IN THE MAGISTRATES COURT AT NASINU

Traffic Case No. 10620/2010

STATE

-v-

SEMISI BAINIVALU

PC Joseph Filipe Raymond the Prosecution
Accused appeared in person

Judgment

1] The accused is charged with following traffic offences;

CHARGE:

Statement of Offence [a]

CARELESS DRIVING: Contrary to Section 99 (1) and 114 of Land Transport Act No. 35 of 1998.

Particulars of Offence [b]

SEMISI BAINIVALU on the 13th day of March 2010, at Nasinu in the Central Division drove a motor vehicle registration number EM817 on Vishnu Deo Road Nakasi without due care and attention. 

2] The accused pleaded not guilty to the charges and case was heard on 19th February 2013. At the trial the prosecution called following witnesses to prove their charges. 

3] PW1 was Sakiusa Bainivalu: This witness is the father of the accused. He said that he can recall on 13th day of March 2010. He said that his son Semisi called and told he had an accident. He told him that he bumped into FEA pole electricity pole, close to home about 100 metres. It was early in the morning. Witness said he went to the scene and sighted the accident. He furthered "The car belongs to me, well I bought the car and he, I don't drive but my sons were driving the vehicle…I think Semisi was driving…I have few cars at home I think the number is EM817…he told me, he told me he had an accident down there, in Nakasi.

I see him in Court, yes definitely". The witness identified the accused. 

4] In cross examination the witness said that the accused has been driving since 2003. He said the accused Semisi is the best driver out of his sons. The witness told that he did not know the accused drove carelessly at that moment. 

5] PW2- WPC No. 3728 Sanjana Prasad: She said that On 13th day of March 2010She was on duty. At almost 7'o clock in the morning she did receive a call from unknown caller stating that there was an accident where the vehicle was left and the driver was not in the vehicle. The accident took place at Vishnu Deo Road, Nakasi. Then, she visited the scene and took necessary actions. She was the Investigating Officer. She drew sketch plans. She tendered as Exhibit 1. The witness told "We did some enquiries regarding the vehicle which was at the scene and we found out that the vehicle belongs to one Sakiusa Bainivalu. We visited the owner of the vehicle, where we have told that his son namely Semisi Bainivalu was the one who was the driver of the vehicle…The vehicle towed to the Police Station. After few weeks later then we managed to locate the suspect namely Semisi Bainivalu who admitted that". The PW2 said that that was a major damage and it was a big accident, because the post almost broke down and the power was off for almost 1 day in Nakasi area. she said after 3 weeks then the suspect came to the police. Where he was cautioned interviewed and he admitted that he was driver for that particular day and the accident was caused by him. This Caution Interview tendered as Exhibit 2. The witness identified the accused. 

6] In cross examination the witness said that she got a driving license almost 2 ½ years. She admitted in her interview the accused has said that he had stopped the couple of times to rest and even stretch my legs before he started driving again. But she said that if the accused was careful he would have stopped his vehicle and asked somebody else to drive for more safety. She said she went to get the statement from the accused several times but the gate used to be locked.

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

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

9]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) 

10] 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.

11] 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."

12] 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." (Emphasis is mine) 

13] In this case PW1 was the accused biological father. Bit reluctantly, he said that his son told him that he met with an accident. The PW2 said that she came to meet the accused but he evaded the police. On contrary that the accused told he went 5 times to the police but investigating officer PW2 was not in police station. But, the court notes the accused did not report the matter after the accident. No one saw how the accident happened and the manner he was driving. According to the Caution interview, the accident occurred between 5am to 7am, early morning. The accused did not dispute the caution interview. In that, he admitted that he drove the vehicle. In that, when he reached the accident point, he was asleep, but he was not drunk. He said, in the EX-2 why he did not inform the police after accident, "I was just near my home and decided to go to my home and inform them. …I was in shock"

14] The accused admitted that he was driving at the time of incident. He bumped car to the FEA post. That act itself proves careless driving. The accused did not give evidence. There is strong case against him. But he did not explain how it happened. EX-2, his caution interview was not made on oath and it was not subjected to cross examination. Therefore, it has less value. On top of that, it was given after 3 weeks, therefore more chance for concoct a story. In line with the Lord Ellenborough's presumption, when an accused fails and omits to explain incriminating evidence adduced by prosecution against him, he should be convicted as charged. This was emphasized by Lord Ellenborogh in Rex Vs. Cochrane in Gurney's Report at page 479 go as follows;

"No person accused of a crime is bound to offer any explanation of his conduct or of circumstances of suspicion which attaches to him, but nevertheless if he refuses to do so where a strong prima facie case has been made out when it is 'in his own power to offer evidence if such exists in explanation of such suspicious circumstances, which would show them to be fallacious and explicable consistently with his innocence, it is a reasonable and justifiable conclusion that he refrain form doing so only from the conviction that the evidence so suppressed or not adduced, would operate adversely to his interest."

15] In this case the act itself shows the driving was careless. But the accused failed to give sworn evidence. I cannot rely on the accused's caution interview as it was delayed, has no reason given for delay. It seems that the accused evaded the police. He could have gone to the police and report the matter after the accident immediately as prudent driver. But he failed to do so. This creates firm doubt that he was drunk at the time of the accident as he was in Suva in late nights. There is no reasonable explanation by the accused on oath. I therefore hold the prosecution has proved its case beyond reasonable doubt. 

16] The accused is convicted as charged. 

17] 28 days to appeal.

On 09th July 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu