State v Prasad [2004] FJHC 149; HAA0083J.2004S (3 September 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0083 OF 2004S

Between:

STATE
Appellant

And:

KAMAL PRASAD
Respondent

Counsel: Ms K. Bavou for State
Respondent in Person

Hearing: 27th August 2004
Judgment: 3rd September 2004

JUDGMENT

This is an appeal against acquittal. The Respondent was charged with the following offences:

First Count:

Statement of Offence

Driving 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 35 of 1998.

Particulars of Offence

Kamal Prasad s/o Ram Karan, on the 03rd day of April 2004, at Suva in the Central Division drove a motor vehicle on Laucala Bay Road whilst there was present in 100 millilitres of his blood a concentration of 154.0 milligrammes of alcohol, which is in excess of the prescribed limit.

Second Count

Statement of Offence

Careless Driving: Contrary to section 99(1) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

Kamal Prasad s/o Ram Karan, on the 03rd day of April 2004, at Suva in the Central Division, drove a motor vehicle on Victoria Parade without due care and attention.

Third Count

Statement of Offence

Failure to Comply With Requirements Following an Accident: Contrary to sections 63(1) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

Kamal Prasad s/o Ram Karan, on the 03rd day of April 2004, at Suva in the Central Division drove a motor vehicle on Victoria Parade and failed to comply with the requirements following an accident.

Fourth Count

Statement of Offence

Dangerous Driving: Contrary to sections 98(1) and 114 of the Land Transport Act of 1998.

Particulars of Offence

Kamal Prasad s/o Ram Karan, on the 03rd day of April 2004, at Suva in the Central Division, drove a motor vehicle on Victoria Parade in a manner that was dangerous to the public having regards to all the circumstances of this case.

Fifth Count

Statement of Offence

Driving a Motor Vehicle without a Driving Licence: Contrary to sections 56(6) and 887 of the Land Transport Act 1998.

Particulars of Offence

Kamal Prasad s/o Ram Karan, on the 03rd day of April 2004, at Suva in the Central Division drove a motor vehicle on Victoria Parade without being the holder of a valid driving licence in respect of the said motor vehicle.

Sixth Count

Statement of Offence

Driving a Motor Vehicle in Contravention of the Third Party Policy Risks: Contrary to sections 4(1)(2) of the Motor Vehicle (Third Party Policy) Act 177.

Particulars of Offence

Kamal Prasad s/o Ram Karan, on the 03rd day of April 2004, at Suva in the Central Division drove a motor vehicle on Victoria Parade when there was not in force in relation to the use of the motor vehicle by the said Kamal Prasad s/o Ram Karan, a policy of insurance in respect to the third party policy risks as complied under the provision of this Act.

The charge of careless driving was later withdrawn by the prosecution. On the 4th of May 2004 the Respondent pleaded guilty on all counts. On the 18th of May 2004 the learned Magistrate sentenced the Respondent on all counts except for the charge of dangerous driving. He found that it was an abuse of the process to prefer that charge unless the accused was prosecuted for driving with excess alcohol on count 1. The State appeals against the acquittal on the ground that the learned Magistrate erred in law in finding that the two charges arose from the same facts.

The facts of the cases were that on the 3rd of April 2004 after midnight, the Respondent was driving a taxi along Victoria parade in a zig-zag manner and overtaking other vehicles in a reckless manner. He was stopped by the police at Laucala Bay Road and taken to the Central Police Station for breath testing. The reading was 154 microgrammes which was in excess of the prescribed amount. The facts also disclosed that the Respondent collided with another taxi on Victoria Parade, that he did not stop after the accident and that he had no valid driving licence.

The Respondent agreed with the facts. The learned Magistrate convicted on all charges except for the dangerous driving charge. In respect of that charge the learned Magistrate relied on R v. Forest Dean JJ ex.p. Farley (1990) RTR 288 to find that it is an abuse of the process to lay two charges arising out of the same facts. He then acquitted the Respondent.

This question of law has been dealt by me in State v. Onisimo Roqica Criminal Appeal HAA0046 of 2004S on the 9th of July 2004 and in my judgment today in State v. Joseph Montu Criminal Appeal HAA085.2004. It is not an abuse of the process to lay several charges arising out of the same series of facts, as long as the prosecution relies on a different aspect of the facts in respect of each charge.

This is so in this case. The Respondent drove dangerously in that he drove in a zig-zag manner, overtook other vehicles forcing them to the side of the road, and collided with another taxi. He also had excess alcohol in his blood. These matters gave rise to two separate charges and there was no double jeopardy.

The State’s appeal succeeds. The acquittal on count 4 is quashed and substituted with a conviction. The case is remitted to the Magistrates’ Court for sentencing.

Nazhat Shameem
JUDGE

3rd September 2004