State v Chand [2013] FJMC 274; Traffic Case 373.2012 (5 July 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF THE NORTHERN DIVISION-LABASA

Traffic Case No:- 373/2012

STATE

-v-

Sushil Chand

Before : - Resident Magistrate, Mr Tomasi Bainivalu
For Prosecution : - PC 966 Lui Daurewa
For Accused : - In person.
Date of Hearing :- 17th June, 2013
Date of Judgment :- 05th July, 2013

JUDGMENT

The Charge

1. The accused, Sushil Chand was charged for the offence of Improper operation from base, contrary to the Regulation 32 (1) and 58 of Land Transport (Public service vehicle),Regulation 2000 and section 56 of the Sentencing of the Penalties Decree No 44 of 2009.
   
2. The particulars of the alleged offence was that on the 19th day of December, 2011 at Labasa in the Northern Division, being a driver of a taxi registration number LT 7257, at Labasa Town in front of R.B Patel Supermarket operated for hire the said vehicle other than its approved base.
   

The Evidence

3. The evidence by the prosecution was adduced by one Police officer namely PC 2796 Jitend (PW1) and he was the sole witness who gave evidence on behalf of the prosecution, the said officer booked the accused on the day in question.
   

Prosecution Case

4. The PW1 under oath, told the court the following:-
   

":-I work for 17 years in the Fiji Police Force and I worked @ Labasa Police Station and Nasinu Police Station. I worked @ Labasa Police Station traffic branch before transferred to Nasinu. On the 18/12/2011 I was doing day shift and my instruction was to book Sushil Chand for operating illegally in front of R B Patel, which is not his base. This Sushil Chand is present in court & he is the accused sitting at the dock. The Court noted that PW 1 pointed to the accused sitting at the dock and identified him.

:-The taxi Registration Number was LT 7257 and its operation base is in front of Nivis Motors and I booked accused for improper operation from base.

:-I came to know that accused was operating from the wrong base as he was parking for quite a long time. From where the accused was booked the distance from the nearest bus stand were about 10 chains. The RB car park is used for pick and dropping passengers.

(Underlined emphasis)

5. In cross examination, the following are the questions and answers:-

"Q - Where was the taxi parked?

A - In front of R B Patel

Q - In front of RB Patel did you see a taxi bay there that Labasa Town taxi can ' load for 15 minutes?

A - Yes

Q - How long did you observe my taxi parked there?

A - More than 20 minutes

Q - I put to you that you are lying?

A - I am not lying

Q - Was there any passenger in my taxi?

A - No

Q - Don't you think the taxi was not in operation?

A - The taxi meter was not on.

Q - So that is quite right, because I was waiting for a passenger who was shopping at RB Patel?

A - From my point of view accused was waiting for passengers there.

Q - Did you check the taxi permit?

A - No

Q - Don't you think that you should have checked the taxi meter?

A - I didn't see the taxi permit

Q - So you booked me without checking my taxi meter?

A - Yes that is true.

Q - Don't you think you should check the taxi meter and the taxi permit before booking?

A - According to me, the taxi meter supposed to be on and also the taxi wind screen stated the taxi base of this taxi is Nivis Motors.

Q - Can you give me the difference between taxi base & taxi stand?

A - Taxi stand is where he needs to operate from and taxi base is to pick and drop passengers from."

(Underlined emphasis)

6. In re-examination the PW1 said that taxi supposed to park at any taxi bay for 15 minutes.

Defence Case

7. The accused gave his evidence under oath and the following are brief of what he told the court:-

"On the 19/12/2011 I was driving my taxi and came to R.B Patel taxi bay and stopped there. As soon as I parked there, PW 1 came and asked for my D/Licence. Without telling me what he was going to book me for, he took my licence card and told me that he will serve me the TIN later. The next day PW 1 served me the TIN and it says improper operation from base. I only stopped there to pick my customer. I find that I was wrongly booked and there is no case to answer. I drove the taxi there and stop for a purpose of picking a passenger from there, while driving within the base a taxi is authorized to operate. My taxi was legally authorized to operate from Labasa town and therefore I don't think there was an improper operation from the base."

8. In cross examination by the prosecutor to the Accused, following are what transpired in the hearing:-

"Q - On the 19/12/2011, you came to town and parked at RB Patel base?

A - Yes

Q - Was there any one in the taxi?

A - No

Q - When parked there at R.B Patel, how long did you park there?

A - I just stopped for only 5 mins.

Q - Did any customer come to you?

A - The customer that time was still shopping.

Q - Where is your approved base?

A - Labasa Town

Q - What place in Labasa Town?

A - The base is at Labasa Town and authorized stand is at Nivis Motors, in front

Q - How far is Nivis Motors to R B Patel? How many meters?

A - I can't determine maybe 300 meters.

Q - Did your customer call you to come from Nivis Motors to pick you from R.B Patel.

A - Yes

Q - I put to you that you are lying to this court?

A - I am not telling lies"

9. In re-examination the accused said that the taxi was operating within the base and he tendered the letter from LTC, Public notice. (Accused Exhibit number 1)
(Underlined emphasis)

The Burden and Standard of Proof

10. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

11. The standard of proof in a criminal or traffic trial is one of proof beyond reasonable doubt. This means that this court must be satisfied, and to be made sure of the accused guilt, before the court can express an opinion that he is guilty. And on the other hand, should the court have any reasonable doubt about the accused guilt, the court would then express its opinion, that the said accused is not guilty.

12. The court's decision therefore, must be based exclusively upon the evidence adduced by the prosecutions and the Defence in court during the trial and upon nothing else; and disregard anything else which is not adduced as evidence during the trial.

13. It is my duty as an adjudicator in this summary court to decide on the facts without prejudice or sympathy, to the accused, the victim (if any) and prosecution. And it is also the courts duty to find the facts based on the evidence, and apply the law to those facts accordingly.

The Law

14. The accused is charged under Regulation 32(1) and 58 of Land Transport (Public service vehicle), Regulation 2000 which I reproduce as follows:-

"Subject to this regulation and regulation 34, a must not beot be operated from or within anye;base or stand other than the base or stand sped in the pehe permit under which it operate>"

In my vimy view that the above Regulation 32 must be read in conjunction with of b>of the which gives reasons for a driver to pick up a passenger out of his own stand as allowed under the drivers taxi permit:-

And section 34(2) reads, states that:-

"A taxi stop he pthe purpose #160;of pg up sepassenger at a plaa place while-

(a) traveling within the baom which the #160;taxi iedperat; or

>

(b) returning to the #160;base from which hich the tax0;#16 authorized to oper operate #16er0;base or area."

<

(Uni>(Underliderlined ened emphasis)

15. The latter was also confirmed by his Lip in then the case of Prasad v State [2011] 011] FJHC 710; HAA018.2011 (30 September 2ber 2011) where he stated as follows:-

"...he submits, quite correctly, that section 32 must be read in conjunction with s.34 of&#1b> the Regulatiulations which gives reasons for a driver to pick up a passenger beyond his home base..."

16. In this case the prosecution has to prove that the accused operated the taxi LTxi LT7257 and it was operated from a standase other than the approved stand or based.

Evaluation of the Evidence

17. I have noted the Accused exhibit 1 tendered in court which detailed his application for a new taxi permit and in the said application the accused proposed base is Labasa Town and his proposed Stand is Dau Street.

18. The prosecution also chose not to ask any question to the accused in respect to this piece of document tendered by the accused. Having said thus, it is only prudent to express again at this stage that the burden lies on the prosecution and not the accused.

19. The evidence adduced by the PW1 in court, never he had stated that the accused proposed taxi stand is Dau Street, but he told the court in evidence in chief the following;

"instruction was to book Sushil Chand for operating illegally in front of R B Patel, which is not his base.... operation base is in front of Nivis Motors and I booked accused for improper operation from base..."

And again in cross examination PW1 told the court the following:-

"...According to me, the taxi meter supposed to be on and also the taxi wind screen stated the taxi base of this taxi is Nivis Motors..."

20. Though prosecution had failed to clarify to the court that Dau Street and front of Nivis Motors are the similar taxi stand; this was confirmed in cross when Accused said that his stand is in front of Nivis Motors.

21. And also prosecution had failed to establish the instructions given to PW1 and i.e. "operating illegally in front of R B Patel"; what is the illegality of the operation? And furthermore, what is the difference of a taxi stand and a taxi base?

22. If the court were to accept PW1 explanations on the difference, which he said that "taxi stand is where he needs to operate from and taxi base is to pick and drop passengers from"; then this would clearly in conjunctions with the evidence of the accused, which is his possible defence, that the "purpose of driving his taxi at the front of R.B Patel is to pick one of his customer/passenger."

23.. And subject to this regulation and regulation 34, a must not beot be operated from or within anye;base or stand other than the base or stand "

24. Overall, the only evidence before this court is the testimonies between PW1 and the accused; in my general assessment, I have found that PW1 was not helpful to the prosecution's case with his evidence and the court is not satisfied to accept his evidence; and in cross examination, part of his evidence was discredited by the accused.

The Conclusion

25. Therefore, on the foregoing circumstances this court is of the view that the prosecution has failed to prove the charge of Improper Operation from Base beyond reasonable doubt.

26. Mr Sushil Chand, for this reason you're given the benefit of the doubt and hereby ACQUITED accordingly by this court.

27. 28 days is given to appeal this decision to the High Court.

...................................
Tomasi Bainivalu (Mr.)
Resident Magistrate
Labasa.

02nd/ July/ 2013

Distributions
:-Prosecution copy
:-Accused in person- copy
:-File copy (Tr C/NO 373/2012)