State v Nand [2004] FJHC 128; HAA0053.2004 (4 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO.: HAA 53 OF 2004

BETWEEN:

STATE
Appellant

AND

ANELD VIKASH NAND
Respondent

Counsel: Appellant – In Person
Ms K. Bavou – for Respondent

Date of Hearing: 23rd July, 2004
Date of Judgment: 4th August, 2004

JUDGMENT

Background

This is a State’s appeal. The accused was charged with:

1. Driving a motor vehicle whilst there is present in the blood a concentration of alcohol in excess of the prescribed limit contrary to Section 103(1)(a) and 114 of the Land Transport Act (Cap. 35 of 1998).
   
2. Dangerous driving contrary to Section 98(1) and 114 of the Land Transport Act (Cap. 35 of 1998).
   
3. Failure to produce a driver’s licence, contrary to Regulation 6(1) and 46 of the Land Transport Drivers Regulations 2000.
   

The accused appeared before the Magistrates Court on the 13th of January, 2004 and pleaded guilty to count 1 and not guilty to counts 2 and 3.

The learned Magistrate convicted the accused on the first count and sentenced him to a one thousand dollar fine in default 3 months imprisonment and imposed a disqualification of his driver’s licence for 4 months.

However, in respect of the second count of dangerous driving the learned Magistrate was of the view that as the offences described in counts 1 and 2 arose from the same facts to proceed with both counts would amount to an abuse of process. Accordingly, on the basis of his interpretation R v Forest of Dean Justices, ex-parte Farley [1990] RTR 288 DL, (“Farley”) he discharged the accused.

In respect of count 3 the learned Magistrate set a date for trial.

The State appeals and submits that there was an error of law. It is argued that Farley is not applicable to the facts of the case in this appeal. It is further submitted that without hearing the matter the learned Magistrate could not determine whether the factual basis for counts 1 and 2 were so similar that the double jeopardy principle expressed in Farley might apply.

The respondent is unrepresented. This matter was given a call-over a month before the appeal. At that appeal call-over the respondent was advised of his rights to obtain legal representation and reminded of the possibility of legal aid. He was directed to reply in any way he wished to submissions from the State. He did not do so. He appears unrepresented today and says he will abide the decision of the Court.

For the State Ms Bavou in her usually diligent manner had produced a written submission. Counsel also tendered at the appeal hearing a recent judgment by my sister Justice Shameem, State v Roqica, HAA0046.2004S dated 9th July 2004. I had not read the case. Independent of her honour’s decision I had however come to the same conclusion.

The Law

The learned Magistrate in his well constructed sentencing decision quotes a selected passage from the Farley decision. The reference given in his judgment did not co-relate to the copy of the case decision I obtained, so accordingly I quote from the passage sighted in the learned Magistrate’s decision:

“Where a defendant is facing two charges, one of dangerous driving and the other of driving with excess 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 cause of action would amount to an abuse of the process of the Court”.

His worship goes on to comment that this guideline has not been strictly followed in Fijian Courts and asked prosecutors to take notice of it. He further says that this judgment was upheld by the High Court in a case entitled The State v Josefa Matau, Case No. 24 of 1995. Regrettably, despite my request for a search of that decision it could not be found.

In any event I read the full Farley decision from the Queen’s Bench Division dated the 11th of April, 1990 reported in (1990) RTR at 228. With the greatest of respect to the learned Magistrate, I do not appreciate from reading the decision that the principle he sought to extract was a correct interpretation of the case nor can it be so starkly and generally relied upon in the stated manner.

I am concerned that the wrong impression of the impact of Farley may have been given and that this might dissuade prosecutors from proceeding with a combination of offences following an alcohol related accident. This is not the position. My sister Justice and I agree on this point [CF. Roqica (supra P.6)].

I find on review of the decision that it was not so much to do with the issue of double jeopardy but more the proposed manipulation of the evidential burden by shrewd case management thus depriving a defendant of an essential protection provided by the Law. For this reason it would have been an abuse of the process of the Court to proceed in the manner proposed by the prosecution.

Lord Justice Neill summed it up in this way:

“It would be unfair for the applicant to have to face a very serious charge of causing death by reckless driving in circumstances where the burden of proof in the central issue of reckless driving would in effect be placed on him (page 239(f)”.

In England under the statutory provisions contained in the PACE Legislation, the prosecution having once proved the assumed alcohol level against an accused was not required to prove it all over again. In the circumstances contemplated in Farley his alcohol level in the dangerous driving charge was to become an assumed material fact to be taken as established against him although it had never been proved by the prosecution. That cannot be right. The Farley decision is correct but of very limited application to a narrow set of circumstances.

I was also referred to a Federal Court of Australia decision that of Travers v Wakeham [1992] 54 A.M.R. 205. In my view that case has greater applicability to this instant State appeal than Farley.

In Wakeham the accused was convicted and sentenced for driving over the prescribed limit and dangerous driving. The Supreme Court overruled the convictions commenting that a man should not be twice punished for the same acts or admissions. The Crown appealed to the Federal Court.

In the Federal Court it was held that:

(1) The ultimate facts that constitute the element of each charge were different and therefore the respondent had not been punished twice and therefore had been correctly convicted on both counts (page 211).

(2) That if the respondent’s blood alcohol reading had been so high as to grossly impair his appreciation of his manner of driving then it could be argued he should suffer condign punishment for only the dangerous driving charge. (page 216).

The Federal Court was of the view that the result of any breath analysis and any inferred alcohol content of the respondent’s blood at the time when the driving occurred were evidentiary, not ultimate, facts in relation to the dangerous driving.

Decision

The offences described in counts 1 and 2 are distinct. The guilt of the accused in respect of count 2 should have been determined according to law. The point of the Farley case is that it is a commentary on where the onus of the proof should lie. By manipulating the case order in the way they sought, the Crown were able to ingeniously defeat the fundamental principle that the onus of proof be on the prosecution to prove every element of every offence. That is not the situation here.

The proper course of action in this case was for the learned Magistrate to proceed and hear the dangerous driving charge but be careful to ensure that the State were not given any evidential advantage. The State would still be required for the purposes for the dangerous driving charge to prove beyond reasonable doubt that there was alcohol of known concentration in the defendant’s blood at the time of the dangerous driving and that this fact in some way contributed to the elements of endangerment of the public on an open road.

Further, if convicted of both offences, the learned Magistrate might then have to consider where the condign penalty should lie and by an appropriate application of the totality principle, reach a fair sentence.

Conclusion

I note that despite their notice of appeal the State have not pursued an appeal against sentence. What they seek in their submission is simply that the decision of the learned Magistrate on the second count be set aside and the matter be remitted to the Magistrate’s Court for trial. In all the circumstances that is an appropriate request to make and I so order.

Gerard Winter
JUDGE

At Suva
4th August, 2004