Bharat v The State [2001] FJHC 85; Haa0077j.2001s (2 November 2001)

Fiji Islands - Bharat v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0077 OF 2001

(Nausori MC Traffic Case No. 925 of 2000)

BETWEEN:

SAMUEL BHARAT

Appellant

AND:

THE STATE

Respondent

Counsel: Mr E. Veretawatini for Appellant

Mr T. Romanu for Respondent

Hearing: 19th October 2001

Judgment: 2nd November 2001

JUDGMENT

This is an appeal against sentence. On the 29th of September 2000, the Appellant was convicted of Driving Whilst under the Influence of Drink or Drugs and of Careless Driving. He was fined $150.00 (in default 4 months imprisonment) and disqualified from driving or obtaining a driving licence for a period of 12 months, on Count 1. On Count 2 he was fined $40.00 (in default 1 month imprisonment).

The appeal is on the following grounds:

(1) The sentence was harsh and excessive;

(2) The Appellant was prejudiced by the fact that he was not legally represented at the trial.

At the hearing of this appeal, counsel for Appellant asked to make further submissions in writing and I gave him leave to do so. It was apparent, from his submissions, that the Appellant’s real complaint was against the sentence of disqualification from driving, on Count 1.

The State opposed the appeal and said that the sentence passed was not harsh nor excessive, and that the Appellant’s trial had been fair, despite the lack of legal representation.

The facts of this case, as revealed by the evidence at the trial, were that on the 11th of July 1999 at about 1.45am, Police Constable Kaiyum Ali found the Appellant’s vehicle Registration Number BY302, on the traffic island on Wainibokasi Road, close to Nausori Village. There was no sign of the driver. He spoke to the Appellant later and found that he smelt of liquor. The Appellant agreed to be examined by a doctor at the hospital. The Government Analyst found that the Appellant’s blood alcohol level was 158 mg%, which was consistent with the consumption of more than four bottles of beer.

The doctor gave evidence and said that the Appellant had slurred speech and blood-shot eyes. In his interview with the police, the Appellant admitted drinking two bottles of beer at about 8pm and driving the vehicle. The accident occurred at about 2am. He said that the accident occurred because a person suddenly jumped in front of his car.

In court, the Appellant said in his evidence, that he had drunk the alcohol after the accident, and before the police found him. The learned Magistrate did not believe him, and convicted him on both counts. He then asked the Appellant why he should not be disqualified from driving.

The Appellant gave sworn evidence saying that he needed a licence because he was a mechanic and needed to test drive vehicles. He said his parents were old and he had to take them to hospital when they were sick. He said he would lose his job if he lost his licence.

The learned Magistrate found that these reasons were not special to the offence and sentenced him to 12 months disqualification from driving on Count 1.

On 16th October 2000, the learned Magistrate stayed sentences pending this appeal.

The disqualification

Section 39 of the Traffic Act Cap. 176 provides as follows:

(3) Any person who, when driving or attempting to drive or when in charge of a motor vehicle on a road or other public place, is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle shall be guilty of an offence and shall be liable upon conviction to imprisonment for 2 years or to a fine or to both such imprisonment and fine.

(4) A person convicted of an offence under this section shall, unless the court for special reasons thinks fit to order otherwise, and without prejudice to the power of the court to order a longer period of disqualification, be disqualified for a period of 12 months from the date of conviction from holding or obtaining a driving licence.

(5) Any police officer may arrest without a warrant any person reasonably suspected by him of committing an offence under this section.”

The section provides that the court must impose at least a period of 12 months disqualification unless it finds special reasons not to do so. It has powers to impose a lower period of disqualification.

What are ‘special reasons’? In R -v- Crossen (1939) 1 NT 106 the King’s Bench Division of Northern Ireland held:

“A ‘special reason’ within the exception is one which is special to the facts of the particular case, that is special to the facts which constitute the offence. It is, in other words, a mitigating or extenuating circumstance not amounting in law to a defence to the charge, yet directly connected with the commission of the offence and one which the court ought properly to take into consideration when imposing punishment. A circumstance peculiar to the offender as distinguished from the offence is not a ‘special reason’ within the exception.”

This passage was approved by Lord Goddard in Whittal -v- Kirby (1946) 2 ALL ER 552 and has been applied by the courts in Fiji for many years.

Although the triviality of an offence would appear to satisfy the ‘special reasons’ test, Lord Widgery said in Nicholson -v- Brown (1974) RTR 177:

“I would not accept the proposition that if a man is guilty of driving without due care and attention, he can be excused endorsement of his licence on the basis of special reasons merely because it was not a bad case, or merely because the degree of blameworthiness was slight. I think that the line must be drawn firmly at guilt or innocence in those case. If the defendant is guilty, then the consequences of endorsement of the licence must follow, unless there is some special reason properly to be treated as such, not such a matter as that the offence is not a serious one.”

A perusal of decisions where special reasons have been found, shows that they include the fact that the offender drove for only a short distance and in circumstances such that he was unlikely to meet other road users (Coombs -v- Kehoe (1972) RTR 224), the fact that the offender was tricked into committing the offence, and the fact that the offender was driving in an emergency (Brown -v- Dyerson (1969) 1 QB 45. The fact that the offender’s family will suffer financial hardship if his licence is endorsed, was specifically held not to be a special reason in Whittal -v- Kirby (supra).

There can be no question that the Appellant failed to show special reasons. Special reasons are special to the offence, not to the offender. The reasons raised by the Appellant in his sworn evidence were not special reasons, and the learned Magistrate rightly rejected them. He then imposed the minimum term of disqualification he could have imposed under section 39. The appeal against the disqualification is therefore unsuccessful and is dismissed.

The lack of representation

There is no appeal against conviction. However counsel for the Appellant submits that the prejudice to the Appellant as a result of lack of representation was that the prosecution did not prove its case beyond reasonable doubt.

The Appellant was unrepresented at the trial, but he was given ample opportunity, between the 15th of February 2000 and the 28th of August 2000 to find a lawyer. Blame for the fact that he did not do so, cannot be laid at the Magistrate’s door.

In any event, I do not think that he was prejudiced by the lack of legal representation. The record shows that the Appellant’s cross-examination was both coherent and relevant. His defence emerged clearly from the nature of the cross-examination. His defence was firstly that he was not drunk, secondly that if he was, he drank after the accident and thirdly that the accident occurred not because he was careless but because someone jumped in front of his car.

Counsel submits that the offences were not made out on the evidence. However, the offences were proved on the Appellant’s own statement to the police, on the basis of the Analyst’s report which showed a high level of blood alcohol and on the basis of the doctor’s evidence that the Appellant was under the influence of liquor to such an extent as to have improper control of his vehicle.

It is true that the police found the car without a driver. However in his caution statement, the Appellant confessed to driving the car and said he had consumed alcohol some 6 hours before the incident. He gave sworn evidence which the Magistrate disbelieved. He was entitled to do so.

In all the circumstances I find that the Appellant was not prejudiced by lack of legal representation, and that his trial was fairly conducted.

This ground is also dismissed.

Summary

This appeal against sentence is unsuccessful and is dismissed.

Nazhat Shameem

JUDGE

At Suva

2nd November 2001

Haa0077j.01s