Chaudhary v Reginam [1978] FJSC 124; Criminal Appeal No. 95 of 1978 (8 December 1978)

IN THE SUPREME COURT OF FIJI
CRIMINAL JURISDICTION

Criminal Appeal No. 95 of 1978

BETWEEN

BHARAT PAL CHAUDHARY s/o SURUJ CHAUDHARY

AND

REGINAM

JUDGMENT

This is an appeal against the conviction of the appellant by Suva Magistrates Court on the 18th August 1978 of driving under the influence of liquor contrary to section 39(1) of the Traffic Ordinance.

The appeal arises from the fact that, during the course of the trial, there seems to have been some confusion regarding the status of medical testimony in cases of this nature.

The prosecution called a doctor who had examined the appellant with his consent after a traffic incident and who carried out medical tests for the purpose of ascertaining whether or not the appellant was under the influence of liquor to such an extent as to be incapable of properly controlling a motor vehicle. The doctor gave evidence of the tests he had carried out on the appellant and of the appellant's response to same, whereupon the trial Magistrate interjected: "I will not record that the doctor thinks the accused fit to drive. I have not heard that he is expert to say that this man is fit to drive." Defence counsel thereupon submitted, and rightly submitted, that a doctor is an expert witness for this purpose, in contrast to a police officer whose opinion should not be received, and that it was a matter for the Court to decide what weight to give to the doctor's opinion, to which the Court responded: "I would say that the evidence of an experienced traffic police officer as to fitness to drive would be just as expert as the present witness. I have not heard any evidence that this witness is an expert to say whether or not the man is fit to drive."

The doctor thereafter testified that he took samples of the appellant's blood and urine and that, if the levels were 196 milligrams of alcohol to 100 millilitres of blood and 230 milligrams of alcohol to 100 millilitres of urine (as was established by a Government analyst), such levels were high and anyone with those levels should not drive. The trial Magistrate thereupon stated: "I will now allow the specific question to be put to the witness concerning the accused"; in response to which the doctor testified that, so far as the appellant was concerned, he was quite capable of driving; and the doctor backed this with his clinical findings rather than the level of alcohol in the blood and urine, as thresholds of tolerance vary from one individual to another, whereas all the clinical tests were in favour of the appellant.

In his judgment the trial Magistrate stated:-

"On the tests which he [the doctor] conducted he was sufficiently impressed by the complete lack of any sign of drunkenness on the part of the accused that he certified him as fit to drive a motor vehicle. He said he was entitled to say this in view of his experience and studies. I agreed to record it and did so at the request of defence counsel. [The doctor] said accused was quite capable of driving. This was perfectly clear ... I agreed to record [his] opinion that accused was fit to drive since it was the wish of defence counsel that I should do so and [the doctor] stated that he was qualified to pass an opinion but it is not for [the doctor] to decide the issue: it is for me to do so. I follow R. v. Davies (1962) 3 All E.R. 97 on the point. The ultimate issue here is for me to decide on the evidence."

Certainly the ultimate issue is for the trial Magistrate to decide on the whole of the evidence; but a duly qualified doctor is competent to give an opinion as to the medical fitness or unfitness of an accused to drive. It is the weight to be attached to that opinion that varies according to all the circumstances, the proper approach having been laid down in R. v. Langford (Suva Cr. App. No. 162 of 1973).

As was pointed out in R. v. Sohan Ram (Suva Cr. App. No.138 of 1977):

"... the prosecution have to prove firstly, that the driver was under the influence of drink, on which the evidence of lay witnesses may be received; and secondly, that he was under the influence of drink to such an extent as to be incapable of properly controlling the motor vehicle, which may be established in a variety of ways, such as the manner of driving, or the circumstance of an accident, or the evidence of a duly qualified medical practitioner who has examined the driver and who, as an expert witness, is in a position to express an opinion that he was under the influence of drink to such an extent as to be incapable of having proper control."

"... the case of R. v. Davies is authority for the proposition that a witness who is not an expert can give his impression as to whether a person is under the influence of drink. What he is not permitted to do is giving his opinion as to whether the person was under the influence of drink to such an extent as to be incapable of properly controlling a motor vehicle, as that is the very matter which the court has to determine with the assistance, if it be available, of the expert opinion of a medical witness."

In his judgment the trial Magistrate stated that at the time of the medical examination the doctor did not have the benefit of the "important additional information" of the blood and urine alcohol contents. While it is open to a doctor, upon examining a driver for the purpose of ascertaining whether he is fit to drive, to reserve his medical opinion until he knows the alcohol level of the driver (R. v. Subash Chand Labasa Cr. App. No. 9 of 1977) in the present case the doctor, on learning of the alcohol level of the appellant, maintained his medical opinion of fitness to drive and gave his reasons for so doing; and it was for the trial Magistrate, taking into account that this expert opinion was based on detailed tests and the appellant's response thereto, to properly evaluate that evidence with all other relevant evidence in the case, in order to decide whether or not he was satisfied beyond reasonable doubt of the appellant's guilt.

The only other relevant evidence was that of lay witnesses who gave as their impression that the appellant was to some extent affected by drink. This was not denied and indeed, when interviewed by the police, the appellant stated that he had been drinking. What was in issue was not whether he was affected by drink, but whether he was so drunk as to be incapable of properly controlling a motor vehicle.

In view of the curious attitude adopted by the trial Magistrate to the medical witness, it is by no means certain that he properly evaluated his evidence on this vital aspect of the matter; and the Crown concedes that, in the particular circumstances of this case, it would not be safe for the conviction of driving under the influence of liquor to stand.

The conviction is accordingly quashed and the sentence, including the order of disqualification, set aside.

The appellant is not appealing against his conviction of dangerous driving and the sentence in respect thereof will stand.

Chief Justice

Suva,
8th December 1978.