IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

TRAFFIC APPEAL NO.HAT0058J OF 1993

Between

SAMUELA MATAWALU
Appellant

And

DIRECTOR OF PUBLIC PROSECUTION
Respondent

Counsel: Mr. Raza for Appellant
Ms. Rice for Respondent

Date of hearing: 23rd March l994
Date of decision: 24th March l994

JUDGMENT OF MR. JUSTICE PAIN

This is an appeal by the appellant from his conviction in the Magistrates Court on 26th March l993 on charges of driving under the influence of drink to such an extent as to be incapable of having proper control of the vehicle (Section 39(1) Traffic Act) and driving in a manner that was dangerous to the public (Section 38(1) Traffic Act.

The basic facts established by the evidence come within a very narrow compass. On the night of the l3th October l990 the appellant was driving along Laucala Bay Road, in Suva. His vehicle crossed completely on to the incorrect side of the road and collided with another vehicle. Mr. Robinson the driver of the other vehicle and his passenger had observed the approach of the appellant's vehicle. Mr. Robinson had pulled as far to the left of the roadway as he could and had stopped before the impact occurred. Mr. Robinson went to the appellant's car and spoke to the appellant who was still in his vehicle. Mr. Robinson detected the smell of liquor. The accident was reported to the police and Const. Watisoni must have attended the scene as he took the appellant to the Police Station. Neither Const. Watisoni nor any other Police Officer who attended the scene gave evidence at the hearing. This created something of a lacuna in the prosecution case. It may be what the Learned Magistrate was referring to in his judgment when he commented on the investigation and mentioned that a police witness had not turned up for the trial. However that does not affect the legal position. The case must be decided upon the evidence actually adduced at the trial.

At the Police Station the appellant was spoken to by Inspector Morti. He observed that the appellant's "breath smelt of liquor" and his "eyes were red" but he "spoke alright". Inspector Morti obtained a briefing from Constable Watisoni and then gave the appellant the option of being examined by a doctor at CWM. Hospital or being examined by his own private doctor. The appellant elected to be examined by a doctor at the hospital.

The appellant was taken to the hospital by Const. Watisoni. The only evidence of what transpired comes from Dr. Andrews. She spoke to the appellant and he refused to be examined. She endeavoured to take a blood sample but he refused and became agitated and abusive. Dr. Andrews told the Police to take the appellant away and this was done. She said that she smelt alcohol on the appellant and that he acted and looked like a drunk. However she did not examine the appellant and was not asked to give an opinion on his sobriety.

Inspector Morti gave evidence that he saw the appellant again when the appellant was brought back to the Police Station by Const. Watisoni at 12.30am. He spoke to the appellant and observed that the appellant was "not steady on his feet" and his "eyes were semi closed" although "his speech was normal". The Inspector then arrested the accused for "Drunken Driving" because he was "satisfied that he was drunk".

At 6.14am on the 14 October l990 the appellant was interviewed by Constable Kumar. A statement was signed by the appellant and produced as an exhibit at the trial. In that statement the appellant admitted that he had started drinking about 11am the previous day and had consumed "a lot".

The foregoing summarises the relevant evidence adduced by the prosecution. It is not comprehensive and there is an obvious paucity of evidence on some crucial issues. This was noted by the Learned Magistrate in his judgment. He observed at page 14:

"The evidence in this case is very short. There is no medical report. Accused was not examined by a doctor or a Senior Police Officer. The investigation had been unsatisfactory Police witness though material had not turned up for trial on both dates and there was no excuse."

Although it is not apparent from the typed record of the Magistrates Court, counsel for the appellant assures me that a submission of "no case to answer" was made by the defence at the close of the prosecution case. I note that the Learned Resident Magistrate in the course of his Judgment (page l5 of the Record) said:

"PW3. said he was satisfied accused was drunk but I must disregard this evidence as it was his opinion and did not give sufficient reasons for forming these impressions, up to the end of the prosecution case there was really not sufficient evidence on both counts to find the accused guilty except for the interview notes wherein accused had stated he had consumed a lot of liquor that day from ll.00am.

I have therefore found a case to answer."

This indicates that the Learned Magistrates did address this issue at the close of the prosecution case. However, with respect to him, having rejected the only opinion evidence as to the state of the appellant's sobriety, it seems rather tenuous to draw such a conclusion solely on an admission of having consumed liquor.

Following the ruling that there was a case to answer the appellant elected to make an unsworn statement. It is clear that this had a substantial influence on the Magistrates decision. He said (continuing on page l5 of the Record):

"If the accused had not made any statement and remained silent I may have found the accused not guilty and acquitted him for want of sufficient evidence to prove the case beyond reasonable doubt.

It must be remembered that all what is said in evidence whether by prosecution witness or accused or defence witness as all evidence in the case and must be considered. In this case accused admitted he had taken liquor that day. This confirms what has been said in the interview notes. He said he had gone to the right of the white line but gave no reason why he crossed the white line. He had thereafter not known what happened till after the accident.

Accused did not give any reason as to why he could not recall what happened for a period of time up to the impact on the other vehicle. He had not said he suffered from any illness or taken any treatment on medication which may have caused loss of memory. The evidence before the Court is that accused had consumed a lot of liquor. This must have its effects. Accused certainly was under the influence of liquor and was unfit to drive." 

It is clear that at the end of the prosecution evidence the Learned Magistrate must have found the case finely balanced. Although he found a prima facie case, he said that if the appellant had said nothing he may have been acquitted. That is conceivable because two different standards must be applied for determination of a prima facie case (sufficient evidence upon which the Court could convict) and guilt (proof beyond reasonable doubt). However such instances must be rare. Indeed there is some authority for the proposition that the failure of a defendant to answer a prima facie case makes it less unsafe to draw the conclusion of guilt.

The unsworn statement made by the appellant is not legal evidence because it is not made on oath and tested by cross examination. However the Magistrate was entitled to give it such weight as he considered it deserved and to take it into account in deciding whether the prosecution had proved its case. He determined that it had considerable significance in proving the guilt of the appellant because the appellant admitted that he had consumed liquor that day and that he had driven to the right of the centre line but gave no reason for it.

With due respect to the Magistrate, I do not see how this adds to the prosecution evidence in any appreciable way. The unchallenged and totally acceptable evidence from the prosecution witnesses had already established these facts. In his police interview the appellant stated that he had consumed a lot of liquor and Mr. & Mrs. Robinson both gave clear evidence that the appellant drove on to the wrong side of the road.

Counsel for the appellant stressed the fact that the Magistrate clearly stated that he may have found the appellant not guilty if he had not made an unsworn statement. As that statement did not add to the evidence already before the Magistrate it is proper for this Court to look at the evidence and see whether it is sufficient to support a conviction on either or both charges.

I deal first with the charge of driving under the influence of drink. In doing so, I have regard to the helpful Court of Appeal decision DPP v Ben Tausia (Criminal Appeal 5 of l984) in which the English decision of DAVIES (1962) 3 ALL ER 97 was cited with approval.

For this charge there are three matters that the prosecution must prove:-

1. That the Appellant drove a motor vehicle on a road.
2. That at that time he was under the influence of drink.
3. That he was under the influence of drink to such an extent as to be incapable of having proper control of the vehicle.

In this case it is clearly established that the appellant drove his motor car on Laucala Bay Road.

In order to establish the other two ingredients it is not sufficient to merely prove that the appellant had consumed liquor. It must be proved that he was under the influence. That must be to such an extent as to be incapable of having proper control of a vehicle. In lay terms that means proof that he was so drunk as to be incapable of controlling a motor vehicle. A witness can give evidence of his or her general impression of an accused's sobriety provided that the facts are given upon which that opinion is based. It is not unusual for lay witnesses to give evidence of a persons drunkenness based on such matters as unsteadiness, slurred speech, strong smell of alcohol, red eyes, lack of coordination, inability to communicate or perform simple tasks and the like. As a matter of practice, in drink driving cases, an examination by a doctor or experienced Police Officer is normally undertaken to enable the doctor or Police Officer to form an opinion on the degree of the suspect's insobriety.

In the present case there is evidence that the appellant had consumed liquor. It was smelt on his breath and he admitted drinking. There is no evidence as to how much liquor the appellant had consumed. He said "a lot", but that is a relative term. The perception of what is "a lot" will vary from person to person. The appellant admitted that he started drinking at 11am but there is no evidence of the extent of his consumption, when he stopped drinking and what other activities he performed before driving his car on Laucala Bay Road at 10pm. It would be wrong to jump to the conclusion that he was on a drinking binge all day. That is not supported by the evidence.

Dr. Andrews said that the appellant acted and looked like a drunk but that has little evidential value. A persons looks can be notoriously inaccurate. Dr. Andrews gave no evidence, based on proper observations and/or tests that the appellant was in fact drunk.

The only evidence of the appellant's drunkennes comes from Inspector Morti. That evidence does not stand up to close scrutiny. He first saw the appellant at 11.45pm. Mrs. Robinson says the accident occurred about 10pm. If this is so, it was 1 3/4 hours after the accident before the Inspector saw the appellant. He spoke with him a second time at 12.30am - some 2 1/2 hours after the accident. These are significant delays when the prosecution is required to prove the appellant's state at the time of the accident.

Inspector Morti said that he "locked the appellant up because he was satisfied that he was drunk". However he did not state his basis or grounds for that conclusion. I have already detailed the evidence. The Inspector did not carry out any tests. Was his opinion based on the appellant's red eyes and smell of liquor or on the briefing given to him by Const. Watisoni (who spent considerable time with the appellant and was not called as a witness)? The Inspector said that when he saw the appellant on the second occasion, the appellant "was not steady on his feet and his eyes were semi closed". He does not say whether these factors influenced his decision. However this was late at night some 2 1/2 hours after the accident. Those symptoms, which were not observed earlier, are equally consistent with fatigue. Moreover, Inspector Morti said that on both occasions that he spoke to the appellant, the appellant's speech was normal. That would be unusual if a person was seriously affected by liquor.

I have carefully considered all the evidence. There is irrefutable evidence that the appellant had consumed liquor and he may well have been affected by it. However, there is insufficient evidence to establish that he was under the influence of drink, which is an essential ingredient for this charge. The circumstances of the accident may be typical of the driving by a person substantially affected by drink. However there is insufficient evidence to prove that the appellant was, in fact, under the influence of drink to such an extent as to be incapable of having proper control of his motor vehicle.

For these reasons the appeal against conviction on this charge must succeed.

The dangerous driving charge can be dealt with more speedily.

The Learned Magistrate clearly accepted the unchallenged evidence of Mr. and Mrs. Robinson. They saw the appellant's vehicle approaching and pulled as far as they could, to the left side of the road. The appellant's vehicle collided with their stationary vehicle.

In delivering judgment the Learned Magistrate said:

"On his own admission he had gone to the right of the white line and crossed along and collided with the other car.

According to PW2 the car of the accused had come towards their car for l00 yards. Accused had created a dangerous situation and this caused the collision."

Counsel for the appellant challenges the finding that the appellant's car travelled on the incorrect side of the road for l00 yards. He pointed out that Mrs. Robinson said that the car was about l00 yards away when she first noticed it. That is not material. It is clear that the appellant's vehicle travelled on the incorrect side of the road for an appreciable distance. Both Mr. & Mrs. Robinson observed the approach of the appellant's car. It caused them concern because it was travelling directly towards them which must have placed it on the incorrect side of the road. Mr. Robinson drove as far as he could to the left of the road and stopped. Throughout this time the appellant's car continued to travel towards the Robinson's vehicle and finally collided with the front of it. It was not a sudden move to the right by the defendant's vehicle. Mr. & Mrs. Robinson observed its course of travel as it approached them from a considerable distance away on its wrong side of the road.

The charge against the accused was that he drove in a manner which was dangerous to the public having regard to all the circumstances of the case.

The circumstances here are that the accident occurred on a well known thoroughfare within the city of Suva. It is a road on which traffic could reasonably be expected to travel at all hours. The appellant allowed his vehicle to travel on to the incorrect side of the roadway. It travelled in that position for an appreciable distance. Such driving must undoubtably have created a danger to the public. Indeed it created an actual danger for Mr. & Mrs. Robinson. The appellant's vehicle collided with their vehicle when they were as far to the left as they were able to go. If their vehicle had not been there the appellant's car would have continued along the road on its incorrect side creating further potential danger for vehicles and pedestrians who could be expected to be in the area.

The Learned Magistrate was entirely correct in finding this charge proved.

Accordingly the following judgment is pronounced:

1. The appeal against the conviction for driving under the influence of drink to such an extent is to be incapable of having proper control of the vehicle is allowed. The decision of the Magistrates Court is reversed. The appellant is acquitted on that charge.

2. The appeal against the conviction for driving in a manner that was dangerous to the public is dismissed. The conviction in the Magistrates Court is confirmed.

JUSTICE D.B. PAIN
HAT0058J.93S