Pillai v Reginam [1977] FJSC 109; Criminal Appeal 101 of 1977 (28 October 1977)

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION
Criminal Appeal No. 101 of 1977

PON SAMI PILLA
s/o Sundresan Pillai
(Appellant)

v

REGINAM
(Respondent)

JUDGMENT

On 4th July 1977 the appellant was convicted by the Magistrates Court Suva of driving a motor vehicle whilst under the influence of drinks contrary to section 39(1) of the Traffic Ordinance and was fined $175. He was also disqualified from holding or obtaining a driving licence for twelve months.

The appellant appeals against his conviction on the following grounds:

"(a) The learned Trial Magistrate erred in law and in fact in convicting your Petitioner on the evidence of the 4th Prosecution Witness when such said Witness was not qualified to give the opinion evidence he did. Hence there has been a substantial miscarriage of justice;

(b) That the verdict is unreasonable having regard to the evidence as a whole."

The appellant had, according to the evidence, driven off the road in Ragg Avenue and was brought to the Central Police Station in a police landrover.

According to Cpl. Armogam, he asked the appellant if he wished to see a Government doctor. He refused to be examined either by a Government or by his own doctor. He allegedly said, "You people brought me in, you examine me."

At the trial, therefore, there was no medical evidence as to his condition.

Constable Wilisoni who brought him to the police station from Ragg Avenue said,

"He couldn't stand properly. I had to hold him. He heavily smelt of liquor."

Cpl. Armogam who first saw him at the police station said,

"He was staggering, unsteady on his feet, eyes bloodshot and heavily smelt of liquor."

Armogam handed the appellant to Supt. Iliasa to whom also the appellant allegedly said, "I am not going to hospital for medical examination."

According to Supt. Iliasa, he agreed, however, to subject himself to tests given by the officer. Supt. Iliasa then said -

"Accused was then taken outside where there is a security light. There is a white line beside the traffic office. I told the Accused that he would have to stand at one end - I would stand at other end.

He would then have to walk straight along line. Investigating Officer and other police constables also present.

Accused started to walk. Whilst walking - not walking straight on the line. He zig-zagged.

Where I was standing he turned about. As he was about to take second step he fell flat on his face. He smelt of liquor. I came to conclusion that the man was drunk which incapacitated him from driving a vehicle. I instructed Investigating Officer to arrest him and lock him in the cell."

The appellant in his unsworn statement said that he had pleaded with the police t o let him be examined by his doctor but that they had refused. He claimed that he had had only four or five drinks at a party and was not drunk at all. He called no witnesses.

The learned Magistrate could place no reliance on this statement which he rejected.

In the passage from Supt. Iliasa's evidence quoted above learned Counsel for the Defence takes objection to the statement "I came to the conclusion that the man was drunk which incapacitated him from driving a vehicle". This, he says, was an opinion which the Court should not have admitted in evidence (R. v. Davies 1962 3 All E.R. 97). This, however, was only one sentence in a fairly detailed evidence of what the appellant did from which the Court was in a position to draw its own conclusion. As was said in R. v. Neal (1962 Crim L.R. 698 at 699):

"It may not be easy, when examining a witness as to what he observed, to exclude the addition by him o f some observations as to what he thought his observations indicated."

In both the cases cited above the Court came to the view that there was ample evidence on which the trial Court was justified in coming to the verdict of guilty.

In my view the situation here is very much the same.

The appeal is dismissed.

(Sgd.) G. Mishra
JUDGE

Suva,
28th October 1977