State v Tavatuilagi [2012] FJMC 78; Criminal Case 2138.2010 (24 February 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Traffic Case No 2138/10

BETWEEN

THE STATE

AND

JESE TAVATUILAGI

JUDGEMENT

1. The accused in this case is charged with one count of driving a motor vehicle whilst there was 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.
   
2. The particulars of offence are as follows;
   

"Jese Tavatuilagi on the 30th day of September 2010 at Lautoka in the Western Division drove a motor vehicle registration number FK 514 on Naviti Street, Lautoka, whilst there was present in 100 millilitres of his blood a concentration of 165 milligrams of alcohol, which was in excess of the prescribed limit."

3. The case was taken up for trial on the 26th July 2011. The accused was represented by a Counsel and the prosecution was conducted by a Police Prosecutor. Two witnesses were called for the Prosecution. After the Prosecution case was closed, the Court held that there is a case for the accused to reply. The accused gave evidence and no other witnesses were called for the Defence.
   
4. Section 103(1)(a) of the Land Transport Act reads as follows;
   

"A person who 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 blood commits an offence."

5. The land Transport(Breath Tests and Analysis) Regulations 2000 provides as follows;
   

3.(1) for the purpose of section 103(1)(a) the prescribed concentration of alcohol is 80 milligrams of alcohol in 1000 millilitres of breath.

(2) Evidence that there is alcohol in the blood in excess of the prescribed concentration at a relevant time may be given by reference to a sample of the person's blood taken with his or her consent or by reference to the reading on a breath analysing instrument in accordance with sub regulation (3).

(3) A reading or a breath analysing instrument in micrograms of alcohol per 100 millilitres of blood is to be multiplied by 2.2 in order to arrive at the number of milligrams of alcohol in 100 millilitres of blood.

6. The prosecution has to prove the following elements;
   
   1. The date, time and place
   2. The identity of the accused
   100. That the accused drove a motor vehicle
   4. That there was a concentration of alcohol in his blood in excess of the prescribed limit
      
7. There was no dispute regarding the date time and place of the incident. Further there was no dispute regarding the identity of the accused and the fact the he drove a vehicle. The Prosecution established without challenge that the accused was driving a vehicle registration number FK 514 on Naviti Street, Lautoka on the 30th September 2010 at about 1.30 am. The only issue left for determination is whether there was a concentration of alcohol in the blood of the accused in excess of the prescribed limit.
   
8. S.C. 1883 Rohinesh gave evidence for the Prosecution and said that on the 30th September 2010 at about 1.30 am he noticed a vehicle going in zigzag manner whilst he was on patrol duty. He said the vehicle, registration number FK 514 was driven by the accused and he approached the accused when the vehicle was stopped at the MH traffic lights. The witness said that he demanded the driving licence and the accused had told him upon questioning that he had two bottles of beer at the club. S.C. Rohinesh further said that then he requested the accused to step out of the vehicle and informed him that he is dismissed from driving. S.C Rohinesh said that the accused was then escorted to the Police to be tested for alcohol with the assistance of two other officers and handed him over to the Traffic Department.
   
9. The Police Witness was cross examined at length by the Defence. During the cross examination it was transpired for the first time during the trial that soon before the accused was arrested the Police officers had got a radio message regarding a stolen vehicle by a drunken driver. However the Police witness said they stopped the accused not because of the radio message but for the way he was driving the vehicle. He was cross examined in the following manner;
   

Q: were you advised of a missing car by one Vasiti Marama?

A: No

Q: Was the Ready Action Unit looking for a missing car, FK 514?

A: It was told by the headquarters through the radio transmitters. It was not specifically told to our unit.

Q: So you received through the radio about a missing vehicle?

A: It was not about a missing vehicle. It was about a stolen vehicle by a drunken driver.

Q: So the radio message was the driver of FK 514 was drunk and driving without a licence?

A: Yes.

10. The Prosecution did not adduce any evidence regarding a radio message about a drunken driver. It is not clear as to why the Defence extracted this piece of evidence from this witness or how it relates to the Defence. Although the witness Rohinesh was cross examined about the radio message, it was not clarified who was Vasiti Marama and the reason for the so called Vasiti Marama to inform the Police about the vehicle, FK 514 being driven by a drunken driver. However when the accused gave evidence he said that his wife had reported to the Police that the vehicle was missing. Therefore it appears that it was the wife of the accused who had reported to the Police "about a stolen vehicle by a drunken driver". Further the accused said in reply to a question during the cross examination that " I made a promise to my wife that if we argue either one of us should walk out to relieve the tension. So on that particular day I took the liberty to come out." Yet the accused did not give any explanation as to why his wife made such a complaint to the Police no did his wife gave evidence in this case. It was not clear as to why this issue was raised during the cross examination of S.C. Rohinesh by the Defence when it clearly contradicts the version of the accused.
    
11. The witness Rohinesh was cross examined regarding the drunkenness of the accused in the following manner. However it should be noted that the Prosecution is not required to prove that the accused looked and behaved drunk since the charge is under Section 103 of the Land Transport Act;
    

Q: The second message of the radio was that he is drunk. When he got out did you determine the drunkenness?

A: While he was talking to me I could smell liquor on him. He also confessed to me that he had 2 bottles in the club. With that information my duty was to check whether he is below or above the limit.

Q: There are many kinds of liquor. Which of this liquor did he smell?

A: It is not written anywhere. He smelt and he said he drank 2 bottles of beer.

Q: What liquor did you smell?

A: I can't answer that question because I don't drink liquor.

Q: Do you agree some strong perfumes also smell like liquor?

A: No.

12. S.C. Rohinesh was also cross examined as to how the Accused was taken to the Police Station. It reflects from the line of cross examination that the Defence had initially admitted the position that the accused was escorted to the Police in the Police vehicle. However when the accused gave evidence in contrary to this position he said that he drove his vehicle to the Police. Following is the cross examination of S.C. Rohinesh on this point;
    

Q: He had to get out from the vehicle to go to Police vehicle?

A: No. I got off my vehicle and I went to his vehicle.

Q: He walked to the Police vehicle?

A: After he was examined he was escorted to the Police Station.

Q: What kind of examination?

A: After checking his licence and questioning him he was escorted to the Police vehicle.

Q: Is it correct to say the accused walked firmly to the Police vehicle from his vehicle?

A: No he was escorted by S.C. Timoci.

13. It is clearly evident that the version of the accused and the line of cross examination were inconsistent on this point as well. The accused totally denied he was escorted and said that he was asked by the Officers to drive the vehicle to the Police Station.
    
14. It must also be stated at this juncture that the accused is not charged for incapable of having proper control of motor vehicle due to intoxicating liquor. The defence tried to show that the accused was not staggering when he walked although the prosecution witness said that the accused was driving the vehicle in a zigzag manner. As far as the charge in this case is concerned it is totally irrelevant to prove that the accused was incapable of controlling a motor vehicle or the driver looked drunk. All what the Prosecution has to prove is that the concentration of alcohol in the blood of the accused was in excess of the prescribed limit. Therefore how ever much the Defence disputed issues such as the accused was driving in a zigzag manner, he was smelling liquor, he was staggering and he did have blood shot eyes, those issues would not have any bearing on this instant case. Vice versa a person can be found drunk and incapable under Section 102 of the Act without any evidence of blood or breath alcohol. ( Prasad v The State [2004] FJHC 63)
    
15. The second witness for the Prosecution, P.C. 3037 Naidu gave evidence that on the 30th September 2010 he conducted a dragger test on the accused at about 1.45 in the morning. He said that he is authorized by the Commissioner of Police to operate the dragger. The dragger test result slip was tendered as prosecution Exhibit 1. The dragger operator certificate was tendered as Prosecution Exhibit 2. Further he said that the result was 75 micrograms and the prescribed limit is 35 micrograms. The statement of the witness was tendered as Prosecution Exhibit 3.
    
16. The witness P.C. Naidu was also cross examined at length by the Defence. It was put to the witness by the Defence that he is not properly trained to operate a dragger machine. The witness said that he has done a breathalyser course. However when the witness was asked about the operating temperature, he said he cannot recall. But he said that he had done more than 40 tests. P.C. Naidu was asked whether he inquired form the accused whether he is suffering from any illness and he answered in affirmative. In any event I do not think that any prejudice is caused to the accused as he has specifically stated in his caution interview that he is not suffering from any illness. Yet again it should be noted that the line of cross examination was inconsistent with the evidence given by the accused. At one point it was suggested to the witness that the Accused is suffering from asthma. However at no point the accused confirmed that he told the Officer that he is suffering from asthma. Instead he said that he is suffering from Gout only.
    
17. P.C. Naidu was inquired about the time limits regarding breath tests. I would like to note at this point that although the witness said that the test has to be done within 30 minutes there is no requirement as such. The 30 minutes time limit refers to detention for the purposes of a breath test only. Section 104(1) of the Act provides;
    
    • (a) No breath test or analysis shall be conducted after 2 hours have elapsed from the time the driver has been driving or in charge of the motor vehicle unless the breath test analysis could not have been carried out earlier due to the condition of the driver;
      
    • (b) A person shall not be detained for the purposes of breath test or analysis for more than 30 minutes."
      
18. Further the witness was extensively cross examined regarding the maintenance of the dragger machine. The witness said that once a year the machine is sent to South Australia for calibration. P.C. Naidu denied the suggestion by the Defence that the machine gives wrong data. Although the Officer who performed the dragger test on the accused was cross examined regarding the veracity of the readings of the machine the Defence failed to create any doubt that the readings are inaccurate. Further it appears that the concentration of alcohol found in the blood of the accused according to the test was more than double the prescribed limit.
    
19. Besides if the accused disputes the readings of breath analysing machine regarding the alcohol concentration the burden shifts on the accused to prove that the concentration of alcohol in his blood was less than the prescribed limit. This is clearly discernible from the plain reading of the Regulation 9 of the Land Transport (Breath Tests and Analysis) Regulations 2000 which provides as follows;
    

"In proceedings for an offence under section 103(1) or 105(1) evidence may be given of the concentration of alcohol present in the blood of the person charged, as determined by a breath analysing instrument operated by a police Officer authorized in that behalf by the Commissioner of Police, and the concentration of alcohol determined as aforesaid is deemed to be the concentration of alcohol in the blood of that person at the time of the occurrence of the event referred to in section 10391)(a) or 105(1) where the breath analysis was done within two hours after the event, unless the defendant proves that the concentration of alcohol in his blood at the time of that event was less than the prescribed limit."

20. Now I will proceed to consider the evidence given by the accused. The Accused said that he does not drink alcohol. How ever it was not suggested to the Prosecution witnesses at any point of time. He said that he was driving around the town following an argument with his wife. He said that he did not take any liquor from Lautoka Hotel. He further said that the Police officers questioned him about the ownership of the vehicle and told him to drive towards Lautoka Police Station. The Accused said that he was not shown the results of the dragger test. However during the cross examination the accused said that he cannot recall whether he was given the dragger test result.
    
21. The caution interview of the accused was tendered in evidence with the consent of the Defence. I have perused the said statement of the accused as well. The accused has informed the interviewing officer that he is not suffering from any illness. The accused had answered only up to question 7 and after consulting his lawyer the accused had refused to answer the questions put to him by the interviewing officer any more.
    
22. The burden is on the Prosecution to prove the elements of the charge beyond reasonable doubt. If a doubt is created in the prosecution case the benefit should be given to the Accused. However in this case despite the extensive cross examination by the Defence no doubt could be created in the prosecution case. Further the cross examination of the Prosecution witnesses by the Defence did not fall in line with the evidence given by the Accused.
    
23. Be that as it may I have considered the evidence of the Prosecution witnesses. The Prosecution led evidence that P.C. Naidu is authorized by the Commissioner of Police to operate breath analysing instruments. This was not challenged by the defence at any point. Further the Prosecution produced evidence to prove that the accused was stopped around 1.30 am on the 30th September 2010 and the test was done around 1.45 am on the same day. Therefore it is very clear that the test was done within two hours after he was stopped. Besides the Defence did not dispute this issue as well.
    
24. Moreover the accused failed to prove that the concentration of alcohol in his blood at the time of arrest was less than the prescribed limit. At least the accused did not call an expert witness to challenge the readings of the breath analysing instrument.
    
25. In the circumstances, I am satisfied that the prosecution has proved the charge against the accused beyond reasonable doubt. Accordingly I find the accused guilty of the offence and convict the accused for the offence of driving a motor vehicle whilst there was present in the blood a concentration of alcohol in excess of the prescribed limit.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

24.02.2012