State v Kumar [2013] FJMC 332; Criminal Case 11862.2013 (2 July 2013)

IN THE MAGISTRATES COURT AT NASINU
Criminal Case No. 11862/2011

STATE

-v-

RUPESH KUMAR

PC Ravi Narayan for the Prosecution
Ms. Mareta Tikoisuva for the accused

Ruling on No Case to Answer

1] The accused was charged for following offence, namely;

CHARGE:

FIRST COUNT

Statement of Offence [a]

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 35 of 1998.

Particulars of Offence [b]

RUPESH KUMAR on the 26th day of October 2011 at Nasinu in the Central Division drove a motor vehicle registration number FV983 along Omkar Road, Narere whilst there was present in 100 milliliters of his blood a concentration of 94.6 miligrmmes of alcohol which was in excess of the prescribed limit.

SECOND COUNT

Statement of Offence [a]

DANGEROUS DRIVING: Contrary to Section 98 [1] and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

RUPESH KUMAR on the 26th day of October 2011 at Nasinu in the Central Division drove a motor vehicle registration number FV983 along Omkar Road, Narere in a manner which was dangerous to the public having regard to all the circumstances of the case.

2] The case was heard on 20th and 21st of May 2013. At the end of the prosecution the defence filed no case to answer.

3] The PW1 was PC 3701 Epeli. He said on that particular day he received a report. This accident happened at the junction of Omkar Road and Kings Road.

When he received the report he went with One WPC Elenani. when they reached the scene they saw 2 vehicles was parked at the junction facing towards the Kings Road. They were behind each other. 1 was in front and the other was not far behind. He parked the vehicle and controlled the crowd. There was some crowd there, the bystanders. They were watching the accident and also saw the occupants of the vehicles. He said that he just assisted Traffic Officer, taking measurement and finding out who caused the accident. He said "The person at the back, the accused bumped the one in front. And he was a bit. I could smell he was drunk heh. I notice it he was drunk. What you said? He was drunk. And how can you say that he was drunk? There was smell of liquor from him. And you saying that you smelt liquor from him? Yea. And how far were you standing from him when you smelt liquor on him? I went close to him to talk to. You manage to talk to him? Yes. What did you talk to him about? Ask him why accident happened, said something. So when you smelt liquor on him what did you do? Investigating Officer told me to escort him. For him to be tested, whether he was drunk or. Pardon? Whether he was drunk. For him to be tested? Tested. And tested where? Took him to Nabua." The witness told that the Highway Personnel Corporal Jekope tested the accused.

4] The witness in the cross examination said on 26th October 2011 thy left the Police Station at about 9.40 pm . He said he can recall they were arguing. but he can't recall if someone was holding the accused. When he brought the accused to the police station the accused didn't need assistance. The accused spoke clearly. He said he escorted the accused to Nabua Police station and there also the accused walked himself without any assistance. Then, Corporal Jekope conducted the test.

5] PW2: Corporal 2294 Jekope Saubale: He said he is based on Highway Southern Division Highway Patrol Unit, especially the Queen's Highway and also conduct breath test on drunk and driving suspects. He said that they have office in Nabua Police station to conduct breathalyses test on drivers. The equipment is used to do this breathalyses test is alcotest 7110. He is an Authorized Breathalyses Operator. He has done a Course on this, so he is a qualified Breathalyses Operator. He can recall 26th October 2011. He was on duty on normal Highway Patrol. He said he tested one Rupesh Kumar and It was after 10pm. After the test the result was 43 micrograms of alcohol in 100 milliliters of his breath, it's in excess as the prescribed limit is 35 micrograms. He issued the accused immediately after the test Certificate of his test. This was tendered as Exhibit 1. The witness stated the he was tested at 10.49pm It was 2249 .he conclude the test at 10.52pm. The status of the machine is tendered as Prosecution Exhibit 2.

6] In the cross examination the witness said he cannot recall on the 26th of October 2011 daylight saving was in place. The witness confirmed his signature. He further confirmed that times indicated in EX-1 are non-daylight saving. Non-daylight savings means that the time it should began the test 2249 is really 1 hour ahead that is 2349 hours. The witness admitted that year the day light saving started at 2am to 3am on October 23rd 2011. And 1 hour back to 3am to 2am on February 26th next year. The witness said that he cannot set the time of the machine only people from Headquarters can do it.

7] PW3 is WPC 3696 Elenani: said on 26th October she was on duty and she received a report of accident at Omkar Road junction in Narere at about sometimes around 9.30pm. They reached the scene at 9.50pm. The 2 vehicles had been involved in an accident. The witness tendered sketch plans as EX-3.

8] In cross examination the witness confirmed only front vehicle received a minor dent. She admitted that at the plan she noted that the accident occurred at 9.30pm.

9] Thereafter the defence filed no case submission I am mindful of that.

10] Section 178 of the Criminal Procedure Decree states that 'if at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the Court shall dismiss the case and shall acquit the accused'.

11] In Moidean v R (FCA) (1976) 22 FLR 206 at 208 paras D & E cited and followed practice note issued by the Queen's Bench Division UK reported in (1962) 1 All ER 448.

A submission that there is no case to answer may properly be made and upheld.

(a) When there has been no evidence to prove an essential element in the alleged offence;

(b) When the evidence adduced by the Prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

12] In R. Jai Chand (High Court) (1972) 18 FLR 101 paras C & D

...the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at tat stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it.

In other words at the close of the Prosecution case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence.

13] In R v Galbraith (CA) [1981] 2 All ER 1060 at 1062 paras f & g

On a submission of no case to answer at the end of the Prosecution case, the trial judge shop stop the case and direct an acquittal on these grounds:

(1) If there is no evidence that the crime alleged against the defendant was committed by him

(2) If there is some evidence but it is of a tenuous character (eg. Because of inherent weakness or vagueness or because it is inconsistent with other evidence) and the judge arrives at the conclusion that the Prosecution evidence, taken at its highest is such that a jury properly directed could not properly convict on it.

But where the Prosecution evidence is such that its strength or weakness depends on the view to be taken of a witnesses reliability or on other matters which are generally speaking within the province of the jury and where one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the accused is guilty, then the judge should allow the matter to be tried by the jury.

14] 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 reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to 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 accuseds guilt. That is not the correct test. The correct test is whether you have any reasonable doubt about the guilty of the accused'.

15] The section 104 gives powers to hold breath test on alcohol. It says

"104. - (1) A police officer may require –

(a) a person in respect of whom section 102(2) applies;

(b) the driver of a motor vehicle that has been required to stop under subsection (2); or

(c) a person the police officer believes on reasonable grounds has within the preceding 2 hours driven or been in charge of a motor vehicle when it was involved in an accident,

to undergo a breath test or breath analysis according to the procedures prescribed in the regulations:

Provided that –

(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 or 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.

(2) A police officer may stop any motor vehicle for the purpose of conducting random breath testing in accordance with operational instructions for such testing issued by the Commissioner of Police."

16] Section 104 (1) Proviso (a) of the Land Transport Act in summary holds that no breath test shall be conducted after two hours have elapsed from the time the driver has been driving or was in charge of a motor vehicle unless the test could not be conducted earlier due to the condition of the driver. In this case it was revealed the driver was ok for the test.

17] In this case the defence contented the Ex-1, the breath test report is not valid in law as it was not taken in accordance with the Section 104 (1) Proviso (a) of the Land Transport Act. They said the Breath Test conducted 2 hours after the event.

18] The prosecution evidence revealed the accident occurred around 9.30pm on 26th October 2011. Time can be confirmed by WPC Elenani's evidence. She said that:

1. The time on her sketch reports indicate the accident occurring around 9.30pm. Under cross examination she confirms that 9.30 was the time in which the report was received of the accident and that the accident.
   
2. She confirms that the driver of the second vehicle was steady on his feet and spoke clearly to her.
   

100. She confirms that there was a slight bump at the edge at the bottom of the first vehicle but confirms it could have been there from before.
     

19] The witness who breath test was taken Corporal 2294 Jekope Saubale confirms under cross examination;

1. That the breath test was conducted at 23:49 hours which is 11:49pm as the daylight savings time.
2. It was conducted at 23:51 hours which is 11:51pm

100. He also confirms that the person upon whom he conducted the test did not need any assistance walking into or out of room. Nor did he need assistance during the test.

4. He confirms that he followed all instructions properly.
5. Cpl Jekope did not identify in Court the accused as the person upon whom he conducted the breath test. There was no dock identification of the accused by this witness.
   

20] Chronology of the incidents can be lined up as follows;.

1. Report of accident was received at 9.30pm.
2. Police arrived left the Police Station at 9.40pm.

100. Accident likely occurred 10 to 20 minutes earlier according to Prosecution witnesses. Accident therefore occurred in the window between 9.20 to 9.30pm allowing a good 20 t0 25 minutes before Police arrival.

4. As it was daylight savings time, breath test commenced at 11.49pm.
   

21] It could be calculated that two hours from 9.20 to 9.30pm would be 11.20 or 11.30pm. The test was conducted at 11.49pm, some 19 to 29 minutes after the event or when the accused was in control of his vehicle. In Pursuant to Section 104 (1) and subsection (a) of the proviso, no breath test should have been conducted after 11.30 pm unless the test could not have been conducted earlier due to the driver's condition. The prosecution witnesses confirmed the driver's condition was good, he was independent. I therefore hold the breath test has not been done according to the prescribed manner in Section 104 (1) Proviso (a) of the Land Transport Act, there for in valid in law. Therefore the accused cannot be convicted for count 1.

22] Regarding Count 2 – Dangerous Driving the Prosecution has not led evidence of the manner of driving of the accused to show that he drove in a reckless and dangerous manner. To convict a person for this charge, In Lasike v State [2002] FJHC 159 Her Ladyship Justice Shameem confirmed English House of Lords in R v Lawrence (1982) AC 510 which identified two limbs in dangerous driving:

1. Driving in a manner as to create an obvious and serious risk of causing physical injury to some other person...or of doing substantial damage to property; and
   
2. That in driving in that manner the defendant did so without having any thought to the possibility of there being any such risk, or having recognized there was some risk involved, had nonetheless, gone on to take it.
   

23] No evidence has been led or tendered by Police with regard to this charge. This charge fails invariably.

24] The prosecution failed to observe necessary procedure of the law with regards to count 1. With regard to count 2, the prosecution fails to prove necessary ingredients. In Pursuant to Section 178 of the Criminal Procedure Decree, I hold there is no case to answer. The accused is acquitted and discharged.

28] 28 days to appeal

On 02nd July 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu