State v Khan [2012] FJMC 103; Traffic Case 49.2011 (25 May 2012)

IN THE RESIDANT MAGISTRATE'S COURT OF FIJI ISLANDS
AT SUVA

Traffic Case No: 49/2011

STATE

V

MOHAMMED IQBAL KHAN

Prosecution : WPC Fisher.
Accused : In Person

RULING

1. The charge that had been levelled against the accused of this case as follows.
   

Statement of offence[a]

CARELESS DRIVING – Contrary to Section 37 and 85 of the Traffic Act 176

Particulars of offence[b]

Mohammed Iqbal Khan s/o Sikandra Khan, on the 11th day of November 2010 at Nabua in the Central Division drove a motor vehicle without due care and attention.

2. The accused initially pleaded 'Not Guilty' to the charge. After several adjournments for interlocutory applications, the trial dates were set for 16,17th of May 2012.
   
3. On 16th May 2012 the accused appeared in-person and informed Court his willingness to change the plea. He confirmed that there was no threat or force by anyone for this sudden change of mind.
   
4. Thereafter he pleaded 'Guilty' and admitted the summery of facts tendered by the prosecution. Further he made an oral statement for mitigation.
   
5. It is to be noted that the prosecution has charged the accused under 'Traffic Act' Cap 176. At present the Land Transport Act; No 35 of 1998 is the legislature in operation for the all the road traffic related offences. Part 9 of the Land Transport Act provides miscellaneous provisions to the Act. Under the heading of 'Repeals and Savings' it has specifically repealed the operation of 'Traffic Act'.
   

112. (1) The Traffic Act is repealed.

(2) All by-laws, regulations, codes, orders, notices, appointments, licences and permits made or issued under the provisions of the repealed Act shall be deemed to have been made or issued under the corresponding provisions of this Act and shall remain of full force and effect until such time as they are revoked, renewed, extended or amended under this Act.

(3) Any regulations, codes or by-laws made under the provisions of the repealed Act in respect of which there are no corresponding provisions in this Act, shall remain of full force and effect as though they had been made under the authority of this Act until such time as they have been revoked or amended under the provisions of this section or any other Act and may be amended or revoked under this subsection.

(4) Any appointment or delegation made under the repealed Act before the commencement of this Act continues until the appointment or delegation is revoked under this Act.

(5) Any proceedings instituted or action begun under the repealed Act before the commencement of this Act which has not been determined before the commencement of this Act continues until determined under the repealed Act.

(6) Section 175 of the Criminal Procedure Code (Cap. 21) is amended –

(a) by deleting "section 38 or 39 of the Traffic Act" and substituting "section 97, 98, 99 or 102 of the Land Transport Act 1998"

(b) by deleting "section 42 of'.

(7) The Motor Vehicle (Third Party Insurance) Act (Cap.107) is amended-

(a) in section 2(1) by deleting "any Traffic Act" in the definition of "driving licence" and substituting "the Land Transport Act 1998";

(b) in section 4(3) by deleting "the Traffic Act" and substituting "the Land Transport Act 1998".

6. Sub section 5 of the section 112 grants authorisation to maintain the actions that had been instituted before the commencement of the Land Transport Act. His Excellency the President has placed his signature to this Act on the 09th November 1998. The accused of this case committed this offence twelve years later in November 2010.
   
7. It appears that part [a] of the charge which refers to 'Statement of offence' is indeed defective.
   
8. At this point it is imperative to visit section 61 of the Criminal Procedure Decree 2009. It directs on the method of formulating a valid charge.
   

Mode in which offences are to be charged

61. — (1) A count of a charge or information shall commence with a statement of the offence charged, and this shall be called the statement of offence.

(2) Each statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence.

(3) The charge shall contain a reference to the section of the law creating the offence.

(4) After the statement of the offence, particulars of the offence shall be set out in ordinary language, and the use of technical terms shall not be necessary.

(5) Where any rule of law or any Act Decree or Promulgation limits the particulars of an offence which are required to be given in a charge or information, nothing in this section shall require any more particulars to be given than those so required.

(6) The forms applying or approved under this Decree (or forms conforming to these forms as nearly as may be) shall be used in cases to which they are applicable; with the statement of offence and the particulars of offence being varied according to the circumstances of each case.

(7) Where a charge or information contains more than one count, the counts shall be numbered consecutively.

9. Section 61(3) of the Criminal Procedure Decree imposes a strict liability on the prosecution or the charging authority to refer to the 'section' that creates the offence. In my view it is fundamental as it creates the 'Action' before Court.
   
10. Laying of charges is totally a matter of prosecutorial discretion and the Court should not interfere with that. The duty of the Court is to consider the legality of the charge before acting on it.
    
11. I conclude by stating that the charge against the accused is invalid. Accordingly it is dismissed.
    
12. Accused discharged from further proceedings.
    
13. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

YOHAN LIYANAGE
Resident Magistrate
25th May 2012