State v Batiyala [2004] FJHC 121; HAA0054J.2004S (16 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0054 OF 2004S

Between:

THE STATE
Appellant

And:

ANTHONY PETER BATIYALA
Respondent

Counsel: Ms K. Bavou for State
Mr. A. Tikaram for Respondent

Hearing: 9th July 2004
Judgment: 16th July 2004

JUDGMENT

This appeal by the Director of Public Prosecutions, is on a narrow question of fact. The Respondent was charged as follows:

FIRST COUNT

Statement of Offence

DRIVING A MOTOR VEHICLE WHILST THERE IS PRESENT IN THE BLOOD A CONCENTRATION OF ALCOHOL IN EXCESS OF THE PRESCRIBED LIMIT: Contrary to sections 103(1) and 114 of the Land Transport Act No. 35 of 1998.

Particulars of Offence

ANTHONY PETER BATIYALA on the 18th day of August 2001, at Suva in the Central Division, drove a motor vehicle registration number DR 008 on Victoria Parade whilst there was present in 100 millilitres of his blood a concentration of 84.4 milligrams of alcohol, which was in excess of the prescribed limit.

SECOND COUNT

Statement of Offence

DANGEROUS DRIVING: Contrary to sections 98(1) and 114 of the Land Transport Act No. 35 of 1998.

Particulars of Offence

ANTHONY PETER BATIYALA on the 18th day of August 2001, at Suva in the Central Division, drove a motor vehicle registration number DR 008 on Victoria Parade in a manner, which was dangerous to the public having regards to all the circumstances of the cases.

On the 15th of January 2002, the Appellant pleaded guilty to the charges but disputed the facts, saying he had not been breath tested at the roadside. Pleas of not guilty were entered and the trial finally commenced on the 24th of November 2003. Previously, on the 30th of September 2002, the charge had been amended to read “blood” for breath, and 184.8mg for 84mg, on Count 1.

The evidence led was that on the 18th of August 2001, before 2am, the Respondent was involved in an accident on Victoria Parade. He was seen driving very fast past the FINTEL building and overtaking a government vehicle at a pedestrian crossing on a bend. He did not negotiate the bend, and instead drove into the lamp post at the crossing. The Respondent emerged from his vehicle. He had red eyes and smelt of liquor. The government vehicle took the Respondent to the Central Police Station. At the station the Respondent was tested for alcohol by PC Rajesh Kumar using the Alcotest 7410. The reading was 171 mg. He was then tested on the Dragger 7110. The Dragger 7110 produced a printout, which showed a reading of breath alcohol of 84 microgrammes per 100 millilitres of breath. The Alcotest result was obtained at about 2.05am. The Dragger result time is 2.12am. There is no dispute that the results varied considerably on the machines.

Police Constable Kapieni was cross-examined on these results. He tendered a certificate (at p.30 of the court record) issued under Regulation 11(2) of the Land Transport (Breath Test and Analysis) Regulations 2000, to the effect that the Dragger machine was in proper working order and had been adjusted correctly. He said:

“The first test is for the breath to find out if alcohol is present. The second to confirm or negate the first test. The second test should be done during the 2 hours. A copy of the test is given to the accused. I signed, accused didn’t sign. I didn’t charge accused. No idea if accused was allowed to leave the station. Accused was tested by me less than 10 minutes after the first test. Not aware of the result of the first test. The huge reduction of mg from 171 to 84 can happen. It can be due to fault in the machine. I don’t agree mechanical thing can malfunction.

The roadside test is to gauge the alcohol in the breath. The second one to enable the alcohol in the blood. It’s normal that the 2nd test result is lower than the first test. No extraction of blood in the machine.”

The Respondent’s defence was that although he had drunk “about 2 mugs” of alcohol at an office party that night, he was not drunk. He said the accident was caused because the government vehicle had suddenly stopped near the pedestrian crossing. He said, on oath, that he had become drowsy because of the collision and that he was breath-tested twice. He was kept in custody overnight and later charged. He admitted that he had been careless in that he had driven too close behind the government vehicle. The Respondent’s evidence in court was consistent with his statement to the police.

Judgment was delivered on 29th March 2004. The learned Magistrate referred to the “huge reduction” in the blood alcohol level, from 171 microgrammes to 84 microgrammes and said on the basis of the evidence of PC Kapieni that the discrepancy “could be due to fault in the machine which he didn’t agree was malfunctioning.” He said that the evidence of Police Constable Kapieni needed further analysis in relation to the first test. The court said:

“Since there is no breath test on Alcotest 7410 at the scene, the Court feels that this accused should have been tested under section 102(5)(a) or (b) and if found incapable under section 102(2) of the Land Transport Act 1998 ...... on the whole in Count one, I find that this accused has been charged under [the] wrong section of the Land Transport Act, I order that the charge be dismissed and he be acquitted under section 210 of the Criminal Procedure Code.”

He convicted on Count 2, and sentenced the Respondent to $250 and $50 costs.

The grounds of appeal are:

“That the learned Magistrate erred as a matter of law when:

(a) He acquitted the Respondent under section 210 of the Criminal Procedure Code, and

(b) He acquitted the Respondent on the first count on the basis that the Respondent was wrongly charged and that the evidence did not support the charge."

The appeal

At the hearing of this appeal, counsel for the State submitted that the acquittal under section 210 of the Criminal Procedure Code was an error of law, that a roadside test is not a pre-requisite to a conviction under section 103 of the Land Transport Act, that the testing machines were presumed to be in working order under the Land Transport Breath Tests and Analysis Regulations, and that the acquittal on Count 1 should be quashed and substituted with a conviction.

Counsel for the Respondent conceded that these submissions were correct in law, except for the last. He agreed that the acquittal should have been entered under section 215 of the Criminal Procedure Code, that a road test was unnecessary to prove a section 103 offence, and that there was a presumption of “good working order” in respect of the breath testing machines. However he submitted that the evidence led at the trial successfully rebutted that presumption, and an acquittal was supported by such a rebuttal. In the light of these concessions, the issue in this appeal is a narrow one, and one specific to the facts of this case.

Counsel for the Respondent was right to concede the other grounds of appeal. Section 210 of the Criminal Procedure Code applies at the end of the prosecution case. It provides:

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused.”

At the end of the trial, after the defence case, the magistrate must decide either to convict or acquit, under section 215 of the Criminal Procedure Code. The acquittal entered was therefore erroneous and must be quashed.

Section 103(1) of the Land Transport Act provides:

“(1) A person who –

(a) drives or attempts to drive a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his blood; or

(b) fails or refuses to undergo a breath test or breath analysis when required to do so by a police officer,

commits an offence.”

Section 104 of the Act provides that a breath test must be conducted within 2 hours of the driving unless an earlier test was not possible due to the condition of the driver. The Land Transport (Breath Tests and Analyses) (Amendment) Regulations 2000 provide for the taking of tests, the computing of blood alcohol levels and the admissibility of machine-generated readings.

Regulation 3 provides:

“(1) For the purpose of section 103(1)(a), the prescribed concentration of alcohol is 80 milligrams of alcohol in 100 millilitres of blood.

(2) Evidence that there is alcohol in the blood in excess of the prescribed concentration at a relevant time may be given by reference to a sample of the person’s blood taken with his or her consent, or by reference to the reading on a breath analysing instrument in accordance with sub-regulation (3).

(3) A reading on a breath analysing instrument in microgrammes of alcohol per 100 millilitres of blood is to be multiplied by 2.2 in order to arrive at the number of milligrams of alcohol in 100 millilitres of blood.”

Regulation 9 provides:

“(1) In proceedings for an offence under section 103(1)(a) or 105(1) evidence may be given of the concentration of alcohol present in the blood of the person charged, as determined by a breath analysing instrument operated by a police officer authorised in that behalf by the Commissioner of Police, and the concentration of alcohol determined as aforesaid is deemed to be the concentration of alcohol in the blood of that person at the time of the occurrence of the event referred to in section 103(1)(a) or 105(1) where the breath analysis was done within 2 hours after the event, unless the defendant proves that the concentration of alcohol in his blood at the time of that event was less than the prescribed limit.

(2) The fact that a person has undergone a breath test or submitted to a breath analysis and the result of a breath test or breath analysis are not, for the purposes of any contract of insurance, admissible as evidence of the fact that the person was at any time under the influence of or affected by alcohol or incapable of driving or of exercising effective control over a motor vehicle, but nothing in this regulation precludes the admission of any other evidence, including evidence of a conviction under section 102(1), 103(1) or 105(1) of the Act to show any such fact.”

Regulation 11(2) of the Land Transport (Breath Test & Analysis) Regulations 2000 provides:

“In proceedings for an offence under section 103(1)(a) or 105(1) a certificate purporting to be signed by a police officer stating any of the following facts –

(a) the officer is authorised by the Commissioner of Police to operate breath analysing instruments;

(b) the person named in the certificate submitted to a breath analysis;

(c) the apparatus used by the officer to make the breath analysis was a breath analysing instrument within the meaning of these regulations;

(d) the apparatus was in proper working order and adjusted correctly;

(e) the apparatus was properly operated;

(f) the analysis was made on the day and completed at the time stated in the certificate;

(g) the breath analysing instrument should a concentration of alcohol in the breath expressed in microgrammes of alcohol in 100 millilitres of breath on the day and at the time stated in the certificate; and

(h) a statement required by regulation 5(5) was delivered in accordance with that sub-regulation,

is prima facie evidence of the matters stated in the certificate.”

In accordance with this Regulation, Constable Kapieni tendered the certificate at page 30 of the record, certifying that the breath-testing machine (Dragger 7110) was in good working order.

Thereafter the evidential burden of proof in respect of the reliability and accuracy of this machine was on the defence. The standard of proof is the civil standard, that of a balance of probabilities. I consider that this is the standard of proof in all cases in the criminal law, where the burden rests on the defence. Negative averments are an example.

In this case, did the defence prove, on a balance of probabilities, that the breath-testing machines were not accurate or reliable? I do not consider that they did. The defence case was that the Respondent did drink alcohol (2 mugs) but that the readings on both tests were in excess of the actual alcohol consumed. It was never suggested to Constable Rajesh, the officer who conducted the first test, on the Alcotest 7410, that his machine was defective. Constable Kapieni said that it was possible to get a wide discrepancy between the two tests even if the tests were only minutes apart. He denied that the Dragger 7110 was defective although he agreed that there could be a fault in a machine leading to widely different results. However he said it was normal for the results of the second test to be lower than the first.

Clearly on this evidence, the defence could not say that the burden of proof to show malfunction was discharged. Further, even if it had been discharged, in respect of the Dragger test, the prosecution could still have relied on the result of the Alcotest result. It was never suggested, as I have said, that the first test was inaccurate.

On the facts of this case, I consider that there could not have been an acquittal on Count 1. I therefore consider that the learned Magistrate was in error when he purported to acquit on that count, and I enter a conviction. The matter is remitted to the learned Magistrate to sentence on that basis.

This appeal is allowed.

Nazhat Shameem
JUDGE

At Suva
16th July 2004