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Land Transport Authority v Sharma [2002] FJHC 112; HAA0034J.2002S (16 May 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0034 OF 2002

Between:

LAND TRANSPORT AUTHORITY
Appellant

And:

DAYA SHANKAR SHARMA
Respondent

Hearing: 13^th May 2002

Judgment: 16^th May 2002

Counsel: Ms A. Neelta for Appellant
Respondent in Person

JUDGMENT

The Respondent was charged, by Traffic Infringement Notice, with the following offence on the 28^th of August 2001:

Statement of Offence

DRIVING UNREGISTERED MOTOR VEHICLE: Contrary to Sections 49(3) and 114 of Land Transport Act 1998.

Particulars of Offence

DAYA SHANKAR SHARMA on 28^th day of August 2001 at Nasinu in Central Division, drove a vehicle on Ratu Dovi Road near White Fire Taxi Stand when the said vehicle was not duly registered and had its motor vehicle licence expired on 7/8/01.

The case was called on 16^th November 2001 and the Respondent pleaded not guilty. The court record then states AAccused has produced records which are still valid. Prosecution still maintains they are not.@ The matter was adjourned to 25^th January 2002 for mention. On that day the record states: ABoth parties and the Court went to see the car=s wheel tax.@ The court then adjourned to 15^th February 2002 for Aruling.@ On the 15^th of February the learned Magistrate delivered a ruling that the accused had proved, on a balance of probabilities, that he had a valid certificate of roadworthiness and a valid inspection certificate, and that therefore the case was dismissed and the accused acquitted. No evidence had been called for either prosecution or defence. The learned Magistrate purportedly acquitted the accused under section 210 of the Criminal Procedure Code.

The Land Transport Authority appeals against the acquittal, on the following grounds:

(a) That the learned magistrate erred in law and fact failing to hold prosecution submission particularly stated at para.7 which is in rebuttal to respondents preliminary issues as was raised. Paragraph 7 states:

AThe lapse of time in the registration and fitness of the vehicle BQ818 driven by accused is a matter of evidence that will be testified in the trial by Principle Supervisor Licensing.

However, this irregularities in time lapse are mostly contributed by vehicle owners due to non-renewal of vehicle in time which had lapsed renewal.@

(b) That the learned magistrate erred in law by failing to set the case for trial proper when such issues were disputed by Land Transport Authority.

(c) That the learned magistrate erred in law by invoking Section 210 of Criminal Procedure Code, Cap. 21 in acquitting the respondent when prosecution did not close its case as no evidence were lawfully adduced.@

The record does not include submissions by the prosecution or the defence, and it is not clear on what basis, the learned Magistrate decided to check the car=s wheel tax for himself.

I propose to deal with all grounds of appeal together because they all allege procedural irregularity in relation to the dismissal of the charge.

Section 206 of the Criminal Procedure Code provides:

A(1) The substance of the charge or complaint shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge.

(2) If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there shall appear to it sufficient cause to the contrary.

(3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided.@

Section 209 provides:

AIf the accused person does not admit the truth of the charge, the court shall proceed to hear the witnesses for the prosecution and other evidence (if any). The accused person or his barrister and solicitor may put questions to each witness produced against him. If the accused person does not employ a barrister and solicitor, the court shall, at the close of the examination of each witness for the prosecution, ask the accused person whether he wishes to put any questions to the witness and shall record his answer.@

Section 210 provides:

AIf at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused.@

A perusal of these sections of the Criminal Procedure Code shows that the learned Magistrate erred in law in several respects in this case. Firstly, he accepted documents without requiring them to be properly tendered, either from the witness box or under a statutory provision allowing for such production. The purpose of our rules of evidence is to ensure that the court gives proper thought to the admissibility and weight of all evidence, having given each party an opportunity to cross-examine on that evidence, and to make submissions about weight and admissibility. Our rules of evidence are there to ensure fairness and transparency in judicial proceedings. When judicial officers begin to accept documents willy nilly from litigants, without giving both sides the opportunity to be heard about them, the proceedings lose both fairness and transparency. In this case, it is not clear from the court record whether the prosecution was also permitted to tender documents from the bar table as part of their submissions. What is apparent however, is that the learned Magistrate relied on a certificate of roadworthiness, and an inspection certificate, when the charge alleged that the vehicle was not registered. The matter would no doubt have been clarified, had the documents been properly tendered by a Land Transport Authority official who could have explained the relevance (if any) of the roadworthiness certificate to vehicle registration. The learned Magistrate therefore erred in accepting evidence without evidence being led. Ground (a) is therefore successful.

The learned Magistrate also erred in inspecting the vehicle without a proper application being made, and without hearing evidence about the vehicle and the wheel tax. A view of evidence such as a crime scene, can be of assistance to any court, particularly when the oral evidence creates confusion and uncertainty about the scene. It may be useful in traffic accident cases, or scenes of alleged homicide. However counsel (or the accused) must make the application, the prosecution must be heard, and a ruling delivered. Further, a view of the locus in quo (which must be properly recorded and must include all parties) is used to supplement oral evidence. It is not intended to be a substitute for oral evidence. In this case, a view of the vehicle and the wheel tax certificate was used as a matter which decided the case, without the benefit of oral evidence. In this respect also, the learned Magistrate was in error. A failure to follow proper procedures in the inspection of a scene outside the courtroom, can result in a material irregularity which may lead to the setting aside of a conviction or acquittal (R -v- Lawrence (1968) 52 Cr. App. R. 163).

Having viewed the vehicle and having heard from both parties, the learned Magistrate proceeded to acquit the accused. The proper procedure would have been to proceed to trial after setting a hearing date. This is not to say that the court can never hear preliminary legal submissions on matters which might, in effect decide the result of the case. For instance counsel may make preliminary legal submissions about the validity of a charge, or whether an accused person is the type of person the charge specifies him to be. A submission that the charge is not an offence known in law, or that the accused is not for instance, a public servant, or an employee, would fall into this category. However, such submissions are legal submissions only and do not require the tendering of evidence. Further, if a magistrate rules that the charge is invalid, the prosecution must then decide whether they will proceed to trial, whether they will withdraw charges or amend/substitute the charge. If no evidence is offered by the prosecution, or the charge is withdrawn, then and then only can the Magistrate proceed to discharge (under section 201(2)(b)(ii) of the Code) or acquit (under section 201(2)(b)(i) or section 210 of the Code). Alternatively the prosecution may choose to appeal against the interlocutory ruling to the High Court.

However in this case, the submissions were submissions (it appears) of fact not of law. Therefore the learned Magistrate ought firstly to have proceeded to trial after taking the plea, and heard submissions at the close of the prosecution case, or after the defence case. There was dispute about the significance of the documents tendered, and the learned Magistrate ought to have simply set a trial date so that witnesses could be called to establish the validity or otherwise of the charge. In failing to take these steps, the learned Magistrate was in error. Ground (b) is also successful.

Finally, in proceeding to acquit without hearing evidence under section 209 and section 210 of the Criminal Procedure Code, on a date set for mention only, the learned Magistrate was in error. After a not guilty plea, the court must proceed to hear the evidence. It is only after hearing the evidence (or after the prosecution decides to offer no evidence - see DPP -v- Vikash Sharma and Others 40 FLR 234) that the Magistrate may proceed to convict or acquit. In failing to hear the evidence for both prosecution and defence (if any), the learned Magistrate was in error. It was not open to him to acquit in the circumstances of this case.

The result of these procedural irregularities, is that the acquittal is a nullity. I remit the case to the Magistrates= Court, to be heard before another Magistrate. This appeal is therefore allowed.

Nazhat Shameem
JUDGE

At Suva
16^th May 2002