Land Transport Authority v Volavola [2002] FJHC 170; HAA0066J.2002S (6 September 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 066 OF 2002S

Between:

LAND TRANSPORT AUTHORITY
Appellant

And:

ERONI VOLAVOLA
Respondent

Hearing: 29th August 2002
Judgment: 6th September 2002

Counsel: Ms A. Neelta for Appellant
Respondent in Person

JUDGMENT

The Respondent was charged with the following offence, in the Suva Magistrate’s Court:

Statement of Offence

IMPROPER USE OF MOBILE COMMUNICATION: Contrary to section 51 and 87 of Land Transport (Traffic) Regulations 2000.

Particulars of Offence

Rt. Eroni Volavola, on the 19th day of April 2002, at Suva in the Central Division drove a motor vehicle on Milverton Road used two way mobile communication without bringing the said vehicle to a stand still.

Facts

On 31st May 2002, the charge was read and explained to the Respondent. He pleaded guilty. The prosecutor then said that the facts were “as in the charge.” The “facts” were admitted and the Respondent was convicted. There were no previous convictions. The Respondent said in mitigation - “I was involved with ACP Driver. The booking officer didn’t see me, I was going to stop.” The Magistrate then told the prosecution to get the booking officer, and adjourned to 10th June 2002. On 10th June, the Respondent did not appear and a bench warrant was issued. On 14th June, the Respondent appeared and the bench warrant was cancelled. There is no record that the booking officer in fact appeared. However the court record then reads:

“This accused had admitted the offence. In his mitigation this accused stated that he was involved on that day with ACP Drivers when he received a call, he was going to stop and before that someone saw him. First the particulars of offence was Waimanu Road where the Booking officer was at the time this offence was committed at Milverton Road, the particular was later amended to Milverton Road before this accused came to court on 31/05/2002. On 10/06/2002 the Booking Officer was in court and confirmed that he received a call from another officer that this accused was committing the said offence at Milverton Road, so he booked this accused while he was at Waimanu Road.

The information in the TIN is hearsay and therefore not accepted by the Court. I therefore use the Court’s discretion under section 44 of the Penal Code and order that this accused be discharged without convictions.”

The Land Transport Authority appeals against this order on the following grounds:

1. That the learned magistrate erred in law and fact by discharging the accused under section 44 of the Penal Code Cap. 17 on the grounds that the charge laid is based on hearsay information;
   
2. That the learned magistrate erred in law by failing to enter plea of not guilty when the defendant disputed the facts;
   

100. That the learned magistrate erred in law by failing to set the case for hearing (H.C.F Cr. Appeal No. 34 of 2002, LTA v. Daya Shankar Sharma);
     

4. That the learned magistrate erred in law and fact by discharging the accused under section 44 of the Penal Code Cap. 17 when the penalty of the above offence is fixed by law that is fixed penalty is eighty dollars and maximum penalty is five hundred dollars (HCF - Cr Appeal No. 12 of 2001 State v Usman Ali s/o Suleman).
   

The grounds of appeal

The first ground of appeal is that the Magistrate erred in discharging the Respondent under section 44 of the Penal Code on the ground that the charge was laid on the basis of hearsay.

The discharge under section 44 of the Penal Code is a sentence entered after a finding of guilt. That section provides:

“(1) Where a court by or before which a person is found guilty of an offence, not being an offence for which a fixed sentence is prescribed by law, is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act is not appropriate, the court may, with or without proceeding to conviction, make an order discharging him absolutely ...”

Section 44 is therefore not available unless there has been an unequivocal plea of guilty accepted by the court. Was there an unequivocal, unambiguous plea of guilty?

Regulation 51 of the Land Transport (Traffic) Regulations 2000 (Legal Notice No. 64 of 2000) provides as follows:

“No driver whilst driving a motor vehicle on a public street may use any form of two-way communication device unless the vehicle is first brought to a stand still in accordance with these regulations.”

Regulation 87 provides:

“A person who commits an offence under these Regulations is liable on conviction to the penalties prescribed for that offence in Schedule 2 to the Land Transport (Fees and Penalties) Regulations 2000.”

The record shows that the Respondent pleaded guilty to the offence. No additional facts were disclosed, but in mitigation the Respondent said: “he was a first offender and he was involved with ACP Driver. The Booking Officer did not see him, and he was going to stop.” This mitigation did not dispute the facts. Indeed the learned Magistrate interpreted it to mean that he was involved with the Assistant Commissioner of Police, when he received a call, and that he was going to stop, when someone saw him. This is a clear admission of the facts giving rise to the charge. In the circumstances, it is not clear why the learned Magistrate needed to call the booking officer to substantiate the facts. Further, if the learned Magistrate did not accept the facts as disclosing the offence, then the next logical step would have been to record a plea of not guilty and list the case for trial. However, as I have already found, the facts relevant to the charge were not in dispute. The Respondent admitted using a mobile telephone in a car. His comment that he was about to pull up, was a mitigating factor. It did not detract from the ingredients of the offence. There was no need to hear evidence to substantiate the facts.

In criminal proceedings, the plea is taken after the charge is read. The facts are then read to the court. The facts must disclose the offence. In the case of an unrepresented accused person, the acceptance of the plea of guilty depends on the way the facts are outlined. If the accused disputes facts which go to the essential ingredients of the offence, or if he/she in mitigation raises a possible defence to the charge, the Magistrate must set aside the guilty plea and record a not guilty plea. (R -v- Bland ford Justices ex parte G (1967) 1 QBD 82).

In the outlining of facts, the prosecutor must inform the court of the nature of the evidence against the accused. This is derived from witness statements. The facts are always “hearsay” because the prosecutor was not there when the offence was committed, and is only relating what he read in the witness statements. However, a plea of guilty is an admission of the facts material to the charge. There is no need to prove the facts, because it is both “a confession of fact and such a confession that without further evidence the court is entitled to, and in proper circumstances will, act upon it so that it results in a conviction.” (R -v- Rimmer (1972) 1 ALL ER 604).

At some stage during the proceedings, the learned Magistrate heard the evidence of the booking officer. This evidence is not recorded on the court record. However the record does include a Traffic Infringement Notice, and the affidavit of the booking officer, Mr Antonio Masiyasa. This affidavit stated that on 19th April 2002 the Respondent was using a mobile telephone in vehicle No. DO119 on Milverton Road without bringing the vehicle to a standstill. It appears that Mr Masiyasa told the court that he himself did not see the Respondent committing the offence, but was told that he was by the booking officer on Milverton Road. Mr Masiyasa then “booked” the Respondent.

This disclosure made no difference at all to the plea. The Respondent was seen using a mobile telephone in a car he was driving. He did not dispute that. His mitigation was that he was going to pull up. The Traffic Infringement Notice contained information given by another officer, but it did not detract from the guilty plea. Indeed if the matter had proceeded to trial, the booking officer who witnessed the offence would no doubt have been called by the prosecution. His evidence would not have constituted hearsay.

In the circumstances insofar as the court appears to have considered that there was a dispute of fact which rendered the plea unsafe, he was in error. Further, the calling of evidence on a guilty plea, and the rejection of the facts as being “hearsay”, also constitute irregularities of procedure. Finally, if the “discharge”, purports to be an acquittal on the ground that the facts were in dispute (and this is not clear from the record), this was also an error because a dispute of relevant fact should lead to a trial, not an acquittal or “discharge”. The first ground of appeal succeeds.

The second ground of appeal is that the learned Magistrate erred in failing to enter a not guilty plea. As I have said, there were no grounds to set aside the guilty plea, because the Respondent did not dispute committing the offence. His complaint was that another person saw him commit the offence, and not the booking officer. This was a matter which did not render the plea equivocal. He did not deny using the mobile telephone. There was no reason for a change of plea. This ground fails, as does ground (c) that the Magistrate erred in failing to set the case for hearing.

The last ground of appeal is that the learned Magistrate erred in discharging the Respondent under section 44 of the Penal Code, when the minimum penalty of the offence is fixed by law. This ground depends on a view taken of the learned Magistrate’s remarks, that he was delivering a sentence.

It is not clear whether the discharge was intended to be a sentence, because it was preceded by a finding that he did not accept the facts outlined by the prosecution. However, if it was intended to be a sentence, then the minimum penalty is $70 fine with a demerit point of 2. Section 44 does not apply to sentences fixed by law. This point was dealt with by Pain J in State -v- Alifereti Nakautoga Crim. App. No. HAA 130 of 1997 in respect of a mandatory minimum sentence under the Dangerous Drugs Act, and I respectfully endorse his findings. This was not a case in respect of which section 44 could have been applied.

Result

This appeal succeeds on the ground that the learned Magistrate had no grounds to reject the facts admitted to by the Respondent, or to discharge the Respondent without conviction. In respect of the discharge, he was without jurisdiction. The order is therefore a nullity and is quashed. The case is remitted back to the Magistrate’s Court for sentencing.

Nazhat Shameem
JUDGE

At Suva
6th September 2002