Tikotani v The State [2005] FJHC 58; HAA0001J.2005S (18 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0001 of 2005S

Between:

PAULIASI TIKOTANI
Appellant

And:

THE STATE
Respondent

Hearing: 16th March 2005
Judgment: 18th March 2005

Counsel: Mr. N. Vere for Appellant
Ms V. Lidise for State

JUDGMENT

The Appellant was charged with driving in a manner which was dangerous to the public, contrary to section 98(1) of the Land Transport Act, on the 19th of October 2003, at Lakeba. He was convicted after a trial, and fined $1000.00. He now appeals against conviction.

The matter was first handled in Suva. The Appellant pleaded not guilty on the 5th of March 2004. The case was transferred to the Lakeba Court on the 23rd of June 2004. The trial proceeded on the 29th of September 2004.

PW1 was Police Constable Inia Tauevo of the Lakeba Police Station. He received a report from Waciwaci on the 19th of October 2003, that the Appellant was driving whilst drunk. He later went to Waciwaci and saw the Appellant standing next to one Piri’s vehicle. The Constable took the keys from the Appellant and took him to the station. The Appellant had blood shot eyes and smelt of liquor.

In cross-examination he said he had seen the Appellant driving that day in Tarikua. He said he was driving very fast but was unable to assess his speed.

PW2 was Constable Samisoni Bai, who had accompanied PW1 to arrest the Appellant. He did not see the Appellant driving, and corroborated PW1’s evidence as to the account of the condition of the Appellant. He interviewed the Appellant under caution.

PW3 was Mataiasi Vodowaqavuka, a villager. He said that on the 19th of October 2003, he was drinking “homebrew” with the Appellant and four others from 7am to midday. He said he was very drunk. He then boarded a vehicle driven by the Appellant. At one time, the vehicle nearly went off the road, and the Appellant was driving in a zig zag manner. He was vigorously cross-examined, and admitted that he was so drunk that “the world was spinning.”

The Appellant gave sworn evidence. He said that on the 19th of October 2003 he joined a drinking party at Waitabu and drank a few glasses of beer. He then took the people drinking to Waciwaci. He then drove to Tubou, had breakfast at Nakula and returned to Waciwaci with a bucket of homebrew. He parked the vehicle at Wakaya and drank again. The police arrived, assaulted him and threw him into a police vehicle. They assaulted him again at the station. He was later taken to hospital where several injuries were found on him. He said he told the police that he had drunk 5 glasses of homebrew that day and that he was not drunk.

Under cross-examination, he said he had drunk homebrew for 40 minutes, but that he was not drunk. He said he gave his statement voluntarily to the police and that he had told them: “I was so drunk I cannot recall what happened.” He said he had drunk 5 glasses of homebrew but that he had not driven fast, nor was he drunk at the time, nor had he driven dangerously.

He called a witness, one Ofa Senilagakali. She gave evidence that she saw the police assaulting the Appellant. She said that the Appellant was not drunk on that day. Kiso Tufui, DW3 also gave evidence of a police assault on the Appellant.

Judgment was delivered on the 1st of October 2004. After reviewing the evidence, the learned Magistrate said that the prosecution alleged that the Appellant drove dangerously in that he drove a motor vehicle on Lakeba Road “whilst under the influence of liquor.” He considered the admissibility of the caution interview and on the basis of the medical report, held that it was inadmissible. He then considered the evidence of PW3, which he said was the only evidence remaining. He rejected PW3’s evidence on the basis that he was too drunk at the time, to be reliable.

He then considered the Appellant’s evidence and said that on the basis of the evidence of the drinking, and his admission that he told the police that he was so drunk that day, he could not recall anything, he could conclude that he was negligent and reckless in driving. He found him guilty.

The grounds of appeal are:

(a) that the learned magistrate erred in law and fact in convicting the Appellant purely on the evidence of a passenger who admitted during cross examination that he was very drunk and could not see properly;

(b) that the learned magistrate erred in law in relying on other people’s drunkenness as evidence against the Appellant;

(c) that the learned magistrate erred in law in convicting the Appellant when the prosecution could not prove all the elements of the offence beyond reasonable doubt; and

(d) that the learned magistrate erred in law when he convicted the Appellant on the conflicting evidence of prosecution witnesses.

Having read the court record and judgment, it is apparent that the learned Magistrate placed no weight on PW3’s evidence at all. Ground (a) is therefore misconceived. Nor did he rely on anyone else’s evidence of the Appellant’s drunkenness. Ground (b) is also misconceived.

However ground (c), that the prosecution did not prove all the elements of the offence must succeed. The Appellant was charged with dangerous driving, not with drunk driving. In order to prove dangerous driving, the prosecution must lead evidence that the accused was at fault in some way (applying an objective test) and that his manner of driving created a dangerous situation.

In this case, there was no evidence of the manner of driving other than that of PW3. However PW3’s evidence was discredited and rejected. PW1’s evidence that the Appellant had been seen earlier that day, driving quite fast is insufficient on its own to prove dangerous driving because there was no evidence of a dangerous situation being created thereby. Indeed PW1 was unable to assess approximate speed.

The only remaining evidence was that of the consumption of 5 glasses of homebrew. There was no evidence, from any expert, that any driver having consumed 5 glasses of homebrew must have been driving dangerously. Even with such evidence, without an acceptable account of the manner of driving, I doubt that a conviction could have been safe.

State counsel invited me to draw an inference of manner of driving from the evidence of alcohol consumed. Without scientific or expert evidence about the effects of homebrew on the Appellant, and without evidence of his manner of driving, I cannot draw any such inference.

The learned Magistrate in his judgment referred to the Appellant’s admission to the police that he had been so drunk he could not recall how he had been driving. Having excluded the interview, it would have been safer to make no reference to it at all. Further, although the Appellant in his sworn evidence admitted making the statement voluntarily, he did not adopt the contents of it as being true. Indeed, from the tenor of his sworn evidence, he disputed the truth of the interview and gave a detailed account of how he drove on the 19th of October 2003.

Clearly, the conviction cannot stand. There was no acceptable evidence of manner of driving or of the creation of a dangerous situation. An admission to drinking is not an admission to dangerous driving. The conviction is unsafe and is quashed accordingly.

Given the age of the case, and its nature, I do not order a re-trial. The appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
18th March 2005