Maiwalu v The State [1995] FJHC 4; HAA0001j.1995b (10 February 1995)

Fiji Islands - Maiwalu v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0001 OF 1995

BETWEEN:

ANARE MAIWALU

Appellant

AND:

STATE

Respondent

Appellant In Person

Miss Laisa Laveti for the State

JUDGMENT

On 6 December 1994 the appellant was before the Magistrate's Court, Labasa on five counts of traffic offences. The offences were alleged to have been committed on 2 February 1989 and charges were not laid until 27 October 1994 which is over 5 1/2 years afterwards; four of the counts were struck out leaving the second count (which could not be struck out) for driving motor vehicle when there was not in force in relation to the use of the said motor vehicle (a tractor), a Third Party Policy contrary to section (4)(1) and (2) of the Motor Vehicles (Third Party Insurance) Ordinance Cap 153.

On his own plea the appellant was convicted by the learned Magistrate and was fined $50.00 and disqualified from holding or obtaining a driving licence for 12 months.

The appellant is, as I gather from his Petition of Appeal, pleading for "Mercy and Grace" and is asking for the removal of his said disqualification. He says that he has no complaint about the fine.

The facts and circumstances surrounding this case are that on 2 February 1989 he came from Fulton College to his village and to assist his father on his farm he drove a tractor from his home and this meant driving it on the road a short distance.

On the said 2 February he was booked by Police for driving a motor vehicle in contravention of Third Party Policy referred to above.

Now he is a school teacher by profession and needs a licence to drive. His strongest argument is that had he been charged at the right time he would not be in this awkward situation as he is today.

The learned State counsel stated that the appellant was not charged until recently because he was a student at Fulton College. However, she concedes that charging after a lapse of so many years was not justified. In reply to a question put by me she said that the appellant should have been put on Oath to give "special reasons" as to why he should not be disqualified from holding or obtaining a driving licence. This the learned Magistrate did not do.

The learned Magistrate quite rightly convicted and sentenced him in accordance with the law except that before disqualifying he should have put him on oath on "special reasons".

The 'special reasons' must be special to the offence and not to the offender ( vide KANDASAMI v R Crim App No. 68/64 following R v LUNDT-SMITH (1964) 2 WLR 1063, WHITTAL v KIRBY (1946) 2 AER 552).

The duty to disqualify a convicted person falls not within the discretion of the convicting Court, but is imposed by Act of Parliament. This duty is mandatory with a limited discretion to be exercised judicially to refrain from implementing the laws' clearly expressed requirements for a reason special to the offence but not for a reason special to the offender.

Establishing a special reason does not prevent the court from disqualifying; it merely releases the sentencer from the statutory obligation to disqualify for twelve months, allowing him to exercise his own discretion on the question whether to disqualify and for how long to do so. (LOWE CJ in BALJIT SINGH v REGINA, 6 FLR (1959-59) 80 at p.81).

Before I gave judgment in this case I put the appellant on oath as to 'special reasons' and I find that there are "special reasons" for not disqualifying for the minimum mandatory period of twelve months.

The appellant testified that he came home on holidays from Fulton College, Tailevu and wanted to assist his father on his farm which was across the road some 200 chains away from their home at Seaqaqa. He was not aware whether there was a third party policy covering him or not as it was his father who usually drove the tractor.

There was no accident except that the tractor was driven on the road some 200 chains. Evidently the thought for the need for him to be covered for third party did not come to his mind. He took it for granted that his father would have attended to it. He did not enquire from his father for possibly out of respect he would not wish to question him on that aspect. His sole aim was to assist his father on the farm.

The line between the "special reasons" being special to the offence and not to the offender is very slim. In DIRECTOR OF PUBLIC PROSECUTIONS and YOGESHWAR PRAKASH s/o Suruj (Crim. App. No. 59/87) JESURATNAM J said:

"The requirement that the "special reasons" must relate to the "offence" and not to the "offender" will cause a lot of hardship in genuine bona fide cases if the "offence" and "the offender" are placed in two watertight compartments.

It is often difficult to draw the line between facts relating to the offence and the offender as was pointed out in the case of Lines v. Hersom (1951) 2 A.E.R. 650 at 653 where it was said:

"It was often difficult to maintain a sharp distinction between the case and the offender"."

I am of the view that the circumstances in this case were very special and hence the failure on the part of the appellant not to enquire about the policy in the circumstances was not such for which he should be disqualified for the minimum mandatory period.

Therefore in the special circumstances of this case the order of disqualification is quashed and substituted by a disqualification for 2 months 3 days from the said 6 December 1994 which will permit his disqualification to be removed from today. The appellant has no quarrel with the fine, it therefore remains as it is.

Before I conclude, there is one other reason why the appellant should not suffer any longer with the disqualification imposed and that is that in the very special circumstances of this case particularly because the appellant was charged after 5 1/2 years, it would be inequitable for him to now be required to suffer the penalty of disqualification. Looking at the facts as outlined hereabove he had already been adequately punished. Hence the disqualification part of the sentence ought to be quashed which I hereby do so as to permit his immediate release from it.

The appeal is therefore allowed to the above extent.

D. Pathik

PUISNE JUDGE

At Labasa

10 February 1995

Haa0001j.95b