State v Roqica [2004] FJHC 120; HAA0046J.2004S (9 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0046 OF 2004S

Between:

STATE
Appellant

And:

ONISIMO ROQICA
Respondent

Hearing: 2nd July 2004
Judgment: 9th July 2004

Counsel: Ms K. Bavou for State
Respondent in Person

JUDGMENT

This is an appeal by the Director of Public Prosecutions against the discharge of the Respondent on a count of dangerous driving.

The charges read as follows:

FIRST COUNT

Statement of Offence

DRIVING MOTOR VEHICLE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR ANY DRUG: Contrary to Sections 102(1) and 114 of the Land Transport Act, Cap. 35 of 1998.

Particulars of Offence

ONISIMO ROQICA on the 10th day of December 2003 at Nasinu in the Central Division, drove a motor vehicle on Ratu Dovi Road, whilst under the influence of intoxicating liquor or any drug to such an extent as to be incapable of having proper control of the said motor vehicle.

SECOND COUNT

Statement of Offence

DANGEROUS DRIVING: Contrary to Sections 98(i) and 114 of the Land Transport Act, Cap. 35 of 1998.

Particulars of Offence

ONISIMO ROQICA on the 10th day of December 2003 at Nasinu in the Central Division drove a motor vehicle on Ratu Dovi Road, in a manner which was dangerous to the public having regards to all the circumstances of the case.

The Respondent pleaded guilty on both counts on the 29th of January 2004 in the Suva Magistrates’ Court. The facts were as follows:

“On 10.12.03 at 5.15pm the accused Onisimo Roqica was drinking liquor at his house at Nadawa when he decided to visit a friend of his at Mandhir Street at Ratu Dovi Road.

The accused drove his motor vehicle number DP 184 on Nadawa road into Ratu Dovi Road when he bumped Kamal Kala s/o Sukhu aged 42 years who was walking along Ratu Dovi Road. The accused kept on driving when he bumped a pine post beside the road.

This incident was seen by Rohitesh Prakash and reported the matter to the police. The accused was arrested at Mandhir Street and was tested by Sgt. Seru of Valelevu Police Station when the accused failed to respond as he was drunk. He was later locked in the cell and later charged for the offence of Drunk and Drive and Dangerous Driving. The victim received injury due to this accident.”

The Respondent agreed to these facts and was convicted on both counts. He was sentenced on Count 1, to a fine of $1000 (in default, 3 months imprisonment) and to disqualification from driving for three months. He did not deliver sentence on Count 2.

On the 13th of February he discharged (it appears without conviction) on Count 2 applying the principle in R v. Forest Dean ex parte Farky (1990) Crim. L.R. 568 that it was an abuse of the process to lay two counts arising from the same facts. He quoted the following passage from that decision:

“Where a defendant is facing two charges, one of dangerous driving and the other of driving with excessive alcohol, based upon the same facts, the prosecution should choose either to proceed with the charge of dangerous driving and consider bringing the lesser charge if the defendant is acquitted, or to proceed with the excess alcohol charge alone. The invariable rule is that where a person is tried on a lesser offence he is not to be tried again on the same facts for a more serious offence. A contrary course of action would amount to an abuse of the process of the court.”

The State appeals against the discharge on Count 2. The sole ground of appeal is that:

“The learned Magistrate erred as a matter of law when he determined that the offences of Driving a Motor Vehicle under the Influence of Intoxicating Liquor [s.102(1)) Land Transport Act] and Dangerous Driving [s.98(1) and 114 of the Land Transport Act] charged against the Respondent arose from the same facts.”

There can be no doubt at all that the same evidence relied upon to prove that the Respondent was incapable of driving on Count 1, was also used to prove the dangerous nature of the driving on Count 2. Although facts as to the Respondent’s drunk state were not necessary for the dangerous driving charge, they were relevant in that evidence of drunkedness is invariably an aggravating factor for the purpose of sentencing for dangerous driving. There can be no doubt that both charges emerged from the same facts. Was this an abuse of the process?

In R v. Forest Dean, the defendant lost control of his vehicle and killed a passenger. The next day, he was breath tested, and the prosecutor calculated that 98mg of alcohol must have been present in his blood the previous day. His defence was that he had consumed the alcohol after the accident. Under the 1972 Road Traffic Act (U.K.), a person making such a claim is obliged to prove the time of consumption of the alcohol. Further, on conviction, under the Police and Criminal Evidence Act 1984 the evidence of the conviction could be adduced on a charge of causing death by reckless driving. The consumption of alcohol was the basis of the charge of causing death. The prosecution moved to have the summary charge, of driving with excess alcohol heard first and separately from the indictable offence of causing death. The defendant sought judicial review seeking an order preventing the justices from determining the summary charge until after the indictable offence had been disposed of. At the hearing, the Crown undertook not to proceed with the summary offence until after the more serious offence had been dealt with. The Divisional Court (per Neill J LJ and Garland J) accepted this undertaking and made no order. However it said that it would be an abuse of the process for the prosecution to manipulate the different burdens of proof on the two offences thus placing the defendant in double jeopardy. It also placed the defendant at a procedural disadvantage in relation to disclosure of his case.

The commentary of the case in the Criminal Law Review says:

“The court accepted that it was a well-established practice to deal with multiple charges in descending order of gravity: Elrington [1861] EngR 901; (1861) 1 B&S 688 per Lord Cockburn CJ; Hogan v. Tomkins (1960) 44 Cr. App. R. 255. There was also a discretion to stay proceedings if to proceed after conviction or acquittal on a lesser charge would be oppressive or prejudicial: Connelly v. DPP [1964] AC 1254; Moxon-Tritsch [1988] Crim. L.R. 46 ... Per curium. There will be few cases where it is appropriate for the court to intervene in the prosecution process in this way.”

This decision has no application to the Respondent’s charges. He was not tried separately, and the prosecution were not trying to gain any sort of unfair advantage by laying two charges. The crux of the Forest Dean decision, is that it is wrong for the prosecution to lay separate charges in separate proceedings in order to manipulate the two burdens of proof to the defendant’s disadvantage. That decision has no relevance to this appeal.

Indeed, the laying of several charges emerging from the same set of facts, is an unremarkable course of action taken in courts in the common law jurisdictions. State counsel referred me to another decision of the Queen’s Bench Division, R v. Coventry Magistrates’ Court Ex parte Wilson (1982) RTR 177, which illustrates just this point. In that case, the defendant who had a previous conviction for a road traffic offence, knocked down and killed two women on the road, in his vehicle. He had a blood alcohol level which was over the prescribed limit. He was charged on two counts of causing death by reckless driving, and was convicted and sentenced on both. He was subsequently charged before a magistrates’ court with other offences arising out of the same incident. They included drink driving and driving without insurance. Instead of sentencing him on these additional courts the justices marked “Not proceeded with” on the charge of drink driving, finding that the charge had, in effect, been merged into the causing death charges. The prosecution applied for mandamus to compel the justices to sentence and to impose the mandatory disqualification. The application was granted, the court holding that the offence of drink driving was not “co-extensive” with the causing death charges and that the justices could instead impose a lighter sentence than might otherwise have been the case. Mandamus issued, commanding the justices to proceed to sentence.

In Travers v. Wakeham [1991] FCA 109; 54 A Crim. R. 205, a decision of the Federal Court of Australia on an appeal from the Supreme Court of the ACT, the respondent was convicted of driving with excess alcohol, and with dangerous driving. Both offences arose from the same course of driving.

The court accepted that the evidence of alcohol was admissible on the dangerous driving charge, and considered the principle of double jeopardy. It found that the offences were separate and distinct and that the evidence relied upon in each charge was separate and distinct. It said (at p.216 per Jenkinson J):

“The evidence was consistent with the hypothesis that the respondent had committed two quite different offences at two different times: he deliberately drove onto the street when his recent consumption of alcohol had been of an order likely to result in a breath analysis reading of .140, and he failed to exercise enough care in his driving of the car to avoid proceeding the wrong way for 300m. In my opinion punishment in respect of both offences excites no perception of unfairness to, or oppression of, the respondent.”

On the facts of the case of this appeal, I see no double jeopardy in the hearing of the charges. The prosecution could rely on the Respondent’s admission that he was drunk, and only one of the two incidents outlined, to show that he was incapable of controlling his motor vehicle. Further, the evidence of drinking need not have been taken into account on the charge of dangerous driving. This was not a case of a lesser or greater offence, these were two separate offences arising from the same course of driving and in respect of Count 1, from evidence of drunkedness. To avoid unfairness in punishment, the answer lies in adjusting sentence so that any overlap in the evidence relied upon for each count is taken into account.

In this case, the sentence imposed for drink driving charge was $1000 and 3 months disqualification. The maximum sentence under section 98 of the Land Transport Act (dangerous driving) is $1000 fine (in default 12 months imprisonment) and disqualification from driving for six months. Disqualification is not mandatory. In this case, because the Respondent had been sentenced to $1000 fine on Count 1, a sentence of $500 on Count 2 would have been appropriate. I would however have imposed a further 3 months disqualification from driving on the ground that the evidence of drunkedness was not considered in the sentence imposed on Count 1.

Section 319 of the Criminal Procedure Code allows the High Court, on appeal, “if it thinks that a different sentence should have been passed, quash the sentence passed by the magistrates’ court and pass such other sentence warranted in law, whether more or less severe ...”

In this case, I quash the discharge entered in respect of Count 2, and enter instead a sentence of $500 fine to be paid within 14 days (in default 2 months imprisonment) and 3 further months disqualification from driving. In total the Respondent’s fine is $1500, and his total period of disqualification is 6 months.

However, because he has already served 3 months disqualification, his further 3 months disqualification runs from the date of this judgment.

Nazhat Shameem
JUDGE

At Suva
9th July 2004