IN THE MAGISTRATE’S COURT OF SUVA

TRAFFIC CASE NO.53/2014

STATE

V

DHARMENDRA CHAND

Prosecution: PC Taito
For the Accused: Mr. O’Dirscoll

Judgment

[1] The accused is charged with the offence of Careless Driving. The charge read as follows;

CARELESS DRIVING: Contrary to Section 99 (1) and 114 of Land Transport Act No. 35 of 1998.DharmendraChandon20/10/2013 at Suva in the Central Division drove a motor vehicle registration number LT 547along Fletcher Road, without due care and attention.

[2] Accused plead not guilty on the charges against him on 4/8/2014. This case was heard on 10/4/2015and was fixed for judgement today.

Summary of evidence
[3] At the trial, prosecution called following witnesses to prove their charge.

PW 1-Dinesh Prasad:The witness said that he could recall 20thOct 2013, he was going from Nasese to home at Santa Ben Road , Watuwaqa which is close to Fletcher Road as his house was brake in . When he arrived to roundabout at Fletcher road and Karsnji Street, the accused came from Karsnji street and made a quick right turn. And his vehicle collid with white taxi from the right side rear door of the same. The witness said that he has the right of way at the roundabout therefore the taxi has to give way. 

The accused was given opportunity to cross examine the witness, his counsel cross examined the witness. The accused marked photo of the accident vehicle as DX -1. This evident the colure of the taxi is not white .the witness marked his police statement as P-1.

[4] PW 2- LitaNamata : The witness said that she did not witness the accident. She marked her Police Statement as P-2.

[5]The prosecution marked Caution Interview Note as P-3 and Rough Sketch as P-4. The prosecution close their case. 

[6] The accused counsel made a oral application for no case to answer. After analysing the available evidence this court ruled that there is a case to answer. Defence commenced their case and the accused gave evidence under oath.

[7]DW1-The Accused: stated “I came to Krasanji roundabout. PW-1 was away. I noticed it .so I started turning to right. When I was half turned PW-1 came and bumped my right side back door. He was speeding. My car was thrown away 6 m and bumped to a pipe post.i was in the roundabout before PW-1 .PW-1 did not stpped. there is no proper roundabout .but a bit high circle.( at this moment the accused confirms photo marked as DX-1) 

[8] The prosecution was given opportunity to cross examination but stated “ No Questions” 

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

[10]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) 

[11] The burden of proof is vested on the prosecution in this matter and they should prove this charge beyond reasonable doubt. What is proof of beyond reasonable doubt is described in several cases. 

[12] 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.”

[13] 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.”

[14] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen 1970 AC 618reported in72 New Law Reports 313(Sri Lanka) 

“A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

Analysis of the evidence
[15]The accused has not admits the offence as he was not in fault. After checking the photographs this bench think to accept the accused explanation. The damaged suffered by the PW-1 vehicle impossible to occur unless the victim was driving in high speed. The Rough Sketch evident that accuses car has almost gone half before it was hit by the PW-1 s vehicle. And the accused car has thrown 9.4m after impact. 

[16]There are no break marks from the PW-1 s vehicle. This is impossible to happen unless the PW-1 was not driving in high speed. The impact place of the accused vehicle evident that PW-1 has entered the roundabout after accused entered. If not the impact point must be not the rear right door but somewhere front part. 

[17] Further it is the duty of a driver to keep the appropriate gap and be caution about other vehicles. The right of way at a roundabout comes only when both vehicles arrived at the same time. But if the vehicle on left side arrived earlier than the vehicle at the right side and had reasonably sufficient time to make move it does not have a duty to give way to all the vehicles coming from its right side.

[18] The photograph and rough sketch sufficient to exclude the accused from responsibility over this accident. 

Verdict

[19] Therefore Court finds that the Accused did drive his vehicle with due care and attention of a prudent and reasonable driver in the circumstances. The Accused is acquitted by this court.

[20] 28 days to appeal.

On 24th July2015, at Suva, Fiji

Neil Rpasinghe
Resident Magistrate-