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State v Burogolevu [2023] FJMC 36; Traffic Case 2522 of 2014 (28 December 2023)

IN THE MAGISTRATE’S COURT AT SIGATOKA
CRIMINAL DIVISION

Traffic Case No. 2522/14

THE STATE –v- RATU MELI BUROGOLEVU

For the State: IP Shameem
For the Accused: Mr. Singh

JUDGMENT

1. The Accused is charged with the following:
   

Statement of Offence

DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97(2)(c)(5)(a)(8) and 114 of the Land Transport Act 1998.

Particulars of Offence

Ratu Meli Burogolevu on the 26^th day of July 2014, at Sigatoka, in the Western Division, drove a vehicle registration number: FO 140 on Valley Road, Kedrakulu, Sigatoka in a manner dangerous to another person, involved in an impact occasioning the death of Ana Tula.

Background

2. The Accused was arraigned on 12^th August 2014, pleaded not guilty to the charge and so this matter proceeded to Trial on 27^th September 2023. By the close of their case, Prosecution called two (2) witnesses with four (4) exhibits. The Court found the Accused had a case in the current charge to answer to but acquitted the Accused of the other two counts. Defense then called one (1) witness on 1^st November 2023 with one (1) exhibit.
   

The Case for Prosecution

3. Prosecution Witness 1 (PW1) is Peceli Kolikoli, Teacher of Sigatoka. Around 11am on 26^th July 2014, he recalls coming down to Sigatoka Town from Nasikawa District, Nakorovou Village in Navosa to do shopping. The Accused drove him and others down in a carrier. Around 6pm at Max Value Supermarket, he and others got into the same carrier in Sigatoka town which was driven by the carrier. He recalls the Accused was driving and next to him was Jo and a man from Korovou was in the passenger seat. On the two benches at the back of the carrier, he recalls he was sitting on the right bench with Eparama, Aminiasi and Lemeki while on the left bench were Ana, Eparama and Ratu Meli. When they cornered Westpac Bank to go towards Valley Road, he felt as if they were moving fast and so he moved from the bench to sit on the floor but held onto the bench. They then left town to go up Valley Road. After a short while, they hit a lamp post on the left side of the road. He felt the spare tire hit him. He appeared to have been knocked unconscious. When he woke up, he saw Eparama hanging on the bar of the vehicle and he could feel blood dripping from Ana who was on top of him. He then saw people come and help them and took him and others to hospital where it was confirmed that he had injured his left toe.

In cross-examination, he does not know the actual speed that they were travelling at. He recalls there no pot holes at the time at the place of the accident at the Kadrakulu junction.

4. Prosecution Witness 2 (PW2) is PC 2291 Inoke of Raiwaqa Police Station. On 26^th July 2014, he was based at the Traffic Branch of the Sigatoka Police Station when he was detailed to attend to an accident at Kadrakulu. When he arrived at the scene, he saw eight (8) injured passengers and escorted them to Sigatoka Hospital. He then drew the rough sketch plan. From the 8 passengers, two (2) were seriously injured while the others had minor injuries. One of the 2 serious injured, Ana Tula was transferred to Lautoka Hospital and died there. He attended to the post mortem of the said Ana Tula. He then interviewed the Accused under caution and with the evidence at hand, the Accused was charged for these offences.
   
5. Prosecution tendered in the following exhibits:
   • PE 1 – Post Mortem Report of Ana Tula
   • PE 2 (a) - Rough Sketch Plan
   • PE 2 (b) - Fair Sketch Plan
   • PE 2 (c) - Keys
     

The Case for Defense

6. The Accused, Farmer of Nakorovou. He recalls driving his Three (3) ton carrier from Sigatoka town to Valley Road with passengers in the back and some in front. After passing Tappoo building, the bridge and the first bend at a speed of 30 kilometers per hour, he saw a return truck carrying a tractor at the second bend coming from the opposite direction which had come onto his lane. As a result, he swerved to the left. His passenger Timoci sitting to his left also grabbed the wheel and pulled it to the left too. The carrier then swerved towards the left and headed for the lamp post at the Kadrakulu junction leading to the collision. He states the road at that place is not wide and at the time was not well maintained.

In cross-examination, he states that he was carrying about twelve (12) passengers in total that day. He admits he was rushing back to Navosa as he was supposed to leave town at 3pm but they left at 6pm. However he maintains that he was driving at 30 kilometers per hour. He states he did not lose control of the carrier but maintains that Timoci pulled the wheel. By that point, it was about 8 meters away from the lamp post and so they headed for it when he stepped on the brakes but it could not stop the carrier in time and so it collided. The steel bull bar in front of the carrier and windscreen broke.

In re-examination, he states that when he saw the truck carrying the tractor at the second bend it was about four (4) meters away.

7. Defense tendered in the following exhibits:
   • DE 1 – Statement of PW1.
8. That was the Defense’s case.
9. Both parties then filed written closing submissions which the Court is grateful for. I have perused and taken account of the same in preparation of the following.

Analysis

10. Prosecution bears the burden of proving the elements of the offence beyond reasonable doubt or so that you are sure. This means that if one element of the offence is not proved beyond reasonable doubt, the whole offence is not proved beyond reasonable doubt.
    
11. Now the elements of Dangerous Driving Occasioning Death are:
    1. The Accused
    2. Drove a vehicle registration number FO 140 which was involved in an impact
    3. And that impact occasioned death to Ana Tula
    4. And at the time of impact, the Accused drove the said vehicle in a manner dangerous to the said Ana Tula.
       
12. I have carefully considered all the evidence, the demeanor of witnesses, the exhibits and legal submissions. As such, I will only capture the pertinent issues in as far the charge against the Accused is concerned.
    
13. Prior to the Hearing and in the course of the proceedings, it became apparent that the parties were not disputing elements 1, 2 and 3 of the charge. The element in issue is element 4 and that is whether the Accused manner of driving was dangerous to the deceased, as the passenger.
    
14. The test for dangerous driving was discussed in the case of Ajnesh Kumar –v- The State Criminal Appeal HAA014 of 2001. At page 6 of the judgment, Madam Justice Shameem stated as follows: -

“There are many authorities which say that the test for both Dangerous Driving and Careless Driving, is whether the accused has departed from the standard of a reasonable, prudent, competent and experienced driver in all the circumstances of the case. The accused is guilty of either offence even if he committed an error of judgment (Simpson -v- Peat (1952) 1 ALL ER 441) or was an inexperienced driver (McCrone -v- Riding (1938) 1 ALL ER 157.) The difference between Careless Driving and Dangerous Driving in Fiji, is whether the manner of driving (which fell below the requisite standard expected) created a dangerous situation. Thus a careless driver is also a dangerous driver, if his careless driving caused a pile-up of vehicles on a busy motorway resulting in death and injuries. The question of what is careless as opposed to dangerous is one of fact, usually best left to the trial court to decide, on the evidence”

15. In adopting this binding authority of Ajnesh Kumar (supra), the Court acknowledges the authorities that look to expanding the question of fact of determining what is dangerous from careless; and the manner of driving that is dangerous to the public. Given the similarity in definition of dangerous driving in Australia’s related legislation to Fiji’s Land Transport Authority, the Court adopts the obiter in McBride v the Queen [1966] HCA 22; (1966) 115 CLR 44 where the then Chief Justice Barwick stated (and which this Court found it amiss not to reproduce) :

“The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to made the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged.

This quality of being dangerous to the public in the speed or manger of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving....A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentially in fact of danger to the public in the manner of driving, whether realised by the accused or not, which makes it dangerous to the public within the meaning of the section.

This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the high way, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby. These distinctions make it imperative that the jury be specifically directed as to criteria to be applied and the distinctions to be observed in determining whether any particular speed or manner of driving can have the quality, intrinsic or occasional, of being dangerous to the public within the meaning of the section, and that the particular features of the driving charged as in breach of the section be isolated for the jury and related to these criteria.”

16. This Court has heard from the sole witness for Prosecution and the Accused give evidence pertaining to their respective view or opinion on speed that a vehicle driven by another person may have been travelling at. Normally a witness can only speak about facts, that is, what they saw, heard and said. For example, they saw the actual speed gauge in the carrier to determine the fact of the speed. But an expert with specialised knowledge may express an opinion within his or her particular area of expertise. Expert evidence is admitted to provide the Court with scientific information and opinion which is within the witness’s expertise, but which is likely to be outside the experience and knowledge of most Fijians. Only experts can give opinions on such matters as per Transport Publishing Co v The Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111 where the Court stated:

“opinion evidence must be confined to matters which are the subject of the witness’s special study or knowledge.”

In this matter, no expert evidence was led to show or prove speed of the carrier. Therefore, the observations and opinion of the witnesses pertaining to speed is inadmissible in evidence.

In any event, the charges preferred by Prosecution is for ‘in a manner dangerous to another’, not ‘at a speed dangerous to another’^[1]. In Mithun Naidu v State, Labasa High Court, Criminal Appeal Case No. HAA 07 of 2017 , the High Court stated:

“it is clear from the learned Trial Magistrates’ reasons that he found the appellant to be at fault for creating a dangerous situation by over speeding...the appellant was not charged with driving at a speed dangerous to another person. Driving at a speed dangerous to another person is an offence under section 97(2)(b) of the Land Transport Act. The appellant was specifically charged with aggravated dangerous driving occasioning death under section 97((1)(2)(c)...”

Further, the High Court stated in Navinit Narayan v State HAA 41 of 2010:

“the legislature has specifically made specific separate provisions for “driving at a speed dangerous to another person” and “driving in a manner dangerous to another person”

Therefore, with the issue of speed not included in the parameters of the Court’s consideration and as alluded to above, the Court will only look at whether the manner of driving of the Accused and whether is amounts to dangerous driving as per the authorities cited above.

17. PW1 stated that when they cornered Westpac Bank to go towards Valley Road, he felt as if they were moving fast and so he moved from the bench to sit on the floor but held onto the bench. They then left town to go up Valley Road. After a short while, they hit a lamp post on the left side of the road. Apart from this, he does not offer any other evidence that relates to the manner of driving of the Accused. There were no evidence pertaining to the circumstances of the offence. What were the circumstances of the Accused’s driving like when they came down in the morning of the day in question? What observation did he make of the Accused prior to departure from town that may indicate his intention to drive dangerously? And more importantly, from the point of departure to the point of accident at Kadrakulu, what other observations of the Accused’s actions, apart from perceived speed, were made. The fact that PW1 states that he was seated at the time of the accident may not have allowed him to make all these observations as well.
18. Also, I note from PE2(a), that the road is 6.9 meters in width. This is indeed limited in space for a carrier as big as a 3 ton when manoeuvring bends. Prosecution asked Accused in cross-examination if he was rushing and the Accused admitted he was. However, the Accused denied cutting corners or curbs. There was nothing else that could be elicited from the Accused’s evidence to assist Prosecution.
19. Now the Accused also gives an explanation in his evidence as what transpired that resulted in the accident. The Accused states that a truck came onto his lane and as such, Timoci his front passenger pulled the wheel which resulted in the carrier turning towards the left side of the road and hit the lamppost which was about 8 meters in front. This created doubt. The alternative questions came to mind, which is – did the driver of the oncoming vehicle cause this accident? Did Timoci contribute to the accident? Unfortunately, these imperative questions could not be resolved by Prosecution and as such as the doubts became reasonable.

Court’s Finding

20. Court finds Prosecution has not discharged its burden of proving the charge beyond reasonable doubt.
21. The Accused is hereby found not guilty as charged.
    
22. The Accused is acquitted accordingly.
23. 28 days to appeal.
    

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J. Daurewa
Resident Magistrate
28^th December, 2023

^[1] Note difference between Section 97(4)(b) and Section 97(4)(c) of the Land Transport Act.