Tora v Reginam [1977] FJSC 2; Criminal Appeal 084 of 1976 (28 January 1977)

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IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.84 OF 1976

BETWEEN

SIVOROSI TORA
Appellant

AND

REGINAM
Respondent

The appellant was on the 14th 14th September 1976 convicted by the Suva Magistrates Court of Driving a MVehicle whilst under the Influence of Drink contrary to section 39(1) of the Traffic Ordinardinance.

He was fined $100 and disqualified from holding or applying for a driving licence for a period of 12 months.

He appeals against conviction. The grounds of appeal are as follows:

(a) "That the learned Trial Magistrate erred in the Trial within trial in finding that your petitioner freely consented to the medical examination.

(b) That the learned trial magistrate erred in convicting your petitioner when there was insufficient evidence.

(c) That the verdict is unreasonable and cannot be support having regard to whole of the circumstances of the case."

At the hearing the grounds of appeal were amended by adding a fourth ground as under:

(d) "The learned trial magistrate erred in accepting the evidence of the doctor regarding the drunkenness of accused and his ability to drive."

At the trial defence counsel objected to a medical witness called by the prosecution giving evidence on the condition of the appellant when she examined him on the grounds that the appellant had not consented to the examination. The trial Magistrate held "a trial within a trial" and having considered the evidence was satisfied that the appellant freely consented to the examination and admitted the doctor's evidence. The Magistrate believed the prosecution witnesses and did not believe the appellant. In particular the Magistrate was impressed by the doctor whom he described as a very good witness. The doctor saw the appellant alone in the absence of the police and explained to the appellant that he had the right to refuse to be examined by her and that he could have another doctor examine him if he wished. He agreed to be examined and signed the medical form presented to him by the doctor authorising his examination. Under cross-examination the appellant admitted he knew what he was signing when he signed the form and admitted he consented to the examination but said he was obeying the instructions of the police. As stated the Magistrate did not believe the appellant.

There was clear and ample evidence to support the trial Magistrate's finding that the appellant freely consented to his examination by the doctor and accordingly the first ground of appeal fails.

The fourth ground of appeal is the appellant's main ground which I propose to deal with before dealing with the remaining two grounds of appeal.

Mr. Chand correctly pointed out that most of the results of the tests carried out by the doctor and recorded in her report indicated normal reactions to the tests. The report also indicated that the appellant had been drinking and the effect on him. The doctor after the examination of the appellant was of the opinion that the appellant was in an unfit condition to drive. The trial Magistrate accepted the doctor's evidence and on the evidence before him was entitled to do so.

Mr. Chand complained that there had been tests of blood and urine taken from the appellant which were not produced by the prosecution. Mr. Chand knew of the tests but did not call production of the test results. He cannot now legitimately complain about non-production of the results of the tests.

The doctor who took the samples did not see the results of the tests but was satisfied that the results of the tests she made indicated that the appellant was not in a condition to drive a vehicle.

There was ample evidence which the Magistrate considered and accepted to establish the offence and the fourth ground of appeal fails.

The second and third grounds of appeal can be considered together.

The appellant contends that the verdict is unreasonable and the evidence insufficient to establish the commission of the evidence.

The trial Magistrate accepted the evidence of the prosecution witnesses. He had evidence of the collision between the vehicle driven by the appellant and the police vehicle. The appellant's vehicle ran into the rear of the police vehicle. He had evidence given by the driver of the police vehicle as to the appearance and condition of the appellant at the time of the accident. He smelt strongly of liquor, he was staggering and could not stand When examined later by the doctor, the doctor formed the opinion that the accused was unfit to drive a vehicle. She gave reasons for her opinion and was not shaken under cross-examination. There was clear and ample evidence which the Magistrate fully considered and accepted that the appellant was driving a motor vehicle on the day in question and was not in a condition to properly control it due to drink. The second and third grounds of appeal also fail.

The appeal is dismissed

R.G. Kermode
JUDGE

Suva,
28th January,1977.