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State v Najum [2013] FJMC 94; Traffic Case 240.2009 (22 February 2013)

IN THE MAGISTRATE’S COURT
AT SUVA,FIJI

TRAFFIC CASE N0: 240 of 2009

BETWEEN:

THE STATE
PROSECUTION

AND:

MOHAMMED ALI NAJUM
ACCUSED

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,
COUNSEL: Srg Luke for the Prosecution,
Mr. Samad for the Accused person,
Date of the Judgment: 22nd day of February 2013.

JUDGMENT

1. The accused is charged with one count of “Careless Driving” contrary to section 99 (1) and 114 of the Land Transport Act 35 of 1998. The particulars of the offence are:
   

“Mohammed Ali Najum, on the 28th day of July 2009 at Samabula in the Central Division, drove a motor vehicle registration number EL 217 along Ratu Mara road without due care and attention”.

2. Accused pleaded not guilty for this offence, wherefore, the case was set down for hearing. During the hearing the Prosecution called 5 Prosecution witnesses and the Accused chose to give evidence on oath and called one witness for the defence. At the Conclusion of the hearing I invited the learned counsel for the defence to file his closing submission in writing which he filed accordingly. Subsequently, the learned Prosecutor filed his closing submission in writing.
   
3. In view of the general rule in law of Evidence, the onus of proof the charges beyond reasonable doubts against the accused is borne by the prosecution. There is no onus on the accused at any stage to prove his innocence or to prove anything else.
   
4. Section 99 (1) of the Land Transport Act stipulates that t “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”.
   
5. In view of the section 99 (1) of the Land transport Act, the main elements of the offence of “Careless Driving” are that;
   
   1. The accused ,
   2. Drives a motor vehicle on a public street,
   3. Without due care and attention.
      
6. Upon considering the main elements of these offence of careless driving, I now briefly summaries the evidence of this case in line with the evidence adduced by the prosecution and the the defense.
   
7. The first prosecution witness is Mr. Vijay Singh who is the driver of the taxi registration number LT4185. He stopped his taxi at the junction of Belo Street and Ratu Mara road. He then waited for the traffic of the Ratu Mara road to turn his taxi left and drive towards Suva at around 2.30 p.m. on the 28th day of July 2009. While he was waiting to turn his taxi to the main road, he saw a bus was moving towards Suva alone Ratu Mara road on the outer lane and further he saw from the bend of the main road, a private car with its hazards lights on was moving to the same direction on the inner lane of the Ratu Mara road. In the meantime, he tried to see his left side and saw another vehicle was jumping towards to his car and collided with his tax. He stated that vehicle was first collided with the private care with the hazard lights on and then dragged towards his side and hit with his taxi. He stated in his evidence that the vehicle which collided with his taxi is a twin cab and its registration number is EL 217.
   
8. Mr. Vijay Singh in his cross examination stated that he saw the private vehicle with hazard lights on through the bend and the bus which was traveling on the outer lane was moving slowly than the private care. He further stated at the time of this alleged collision, the private car has passed the bus. He deposed that the vehicle No El 217 which the accused was driving was moving towards Nabua and suddenly crossed towards his side.
   
9. The second prosecution witness is Mr. Praneel Shanker Singh who is the driver of the private car registration Number E4 673. He stated in his evidence that he was driving along the Ratu Mara road towards Suva to admit his sickly mother at the Suva Private Hospital at about 2.30 pm on the 28th of July 2009. He stated that when he reached to the Junction of Belo Street and found the green traffic light was on for him to move forward continuously. He then moved his vehicle without stopping at the traffic lights towards Suva alone the inner lane of the Ratu Mara road. However a vehicle driven by the accused which came from the opposite direction suddenly turned towards Belo Street and crossed the main road just in front of his car. He stated that he tried to stop his car by applying break but the car collided with the vehicle driven by the accused and that vehicle was then collided with the taxi which was on the Belo street waiting to turn to the main road.
   
10. In his cross examination Mr. Praneel Singh admitted that he was driving at a speed of 40 -50 kmp and denied he was driving at a high speed. He further stated that he put his car’s hazard light because he was carrying his sick mother to the hospital.
    
11. The third prosecution witness is Mr. Krishore Chand who is a vehicle examiner at the Land Transport Authority. It is unfortunately that this expert witness could not recall any of the vital information of this incident and only tendered his report he made upon his inspection of the vehicle of the accused person.
    
12. The fourth and fifth prosecution witnesses are the two police officers namely Necani Kekai and Prasant Prasad who conducted the investigation of this alleged accident. Both of them explained the road condition and the statues of the vehicles after the incident and tendered the rough sketch plan of the incident.
    
13. The accused in his evidence on oaths, denied the charges leveled against him and stated that he observed the opposite direction of the road before he turned his vehicle to the Belo Street. However he admitted that he did not see the traffic lights of the opposite side but presume it was red with the vehicle movement. He future stated that while all other vehicle moving towards Suva stopped at the traffic lights, the private car driven by the PW2 came in high speed and collided with his vehicle.
    
14. The defence witness Mrs. Shally Narayan stated in her evidence that the accused stopped his vehicle at the bay on the inner lane towards Nabuwa before he turned the vehicle to the Belo Street. She further stated that she spotted the private care with its hazards lights on was coming along the inner lane of the Ratu Mara road towards Suva in a high speed while her vehicle was stopped to turn to the Belo Street. However she stated at that time the private car was bit far from the traffic lights. She then stated that when the vehicle actually turned to the Belo Street the car came and collided with her vehicle.
    
15. Having considered the evidence presented by the prosecution and the defence I now turn to discuss the test of careless driving. The court is required to objectively determine whether the accused person’s driving was below the standard of a reasonable, prudent and competent driver at the time of this alleged offence committed. Smith L.J held in “Milton v Director of Public Prosecution” ( [2007] EWHC 532; 2007) 4 All ER 1026) that “the test should be fully objective. The court would be looking at the quality of driving (was it really bad?) and not at what the driver himself thought about its possible outcome. Second, the offence was to contain a statement of the standard of 'badness'. The test should be whether the driving fell well below the standard of driving to be expected to the competent and careful driver. This was to avoid catching cases of trivial incompetence. Third, it was said that the court should be directed by the definition to consider the quality of the driving directly in relation to the particular circumstances in which it occurred. How would the competent and careful driver have behaved in these circumstances? It was said that the court should have to consider whether even a competent and careful driver would have driven in this way. This would enable the driver to give an explanation as to why he had driven as he had. Examples were suggested. The driver might have been responding to an emergency or he might have encountered an unusual and unexpected road condition. In such circumstances, the driver might escape conviction”.
    
16. Shameem J has discussed the difference of dangerous driving and careless driving in Kumar v State (2002) FJHC 291; HAA014.2001S (12 April 2002), where the ladyship held that “There are many authorities which say that the test for both Dangerous Driving and &#16eless Driving , is;, is whether the accused has departed from the standard of a reasonable, prudent, competent and expced d in ae cirances of the case. The accused is guilty of either offence evce even ifen if he c he commitommitted an error of judgment (Simpson -v- Peat (1952) 1 ALL ER 441) sr wainexperienced driver (ver (McCrone -v- Riding (1938) 1 ALL ER 15160;The dThe difference between Careless Driving and Dange#160;;D160;Drivingiving in Fijiwhethe mahe manner oner of drivwhich below elow the rehe requisite standard expected) createreated a dangerous situation. Thus a car driver is also a do a dangerous driverhis&#areleiving &160;&#16sed a pile-up of v of vehicles on s on a busa busy motorway resulting in death and injuries. The question of what is&#arele60;assed to d to dangerous is one of fact, usually besy best left to the trial court to decide, ide, on the evidence".
    
style='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='17' value="17">In view of the abovementioned judicial pents on the test of the careless driving, the court is required to objectively determine whne whether the accused person drove his vehicle below the standard of a reasonable, prudent and competent driver.

18. The evidence of PW2, PW3 and PW4 and also the accused confirmed the traffic lights were functioning at the time of this accident. PW2, specifically stated in his evidence that the green light was on for him to drive continuously. The accused himself admitted that he could not see the traffic light from the place he stopped his vehicle to turn toward Belo Street. His evidence suggests that he presumed that the red traffic light was on form the movement of incoming vehicles on his opposite direction. He then decided to turn his vehicle. Mrs. Naravan, the defence witness specifically stated in her evidence- in- chief that she saw the private care moving fast with hazard lights on towards them while the vehicle stopped for turn.
    
19. In view of the place of first impact between the accused person's vehicle and the car of PW2 as its was indicates on the sketch plan tendered by the prosecution and the evidence of Mrs. Narayan, I do not accept the accused person's claim that he did not see the private car moving towards them along the inner lane when he tried to turn his vehicle if he drove his vehicle as a reasonable, prudent and competent driver. Specially I am of the view, if a reasonable, prudent and competent driver was trying to turn his vehicle across a main road which has moving traffic and could not seeing the signs of the traffic light due the position he stopped his vehicle to turn, would have given more consideration to the moving vehicles towards his direction and he would have waited until all the moving vehicles on his opposite direction came to stop for the red traffic light.
    
20. In view of these reasons set out above, I find the accused person drove his vehicle and turned it towards Belo Street carelessly and his driving was below the standard of a reasonable, prudent and competent driver.
    
21. In conclusion, I hold that the prosecution has establish that the accused person is guilty for this offence of "careless driving" beyond reasonable doubts. Accordingly, I found the accused person is guilty for the offence of "careless driving' contrary to section 99 (1) and 114 of the Land Transport Act and convict for the same.
    

On this 22nd day of February 2013.