State v Jenkins [2011] FJHC 797; HAR002.2011 (9 December 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

Criminal Revision Case No: HAR 002 of 2011

BETWEEN:

THE STATE

AND:

DAVID CHARLES JENKINS

Date of Hearing: 4 November 2011
Date of Ruling: 9 December 2011

Counsel: Ms J. Cokanasiga for State
Mr. N. Prasad for Accused

RULING

[1] The respondent was acquitted of the offence of exceeding speed limit, after the close of the prosecution case in the Magistrates' Court at Nausori. The Acting Chief Magistrate forwarded a copy of the learned Magistrate's ruling to the High Court for a review as it has ramification on the other pending cases of exceeding speed limit.

[2] Section 260(1) of the Criminal Procedure Decree gives this Court the power to review any criminal proceedings in the Magistrates' Court. That section reads:

(1) The High Court may call for and examine the record of any criminal proceedings before any Magistrates' Court for the purpose of satisfying itself as to –

(a) the correctness, legality or propriety of any finding, sentence or order recorded or passed; and

(b) the regularity of any proceedings of any Magistrates' Court.

[3] The prosecution in the Magistrates' Court commenced after the respondent was issued with a Traffic Infringement Notice on 20 April 2011 by a police officer who booked him for exceeding the speed limit by 17 km/hr in a 60 km/hr speed limit zone at Waila, Nausori. The Infringement Notice reads:

You are hereby charged as follows:

Statement of Offence: Exceeding Speed Limit, contrary to Regulation 24(4)(b) and 87 of Land Transport (Traffic) Regulations 2000.

Particulars of Offence

David C Jekkins on 20/4/11 at Nausori in the Central Division, drove vehicle registration no. EB342 on Princess Road, Waila, Corbett, at a speed of 77 km/h such speed being in excess of the maximum speed limit permitted in the said area namely 60 km/ph by 17 km.

[4] The respondent elected to defend the charge through counsel. The trial commenced on 26 July 2011. Three police officers who booked and served the Infringement Notice on the respondent gave evidence. After close of the prosecution case, the defence applied for no case to answer.

[5] The no case to answer application was advanced on two broad grounds.

[6] The first ground was that the charge was defective. Three defects were pointed out in the charge. Firstly, the charged offence was unknown to the law. In crafting his arguments, counsel for the respondent submitted that the offence described in the Statement of Offence was exceeding speed limit whilst the Regulation described the offence as speeding. Secondly, the Statement of Offence did not make reference to the offending provision but to the penalty provision only. Thirdly, the actual date of the offence was not specified in the Infringement Notice that was issued to the respondent.

[7] The respondent's second ground was that there was no evidence that the road the respondent was booked had a traffic sign of speed limit of 60km.hr.

[8] In his ruling, the learned Magistrate upheld both grounds and acquitted the respondent.

Is exceeding speed limit a known offence?

[9] The respondent was charged with exceeding speed limit contrary to Regulation 24(4)(b) and 87 of the Land Transport (Traffic) Regulations 2000.

[10] Regulation 24 provides:

Speeding

(1) Subject to sub-regulation (2), a person must not drive a vehicle on a public street –

(a) in a city or town at a speed exceeding 50km/h;

(b) outside a city or town at a speed exceeding 80km/h.

(2) If road sign No. 9 specified in Parts I and II of the Schedule is erected in a public street, a person must not, on reaching or passing that sign, drive a vehicle on the public street in which the sign is erected at a speed exceeding the number of kilometres per hour indicated by the numerals on that sign until reaching a road sign No. 9 which displays a different number of kilometres per hour or as may otherwise be provided for in regulation 55.

(3) This regulation does not –

(a) authorise the driver of a vehicle to breach regulation 61(4); or

(b) limit the operation of a speed restriction precribed elsewhere in these Regulations or provided in a permit or exception issued by the Authority pursuant to these Regulations.

(4) Different penalties may be prescribed for offences under this regulation in which a driver exceeds the speed limit by –

(a) less than 15 km/h;

(b) 15 km/h or more but less than 30 km/h; or

(c) more than 30 km/h.

[11] Regulation 87 adopts the penalties prescribed in Schedule 2 to the Land Transport (Fees and Penalties Regulations) 2000.

[12] Land Transport (Traffic) Regulations 2000 is a valid legislation. There is no issue about the validity of these Regulations. Although Regulation 24 titled the offence as speeding, the unlawful act is driving at a speed exceeding the prescribed limit. In these circumstances, it does not matter whether the offence is titled speeding or exceeding speed limit. Both descriptions have the same effect under Regulation 24. If a person is caught driving at a speed exceeding the prescribed limit, a valid charge can be laid under Regulation 24. The title given to the offence is immaterial. I therefore find that the learned Magistrate erred in law in upholding the respondent's submission that the offence of exceeding speed limit was unknown to the law.

Was the charge defective for not stating the date and the specific offending provision?

[13] The Infringement Notice that was filed in court clearly specified in the particulars of offence the date of offending as 20/04/11. The respondent's objection relates to the copy of Notice that was issued to him on 20 April 2011. In that copy while the month April and the year 2011 are specified, the day 20th is not. Without the court record, it is not possible to explain the discrepancy. The discrepancy, however, did not invalidate the Infringement Notice that was filed in court. The case proceeded on the basis of the charge contained in the Infringement Notice filed in court and not on the basis of the charge contained in the Notice issued to the respondent. In any event, the discrepancy was minor and the charge that was filed in court was not defective as far as the date of offending was concerned.

[14] The other issue that the respondent took was that the Statement of Offence failed to state subsection (1) (a) of Regulation 24 that declares the unlawful conduct. The Statement of Offence only made reference to a penalty provision, that is, subsection (4) of Regulation 24.

[15] There is now a line of cases that has established that the failure to specify subsection of the offending statute or an essential element of the offence makes a charge defective but not bad in law (Skipper v. R [1979] FJC 6; Shekar & Shankar v. State Criminal Appeal No. AAU0056 of 2004; State v. Singh Criminal Appeal No. AAU0097 of 2005S and Mudaliar v. State Criminal Appeal No. AAU0032 of 2006). The question that should be asked is whether the accused was embarrassed or prejudiced by the defect?

[16] In considering the question of embarrassment or prejudice, the timing of the objection to the defect is relevant. In the present case, the objection to the defect was taken by the respondent after the close of the prosecution case. There is no suggestion that any objection to the defect was taken before the commencement of trial. Clearly, counsel reserved the objection until the close of the prosecution case, knowing the charge cannot be amended after the close of the prosecution case (see, s.182 of the Criminal Procedure Code). While there is nothing improper for reserving objection to defect in the charge until after the close of the case for the prosecution, by not raising an objection to the defect before commencement of trial, the accused indicates to the court that he or she have understood the charge and is prepared to defend the allegation. I find that to be the case with the respondent. He engaged counsel to defend the charge and there is nothing in the learned Magistrate's ruling to suggest that counsel was embarrassed by the defect in defending the charge. If anything, the respondent knew the allegation against him and his counsel knew the charge he was instructed to defend.

[17] The charge was defective but not bad, to acquit the respondent.

[18] The final issue relates to the evidence of traffic sign. The first prosecution witness gave evidence that the respondent was booked in a restricted 60km.hr speed zone. He said at the time of the alleged offending the sign was clearly erected on the roadside and he did not accept the proposition advanced by counsel for the respondent in cross examination that there was no sign. Further the witness did not accept the photographs shown to him in cross examination by saying he was not aware when they were taken.

[19] There was evidence from the police officer that the respondent drove in a 60 km/hr speed limit zone with a sign erected on the road. The proposition put to the witness that there was no sign was not accepted by the witness. The proposition was not evidence. The answer was evidence.

[20] Clearly, there was some evidence led by the prosecution that could satisfy the elements of the charged offence. When there is some evidence, the learned Magistrate erred by holding there was no evidence.

[21] I am satisfied that the learned Magistrate erred in law to acquit the respondent after the close of the prosecution case. I set aside the acquittal and remit the case to the same Magistrate to record a finding of case to answer and to continue with the defence case.

So ordered.

Daniel Goundar
JUDGE

At Suva
9 December 2011

Solicitors:
Office of the Director of Public Prosecutions for State
Office of Mitchell Keil Lawyers for Respondent