State v Rasilawale - Judgment [2016] FJMC 135; Traffic Case 1650.2011 (11 January 2016)

IN THE RESIDENT MAGISTRATE'S COURT
AT NAUSORI

IN THE REPUBLIC OF FIJI ISLANDS

Traffic Case No: 1650/11

STATE

V

JOSAIA RASILAWALE

Prosecution : Cpl Rao - Police Prosecution.
Accused : Present – In Person

JUDGMENT

Josaia Rasilawale you were charged as follows:
Refusing to undergo breath analysis when required to do so by a Police Officer: Contrary to section 103 (1) (b) and 114 of Land Transport Act No. 35 of 1998.

Particulars of the Offence [b]

Josaia Rasilawale on the 15^th day of January, 2011 at Nausori in the Central Division upon being required by a police officer namely CPL 2846 Paulino refused to undergo that breath analysis with the direction of the said Cpl 2846 Paulino.

The Law

The relevant sections and provisions of the Land Transport Act 1998 that the prosecution relied upon in charging the accused are as follows:

"103. - (1) 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 blood; or

(b) fails or refuses to undergo a breath test or breath analysis when required to do so by a police officer, commits an offence.

(2) A person who is convicted of an offence under subsection (1) is liable to the prescribed penalty.

114. - (1) The penalties prescribed in the third column of the Schedule are prescribed as the maximum penalties for offences against the sections of the Act respectively mentioned.

(2) Where the prescribed penalty is shown by "$..../..... months" or similar, the court may impose a fine up to the maximum amount shown or a term of imprisonment up to the maximum period shown or both such fine and such imprisonment.

(3) Where the prescribed penalty includes disqualification, subsections (2) and (3) of section 59 apply.

(4) Where the prescribed penalty includes demerit points, subsections (2) and (3) of section 88 apply."

The essential elements of the offence which the prosecution is to prove in order to prove the charge is that:

a. the accused,

b. refused to undergo a breath test analysis when required to do so by Cpl Paulino,

The burden of proof in this case is on the Prosecution, the State. The Prosecution is required to prove all the elements of the charge the accused is charged with beyond reasonable doubt. If the defence establishes to the Court's satisfaction that there is reasonable doubt, then the prosecution fails.

Lord Denning in Miller v Minister of Pensions, in commenting on the proof beyond reasonable doubt stated:

"it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice."

The Evidence

The Prosecution called 3 witnesses in this case. The accused gave sworn evidence.

Analysis of the Law and the Evidence

At the outset this Court would like to point out that there was no confession or admission by the accused.

The prosecution called 3 witnesses. The accused gave evidence in his defence. The Court noted all the evidence and the documents that were tendered in this Court.

The evidence of PW-1 PC Pauliasi was that they received a call from the operations team that a group were drinking in a van. They proceeded to scene after 5 to 7 minutes’ drive. At the scene PW-1 saw accused and some others inside the van drinking. PW-1 got of his vehicle and approached the accused who was in the driver’s seat. PW-1 found the accused to smell of liquor. He also noted that the accused eyes. When the accused was requested to get off the vehicle the accused was noted by PW-1 to stagger. The accused was escorted by PW-1 to Nausori Police Station and handed over to Cpl Paulino (PW-2). Cpl Paulino conducted the test in presence of PW-1. According to PW-1 the accused refused to blow when he was asked by PW-2 to blow on the instrument. The accused was then locked in the cell. PW-1 was cross-examined by the accused and he told the court in cross that he told the accused that he was drunk and in control of the vehicle.

PW-2, Cpl Paulino has 18 years of police service. According to him the accused brought in by PC Pauliasi (PW-1). PW-2 asked the accused to blow on the instrument. The accused then lectured him on PW-2’s work. PW-2 requested the accused 3 times. He did not blow. In cross-examination PW-2 told the court that the accused was asked to blow 3 times. Each time he held the machine aside and lectured him. The accused did not put his mouth on the mouth piece at any time.

The evidence of the accused on oath was that they were drinking grog where they had parked and after grog session they got ½ bottle rum to wash-down. According to the accused they drank little bit and the he stopped. When he was about to leave the vehicle he called home to get the car and drive him from the scene. After ½ an hour police vehicle came. When he got off to relieve himself the police vehicle came towards him. From there they took him to police station.

In cross examination the accused told the court that he was the driver of RSL 033. He had some drinks. The vehicle was parked on the roadside. The vehicle was in his charge. He was arrested and taken to police station. He was asked to blow and he blew 3 times.

The Court accepts the prosecution witness’s version of events. They have no reason to make up any evidence or any animosity towards the accused. They have succinctly and coherently stated in Court what they saw. The accused was drinking, he was taken up for tests and he refused. The prosecution case is proven beyond reasonable doubt.

This Court from the evidence before it finds the accused guilty of the offence he is charged with. The accused is convicted as charged.

Chaitanya Lakshman

Resident Magistrate

11^th January 2016