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State v Chand [2013] FJMC 197; Traffic Case 4573.2011 (22 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Traffic Case No. 4573/2011

STATE

-v-

SUBHASH CHAND

Police Constable J.F. Raymond for the Prosecution
Accused appeared in person

Judgment

1] The accused is charged with following traffic offences;

CHARGE:

FIRST COUNT

Statement of Offence [a]

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

Particulars of Offence [b]

SUBHASH CHAND s/o SURESH CHAND, on the 28th day of November 2010 at Nasinu in the Central Division drove a motor vehicle registration number LT4009 on Makoi Road, Makoi without due care and attention.

SECOND COUNT

Statement of Offence [a]

FAIL TO STOP AFTER BEING INVOLVED IN AN ACCIDENT: Contrary to Regulation 63 (1) and 87 of Land Transport (Traffic) Regulations 2000.

Particulars of Offence [b]

SUBHASH CHAND s/o SURESH CHAND, on the 28th day of November 2010 at Nasinu in the Central Division, being the driver of a motor vehicle registration number LT4009 on Makoi Road, Makoi failed to stop after being involved in an accident.

2] The accused pleaded not guilty to the charges and case was heard on 26th February 2013. At the trial the prosecution called following witnesses to prove their charges.

3] PW1 is Mumtaz Ali. He said he can recall 28th day of November 2010.he was involved in an accident at near the Service Station at Makoi. He said "there's one narrow road one way. I park me car I get out of the car and when I saw the road was clear I was going the other side of the road. I was crossing the road and this accused person he parked his car there and all of a sudden he move and he bumped the right side, on my right side. when he the accused hit me with his car I fell on the ground but I was trying to stand up so that I can save myself. ... When he bumped me the front tire came on my leg. My leg was under the tire. ...the accused person reversed his car your. Reversed his car then the lady came and picked me. And your Worship fled from the scene. This witness is 98 years old came in a wheel chair. He said he could not recognize the number plate as it happen all of sudden. After home then they went to the hospital. Before the accident he came by car and his grandson was driving. The witness was dropped and he met with an accident. He further said "I was about to put my foot on the footpath when he hit me".

4] In cross examination the accused said that he did not run away after the accident. The witness said when his employees come the accused was not there. The witness further said that he did not know the accused and it was not raining and he was not wearing sunglasses. The witness said the accused did not ask him to drop at the home.

5] PW2 is Constable 3415 Sikeli Rogocagi. On 28th day of November 2010 he was stationed at Nasinu Police Station. He received report of an accident on Makoi Road. The he attended the scene. He drew the rough sketch plan and he checked the complainant. The report was a taxi bumped a pedestrian. The witness explained the sketch plans. He said the complainant showed the place to draw plans. He said the complainant got little bit some bruises left hand. Medical tendered as Exhibit 1. The witness detailed what he did as "I took the done all then I attend to the scene of the accident; I do the rough sketch plan the measurement. I took the complainant to the hospital. I gathered the medical report. So then I interviewed the driver of the taxi." Sketch tendered as Exhibit 2. The witness identified the Accused. The caution interview was tendered as, Exhibit 3. The witness explained the vicinity of the accident said the taxi should be take precaution because that day on Sunday that place is very busy, especially the pedestrian, people going to the Supermarket, to the market to buy. So I think he should drive and that place too when you drive you should drive slowly. And you can see the people crossing the road or so I think the driver should take precaution, especially he is an old man he was crossing and he nearly reach the other side of the road.

6] In cross examination the Investigating Officer said It was little bit raining on that date.
When he took PW1's statement he said he gave the details of vehicle. He questioned the driver who dropped the victim on the left side. When PW1 was taken to the hospital he was walking.

7] Thereafter, the prosecution called the case. Since there is case to answer right to call defence is explained. The accused opted to give sworn evidence.

8] The Accused: Subhash Chand: the accused said It was Sunday he went to buy some vegetables. He parked my taxi near the taxi stand .He said "after buying my vegetables I came I started my, start my car and I it's a one way road your Worship so I just look at my. I only look at my left, it was a one way. And I saw the complainant car came and he get off the vehicle, get out of the vehicle. when the complainant get off the car the driver of that vehicle he took off and I saw this old man he was wearing a black sunglass, with a hat and he put a face towel on his shoulder your And he was on the right side of my car . I saw him standing there so I move and he hit my side mirror and he fell. Then I stop my car and one Fijian lady helped him but I also came out of my car and I helped him. I asked him did you have any injuries. And he told me no injuries, I am ok. And I also asked him where you want to go, I can drop you. And he told me that his son is running a shop here, he came to visit them. Then one market vendor came your Worship and he told me that I know this person, they have a shop here and he promised me that he will drop him at the shop, so I went And after 2 weeks the Police Officer called me to the Station" He said the victim was admitted to some other reason such as high blood pressure.

9] In the cross examination the accused tendered rough sketch which was drawn by him as Defence Exhibit 1.the complainant was dropped off opposite the bakery. The accused said PW1 didn't cross the road, he get off. The time was 8.30 morning. Answering the question the accused said "So you had to move your vehicle from there onwards? No, no I was still in the car, because that's a one way I look at the left side as soon as it was clear I want to turn right side and this bump. I haven't move, maybe 1 km per hour, just from the car park to the junction to look at the left. And I don't have to look at the right car coming, but just one to turn the he bump the side mirror and he fell down. So when he fell down you ran over? No, no. If I would have ran over he wouldn't be able to walk or anything, he is walk, he stand up, walk and he went to the his line Sir. Even if small tyre would have gone than his leg could have broken. I wasn't driving 5, 10 km hour, I was just at the junction and coming out, and he was wearing the black, maybe he didn't see the car". The accused said the victim did not use a stick, he was heavily bandaged may be 90 years, he was walking slowly. He said he never proceeded; he was sitting at the junction. He said "I never move it, that's what I am telling. I never move away". The accused said the complainant bumped into his car while he was standing. The accused he did not report this matter to the police. The reason being for not reporting is because PW1 wasn't hurt that much. He was walking.

10] In re examination the accused said "I admit that i made a mistake that I did not report because that old man said that he is ok and he is fit, so we thought there is no case, then I went home. I was not driving your Worship, not even 5km per hour or 10 km per hour, I just moved my taxi from the base and I was about to turn to the main road. I looked left and that's the time the old man came and hit my car, right side mirror. It was a minor injury your Worship, even the doctor's report Sir, but he has some other sickness with him that's why he was admitted"

11] Thereafter defence closed the case.

12] Careleiving is defs defined by s 9 (1) of the Land Transport Act as driving "on a public street without due care and attention".
13]The test for ess dg&#16> is stated in thin the case of Khan vhan v State, High Court of Fiji Crji Criminal Appeal No. 1 of 1994 (21 Octob994) as follows: