Mudaliar v State [2011] FJHC 55; HAA 002.2011 (8 February 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 002 OF 2011
(Labasa Traffic Case No. 5336 of 2010)

BETWEEN:

ANDREW TIRUNAMALAY MUDALIAR
(f/n Subarmani Mudaliar)
Appellant

AND:

STATE
Respondent

Counsel: Mr. A Sen for the Appellant
Mr. T Ravuniwa for the State

Date of Hearing: 4 February 2011
Date of Judgment: 8 February 2011

JUDGMENT

1. On the 25th October 2010 in the Magistrates Court at Labasa, this appellant was convicted of the offence of driving a motor vehicle under the influence of intoxicated (sic) liquor contrary to section 102(1)(2)(sic) and 114 of the Land Transport Act 1998. He was sentenced on the same day to a fine of $3,000 (in default 3 years) and was disqualified from driving for 3 years.

2. He now appeals against both conviction and sentence on the following grounds:

(a) that the Magistrate erred in law in convicting the appellant when the particulars of offence did not disclose an offence.

(b) that there was insufficient evidence to found a conviction, and

(c) that the sentence was harsh and excessive.

3. Section 102(1) of the Land Transport Act 1998 reads as follows:

Persons incapable of driving-

Section 102(1) "a person who drives a motor vehicle or is in control of a motor vehicle while under the influence of intoxicating liquor or any drug to such an extent as to be incapable of having proper control of the motor vehicle commits an offence and is liable on conviction to the prescribed penalty".

Section 102(2) sets out the procedures to be followed by the Police on detecting an offence under Section 102(1).

4. The facts disclosed in the Court below were that on Sunday 24th October 2010 at about 2115hrs, this appellant had driven his vehicle into a ditch in Park Street. A police officer arrived when the appellant was attempting to remove the vehicle. The officers demanded that he get out of the vehicle and when he did, the officers noticed that he was staggering and he smelt heavily of liquor. He was taken to Labasa Police Station under arrest. At the Station, further tests led to the conclusion that the appellant was so drunk; he was not able to have proper control of the vehicle.

5. These basic facts were agreed by the appellant after he entered an unequivocal plea of guilty on the first day the case was called.

6. The appellant, through Counsel, submits that the conviction is wrong in law on two counts.

(i) That the offence stated in the record is contrary to Section 102(1)(2) whereas it should have been only Section 102(1).

(ii) When detected the appellant was not driving as stated in the particulars of charge.

7. The statement of offence should of course read contrary to section 102(1) and not 102(1)(2) as it does. However such an error (and interestingly it is handwritten) cannot be said to be fatal to the charge. Section 102 is the important citation and that is there, correct. As the FCA said in Shekar v Shankar AAU0056 of 2004.

"The purpose of the charge is to ensure that the accused person knows the offence with which he is being charged".

8. Similarly by using the word "driving" in the particulars of offence is of no moment. When the appellant was first seen he was attempting to drive the vehicle out of the ditch, and obviously he would have been driving the vehicle into the ditch. Moreover, he freely admitted the summary of facts which say he had been driving the vehicle while intoxicated.

9. To raise such niceties to appeal conviction is both pedantic and faintly fatuous. As Goundar J said in Tavurunaqiwa HAA 22 of 2009L. "The question is whether the appellant was embarrassed or prejudiced by the defect in the charge".

10. Obviously here, there is no prejudice – the correct section is cited albeit with the unnecessary addition of a procedural subsection, and the particulars reflect the factual situation at the time – facts which were agreed by the appellant.

11. The appeal against conviction is dismissed.

Sentence

12. The Magistrate unfortunately fell into error when he made the consumption of
alcohol an aggravating feature of the offence. The offence would not be charged if alcohol had not been consumed; to make it an aggravating feature is to twice punish the appellant for his drinking on the day.

13. In this case there are no aggravating features, but strong mitigating features such as a technical clear record, a plea of guilty at the first opportunity, remorse and co-operation with the Police. Such features should have led to a sentence at the lower end of the sentencing tariff, rather then a sentence at the higher end.

14. The sentence passed below is set aside and a new sentence of $300 fine (in default 2 months' imprisonment) and a disqualification from driving for 6 months effective from 25th October 2010 is substituted.

15. To that extent the appeal against sentence is allowed.

PAUL K MADIGAN
JUDGE

At Labasa
8 February, 2011