Sigatoka Town Council v Prasad [2012] FJMC 192; Traffic Case 1.2011 (23 July 2012)

IN THE MAGISTRATE'S COURT
SIGATOKA
WESTERN DIVISION
REPUBLIC OF FIJI ISLANDS

Traffic Case No. 1 of 2011

Sigatoka Town Council

.v.

Niraj Kasi Prasad

For STC: Mr Robinson Prasad.
Accused: Not Present – (Represented by Mr Rajendra Chaudhry -
Also not present).

Judgment

Introduction

The accused is charged with, Parking Meter Offence, contrary to Regulation 85 (1) (a) and 87 of the Land Transport (Traffic) Regulations 2000. The particulars of the offence is that "On the 14th day of December 2010 at Sigatoka in the Western Division being the driver of Vehicle Registration Number LT5324 on Queens Road caused the vehicle to be parked illegally at an expired parking meter number 32."

A Traffic Infringement Notice was issued for the offence.

History

The case was first called on 27th January 2011 where the prosecution was represented by LTA and the accused by SS Law. Prosecution was asked to prepare the disclosures for service to accused.

On 18th February 2011, the prosecution appeared and Mr. S. Sharma appeared for the accused. The prosecution sought formal proof date. Mr. Sharma stated that he had conflict of interest, as he had appeared for STC before and that he will inform his client to appear and/or get another counsel. The court allowed Mr. Sharma to withdraw upon informing his client of his position.

On 30th March 2011 the prosecution appeared, the accused did not appear. The prosecution sought formal proof date and was given 16th May 2011. On 16th May, the accused was not present. The prosecution was not ready and the case was adjourned to 26th May for formal proof. Later on the same day at 11.30am Mr. Chaudhry appeared for the accused and the Court advised him that the case will next be called on 26th May 2011.

On 26th May 2011 the case was called there was no appearance of the accused or his Counsel. The Prosecution called witnesses and formally proofed the case. The Court imposed $100.00 fine and cost of $20.00 with an in default period of 10 days. 21 days was given to pay the fine and cost. 28 days was given for appeal.

On 2nd June 2011 the accused filed notice of motion to set aside the formal proof with an affidavit of one Kasi Prasad. The Court gave the Prosecution, 14 days to respond and the accused counsel, 7 days thereafter to reply. The case was next called on 4th July 2011 for ruling on the issue. The Prosecution and defence on this day were represented by counsels on instructions and they could not assist the court with any issues in the case. The Court informed the instructing counsels that parties be given time for submissions and to consider their position's. The Court also noted that the fine was paid. Next date given was 25th July 2011.

On 25th July there were no appearances for the prosecution or the defence. Next date given was 15th August 2011. On 15/8/2011 the prosecution appeared and there was no appearance for the defence. The prosecution sought that the motion to set aside by the defence be struck out. The Court struck out the motion by the defence having noted no appearances on two previous occasions.

On 6th September 2011 a motion for re-instatement which was filed was called and the prosecution was given 14 days to file affidavit in reply. On 20th December 2011 the matter was re-instated. On 23rd January 2012, trial was set for 25th April 2012.

On 25th April 2012, the prosecution sought adjournment as the Counsel had a medical condition. All the witnesses were present. The defence was ready for trial. The Court granted adjournment as the counsel was sick and all witnesses were present. The case was then called on two further ocassions, first on 9th May and later on 23rd May 2012 and on both occasions the parties were represented. After 23rd May 2012 when the case was called on 11th July 2012, there was no appearance of the accused and his counsel. The prosecution sought the case go to trial if the accused and his counsel were present and if they were absent than that it be formally proofed. 23rd July 2012 was set for trial/formal proof. On the 23rd July the case was called. Neither the accused nor his counsel were present.

The Law

Section 85 (1) of The Land Transport (Traffic) Regulations 2000 provides that:

"The owner or persons in possession of a vehicle commits an offence if the vehicle remains in parking place and –

(a) A parking meter installed in respect of which the vehicle is parked displays an expired sign indicating that –

(i) No charge had been made for the use of the space; or

(ii) The period for which a charge was paid has expired: ..."

The Prosecution Witnesses and Evidence

At the formal proof the Prosecution called 2 witnesses and relied on the evidence of the booking officer, Mr. Suliasi Ratudale who had given evidence in this Court on 26th May 2011 when the case was previously formally proofed.

Apart from calling on the stand Mr. Sharan Dip Singh and Abhay Kumar, the Prosecution relied on the statements of the Booking officer, Suliasi Raudale, Sharan Dip Singh and Abhay Kumar and further tendered certification of the parking meters by the Trade Measurements and Standards Department, the LTA Report and the Daily Parking Meter Inspection Report.

One of the prosecution witnesses, Sharan Dip Singh informed the Court that "am the manager traffic for STC. Report from LTA shows that accused is owner of taxi. Notice was served on the accused. Parking meter was operational. Defendant had raised later that parking meter was defective. Defendant's father who used the taxi that day was in Council office that day. He never raised it with us. CEO has given statement that Defendant was in Council that day and never raised issue that meter was defective. Accused has already paid $120. Seek costs. On the day in question the father of the accused, Kasi Prasad had come to Council to enquire about a mini-bus permit – which was declined. Parking meter was working. Accused had deliberately not paid."

The prosecution sought $200/appearance cost totaling $600.00 for 3 appearances.

Analysis

The Court has noted all the evidence that was tendered in this Court. The Court is satisfied beyond reasonable doubt on the evidence given in Court and the documentary evidence tendered that the charge is proven against the accused. The prosecution has proven the elements of the offence of Parking Meter Offence, contrary to Regulation 85 (1) (a) and 87 of the Land Transport (Traffic) Regulations 2000. The accused was given chance to defend himself. He has not appeared and neither has his counsel.

The Prosecution has proven beyond reasonable doubt that on 14th day of December 2010 at Sigatoka in the Western Division, the accused being the driver/owner of Vehicle Registration Number LT5324 on Queens Road caused the vehicle to be parked illegally at an expired parking meter number 32. The Prosecution further tendered evidence through its witness that the parking meter was operational at the time of the offence.

The Court has further noted Section 167 of the Criminal Procedure Decree 2009 which allows the Court to proceed with hearing in absence of accused in certain cases. This Court proceeded in this case on the basis the offence was not punishable with a term exceeding 12 months imprisonment and/or a fine exceeding 10 penalty unit.

The Court is mindful also of Section 172 of the Criminal Procedure Decree 2009 on setting aside the conviction and this Court twice entertained the accused, firstly after it was initially formally proofed and later, while re-instating the case when the motion to set aside was struck out. The Court has noted laxity on certain parts and this Court, like any Court needs to be vigilante to parties/counsels who bide time and drag on cases without finality.

The Court in this matter has noted the fine has been paid by the accused. The accused is now to pay cost of $150.00 to prosecution.

28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
23rd July 2012