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State v Kumar [2013] FJMC 288; Nadi Traffic Case 4838.2010 (1 August 2013)

IN THE RESIDENT MAGISTRATES COURT
AT NADI WESTERN DIVISON

NADI TRAFFIC CASE NO. 4838 OF 2010

BETWEEN:

STATE

AND:

ASHOK KUMAR

Before : Mr. M. H. Mohamed Ajmeer, Resident Magistrate, Nadi
Date of Judgment : Thursday 01 August 2013

Appearances:
For The State : WPC Ana
For Accused : In Person

JUDGMENT

Background

1. On 29/11/2010 Accused was formally charged with one count of Careless Driving contrary to Section 99(1) and 114 of the LTA 1998 (the Act).

2. The matter proceeded to trial upon the Accused pleaded not guilty to the charge. The charge arose out of a motor vehicle accident which occurred on 31/03/2010 at Nadi Back Road.

3. There were two vehicles that were involved in the accident:

(a). A motor vehicle registration number LT 1050 while being driven by the Accused;

(b). A motor vehicle registration number EG151 while driven by one Karunesh Naidu.

Evidence of Prosecution

4. Prosecution produced 3 witnesses –

(a). PC Deepak (PW1);

(b). Karunesh Naidu (PW2); and

(c). Aneesha Dayaram (PW3).

5. Prosecution also tendered sketch plan of the accident and caution statement of the Accused marked as P/Exhibit 1 and P/Exhibit 2 respectively.

6. At the close of the Prosecution case, Defence made an application for a no case to answer. However, the court found a case to answer. The Accused then choose to remain silent.

The Law on Careless Driving

7. In so far as it applies, Section 99(1) of the Act states:
   

"Careless driving

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".

8. The Prosecution must prove beyond reasonable doubt the following elements:

(a). the Accused;

(b). drove motor vehicle registered number LT1050;

(c). without due care and attention.

9. The test for careless driving is stated in the case Khan v. The State [1994] FJHC 155; HAA 000IJ. 1994B (21 October 1994):

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

Analysis of Evidence

10. Elements 8 (a) and (b), as outlined above, are not disputed by the Defence and therefore will not be discussed in the analysis.

11. The Defence however disputes element 8 (c), the element of without due care and attention.

12. PW1 stated in evidence that he attended the report of the accident, visited the scene of the impact and drew RSP. The RSP was tendered without objection and marked as Exhibit 1. He also interviewed the Accused under caution and made record of it. The caution interview was tendered and marked without objection wherein the Accused had admitted that the accident happened due to his carelessness. PW1 also told that both vehicles and drivers were at the scene. Exhibit 1 shows the position of both vehicles involved in the accident.

13. PW2 driver of the other vehicle gave evidence and stated that 31/03/2010 at about 9:30 when was heading to Lautoka from port Denarau he was involved in accident with a taxi registration number LT1050 at middle of Nadi Back Road. The taxi was coming from Lautoka to Nadi. He also told that he stopped but the taxi driver did not stop. PW2 identified the Accused as the person who was driving the taxi.

14. PW3 also gave evidence and stated that she was sitting in the back seat while her colleague (PW2) was driving. She said that the vehicle she was travelling in was collided with a taxi. She identified the Accused as the person who drove the other vehicle. In cross examination she admitted that her statement to police was incomplete.

15. It is terribly important to note the statements made by the Accused during caution interview. In his caution interview he stated as follows:

Q.19: Did you see any vehicle coming towards you?

A: Yes

Q.20: Did you stop when you saw the vehicle approaching towards you?

A: It was very far.

Q.21: Then how come you did not enter the driveway completely when the vehicle which was approaching [to] you was far?

A: I entered the drive way but due to the pot hole I stopped.

Q.22: Then what happened?

A: The vehicle approaching towards me bumped on my rear left door.

Q.26: It is alleged that due to your carelessness the accident happened. What can you say about this?

A: Yes

16. The record of caution interview (P/Exhibit 2) was tendered in evidence by the Prosecution without objection wherein he had admitted carelessness on his part. The Accused did not offer any evidence during trial. He has opted to remain silent.

17. PW2 the other drivers during cross examination stated that he was talking to PW3 who was seated at the back in the car he was driving. He was not talking on a mobile phone while driving. But he was talking to the passenger who was at the back of the vehicle. In the circumstances it cannot be said that his full attention would have been detracted as argued by the Defence.

18. The issue of pot holes was not put to any of the PWs during cross examination. During caution interview the Accused told that he entered the drive way but due to the pot holes he stopped.

19. The only element that was disputed by the Defence was that the Accused drove without due care and attention. Interestingly he had admitted to his carelessness in his caution statement. It is obvious that he didn't take due care and attention before entering into the highway namely Nadi Back Road.

20. For the reasons set out above, I am satisfied that the Prosecution has proven each element of the charge beyond reasonable doubt.

21. I therefore find the Accused guilty to the charge of careless driving contrary to Section 99(1) and 114 of the LTA, 35 of 1998. I convict him accordingly.

............................................................

M. H. Mohamed Ajmeer

Resident Magistrate

Dated at Nadi this 01st day of August, 2013.