State v Murti [2012] FJMC 23; Criminal Case 255.2009 (22 February 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 255/2009

STATE

V

RAJAN KUSHAL MURTI

For Prosecution : - Mr. Singh J.
Accused : - Mr. Reddy A.

JUDGMENT

1. The accused was charged with the offence of " Driving Motor Vehicle while there is present in the blood a concentration of alcohol in excess of the prescribed limit" contrary to section 103 ( 1) (a) and 114 of the Land Transport Act No 35 0f 1998.
   
2. The particulars of the offence for this count are;
   

DRIVING MOTOR VEHICLE WHILST THERE IS PRESENT IN THE BLOOD A CONCENTRATION OF ALCOHOL IN EXCESS OF THE PRESCRIBED LIMIT:-Contrary to Section 103(1)(a) and 114 of the Land Transport Act, No.35 of 1998.

Particulars of offence [b]

RAJAN KUSHAL ANAND MURTHI s/o SHRI KRISHNA MURTI, on the 02nd day of August, 2009 at Suva in the Central Division, drove a motor vehicle on Butt Street, whilst there was [resent in 100 milliliters of his breath, a concentration of 118.8 milligram's of alcohol which was in excess of the prescribed limit of 80 milligrams.

3. Accused pleaded not guilty for this offence, wherefore, the case was set down for hearing. During the hearing the Prosecution called three witnesses. The accused gave evidence on oaths and also called two witnesses for the defence. At the conclusion of the hearing, the Prosecution and the Defence filed their closing written submissions respectively. Having considered the evidence presented by the prosecution and the defence and their respective written submissions, I now proceed to pronounce the judgment of this case as follows.
   
4. Section 103 (1) (a) of the Land Transport Act stipulates that "A person who -

(a) drives or attempts to drive a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his blor

1. In view of the section 103 (1) (a) of the Land Transport Act, the main elements of the offence of " Driving Motor Vehicle while there is present in the blood a concentration of alcohol in excess of the prescribed limit" are
   
   1. The accused,
      
   2. Drive, or attempts to drive a motor vehicle,
      
   3. Or In charge of a motor vehicle,
      
   4. More than the prescribed concentration of alcohol is present in his blood,
      
6. Bearing in mind the main elements of the offence of " Driving Motor Vehicle while there is present in the blood a concentration of alcohol in excess of the prescribed limit", I now turn my attention to briefly review the evidence of the prosecution and the defence.
   
7. In view of the evidence presented by the first and second prosecution witnesses namely S.C.1311 Waisake and Sgt Silimaka, they were conducting patrol around the city area in that particular night of the 2nd day of August 2009. Whilst they were patrolling around 1.50am, they came to Butt Street in Suva. They then saw a vehicle registration number EG 167 was about to pull out in front of them. They saw the driver's face and noticed the eyes of the driver were red with the help of their flash lights. At that time SC Waisake asked the driver to stop. Once SC Waisake got near the driver he noticed that the driver was smelled heavily of liquor. He conducted 7410 alcohol test on the driver and the reading was 41mg. this exceeded the prescribed limit of 35mg.He asked the driver to cease the vehicle and took the driver to Nabua Police Station for further test. SC Waisake stated that the accused was about to pull out his car and was driving towards the central Police Station from the merchants Club side. Sg Silimaka who is the second prosecution witness gave evidence in line with SC Waisake's evidence.
   
8. In contrast to the prosecution version, the defence vehemently denied that the accused drove the car in that night. The accused stated in his evidence that he went to a night club with three of his friends and had few drinks there. He then came out from the night club with his friends and wanted to get his mobile phone which was inside the car which was parked along the Butt street beside the night club. He stated in his evidence that the second defence witness who was with him at that time was to drive the car in that night since he did not consume any alcohol. The accused testified that the key of the car was with the second defence witness who opened the doors using the remote control alarm system from distance. The two defence witnesses also gave their evidence in line with the evidence of the accused person to affirm the defence contention.
   
9. The learned counsel of the prosecution urged in his written closing submission that the evidences of all defence witnesses are not reliable and credible as they are friends. Accordingly, the prosecution urged to disregard the evidence of the defence. In the meantime, the learned counsel of the defence contended in his written closing submission that the prosecution evidences are not credible and failed to prove the charge beyond reasonable doubt.
   
10. In view of the evidences presented during the hearing of this case, I find that the accused has admitted in his evidence that he consumed alcohol at the night club prior to this alleged incident. However the accused vehemently denied that he drove the car and stated that he just went to the car in order to get his mobile phone which was inside the car. Upon reviewing the evidence presented by the prosecution I find that the prosecution's allegation is that the accused drove the vehicle in that night. The prosecution does not allege that the accused attempted to drive the car. Accordingly, I am of the view that the main issue to be determine in this instance case is that whether the accused drove the vehicle registration No EG 167 along the Butt Street in that night of the 2nd day of August 2009.
    
11. Bearing in mind the evidence presented by the prosecution and the defence together with their respective written closing submissions, I find it is prudent to examine the laws pertaining to the definition of "driving". The test for whether a person is driving a vehicle is precisely discussed in R v MacDonagh (1974) Q.B. 448.59, (1974) RTR 279), where Lord Widgery CJ held that " the primary consideration as to whether a person is "driving" is essentially a question of fact, dependent on the degree and extend to which the person has control of the direction and the movement of the vehicle. The test is whether the accused was in a substantial sense controlling the movement and direction of the car. A person cannot be said to be driving unless he satisfies this test".
    
12. In line with the test enunciated by Lord Widgery CJ in R v MacDonagh, the prosecution needs to prove beyond the reasonable doubt that the accused person was in a substantial sense of controlling the movement and the direction of the car.
    
13. In view of the general rule in law of Evidence, the onus of proof the charge beyond reasonable doubts against the accused is borne by the prosecution. There is no onus onaccused used at any stage to prove his innocence or to prove anything else.
    
14. 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". ("Andrews & Hirst on Evidence" 4th Edition, pg 59).
    
15. At this point, I quote the dicta of Lord Reading CJ in Abramovitch (1914) 84 L.J.K.B 397) where the Lord Reading held that "if an explanation has been given by the accused, then it is for the jury to say whether on the whole of the evidence they are satisfied that the accused is guilty. If the jury think that the explanation given may reasonably be true, although they are not convinced that it is true, the prisoner is entitle to be acquitted, inasmuch as the crown would then have failed to discharge the burden impose upon it by our law of satisfying the jury beyond reasonable doubt of the guilt of the accused. The onus of proof is never shifted in these cases; it always remains on the prosecution".
    
16. Bearing in mind the aforementioned legal precedents on the laws pertaining to the definition of "driving' and the standard of proof, I now proceed to analysis the evidence of the prosecution and the Defence with the main elements of the offence of "Driving Motor Vehicle while there is present in the blood a concentration of alcohol in excess of the prescribed limit".
    
17. The two main prosecution witnesses affirmatively stated that the accused was on the driving seat and drove the vehicle when they stopped him and conducted the breath test. In contrast, the defense categorically denied the driving of the vehicle and contended that the accused went to the car in order to get his mobile phone which was inside the car. He denied that he even did not have the key with him as the car was opened by his friend who is the second defence witness using remote alarm system from distance. Upon considering these contrasting views from the Prosecution and the Defence, the court needs to carefully examine the credibility of the evidence of the witnesses in order to ascertain the verdict against the accused person.
    
18. The onus is always with the prosecution to prove all essential elements of the charge beyond reasonable doubt. The main contention of the defense is that the accused did not drive the vehicle. In order to affirm that contention the defence presented evidence that the key of the vehicle was with the second defence witness and it was not with the accused person in order to have substantial sense of controlling the movement and the direction of the car.
    
19. The two main prosecution witnesses were not consistence with this vital issue of who was in possession of the key. SC Waisake in his evidence stated that the engine of the vehicle was on when he approached the accused. He then stated that he took the key of the car after conducting the breath test 7410 at the scene. The prosecution did not produce the key of the car as prosecution's exhibit but SC Waisake stated that subsequent to the arrest of the accused he gave the key to the owner of the car. Ironically SC Waisake did not reveal the name or the identity of the owner of the car which the defence claimed in their evidence that the accused himself is the owner of the car. Moreover SC Waisake failed to explain why he gave the key back to the owner of the car after he arrested the accused person and took the car to the Nabua police station as per his evidence. Amusingly SC Waisake diverted from his earlier position and stated in his re examination that he gave the key to Sgt Silimaka. Sgt Silimaka in his evidence stated that he couldn't recall whether the engine of the car was on or what happened to the key of the car. Sgt Silimaka again changed his position about the engine of the car when he was specially called to give evidence on the 28th day of February 2011. At that time Sgt Silimaka stated that he asked the accused to switch off the engine when the accused was stopped by them but in his cross examination on the 20th day of January 2010 Sgt Silimaka testified that he cannot recall it and he was controlling other vehicles which were passing the scene of this alleged incident.
    
20. Upon taken into consideration of these intra and inter contradictory nature of the evidences of the two main prosecution witnesses, I am of the view that those contradictory and inconsistence nature of their evidence not only adversely discredited the reliability of the prosecution evidence but also failed to remove the reasonable doubt raised by the accused in his defence. Upon considering these facts, I am inclined to disbelieve and refuse the evidence of two main prosecution witnesses in this case.
    
21. In view of the reasons set out in foregoing paragraphs, I conclude that the prosecution failed to successfully prove all the essential elements of this charge beyond reasonable doubt.
    
22. Accordingly, I hold that the accused is not guilty for the offence of " Driving Motor Vehicle while there is present in the blood a concentration of alcohol in excess of the prescribed limit" contrary to section 103 ( 1) (a) and 114 of the Land Transport Act No 35 0f 1998 and acquit the accused from this charge.
    
23. 28 days to appeal.
    

On this 22nd day of February 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.