State v Govind [2020] FJMC 132; Miscellaneous Case 5 of 2020 (27 July 2020)

IN THE RESIDENT MAGISTRATE’S COURT
AT NADI
TRAFFIC JURISDICTION

Miscellaneous Case No: 5 Of 2020

BETWEEN : THE STATE

AND

RONALD JAIN GOVIND

BEFORE : NILMINI FERDINANDEZ
RESIDENT MAGISTRATE

Date of Sentence : 27^th day of July, 2020

Corporal Va for the Prosecution
Accused present

JUDGMENT

1. The applicant RONALD JAIN GOVIND has been issued with a Traffic Infringement Notice (TIN) for the offence of Driving Motor vehicle with non-conforming mudguard contrary to Regulation 92 (2) and 122 of Land Transport (Vehicle Registration and Construction) Regulation 2000. He has initiated this case by challenging the said Traffic Infringement Notice (TIN).
   

Particulars of the offence states that:

RONALD JAIN GOVIND on 1^st day of November, 2019 at Queens Road, Nadi, in the Western Division, drove a motor vehicle registration number DJ 565 without mudguard being fitted for the wheel on axle of said vehicle.

3. BACK GROUND

3.1 This application has been originally filed in Sigatoka Magistrate’s Court. However, the learned Resident Magistrate in Sigatoka has transferred this matter to Nadi MC on the 7^th January 2020 and the matter has been first mentioned in my court on the 11^th February 2020.
3.2 Despite the request of the prosecution for time to check on this case as the offence has actually taken place in Navutu, Nabou which is closer to Sigatoka than Nadi, the applicant has insisted because he is unable to come to court again and again.
3.3 As such, the case was fixed for hearing for 28^th April 2020, on which date the trial has commenced and the applicant has opted to place his evidence before court first.
3.4 The applicant was cross examined and Prosecution’s only witness Kunal Krishan Narayan was called to give evidence on the 26^th may 2020.
3.5 Thereafter, the hearing has been concluded and upon the grant of 14 days by court to file Closing Submissions, only the applicant has filed his Written Submissions in writing. However, the Respondent-Prosecution has informed court that they would rely only upon the evidence in the hearing.

4. THE LAW

4.1 The applicant in this case has been charged for the offence of Driving Motor vehicle with non-conforming mudguard contrary to Regulation 92 (2) and 122 of Land Transport (Vehicle Registration and Construction) Regulation 2000,

4.2 Regulation 92 (2) of the Land Transport (Vehicle Registration and Construction) Regulation 2000 provides that;

92 (2) Mudguards must be provided for the rear wheels of every motor vehicle other than a motor cycle and trailer and must be constructed as follows-

(a) The width must not be less than the width of the tyre or tyres except that if the body is the tray type of width 2.2m or more than the mudguard, must not be less than 380mm in width;
(b) The mudguard must give protection at and above a point at a height above ground level not exceeding 1/3 of the distance such point is rearward of the centre of the axle or 230mm whichever is the greater;
(c) The protection offered by the mudguard must be continuous to a point 30 degrees forward of the vertical centre line of the rear axle except on a motor vehicle used solely for the purpose of hauling a semi-trailer;
(d) The rear surface of the rear mudguards fitted to tray type motor vehicle or trailer of width 2.2m or more must be white or silver.

4.3 The regulation 122 of Land Transport (Vehicle Registration and Construction) Regulation 2000 provided the penalty for offences committed under this act.

4.4 Section 58(1) states that “A legal burden of proof on the prosecution must be discharged beyond reasonable doubt”.

4.5 Accordingly the prosecution in this case needs to prove beyond reasonable doubt that the applicant has committed an offence provided in this act by Driving a Motor vehicle with non-conforming mudguard.

5. Applicant’s Evidence

5.1 When the applicant started giving evidence, he explained to court at length how he was charged for not having a mud flap and was ordered to pay a fine of $25 by a police officer on the relevant day.
5.2 He explained to court that he has pleaded with the officer that 3 of the mud guards were still on the car, while the left side rear mud flap has been damaged by the dogs chewing on it and that ¼ of the damaged mud flap was still on the mounting.
5.3 When he was charged for failure to have a mud flap, he has tried to explain to the officer that he would take steps to replace it. However, the witness was of the view that the officer was determined to charge him and he stated that the officer took about 25 minutes to write the ticket.
5.4 After going home the witness has checked the vehicle as well as the ‘Passing Slip’ of the motor vehicle and the Check List of the LTA when it passed the vehicle.
5.5 Then he has realised that nowhere in the LTA Vehicle check list it says that the Mud flap is necessary. The witness tendered to court a copy of the said document marked as Ap.Ex.1.
5.6 The witness has also taken photos of the car showing Dog bite marks and scratches on the bumper and the mud flaps and informed to court that the dogs biting vehicle parts is a common occurrence in Fiji. These photographs, which show the Right side rear mud flap and the scratch marks and the dog bite marks, were tendered to court marked as Ap. Ex 2-4.
5.7 When he checked the left side rear mud flap of the car, he has noted that the mounting was still there and he has later taken steps to replace the broken one.
5.8 He mentioned to court that the car that was charged actually belongs to a friend who lives in New Zealand and that he looks after it and use it.
5.9 He further mentioned that he has also got one BMW car which is not fixed with mud flaps from the factory. He tendered to court 3 more photos marked as Ap.Ex.5-7 showing different kinds of cars that do not come from the factory with mud flaps and still get passed by the LTA. He also pointed out to court that there are thousands of Hybrid cars running around Fiji without any mud flaps.
5.10 He informed court that he feels discriminated that only he was issued with a ticket for not having one mud flap.
5.11 Upon cross examined by the prosecution, this witness further stated to court that although the police officer stopped him while he was driving the vehicle bearing no. DJ568 along Queens Road and ‘booked’ him for non-confirming mud guards, he has never gone around the car to see if the whole mud guard is missing or a part of it was still remaining.
5.12 The witness further stated through re-examination that he would have been happy if the officer had given him a warning or he had come around the car to see whether the whole mud guard is actually not there and had given him a defect ticket.

6. Prosecution’s Evidence

6.1 PW1 Kunal Krishan Narayan, was the police officer who had charged the applicant in this case, on the 01^st November 2019 at about 1328 hrs. While he was on Highway patrol that day he has stopped the vehicle bearing Registration number DJ568 and has charged the applicant for Non-conforming mud guards under LTA Regulation 92(2).
6.2 When the witness went around the car he has seen only 3 mud guards on it and the mud guard on the right hand side rear axle has been missing. Acting upon the powers given to police officers by LTA regulation 105, he has then charged the applicant under Regulation 92(2).
6.3 He recognized in court the TIN he issued charging the applicant for the said offence that day.
6.4 Through cross examination, when this witness stated that he charged the applicant for the missing right hand side rear mud guard, the applicant pointed out that in fact the right hand side rear mud guard has been there at that time and that only the left hand side mud guard was missing. However, the witness replied that at the time he booked the applicant, the right hand side rear mud flap has not been here.
6.5 At this point the applicant showed the witness Ap.Ex.3 and questioned him whether it was a photo of the right hand side rear mud guard, to which the witness replied “From this photo we can’t say whether it is the right hand side rear mud flap”.
6.6 However, upon examination of the Ap.Ex.3 while carefully taking into consideration the angle of the photo and the positioning of the mud flaps behind the tyre, an inference can be arrived upon that the mud flap shown in Ap.Ex.3 is, in fact, the right hand side rear mud flap.
6.7 The applicant also suggested to the witness that he did not go around the car but only issued the ticket to the applicant upon the instructions of a different officer who has gone around the car and has informed the applicant that he would be given a ticket for not having the mud flap. To this, the witness replied that before he wrote and gave the ticket to the applicant he too has gone around and checked the car.
6.8 When the applicant pointed out that he has apologized to the police officer that the dogs have chewed the mud flap and promised to replace it as soon as he went home, the police witness denied it and stated that he never said that he will replace it.

11. Evaluation of law and evidence

11.1 The applicant in this case has been charged by the police as per the Regulation 92 (2) and 122 of Land Transport (Vehicle Registration and Construction) Regulation 2000.
11.2 Regulation 122 states that a person who commits an offence under these regulations is liable on conviction to the penalties for that offence in column 5 of the schedule 2 to the Land Transport (Fees and Penalties) Regulation 2000 and the fine for the breach under regulation 92 is also mentioned therein.

11.3 The police officer stated to court that he acted with the powers vested upon him by Regulation 105. As such, at this point I bring my attention to the provisions in the said Regulation.
11.4 Regulation 105 of the Land Transport (Vehicle Registration and Construction) Regulation 2000 provides that;

If a police officer or an authorised officer is of the opinion that there is any deficiency in the vehicle inspected under the Act, the officer may-

1. Order the vehicle to be taken to another place for a further inspection; or
2. Issue a defect order under regulation 106.
   

11.5 Although the police officer stated that he issued the TIN to the applicant because the Right hand side rear mud flap of the applicant’s car was missing, the applicant was vehement in confirming that it was the left hand side rear mud flap that had been bitten off by the dogs.
11.6 It was also suggested by the applicant that the police officer who charged him did not even go near his vehicle but only issued the TIN upon the request of the other officer.
11.7 Applicant has submitted a photograph (Ap.Ex.3) to court successfully proving that the right hand side rear mud flap has been available even at the time the TIN was issued. Therefore, the applicant’s stand that the police witness has not gone near the vehicle before he issued the TIN seems believable.
11.8 On the same note, this court is unable to believe the police officer’s evidence that it was the right hand side rear mud flap that was missing. As such, applicant’s suggestion that the police officer merely issued the TIN depending only upon the words of another officer can be believed.

11.9 On the other hand, the police witness has been acting under the powers vested upon him under the Regulation 105 of the Land Transport (Vehicle Registration and Construction) Regulation 2000 and the said Regulation expects such a police officer either to order the vehicle to be taken to another place for a further inspection or issue a defect order under regulation 106, if he was of the opinion that there, in fact, was a deficiency in applicant’s vehicle. The police officer has not been vested with any authority to issue a TIN simply because he was having any opinion about a defect in a vehicle.

11.10 Further, the Regulation 106 (3) expects the relevant police officer to issue a defect order directing the driver to rectify the defect within 14 days.

11.11 Even though the Regulation is silent as to when the applicant could be charged and become liable to pay the fine mentioned in column 5 of the schedule 2 to the Land Transport (Fees and Penalties) Regulation 2000, for breaching the provisions under Regulation 92(2), it is very clear that before issuing the Traffic Infringement Notice (TIN) for Driving a Motor vehicle with non-conforming mudguard and ordering the applicant to pay a fine of $25, the police officer needed to issue a Defect Order under Regulation 106, directing the applicant to rectify the defect within 14 days. Only if the applicant has failed to rectify the defect within 14 days, it seems just and correct to issue him with a TIN.

6.9 When it was pointed out through cross examination to the police witness that the applicant has pleaded with the police officer at the time of issuance of the TIN and promised to replace the ripped off mud flap as soon as he has gone home, the police witness denied it and stated that the applicant never said that he will replace it. This shows that the police officer has been ignorant of the proper procedure to be followed if he had noticed any deficiency in any vehicle and that he has erred in following a wrong procedure by issuing the TIN to the applicant without giving the applicant any chance to correct the defect.

12. Conclusion

12.1 While the Prosecution has been unable to prove the charge against the applicant beyond reasonable doubt, it is also evident that the police officer has adopted an incorrect procedure in charging the applicant for Driving a Motor vehicle with non-conforming mudguard and issuing the TIN.
12.2 Therefore, this court is unable to be satisfied that convicting the applicant for Driving a Motor vehicle with non-conforming mudguard is appropriate.

13. Accordingly, I acquit the applicant from the charge against him and dismiss the Traffic Infringement Notice (TIN) issued to him.
14. 28 days to appeal.

DATED at Nadi on 27^th day of July, 2020.

.........................................
Nilmini Ferdinandez
RESIDENT MAGISTRATE