Ali v Reginam [1977] FJSC 132; Criminal Appeal 4 of 1977 (25 February 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. 4 of 1977

BETWEEN

UMAR ALI alias Abbas
s/o Abdul Rahiman
Appellant

AND

REGINAM
Respondent

Mr. Jay Raj Singh & S.R. Shankar for the Appellant
Mr. K. A. Kumar for the Respondent

JUDGMENT

Umar Ali alias Abbas was convicted in the Magistrate's Court at Tavua before Mr. M. B. Shaw Yates on 18th November 1976 on three counts of contravening the Traffic Regulations 1974 first of carrying excess passengers contrary to Regulation 98(1) secondly of failing to keep and carry driving records contrary to Regulation 1w6 (1)(a) and thirdly of failing to wear a public service vehicle drivers' badge contrary to regulation 24(1)(9)(a).

There are several grounds of appeal but the principal ground and that which the appellant put in the forefront of his case was that the learned Magistrate declined to grant the appellant an adjournment. The offences charged were alleged to have been committed on 23rd December 1975 and the summons first came before the Court on 12th April 1976, when the accused and his solicitor were both present. The case was adjourned for mention to 14th June, on which date although no mention is made on the record, it must have been further adjourned to 16th August. On that date the accused was not present, and trial was fixed for 19th October. I would observe in passing that if an accused person does not attend on a minor offence, and his trial can proceed, it should proceed in his absence. On 13th October the prosecution and accused's counsel appeared and the prosecution asked for another date as a prosecution witness was not available. The trial was then fixed for 18th November. On that day I am informed by Mr. Shankar that he had asked the Magistrate at Ba for an adjournment because he was engaged in the Supreme Court and had been told that his request would be acceded to if the prosecution agreed. He concedes, however, that owing to what he was called 'a failure in communications' the prosecutor was not informed. I think that legal practitioners must understand that the business of the Magistrate's Court is not to be held up because counsel wishes to appear in the Supreme Court. Mr Shankar has a partner to whom he could quite well have handed this particular brief and if he could not, he should have instructed someone else. If he could not get anyone else, this is a case which should have gone on without the counsel. I am not prepared to accept the Magistrate's refusal to adjourn this case as a good ground of appeal.

I pass then to the other grounds. Mr. Shankar urges that the convictions must be set aside because they are based upon hearsay evidence. The witness Jemesa Koroi says that he saw heavy public service vehicle AL290. He saw by a board on the bus that it was licenced to carry 61 passengers and he counted 63. The gravamen of the offence on this count is that the vehicle which the accused was driving was carrying a greater number of passengers than were authorised under the licence under which the vehicle operated. The witness says that he checked the board on the bus and it said that the bus was licenced to carry 61 passengers. Concerning this the witness said "I checked the board on bus says 61." I interpret this - and I pause to say that it should not be necessary for this Court to interpret a Magistrate's notes for they should be clear beyond any need for interpretation - to mean that the witness checked the board on the bus and it showed that the bus was licensed to carry 61 passengers. The witness proceeds "It had no authority for standing passengers. I pointed it out to driver." Now Regulation 98(2) so far as it is material reads as follows:

"98.(2) On every public service vehicle there shall be conspicuously displayed in letters and figures -

(a) in the case of omnibus, in the interior of the vehicle above the windscreen and the left; and

(b) in the case of a taxi or hire car, in the left hand bottom corner of the windscreen,

a notice stating in the English language the number of seated passengers which the vehicle is licensed to carry and the number of additional standing passengers, if any, which the vehicle is licensed to carry at such time as it is lawful to carry standing passengers."

Now that notice required by s.98(2) is a statutory notice which is required to appear on every omnibus, which term is defined in s.2 of the regulations to mean a heavy public service vehicle. The witness Jemesa Koroi therefore saw an omnibus and it had the prescribed notice displayed stating that it was licenced to carry 61 passengers. He counted 63. Ergo the vehicle was loaded in excess of its capacity and the driver had committed an offence against the Regulation. Mr. Shankar referred to R v Eggers Criminal Appeal No. 49 of 1973 in which the present Chief Justice pointed out that evidence concerning a vehicle licence was hearsay. But that is not this case. Here the regulation requires a notice. The vehicle had that notice. The number of passengers was in excess of the notice. I think the conviction on this count must stand.

Then Mr. Shankar argued that the conviction on the second count was likewise based upon hearsay evidence. But I do not think that is the case. The witness Jemesa said the accused said he did not have a driving record. The accused said the policeman did not ask him for his driving record.

The Magistrate believed the policeman. Regulation 126(1) provides that a driver of a public service vehicle must carry with him at all times while driving the vehicle a current record showing the periods during which the driver is employed. Mr. Shankar submitted that there was no evidence that the accused was the driver of a public service vehicle. But the accused swears that he is a bus driver. Mr. Shankar says that the giving of his occupation is not part of his evidence on oath but I have never known of any practice other than for a witness to take the oath and give his name, address and occupation after he has taken the oath. He did not deny that he was driving heavy public service vehicle AL290. Moreover he swore that he was not asked for his driving record and he denied saying it was at home. It seems to me that there was clear evidence on the second count upon which the Magistrate, if he believed it, could act. He did believe it, and the conviction there must stand.

Again on the third count the accused said he had his badge on. He denied saying it was at home. He said that the witness did not ask for it. The witness said that accused was not wearing his badge and the Magistrate believed him. There was a breach of regulation 24(9a) which requires that a driver wear or carry his badge while he is driving. The appeal against conviction on this count also fails.

The appellant also complains that he should have been advised of his right to cross-examine. The record suggests that he was and there is no real suggestion that he was not. Nor can I see that the appellant was not allowed to close his case. That submission is based upon the fact that the Magistrate has omitted to write 'case' after the appellant's evidence. I reject that as a quite unmeritorious submission. There is no suggestion that the accused wanted to call other evidence.

Counsel submitted that the charges had not been dealt with separately. Although the record is by no means ample, I think that the fact that he imposed three fines of $10 each indicates that the Magistrate was dealing with the charges separately. I do not consider the fines excessive.

The appeal is dismissed both as regards conviction and as regards to sentence.

(SGD.) K. A Stuart
JUDGE

LAUTOKA,
25th February, 1977.