State v Chand [2012] FJMC 154; Traffic Case 833.2012 (12 July 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF NAVUA

TRAFFIC CASE: 833/2012

STATE

VS

AVINESH VIKASH CHAND

For Prosecution: - Sgt. Lenaitasi
Accused: - In person

Judgement

[1] The accused is charged with the offence of Failing to comply with licence for public service vehicle permit. The charge reads as follows:-

CHARGE:

Statement of Offence [a]

[2] Failing to comply with licence for public service vehicle permit – Contrary to Section 62(2) (4) and 114 of Land Transport Act

Particulars of Offence [b]

[3] Avinesh Vikash Chand on the 21st day of November 2011 of Navua in the Central Division drove a motor vehicle RSL379 on Queens Road, Pacific Harbour failing to comply with the terms of the permit/licence in respect of that public Service Vehicle.

[4] Since the accused pleaded not guilty this was set down for hearing.

SUMMARY OF EVIDENCE

[5] At the trial, prosecution called following witnesses.

[6] PW 1-SC 2664 Krishneel; He said he is working in the Navua police traffic section. On 12/11/2011 he was in Pac Harbour doing speed checking and coming back. He saw the vehicle RSL 379 driving to Pac Harbour. On the Side of the vehicle it was written Waidara-Navua-Waidara and inside there were some passengers. The pw1 checked the route and found that it was not operating in the allowed route. The pw1 stopped the vehicle and booked him. At that time there were 5 passengers in the vehicle and the driver told him they were going to Lepanoni.

Again on 16/12/2011 the PW1 was on duty in Navua town and came across the vehicle. The vehicle was going to Mokosoi and there were 4 passengers inside the vehicle. The vehicle permit was tendered through the PW1 and marked as Ex-1.

[7] The accused was given the chance to cross examine the PW1 but did not ask any questions.

[8] PW2 PC 3177 Prasad; He said on 21/11/2011 he was on duty at Pac Harbour and saw the same vehicle. He stopped the vehicle and booked the accused. At that time there were 2 passengers inside.

[9] Thereafter prosecution closed their case. Since there was a case to answer the accused was explained and given his rights under sec 178 of the Criminal Procedure Decree. Then the accused opted to give sworn evidence before this court.

[10] DW1- Avinesh Vikash Chand; the accused said that on 11-11-2011, he took a passenger to Pac Harbour for banking. The second day he was taking a passenger to Mokosoi and the third day he took passengers to Pearl Resort.

[11] DW2- Father Demesi: He said he use the accused for his work. But he admitted that on all 3 occasions when the accused was booked he was not with him.

[12] DW3- Buvasi; He said the LTA has given the accused the authority to drive.

[13] In his cross examination the DW3 said one Ulai from LTA has given the accused the authority.

[14] Since that person from LTA was not present the hearing was adjourned till 01 July 2012 for the defence to call him as a witness.

[15] On 01 July 2012 the witness was not present too and the accused informed he was closing the defence case.

THE LAW

[16] The Section 62(2) (4) of the Land Transport Act read as follows;

No person shall drive or use, or cause or permit to be driven or used, any public service vehicle contrary to the terms of a public service vehicle licence or public service permit relating to that public service vehicle.

[17] Therefore the prosecution needs to prove following elements.

1. The Accused drove the vehicle;

2. He drove a public service vehicle

3. He was driving the vehicle contrary to the permit.

[18] I now turn to the question of burden of proof. The burden lies with the prosecution and they have to prove that beyond reasonable doubt. It was held in Woolmington v DPP (1935) AC 462), that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Where the burden of proof, remains on the prosecution throughout the trial, in that circumstance, the accused need only to raise sufficient evidence to cast reasonable doubt on the issue".

[19] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonaoubt. This mhis means that you must be satisfied so that you feel sure of the guilt of the accused personsre you express an opinion that they are guilty. If you have any reasonable doubt as to whet whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt;about the the guilt of the accused."

ANALYSIS OF THE EVIDENCE

[20] There is no dispute about the accused driving the vehicle at the tf the incidents or the vehi vehicle was a public service vehicle.

[21] The only dispute is whether the accused was driving the vehicle contrary to the permit given to him. The prosecution marked the permit as Ex-1. To decide about that I will peruse the EX-1 carefully.

[22] The permit given to the accused says as follows.

Under delegation of powers pursuant to Sec 12 of the Land Transport Act 1998 has provisionally approved your application for one Public Service vehicle Permit (rural Service Licence-Mini Bus) to carry passengers and goods from Waidradara /Navua and return.

[23] Therefore according to the permit the accused can operate his vehicle from Waidrada to Navua and back only. He can't exceed that limit.

[24] On two occasions police booked him at Pac Harbour and on the other occasion he was booked in Mokosoi. I note that both these places are beyond the limit of Waidradara. All these occasions there were passengers with him in his vehicle.

[25] The accused did not cross examine the PW1 and even from the PW2 asked only about the number of passengers in his vehicle.

[26] The accused also in his evidence in chief admitted taking passengers to Pac harbour and Mokosoi. I quote the relevant part of the accused's evidence.

"On 11/11/2011 I took a passenger to Pac Harbour for banking. Second day I was stopped. I was taking passenger from Waidradara to Mokosoi. Third day I was taking passenger to Pearl Resorts (Pac Harbour)"

[27] The accused's only defence is that the LTA has given him permission to drive like that beyond his approved route. But the accused failed to call any officers from the LTA or to produce any document to confirm his evidence. Therefore I can't accept the accused's evidence.

[28] Based on the evidences I find that the prosecution has proved beyond reasonable doubt that the accused committed this offence.

[29] Accordingly, I find the accused guilty for count of Failing to comply with licence for public service vehicle permit – Contrary to Section 62(2)(4) and 114 of Land Transport Act.

[30] I convict the accused accordingly on the same.

[31] 28 days to appeal.

12/07/12

H.S.P.Somaratne
Resident Magistrate, Navua