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State v Ram [2013] FJMC 426; Traffic Case 142.2009 (31 January 2013)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS

Traffic Case No: 142 of 2009

State

v

Sudesh Kumar Ram

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution: Cpl Viliame
Accused: Present – With Mr S Nandan

JUDGMENT

Introduction

The accused is charged for Careless Driving, contrary to Section 99 (1) and 114 of The Land Transport Act 35 of 1998.

The particulars of the offence is that: "Sudesh Kumar Ram on the 13th day of March 2009 at Suva in the Central Division drove a vehicle registration number EB635 on Mukta Ben Road, Vatuwaqa without due care and attention"

The Law and The elements of the offence

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

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 . . . "

The elements of the offence the prosecution need to prove in order to prove in this case are as follows:

1. That Sudesh Kumar Ram, (Identification)

2. on 13th day of March 2009 at Mukta Ben, Vatuwaqa in the Central Division,(Time and Place)

3. Sudesh Kumar Ram drove motor vehicle Registration number EB635, and

4. drove without due care and attention.

The Evidences of the Witnesses

This Case was part heard before another Magistrate and the evidence that was recorded by that Magistrate has been considered by me. The prosecution case was before the other Magistrate. This Court notes the difficulty of part heard cases, in particular the demeanour and other similar issues. But the Court records were clear for the Court to make a decision and analyse the evidence.

The Prosecution called 5 witnesses. PW- 1 – Iris Cyntia Low, and PW-2 – Afatareki Mckenzie and Pw-3 was WPC Sherin

At the close of the prosecution case, the Court ruled a case to answer. The accused was put to his defence and the options available to him were explained to him. The accused chose to give sworn evidence. The Defence also called Kelepi Tuivanualevu and Latchmaiya.

Analysis of the Evidence in Relation to the Law

This Court has noted the evidence of all the witnesses. The Fair sketch and the Rough Sketches were not accepted by the Court as it was not disclosed to the Defence.

From the evidence tendered in Court this Court finds that there is no dispute in this case as to the following elements of the offence; the identification of the accused, the date and place of the alleged offence and that the accused drove EB635. The only issue for this Court to determine is whether the accused was careless or not.

The material evidence of PW-1, the complainant in this case was ".. an accident in front of my drive way another vehicle hit me on the side. Left side. It approached from left side. My drive way to the left. ... before turned to drive way i switched on the indicator" In cross-examination PW-1 responded as follows "when i was driving i didnot notice accused infront or behind me. It was a rainy day. I switched on my indicator to turn about 10 feet before the driveway. I was driving about 40-50 km/hr. Slowed down when turning. ... i did turn on the indicator after the accident i switch it off to get down. My husband switch it on again to show the accused that it was working."

The material evidence of PW-2, the complainant in this case was "heavily raining. While turning pajero hit us from the side. ... before turning to driveway left indicator was on. ..." In cross-examination PW-2 responded as follows "our car was already into the driveway when pajero hit." When the witness was asked "at some point did you run back to car and show accused that indicator was on? The response was "no. Upon impact my wife actually turn the vehicle switch off. Wife did put on indicator before the impact."

The accused's material evidence was "it was raining heavily. Just one vehicle in front of me. Pajero was about 35km/hr. Car in front of me at similar speed, it took sudden turn right couple of potholes. Went to other side and made sudden turn to left. It did not indicate. I had almost reached the drive-way. I swayed left to avoid. Could not avoid the accident. I was going left to avoid the accident. "

The evidence of the complainant's and the accused is opposed with respect to whether the indicator was on or not. However, when all the evidence is judged in relation to whether the indicator was on or not, especially that of PW-2, the passenger in the car driven by Pw-1. There is contradiction. Pw-1 told the Court that Pw-2 later turned the indicator on to show that it was working this was denied by PW-2. This Court has grave concerns on whether an indicator was given in the first place as PW-2 stated that upon impact his wife turned the indicator off. Whereas the complainant told the Court she turned it off to get off the vehicle. These contradictions do not assist the prosecution case.

Having analysed the evidence in totality this Court has reasonable doubts which are not reconcilable and for this reasons does not find that the accused drove without due care and attention. The accused's version is believed that he tried to avoid the accident after the complainant moved right and sudden moved left which caused the accident. The prosecution case is also not assisted in the absence of the sketch of the scene.

The accused is found not guilty of the charge. 28 days to appeal this judgment.

Chaitanya Lakshman
Resident Magistrate

Suva
31st January 2013