State v Padarath [2008] FJHC 181; HAC013D.2004S (26 August 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 013 of 2004

STATE

v.

BENJAMIN PADARATH

Hearing: 22nd August 2008
Ruling: 26th August 2008

Counsel: Ms N. Ratakele for State
Accused in person

RULING

On the 23rd of August 2006 the Applicant pleaded guilty on two counts of aggravated dangerous driving causing death. On the 23rd of May 2003, he drove a motor vehicle on Queen Elizabeth Drive at a dangerous speed and in a dangerous manner, and while escaping pursuant by police and caused the death of Julia Stark and caused grievous harm to Arieta Radinilau Bulewa. He was sentenced on the 25th of August 2006 by this court, to 2 years imprisonment and disqualified from driving for 3 years. He was also fined $2,000.

He now applies for a lifting of the order for disqualification. It is currently due to expire on August 23rd 2009. The application is made under section 59(10) of the Land Transport Act 1988. That section provides:

"If a person is convicted by a court and is disqualified from holding or obtaining a drivers licence for more than 6 months the person may, after the expiration of the six months from the commencement date of the disqualification, apply to the court for an order to remove the disqualification."

At the outset I asked State counsel to address me on the jurisdiction of this court to remove disqualification. This was because the old Road Traffic Act was similar to the English Road Traffic Act 1972 in that it provided that disqualification could be removed by application "to the court by which the order was made." This phrase is omitted in the Land Transport Act 1998. As a result, I initially had doubts about the jurisdiction of this court to remove disqualification. However, I consider that the words "the court" in section 59(1) of the 1998 Act, could only mean the court referred to earlier in the sub-section which is the disqualifying court. If this were not so, the statute would read "apply to a court for an order to remove the disqualification." As such, I find that I have jurisdiction to consider the application.

The grounds on which this application is made, are set out in the affidavit of Benjamin Padarath. In it, he states that he served 10 months of his 2 year term of imprisonment, when he was released as an extra-mural prisoner on the 24th of June 2007. Whilst out on EMP, he was driving his mother’s motor vehicle and was involved in an accident outside the Grand Pacific Hotel. His EMP was cancelled by the Prison Department and he was taken back to prison.

He then said that on his release from prison, on the 9th day of May 2006 he had asked the High Court to remove his disqualification and he was told to apply to the Court of Appeal. He then applied to the Court of Appeal and was given permission by Ward P to drive between 6am and 7pm daily. The accident then occurred on the 25th of September 2007, and the Court of Appeal Registry was unable to locate the relevant Order.

He then served the remainder of his term. He states that he needs to drive to drop his son to school, and to operate his real estate business.

The State objects to the restoration of his drivers licence. The affidavit of Police Constable 635 Rajesh states that the Applicant was involved in a road accident on the 25th of September 2007 and that he may be charged in relation to the incident after his file has been assessed by the DPP’s Office. The affidavit states that the accident occurred while the Applicant was disqualified from driving and that it was contrary to the interests of the public to restore his driving licence.

State counsel referred to the provisions of section 59(11) of the Road Traffic Act, which set out the factors to be considered in a restoration of the licence. They include the character of the Applicant, and any other relevant circumstances. The State relies in particular to the Applicant’s act of driving whilst disqualified while on EMP, saying that this act reflects on his character.

The facts which were relied on by the prosecution when the Applicant was sentenced were that on the 23rd of May 2003, the Applicant left a nightclub in Suva with Julia Start, Arieta Bulewa and Charlotte Peters, in a Nissan Cefiro. The Applicant was involved in an argument with Charlotte Peters and a police vehicle arrived at the scene. The Applicant drove off, hotly pursued by the police vehicle driven by Special Constable Kean, who was unable to catch up with the Applicant although he was driving at between 90-100kmph. The Applicant then drove into a coconut tree near the sea wall close to the Chinese Embassy. The car was broken into two parts. Arieta Bulewa had lacerated wounds over the head and right leg with deep burns on the upper thighs. She was hospitalized for over one month. Julia Stark died of shock and septicemia three days after the accident.

The facts disclose a most serious case of aggravated dangerous driving. The fact that the Applicant drove off, while being pursued by the police is the aggravating factor. Added to that was the high speed. This is relevant to the question of restoration of the Applicant’s licence.

Also relevant is his decision to drive whilst disqualified in September 2007, and getting involved in another accident. The Applicant does not deny the accident but says that he had applied for, and received an order for partial restoration in the Court of Appeal in June 2006 after he was told that this court was functus officio. In fact, he applied for restoration on May 9th 2007 and was told by the High Court to apply to the Court of Appeal on 10th May 2007. The reference to May 2006, I assume to be a typing error.

There is no trace of an application for restoration in the Court of Appeal. The High Court file was never called for by Ward P nor is there any record at the Registry of such an application. In the circumstances I consider that on the 25th of September 2007 the Applicant drove without a driving licence and became involved in another accident.

I accept that the Applicant is truly remorseful as to what occurred in 2003, and that he has undergone defensive driving classes with the Road Safety section of the Land Transport Authority. However it is my duty to consider the interests of the public and the community in making this decision. The seriousness of the original offending, and the subsequent act of driving whilst disqualified persuade me that it is not in the public interest to restore the Applicant’s licence.

This application is refused. It is of course open to the Applicant to make subsequent applications under the same section. At this stage however, it is not in the public interest to allow the application.

Nazhat Shameem
JUDGE

At Suva
26th August 2008