Nand v Reginam [1977] FJSC 70; Criminal Appeal 111 of 1977 (28 October 1977)

IN THE SUPREME COURT OF FIJI
APPELLANT JURISDICTION

Criminal Appeal No. 111 of 1977

KISHORE NAND
s/o Nand Lal
Appellant

v.

REGINAM
Respondent

JUDGMENT

The appellant was convicted by the Magistrates Court Suva of driving a motor vehicle while under the influence of liquor contrary to section 39(1) of the Traffic Ordinance and was finned $75, in default three months' imprisonment. In addition, he was disqualified from holding or obtaining a driving licence for 12 months.

The appellant appeals against his conviction on the following grounds:

"1. THAT the learned Magistrate failed to consider the evidence of P.W.2 and P.W.3 in contrast to the evidence given by P.W.1 and therefore there is a miscarriage of justice.

2. THAT the learned Magistrate by saying that "he gave the Court no explanation as to why he drove as described by P.W.1" he shifted the onus of proof on the defendant and therefore was wrong in law.

3. THE learned Magistrate erred in law and facts in convicting the defendant of driving under the influence of liquor when there was insufficient evidence to convict him of the offence.

4. THE verdict is harsh and unreasonable."

Evidence of the appellant's arrest was given by Cpl. Antonio of the Police Mobile Force Nasinu. He, in a police landrover, was behind a truck driven by the appellant a little after midnight. The truck's indicators showed that it was going to turn into Munia Street. It did not. It later swerved from the right hand side of the road to the left, and turned right into Ono Street where it was stopped by the landrover. Altogether, the landrover had followed the truck for about two chains. When the appellant came out of the truck he staggered and smelt of liquor. Cpl. Antonio said,

"He was immediately put into landrover and taken to Central Police Station. I arrested the accused for drunken driving. He smelt of liquor, his eyes were red and he was staggering. That is the driver in Court. Later I handed accused to traffic officer."

Cpl. Antonio admitted that it was a dark night.

Const. Chand was the traffic officer who received the appellant some ten minutes afterwards from Cpl. Antonio. He said –

"When I first received accused from P.W.1 he appeared quite normal. His breath smelled of liquor. He was correct in walking."

In cross-examination he said,

"Yes, I spoke to accused in the Hindi language.

He was coherent.

He was in my custody about 15 minutes until I handed to another police constable.

He behaved himself. Gave no trouble.

Yes, accused had control of himself in walking.

Accused did whatever I said."

The appellant was, with his consent, taken to the hospital for medical examination. That is where the prosecution found themselves in serious difficulty. The doctor who examined him was still doing his internship and his evidence in Court proved to be extremely unhelpful. He could not recall any of the details of the examination he conducted. The purpose of the examination, he said, was to eliminate the possibility of any disease that the appellant might have been suffering from. He apparently gave him some tests but said that those tests could be performed just as satisfactorily by a drunken person as by a normal person.

Learned Counsel for the respondent concedes that the learned Magistrate was quite right in disregarding that evidence and placing no reliance on it at all.

That, however, left the Court with the evidence only of the two lay police officers on which to assess the appellant's condition that night. One had followed his truck for two chains and when the appellant had come out of the truck he had taken him "immediately" into the landrover. There is no evidence of anything out of the way occurring in the landrover during the journey to the police station.

The other officer had observed him for fifteen minutes at the police station.

The first officer had found his driving erratic and when he had come out he had "staggered". The second officer found him quite normal both in speech and in his physical movements. Both had found smell of liquor on his breath. Both were prosecution witnesses put forward by them as witnesses of truth.

Learned Counsel for the respondent attempted to explain this conflict of evidence by submitting that

"P.W.2's evidence relates to a time when perhaps appellant was shocked into reality."

It is difficult to see what the submission means unless it amounts s to a concession that only a few minutes after the arrest the conduct of the appellant was that of a normal person.

It may well be that neither of the two officers considered it necessary to observe the appellant's behaviour over any length of time under any specific conditions because they knew that, in the normal course of things, he would be examined by a doctor who would provide the expert evidence. Where such evidence is produced and fails altogether, what should a court do? It should in my view, before convicting a person, satisfy itself that the evidence of observations carried out by lay witnesses is so ample and of such a compelling quality that it must inevitably point to guilt. What is sufficient reason for an arrest in such cases may not be sufficient proof for a conviction.

Here, Cpl. Antonio's observation of the appellant at Ono Street lasted a fleeting minute or two in the dark. Const. Chand had the appellant in his custody for fifteen minutes or so and found him quite normal. There is no other evidence of any observations of the appellant's physical movements. Learned Magistrate was quite entitled to hold that the appellant's driving over a stretch of 2 chains was erratic, but that does not necessarily point to impairment of driving capacity through drink.

When charged with this offence some ten hours after his arrest the appellant did admit that he had had some gin with another person the previous evening but as he said, "half-bottle only". Nothing was asked or said about the time when this drink was taken, that is, how many minutes or hours before the arrest. In the circumstances no definite inference as to the appellant's state at the time of his arrest may be drawn. The medical evidence which may have assisted the Court in this regard was found completely unreliable.

This Court is in complete sympathy with the exasperation felt by the learned Magistrate with the medical evidence and the comments he made on it are well-deserved. He must have felt, as indeed this Court does, that, often, such evidence cannot but result in the acquittal of guilty persons who are a menace to other road users.

That does not, however, alter the fact that once the medical evidence in this case is completely excluded all that remains is cursory observations of the appellant by two police officers one of whom saw him "stagger" the other found him walking quite normally.

On such evidence I do not consider the inference of guilt drawn by the learned Magistrate was the only possible reasonable inference.

In coming to this inference the learned Magistrate said,

"My view, from a totality of the evidence is that the prosecution has discharged the onus of proof upon it."

He then described the erratic behaviour of the truck and referred to the appellant's charge statement in which he had admitted drinking gin earlier in the evening. From this he found that the appellant was "so under the influence of liquor as to be incapable of having proper control of his vehicle".

He then, however, went on to say –

"In reaching this decision I make it clear that I rely solely on P.W.1's evidence."

It is difficult to reconcile this statement with the earlier one in which he suggests that his finding is based on the totality of evidence. In coming to his finding of appellant's guilt he would appear to have totally ignored the evidence of Const. Chand, without giving any reasons for it.

Erratic behaviour of a vehicle may be taken into consideration but the main task of the Court is to determine the condition of the driver himself. As was said with approval in R. v. Davies (1962) 3 All E.R. 97 at 98):

"In determining the fitness or otherwise of the [appellant] to drive, the facts of the accident may be taken into consideration so far as relevant but only if the court is sure that the accident was caused by the [appellant's] condition."

In this case if one takes away the medical evidence and the erratic behaviour of the truck, not much remains except the conflicting evidence of the two police officers, both lay men.

In my view this trial should have stopped as soon as it became clear that the medical evidence could add nothing to the prosecution case; this, despite any lingering doubt in the learned Magistrate's mind that a guilty man was probably going scot free.

This Court always hesitates to interfere with a trial Court's findings of fact but, in this case, I have reluctantly come to the conclusion that the inference of guilt drawn from such conflicting evidence was not the proper inference.

The appeal is allowed and the sentence is set aside. So is the order of disqualification. The fine, if paid, shall be refunded to the appellant.

G. Mishra
JUDGE

Suva,
28th October 1977