State v Jiang Peng [2014] FJMC 116; Traffic Case 254.2012 (30 June 2014)

MAGISTRATE’S COURT
SUVA
CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS

Traffic Case No. 254 of 2012

State

.v.

Jiang Peng

For State: PC Raymond (Police Prosecution)
Accused : Present – Ms R Naidu and Ms Rakai (Sherani)

RULING

Introduction

At the close of the prosecution case the Defence made a submission for a no case to answer. 9 witnesses were called for the Prosecution.

This Court gave both parties time to file written submissions. Both sides have made written submissions.

The Charges

The Charges that were laid against the defendant is as follows:

First Count

Statement of offence (a)

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to Section (4) (b) and 114 of Land Transport Act, Number 35 of 1998.

Particulars of offence (b)

JIANG PENG, on the 23rd day of December, 2012 at Suva in the Central Division, drove a motor vehicle registration number YOS 666 on Laucala Bay Road, at a speed dangerous and in a manner dangerous to another person, involved in an impact, occasioning grievous bodily harm to SHARON SWANN, SHUTAO SUN and ANDREW SWANN.

Second Count

Statement of offence (a)

FAIL TO UNDERGO BREATH ANALYSIS IN ACCORDANCE WITH THE DIRECTION OF A POLICE OFFICER: Contrary to Section 103(1)(b) and 114 of the Land Transport Act No:35 of 1998.

Particulars of offence (b)

JIANG PENG, on the 23rd day of December, 2012 at Suva in the Central Division, upon being required by a Police Officer namely WPC 3607 LAISA to submit sufficient sample to breath analysis under Section 103 (1) (b) of the Land Transport Act No.35 of 1998 failed to undergo to the analysis in accordance with the direction of the said WPC 3607 LAISA.

Third Count

Statement of offence (a)

DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97 (1) (2) (b) (c) and 114 of Land Transport Act Number.35 of 1998.

Particulars of offence (b)

JIANG PENG, on the 23rd day of December, 2012 at Suva in the Central Division, drove a motor vehicle registration number YOS 666 on Laucala Bay Road at a speed dangerous and in a manner dangerous to another person, involved in an impact occasioning the death of ANDREA SWANN.

The Submissions

In summary the defendant’s submission was that the charges were defective and that the accused had no case to answer. The position of the prosecution was that they acknowledged the oversight in the charges however they contended that it did not prejudice the accused in defending himself.

The Law
No Case to Answer

Part XIII - of the Criminal Procedure Decree 2009 provides for the Procedure in Trials before Magistrates Courts. Division 1 of Part XIII deals with Provisions Relating to the Hearing and Determination of Cases. Section 178 of the Criminal Procedure Decree 2009, falls within Part XIII and it provides 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.”

Section 178 of the Criminal Procedure Decree 2009 is identical to Section 210 of the Criminal Procedure Code, Cap 21, which it has replaced.

This Court is also guided by a long standing Criminal Practice Direction, cited as A Practice Note [1962] 1 All ER 448 which provides that:

"A submission that there is no case to answer&may pmay 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 cution has been so discredicredited as the result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Apart from these two situations a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If however, a submission is made that there is no case to a, the decisdecision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a nable tribunal might conviconvict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a co answer."

This Court also takes note of R v. Jai Chand [1972] 18 FLR 101, where Justice Grant

"the decision as to whether or not there is a case to answernswer&#160sshould depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable nal properly directing its mind to the law and the evidencedence 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".

Charges

Section 58 of the Criminal Procedure Decree sets out the requirements for a valid charge and it states that "every charge or information shall contain — (a) a statement of the specific offence or offences with which the accused person is charged; and (b) such particulars as are necessary for giving reasonable information as to the nature of the offence charged."

Analysis

This Court has noted the submissions made by the Defence and the Prosecution. This Court has further noted the relevant laws in relation to no case to answer and the charges.

The charges that were laid against the accused are in issue in this case. The Prosecution in its submission stated that "the prosecution regrets their oversight in respect of the in the charge which came about due to human typing error." The Defence has submitted that the charges are defective.

This Court will in turn consider each of the 2 serious charges that were laid against the accused person.

For the 1st Count the Prosecution charged the accused person with Dangerous Driving Occasioning Grievous Bodily Harm. The relevant provision of the Law governing this is Section 97 of the Land Transport Act. The 1st Count as it is worded refers to Section (4) (b) of the Land Transport Act. No such section exists. The Particulars of the offence for the 1st Count is an amalgamation of Section 97 (4) (b) and (c) of the Land Transport Act. The accused if he was to be charged under Section 97 (4) of the Land Transport Act cannot be charged for both provisions, that is Section 97 (4) (b) and (c) of the Land Transport Act in one count. The Law is clear it states that a person can only be charged under (b) or (c).

The elements that the prosecution need to prove for Section 97 (4) are that:

a. The Accused drove a vehicle;

b. He occasioned grievous bodily harm to another person;

c. In an impact;

d. At the time of the impact the accused was either drunk or speeding or driving in a manner dangerous to other road users.

For the 3rd Count the Prosecution charged the accused with Dangerous Driving Occasioning Death. The specific offence which the Prosecution has stated in the charge is Section "97 (1) (2) (b) (c) of the Land Transport Act". This Court notes that the particulars of the offence are worded to include amalgamation of Section 97 (2) (b) and (c) of the Land Transport Act which is that the accused drove "...at a speed dangerous and in a manner dangerous to another person..." A person cannot be charged under both sub-sections (b) and (c) of Section 97(2) of the Land Transport Act in one count. The Law clearly states that a person can only be charged under (b) or (c).

This Court notes that in Narayan v State [201HC 463; HAA041.A041.2010 (21 October 2010), Justice Priyantha Fernando, stated that "....97(2) (b) is "driving&#16 vehicle at a speed dangerous&#1 another personerson or persons". Driving a vehicvehicle "in a m&#160 dangerous to another nersopersons" iss" is specifically mentioned in 97(2) (c), but not in Section 97(2) (b) as mentioned in the charge.

efore, it is clear that in the charge trge the sub-section mentioned in the statestatement ment of offence differs from the particulars mentioned in the particulars of offence. It should be noted that two distinct offences are mentioned in Section 97(2) (b) and in 97(2)(c).
The legislature has specifically made specific separate provisions for "driving at a speed dangerous;t160nother personerson" and "driving in a manner dangerous to ar person".

The elements that that the prhe prosecution need to prove for Sectio(2)

a. The Accused drove a vehicle;

b. He occasioned death of another person;

c. In an impact;

d. At the time of the impact the accused was either drunk or speeding or driving in a manner dangerous to other road users.

In addition this Court finds from the information before it that the elements of the offences for the 1st and the 3rd counts are not set out in the charges laid down. The charges are defective and a nullity. One of the essential features of criminal and traffic cases is that the accused person or the defence should be able to know from the charges the exact nature of the charges and then be able to prepare his/her defence.

This Court acknowledges that it has mainly dealt with Counts 1 and 3 and not touched Count 2 which is a lesser charge. As a matter of practicality this court has not dwelled on the 2nd Count.

As a nullity is nothingness, a lack of existence and totally void from the start. As such there has been no case from the beginning and it is not legally possible for the accused to launch a no case to answer submission where there has not been a case at all. Therefore, this Court finds that Section 178 Criminal Procedure Decree 2009 does not come into play at all; and dismisses the charges for Counts One and Three and discharges the accused of Counts One and Three.

Court Orders – Counts One and Three of the charges against the accused are dismissed.

Chaitanya Lakshman
Resident Magistrate
30th June 2014