State v Kasanawaqa [2010] FJMC 169; Criminal Case 667.2007 (7 December 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 667 of 2007

STATE

V

VILIAME KASANAWAQA

For Prosecution: Ms. Puamau (DPP Office)
For Accused: Ms. Drova

JUDGMENT

1. Accused in this case is charged for the following offences namely:
   
   1. Driving Motor Vehicle Whilst there is present in the blood a concentration of alcohol in excess of the prescribed limit – (Contrary to Sec. 103 (1) (a) and 114 of the Land Transport Authority Act 35 of 1998)
      
   2. Careless Driving – (Contrary to section 99(1) and 87 of the Land Transport Authority Act 35 of 1998)
      
   3. Driving a Motor Vehicle with an Invalid Driving Licence– (Contrary to Sec. 56 (3)(a) and 114 of the Land Transport Authority Act 35 of 1998)
      
2. Five witnesses testified for the prosecution and accused gave evidence on oath.
   

PW-1

3. According to PW-1, he is a Military officer and on 18th May 2007 at about 10 pm whilst he was in a joint operation with Nabua Police called to attend an accident at Raiwasa. Visited the scene with fellow officers and found a vehicle off road near Raiwasa supermarket. Person who was beside the vehicle had run towards a house beside the road. No one other than that person was near the vehicle.
   
4. During the cross-examination it was suggested to the witness that he had been armed with a weapon. However, witness denied the suggestion. Accused failed to prove this position through independent evidence.
   
5. Witness admitted that he did not see the accused driving the vehicle which is to be expected as no one would be able to remember a driver of a vehicle which met with an accident unless accident takes place just in front of their eyes or you have personal knowledge about the driver.
   

PW-2

6. Witness had been on mobile patrol with PW-1 on 18th May 2007. According to the witness he was the first to reach the accident scene. Witness has found accused still in the driver's seat. Even though witness requested for accused person's driving licence he had not given it to the witness. Then witness had smelt liquor. Accused has informed his name as Tomas to the witness. When witness informed the accused that he is under arrest accused pulled his hand and had run away to a compound nearby. Later the accused had arrested by both PW-1 and PW-2. During the cross-examination witness informed that accused was seated in the driving seat and there was no other person with the accused. This made witness to conclude that the accused was the driver of the vehicle.
   

PW-3

7. Witness is a road safety officer attached to LTA. Upon a request by the police, witness had made a search in their data base and confirmed that accused person's driving licence had expired on 03rd January 2007.
   

PW-4

8. Charging officer. Suspect had not made any statement regarding the charge.
   

PW-5

9. Investigating officer. Prepared the rough sketch plan of the incident. Conducted the dragger alcohol test at Totoga Police Station.
   
10. At the end of the prosecution case, accused opted to give evidence on oath.
    

Accused

11. Accused person's birth day on 18th may 2007 and his driving licence was not valid that day. Had celebrations with his friends at Watuwaga and had few drinks. One friend Praneel Prakas drove him to his friend's place in the vehicle assigned to the accused by his company. FF-466. At about 10 pm left the friend's place to continue celebrations. While Praneel driving he received a phone call. When he tried to answer he lost control of the vehicle and it went into the drain.
    
12. After the accident Praneel got down and walked towards new world supermarket. Accused was waiting outside the vehicle and at one point accused got in to the driver's seat as there were some valuable in the vehicle. When the police officer approached the accused with a military officer, that military officer had his M-16 weapon with him. Officers' had inquired about the accused person's driving licence. Accused admitted having exchange of words and when military officer got hold of his hand, running away from the scence.
    
13. At that time Praneel was not in the scene and accused admitted being caution interviewed on the next day. Accused informed that the police did not interview Praneel and he was present during the early stage of the case. Praneel had migrated.
    
14. Accused admitted that his lawyer being present though out the caution interview and signing the interview notes. Accused informed that he is not disputing the truthfulness of the answers given in the caution interview.
    
15. When questioned by the prosecutor accused admitted that about 10 times he had opportunity to mention about Praneel during his cautioned interview. However, accused failed to mention about Praneel at all.
    
16. Later accused admitted his evidence in contradiction to the caution interview and informed the court that he mentioned about Praneel to the interviewing officer. Accused admitted consuming alcohol before the incident.
    
17. During the cross-examination accused tried to explain his running away from the officers were due to the fear he had for military. According to the accused during that time he had heard stories of people taken into camps.
    

Analysis

18. Accused person's only defence was that he was not the driver of the vehicle at the time of the incident. Accused tried to prove the fact by trying to establish that no one witnessed accused driving the vehicle.
    
19. Unless in very extremely rare situations, none of the police officers who conduct investigations of a crime would be in a position to witness the crime. This is same for even an accident. In such a situation unless there are some independent eye-witnesses, people who were inside the vehicle are the only witnesses possess special knowledge as to the driver of the vehicle. It is well accepted rule in evidence that the person who possesses the special knowledge has the burden to prove that fact.
    
20. In the present case it is the burden of the accused person to prove that he was not the driver of the vehicle at the time of the incident because since there are no eye-witnesses to the incident, accused person is the only one with the knowledge as to the identity of the driver.
    
21. During the cross-examination, accused admitted the presence of his lawyer through out the cautioned interview. Therefore, it is highly unlikely that the interviewing officer not recording anything accused mentioned during the interview.
    
22. In response to questions posed by the prosecutor accused informed that he mentioned about Praneel to the interviewing officer. As accused admitted, there were about 10 instances accused could have mentioned Praneel's name during the cautioned interview.
    
23. The whole case is based on the identity of the driver and being a very well educated person accused would have realised the importance of that fact. There is no evidence to show that caution interview had conducted in a circumstance that the accused was not of sound mind. Presence of the accused persons lawyer through out the interview help to rule out any suspicions about the manner in which the interview had been conducted by the officer.
    
24. If what accused said in Court was true about the identity of the driver, I am unable to see any reason preventing Praneel's name mentioned during the interview.
    
25. Accused during his evidence re-iterated the fact that he mentioned that there is another driver with him during the interview. Then the question is why accused or his lawyer failed to mention the name of that driver. As I can see this was an attempt to introduce anyone at a later stage to justify the accused person's defence.
    
26. Apart from that there is no evidence to prove that Praneel came to the police station when he realised that the accused was wrongly arrested for a crime which he did not commit. According to the accused, Praneel just walked towards the super market which is close by just before the police arrived at the scene.
    
27. When considering the events took place before the police officers took the accused away to the police station, I am satisfied that police officers at least had spent 45 minutes at the scene of the accident. Arresting the accused after he ran away from the scene and drawing rough sketch plans would have at least taken that time.
    
28. However, the question is what happened to the Praneel who just walked towards the supermarket? If what accused said in court was true, Praneel would have witnessed this incident and would have had come to the aid of his friend. If I am to assume that Praneel did not witness the incident, the next question is whether this Praneel left the scene abandoning his friend? According to the accused Praneel had been trying to get help calling his friends. Therefore, if I am to believe the accused person's version, it is safe to assume that Praneel would have come back to the place of the incident sometimes later to find his friend gone missing from that place.
    
29. Unfortunately there is no evidence to show that this missing person Praneel had made attempts as any other reasonable man would do in such a situation to find about his friend during the night.
    
30. During the trial I had the opportunity to closely watch the demeanour of the accused whilst he was giving evidence. I must place on record that it never occurred to me that accused was telling the truth about the incident. The manner in which accused tried to give various explanations at various times and the way accused tried to change his positions in response to the prosecutor's questions made me to come into that conclusion.
    
31. In the light of the above-mentioned findings, I am satisfied that on 18th May 2007, accused without a valid driving licence, drove the motor vehicle no: FF 466, under the influence of liquor in a careless manner and met with an accident.
    
32. I am satisfied that prosecution had proved all elements of the charges beyond reasonable doubt and accused failed to create a doubt in the prosecution case.
    
33. I find accused guilty as charged and convict accordingly.
    

On this Tuesday the 07thday of December 2010

Kaweendra Nanayakkara
Resident Magistrate