the driver of the garbage truck, the lid was still open the garbage truck. He said when the accused drove garbage truck the lid hit his electric wire which was connected from the post to his house was broken. He was on the porch he saw at the distance about 13 meters. The witness further said whet it broke the power line he shouted at the driver. But he didn’t stop. The witness said that 4 to 5 blocks away the same thing happened again. He damaged someone else’s. The witness told how the lid operates and he said after dumping the accused did not close the lid of the rubbish, it damaged the electric wire coming to his house and it was broken from the lamp post. The witness was running after the rubbish truck but the driver did not stop. After damaging the second house’s power line the accused stopped the truck. The witness informed this incident to the landlord and lodged a complaint later. The witness identified the accused in open court. 

[5] In the cross examination, the witness said he was in the area almost 15 years and the electricity connected from that lamp post to this house prior to his arrival to the house. 

[6] Thereafter, PW2 Jitendra Kumar was called. He said on that day he was not at home. Then his tenant namely Phul Singh called him and he informed that the driver of the rubbish truck has broken the power line. Then he came home and asked his tenant again what has happened, PW1 informed him that the driver of the rubbish truck has broken their power lines and he did the same thing 4 to 5 block ahead of us an another block. The power line cost $224. 

[7] The prosecution called the Police Constable No. 2090 Abdul Kaiyum as next witness. He was the investigating officer. On 8th day of November 2011, h was residing at Koronivia. On that day, the truck which carries normally picks up rubbish from Nakasi area; damage the main FEA wire of his house. He said the damage is $163.00 for live wire and the electrician cost is $213, sorry $233. The witness said that the accused was keep on driving and the lid was open and could have killed somebody, lucky that it was a midday and there was no school children, no people walking on the road.

[8] The prosecution called next witness PC 3340 Vinay of Nakasi Police Station. He said he is serving Fiji Police Force for last 8 years and he can remember on the 8th day of November 2011. He interviewed a driver by the name of Kushal Deo Narayan for the offence of careless driving. This interview notes were shown to him and he identified. The witness was referred question questions No. 12. It says;

 Question No: 12 “Did yesterday 8/11/11 at 8.05pm at anytime your truck broke the FEA power line, answer yes”. 

[9] The witness said there was no force or threat done to obtain this interview. This is an admission of guilt or incident by the accused. The Interview tendered as Exhibit No. 1. The witness also identified the accused. 

[10] In cross examination the witness said the interview was taken following day of the accident. 

 [11] Thereafter prosecution closed their case. Since there is a case to answer, Defence was called and the accused rights were explained. The accused opted to give sworn evidence and call other witness on his behalf. 

[12] DW1 Kushal Deo Narayan , the accused gave sworn evidence. He said on that day from his yard he straight away went to Tembarra Plaza in Nakasi to pick up one of his workmates. He was not collecting any rubbish. There was another lorry collecting rubbish he only went to drop his lorry boy. After he was returning and suddenly this incident happened where the power lines were broken, because of the lid of the truck. Then he called his boss. And he was informed that he should report back to work immediately and boss will arrange with FEA on what to do with those power lines. 

[13] In Cross examination the accused said that the power lines might have broken by the lid, he is not sure. He said PW1, Mr. Phul Singh informed him the damage to power lines. The lid is not mechanically open or automatically opens and the lorry boy has to go outside and there is a lever at the back to open it. The last time before the incident, the lid was before picking the lorry boy from Tembarra Plaza lorry boy opened the lid over there and he closed it again. The accused said that lorry boy knows the duty, he knows what to do. The accused admitted that he was on duty and driving the truck. The accused said that from Tembarra Plaza to where the damaged was occurred at Nakasi is nearly 1 km. He further said, if they were to travel with the lid open it would snap more wires. In Nakasi it had only 2 wires snapped because it must have been a low lane area. He said that was outside. The accused tendered truck picture as Defence EX-1. The prosecution suggested that the truck is an automatic new type of vehicles that can be operated from inside of the driver’s seat. But the accused said that truck is not automatic all the levers are outside. 

[14] The defence called lorry boy next. He is Vijendra Prasad, a lorry boy at Environclean. He said on that day, He and the driver of the said vehicle came to Tembarra for bin pick up. He is in charge of opening the lid of the bin. So after the rubbish was collected from Tembarra Plaza the driver had to drop him at Nakasi. They came out from Tembarra Plaza and went towards MH Nakasi. He was sitting with the driver of the truck and suddenly he saw the power lines they were broken. 

[15] In the cross examination, the witness said No one tells him to open the lid he decide whether to open or not. The driver of the vehicle is his immediate boss so he listens to him. 

[16] The next witness is Satish Kumar, Managing Director of the Company Clubs Pacific Limited. He said that on the particular date 8th of November one of his drivers Mr. Kaushal Narayan was on duty picking up the waste from Nausori Town Council as per the contextual requirement. And then around midday approximately he received a call that an incident had happened and the wires the FEA wires in particular got tangled in the lid of the compactor truck which was a 10 wheeler garbage truck. As a result the wire was broken and there was a bid of commotion and the rate payers concern wanted him to pay for the compensation or get the electrical contractor to fix it. So upon receiving the call he went to the sight the scene within minutes. And he had a visit to the 2 household which were affected and he also took photograph of the actual scene where the incident had happened. According to his observation If the driver has picked up at Tembarra Plaza and the lid was open then all the wires along the road from Tembarra Plaza on Nakasi Road would have been damaged. The truck is not an extra ordinary locally modified one and it is genuine factory fitted 10 wheeler compacted truck. He further said that there are 3 lids on top. 2 folds from the side and 1 from behind that comes horizontally 90° up. The lid would be on top right on top of the truck not the boom in front just the from the middle portion right on top, that’s where the lid is. So 2 of the side lids will close horizontally, perfectly horizontally and while the rear lid will recline only to around 20 or 30° at the back of not the front. He said he has written to Nausori Town Council advising them of similar problems around other places and for their officers to be more vigilant that when the ranger is in the field they take note of low lane cables and inform respective authorities. Further he said he has seen number of places where the cable which is if it is being attached to a property over a period of few years through the natural weather conditions the wire will come loose. But FEA’s height clearance is 18 feet, as he was informed by FEA. He said the truck height if the lid is not open it is 15 feet. With the lid open it won’t even reach 18 feet.

[17] In cross examination he knew that the driver went to Nakasi for picking and dropping of staff as it is normal and they are expected to be picked and drop staff. He said that the lid to be opened either the driver or a lorry boy. He said the operations those lids open from the outside. There’s a lever behind the cap of the truck. There is set of lever, like a high truck they have set of lever that is used to operate, open up the lid and compact. 

[18] The defence closed his case. The facts of the case is rather peculiar than others. I now consider the judgment. 

The Law on Careless Driving 

[19] Careless Driving is defined by s 99 (1) of the Land Transport Act as driving "on a public street without due care and attention".

[20]The test for careless driving  is stated in the case of Khan v State, High Court of Fiji Criminal Appeal No. 1 of 1994 (21 October, 1994) as follows:

"In order to determine whether the offence of careless driving is committed, the test, as LORD GODDARD C.J. said in SIMPSON v PEAT (1952 1 AER 447 at p.449) is: "was D exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances?"

The standard of proof is an objective one . . ." (As cited in State v Lovo [2009] FJMC 7; Traffic Case 31.2009 (24 September 2009) 

[21] The burden of proof is vested on the state in this matter and they should prove this charge beyond reasonable doubt. What is proof of beyond reasonable doubt is described in several cases. 

[22] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt about the guilt of the accused."

[23] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 June 2008) Justice Jocelynne A. Scutt in Her Ladyship's summing up said;

"The question then is what the standard of proof is. That is, when the onus rests on the State as it does here and generally in criminal trials, what is the standard the State must meet? The State must prove all the necessary ingredients of the charge.... beyond reasonable doubt. Proof beyond reasonable doubt means what it says. You must be sure; you must be satisfied of guilt, before you can express an opinion about it. Only if you are sure, if you are satisfied beyond reasonable doublet of guilt, then it is your duty to say so. If you are not sure, not satisfied beyond a reasonable doubt, then you must give your opinion that the accused is not guilty. This assessment, this determination, rests with you – with each of you – upon your individual assessment of the evidence." (Emphasises is mine) 

[24] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen reported in 72 New Law Reports 313 (Sri Lanka) 

"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[25] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted. 
 
Analysis of the evidence

[26] Now I evaluate the evidence adduced before me. The PW 1 told to the court that the accused broke his power lines. The accused himself admitted it in his evidence. The prosecution did not challenge the lid to be opened outside and it is lorry boy's duty to open the lid. It seems only two consecutive power lines had been broken. There is no evidence how height of the power lines were broken. But the manager of the company, Mr Satish said that when he inquired from the FEA he was informed the normal height of the power line should be 18 feet. This fact was not disputed. The truck's height according to him was 15 feet and when the lid was opened it could not reach 18 feet. This fact is also not disputed by the prosecution. According to the lorry boy, he was inside and lid was closed. Then, who opened the lid? If the lid was open, how the damage occurred if it is in the normal circumstances do not reach the height of a power line. It is seen that lid was accidently opened and the power lines were lower than normal power lines. 

[27] To prove careless driving charge the prosecution must prove the accused fail to exercise degree of care and attention that a reasonable and prudent driver would exercise in the normal circumstances. The standard of proof is an objective one. In this case, that means whether any reasonable driver could avoid the accident in normal circumstances. It was like an act of god and it happened suddenly. The accused cannot control the situation and the court opine that even prudent driver cannot stop the accident if the lid was accidently opened. The prosecution failed to prove that the accused opened the lid negligently and his act was careless than other reasonable prudent drivers. I therefore hold the prosecution has proved the case beyond reasonable doubt. The defence has no burden to prove any of facts. But there evidence created great doubt how it happened and the benefit of doubt should go to the defence. 

[28] Hence, the accused is acquitted and discharge. 

On 10th April 2013 at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate- Nasinu