Land Transport Authority v Singh [2004] FJHC 87; HAA0005J.2004S (8 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0005 OF 2004S

Between:

LAND TRANSPORT AUTHORITY
Appellant

And:

PATRICK SINGH
Respondent

Hearing: 2nd April 2004
Judgment: 8th April 2004

Mr. V. Vosarogo for LTA
Respondent in Person

JUDGMENT

This is an appeal by the Land Transport Authority against the acquittal of the Respondent on the following charge:

Statement of Offence

DANGEROUS FITTING: Contrary to Regulation 43 (1) (a) and 122 of Land Transport (Vehicle Registration and Construction) Regulations 2000.

Particulars of Offence

PATRICK SINGH s/o JAMES SHANKAR SINGH on the 30th of August 2001 at Suva in the Central Division drove a motor vehicle (private) on Grantham Road (Rups) with dangerously fitted bull bar, which was likely to cause bodily injury to any person or damage to another vehicle or property in collision.

The Respondent pleaded not guilty to the charge and the case was set for hearing on the 21st of November 2003.

The evidence was that in 2000 and 2001, members of the public who had “bull bars” attached to their vehicles, were told to come to the Land Transport Authority to apply for approval. Bull bars are mechanical or body parts which are fitted onto the vehicle as an option.

On the 22nd of August 2001, Deve Moca, an LTA authorised officer was on duty at Grantham Road, when he saw DJ173, the Respondent’s vehicle. His companion, also an LTA Officer stopped the vehicle and asked the Respondent if he had approval to have the bull bars. He said he had none. He was issued with a Traffic Infringement Notice and was warned for prosecution. The witness then said “that same vehicle with same bull bars is still dangerous today to other persons and vehicles but it is legal because of the permit from LTA.”

Mohammed Hussein (PW3) said he had issued a defects notice to the Respondent because the vehicle was dangerous. However the vehicle was no longer dangerous because the Respondent had paid $74 and had been issued with a permit to drive with the bull bars.

PW4, Teresia Losalini Rasei, a vehicle examiner, said that she had inspected the vehicle on the 30th of August 2001. She had checked the bull bars and found them to be within the legal limits. She then issued an approval notice for the bull bars.

On the 22nd of December 2003, the learned Magistrate ruled that there was no case for the Respondent to answer. He said:

“What actually surprised the Court was that this T3 bull bars are still classified as dangerous fittings likely to cause bodily injuries to any person or damage to another vehicle or property in collision; and without any modification to make it safer, can be made legal with the payment of $74.00 and a permit issued by the Land Transport Authority. This is really absurd.”

He held that if the bull bars were dangerous, then they should not be approved after payment of a fee, and that therefore there was no case to answer.

The Authority appeals against this finding. The grounds of appeal are:

“(a) Erred in law and in fact when it accepted that the bull bar fitted to the respondent’s vehicle was a type that was approved by the appellant.

(b) Erred in law and in fact in its finding that all witnesses were aware that it was an approved type.

(c) Was wrong in law when it misapplied the regulations applicable to the fitting of accessories to vehicles.

(d) Misdirected himself in law in finding that there was no case to answer for the respondent.”

In his submissions in court, counsel for the Authority said that the offence was a strict liability offence, and that the learned Magistrate erred in holding that the danger alleged had been removed by the issuing of a permit. He submitted that Regulation 43(2) provided that the Authority could approve bull bars which are technically essential to the use of the vehicle. He further submitted that Regulation 43 was aimed at those who drove with bull bars without approval, and the purpose of the Regulation was the protection of the public from potentially dangerous bull bars. He asked that I substitute a finding that there was a case to answer.

The Respondent said that the only question for the Magistrate was whether the bull bars were dangerous. He said that the fact that the Authority now allowed him to keep the bull bars without modification suggests that they were not, and are not, dangerous.

Regulation 43(1)(a) of the Land Transport (Vehicle Registration and Construction) Regulations 2000 provides that no motor vehicle may be fitted with an object protruding from the vehicle so that it is likely to cause bodily injury to any person or damage to another vehicle in collision. Regulation 43 also provides that the Authority may authorise fittings which are technically essential to the vehicle. There is no reference to the word “dangerous” in the section although the heading reads “Dangerous Fittings.”

The elements of the offence are:

1. The accused’s motor vehicle;

2. Was fitted with;

3. An object which protruded from the vehicle;

4. Which was likely to increase the risk of bodily injury or damage to another vehicle.

There was no dispute that the Respondent drove DJ173. Nor is it in dispute that it was fitted with a bull bar not technically essential to the vehicle. The only matter in dispute was whether the bars were likely to cause injury or damage in a collision. What was the evidence that the bars were dangerously fitted? The vehicle examiner, PW4 said that the bars were “within the legal limits.” Mohammed Hussein PW3 said he issued a defects notice on the basis that the vehicle was dangerous on 30th August, “but not now after accused has paid $74 and was given permit by LTA.”

What is likely to cause damage and injury in a collision must surely be a question of fact, based on evidence led. The test is an objective one. Someone should have given evidence of the damage that was likely to be caused by the bull bars on the Respondent’s car. But there was no such evidence. Instead the Authority later allowed the Respondent to keep the bars. Surely if the bars were potentially dangerous, approval would never have been given. There was no evidence at all that the bull bars, objectively speaking, would be dangerous to the public in a collision. Instead, the evidence suggested otherwise.

I am not persuaded by counsel’s submission that the Regulation should be read as a prohibition on the use of unapproved bull bars. The words of the Regulation are clear, precise and unambiguous. The prohibition is in relation to potentially dangerous fittings, and the onus is on the prosecution to prove potential danger. It will be necessary to call evidence as to the danger posed by those bull bars. The issuing of permits in relation to the bull bars is of limited importance except to show that the Authority itself may not consider the bars dangerous and that they are technically essential to the vehicle. However, even the issuing of a permit will not rob a dangerous fitting of its dangerous qualities, if the court has decided that those fittings are dangerous. A permit may however deprive the prosecution of the ability to prove that the bull bars were not technically essential, since a permit can only be granted under Reg. 43(2) when the fittings are technically essential.

In this case there was no evidence led of potential danger an essential element of the offence. The learned Magistrate rightly upheld the submission of no case to answer.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
8th April 2004