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State v Samisoni [2016] FJMC 129; Criminal Case 204.2012 (23 August 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 204/12

STATE

-v-

MERE TUISALALO SAMISONI

JUDGEMENT

1] The accused is charged with the offence of dangerous driving contrary to Sec.98 (1) of the Land Transport Act 1998. The charge is as follows;

DANGEROUS DRIVING: Contrary to Section 98(1) and 114 of the Land Transport Act No. 35 of 1998.

Particulars of Offence

MERE TUISALALO SAMISONI on the 3rd day of August 2012 at Suva in the Central Division drove a vehicle registration number HOTBRD on Holland Street in a manner which was dangerous to the public having regards to all the circumstances of the case.

2] The burden is on the prosecuting to prove this charge beyond reasonable doubt.

The complainant was driving his vehicle along a public road at Holland Street when he saw the accused stopped her car in the middle of the road trying to turn her vehicle to the right side of the road. She did not flick her right hand signal light before stopping the vehicle to turn. The complainant then tooted the horn, turned his vehicle to the right side of the road beyond the accused’s vehicle and overtook the vehicle.

3] PW2 was a passenger sitting at the middle of the rear seat of the complainant’s vehicle.PW4 was a passenger of a vehicle which followed the complainant’s vehicle. The accused denied the charge and took up the position that she indicated her attempt to turn to right. She also said that she turned the vehicle when there was no vehicle on the road. In the accused’s evidence she further said that she stopped on the left side of the white line. If she had indicated others would have easily understood that she was about to turn the vehicle. It is not only for thecomplainant that it was not clear but also to the passengers in the same vehicle and the vehicle which followed the complainant’s vehicle. Therefore there is no doubt from the evidence of these two witnesses and the complainant that the accused did not flick her right signal light when she stopped the vehicle to turn. Does it amount to dangerous driving?

The Law and the Test

4] 98 (1) of the Land Transport Act 1998 Act states that

Any person who drives a motor vehicle on a public street recklessly, or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the public street and the amount of traffic which is actually at the time or which might reasonably be expected to be on the public street, commits an offence and, subject to subsections (2) and (3), is liable upon conviction to the prescribed penalty.

In terms of this provision the court has to decide having regard to all the circumstances of the case including the nature, condition and use of the public street and the amount of traffic which is actually at the time or which might reasonably be expected to be on the public street, whether the manner in which the accused drove the vehicle was dangerous to the public.

5] The test to be applied is the objective test. In Attorney-General v Parmanandam [1968] FJSC 8; [1968] 14 FLR 6 (15 March 1968) HAMMETT C J

‘It is well established, and the cases of R. v. Evans 47 Cr. App. R. 62 and R. v. Ball and Loughlin 50 Cr. App. R. 266 are in point, that the correct test to apply to the facts on a charge of dangerous driving is the objective and not the subjective test. ‘

In R. v. Evans 47 Cr. App. R. 62 at pp. 64, Fenton Atkinson J. said:

"The question therefore for the jury was, viewed objectively, did the course on which and the speed at which the appellant drove his car in the particular circumstances prevailing at the time involve danger to another road user and if the answer to that question was yes, then the proper verdict was one of guilty (of Dangerous Driving )."

Analysis of Evidence

6] The accused stopped the vehicle in the middle of the road in order to turn her right. No vehicle can stop in the middle of the road unless he turns to the other side at a permitted place of the road. If he intends to turn to cross the other side of road he should sufficiently indicate his intention with signal lights. In this case the accused had not indicated her intention to turn. PW1 understood that she was trying to U turn by her conduct as she stopped in the middle of the road and the back side of the vehicle was on left and the front was on the opposite track. Therefore PW1 overtook by turning his vehicle to the right side of the road which is more dangerous without stopping his vehicle. He is supposed to drive keeping the necessary distance from the vehicle in front.

7] The accused’s manner of driving was that she did not indicate her intention to turn. If the accused to be found guilty for dangerous driving the court should consider all the circumstances of the case including the nature, condition and use of the public street and the amount of traffic which is actually at the time or which might reasonably be expected to be on the public street. In this case there is no detailed evidence before the court regarding the circumstances of the road at the time of the incident. There is no evidence regarding the condition of the road, the amount of the traffic on both sides of the road. The court should satisfy that the manner in which she was driving was putting the other road user to dander. This evidence do not suggest the dangerous nature of her driving when she tried to turn the vehicle to the other side of the road but it is established that she was careless when she was turning her vehicle to the other side without signals. It is an offence under sec. 99 (1) of the Land Transport Act 1998 which states that 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.

Can the accused be convicted for careless driving when he or she charged for dangerous driving?

8] Sec.60 (2) of the Criminal Procedure Decree states that

‘When a person is charged with an offence and facts are proved which reduce it to a minor offence, the person may be convicted of the minor offence although he or she was not charged with it.’

His Lordship HAMMETT C J in Attorney-General v Parmanandam [1968] FJSC 8; [1968] 14 FLR 6 (15 March 1968) said that;

‘I am of the opinion that the offence of Careless Driving contrary to section 36 of the Traffic Ordinance 1965 is a "minor offence" to the offence of Dangerous Driving contrary to section 38 of that Ordinance. In my view where Dangerous Driving is charged and the facts proved do not amount to the offence of Dangerous Driving but do amount to the offence of Careless Driving, a Court may in exercise of its powers under section 164 (2) of the Criminal Procedure Code convict the accused of the offence of Careless Driving, as a minor offence, although he is not separately and specifically charged with that offence.’

9] Prosecution has established the careless driving of the accused beyond reasonable doubt. Accordingly I acquit the accused from the present charge but convict her to careless driving contrary to Sec.99 (1) of the Land Transport Act 1998

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

23/8/2016