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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
[APPELLATE JURISDICTION]
CRIMINAL APPEAL NO. HAA 49 OF 2022
IN THE MATTER of an Appeal from the decision of the Magistrate’s Court of Fiji at Lautoka, in respect of Traffic Case No. 21 of 2018.
AND IN THE MATTER of an Appeal pursuant to Section 246 (1), Section 248 (1), Section 249 and Section 256 (2) of the Criminal Procedure Act 2009.
BETWEEN:
LAND TRANSPORT AUTHORITY
APPELLANT
AND:
GOUNDAR’S TIMBER SUPPLIES
RESPONDENT
Counsel : Ms. Neha Prasad for the Appellant
Mr. Aman Dayal for the Respondent
Dates of Hearing : 2 May 2024 and 16 May 2024
Date of Judgment: 24 April 2025
JUDGMENT
[1] This is an Appeal by the Land Transport Authority (LTA) against the decision made by the Magistrate’s Court of Lautoka, in Traffic Case No. 21 of 2018, acquitting the Respondent Company.
[2] This Appeal has been filed by way of a Petition of Appeal. As per the said Petition of Appeal it is stated that Goundar’s Timber Supplies, the Respondent Company (The Respondent) was charged before the Magistrate’s Court of Lautoka, with the following offence:
Statement of Offence
PERMITTING ANOTHER PERSON TO DRIVE A MOTOR VEHICLE WITH EXCESS PERMISSIBLE GROSS WEIGHT LOAD: Contrary to Regulation 80 (9) (d), 87(1) (a) and 122 of the Land Transport (Vehicle Registration and Construction) Regulations 2000.
Particulars of Offence
GOUNDAR TIMBER SUPPLIES, on the 11th day of August 2018, at Navutu, Lautoka, in the Western Division, being the owner of truck registration number IO 896, permitted Mr. Avneel Ashish Lal to drive and carry a load of millings with a total aggregated gross weight of 30.02 tonnes, when the permissible total gross weight load approved by the authority is 21.40 tonnes. Therefore, the total excess gross weight load is 8.62 tonnes.
[3] The Respondent pleaded not guilty to the charge of committing the Traffic Infringement Offence, as per Traffic Infringement Notice (TIN) No. 3452453, and the matter proceeded to trial.
[4] The Prosecution (LTA) called two witnesses in support of its case- Adriu Nadredre, who was the Authorized Enforcement Officer LTA, who stopped the vehicle and directed it to the LTA Office to be weighed; and Ajesh Chand, Authorized Officer LTA, who carried out the weighing.
[5] At the conclusion of the case for the prosecution, a No Case to Answer application was made by the Respondent. On 30 November 2022, the Magistrate’s Court pronounced its Ruling on the No Case to Answer and found that the No Case to Answer application had merit and accordingly found the Respondent not guilty and acquitted the Respondent of the charge.
[6] The Learned Magistrate further ordered that the LTA refund any fine paid by the Respondent effective forthwith.
[7] Aggrieved by this Order the LTA has filed this timely Appeal before the High Court of Lautoka. The LTA prays that this Court:
i. Reverse the order of the Learned Magistrate including the order to dismiss the TIN No. 3452453, and the order to refund any payment already made to LTA concerning this TIN; and
ii. Allow the completion of the Trial and call for the Respondent to make its Defence.
[8] Since this was an Appeal filed against an order of acquittal, in terms of the provisions of Section 246 (2) of the Criminal Procedure Act No 43 of 2009 (“Criminal Procedure Act”), sanction in writing has been obtained from the Acting Director of Public Prosecutions (ADPP). The said written sanction was filed in Court on 16 May 2023. The Counsel for the Respondent had no objection to the said sanction being filed out of time.
[9] This matter was taken up for hearing before me on 2 and 16 May 2024. Counsel for both the Appellant and the Respondent were heard. Both parties filed written submissions, and referred to case authorities, which I have had the benefit of perusing.
GROUNDS OF APPEAL AGAINST THE ORDER OF THE RESIDENT MAGISTRATE
[10] Following are the Grounds of Appeal filed by the Appellant the Land Transport Authority:
(a) THAT the Learned Magistrate erred in law and/or in fact when she failed to consider the legal principle or maxim of Quit facit per alium facit per se that can apply, actions committed by the agent/servant acting in the course of employment for the benefit of the principal/master, is actions committed by the principal/master.
(b) THAT the Learned Magistrate erred in law and/or in fact in stating that the Prosecution failed to prove an essential element which is knowledge to permit to carry excess weight.
(c) THAT the Learned Magistrate erred in law and/or in fact when she failed to consider that the offence is a strict liability offence and there is no Mens Rea element of the offence.
THE LAW
[11] Section 246 of the Criminal Procedure Act deals with Appeals to the High Court (from the Magistrate’s Courts). The Section is re-produced below:
“(1) Subject to any provision of this Part to the contrary, any person who is dissatisfied with any judgment, sentence or order of a Magistrates Court in any criminal cause or trial to which he or she is a party may appeal to the High Court against the judgment, sentence or order of the Magistrates Court, or both a judgement and sentence.
(2) No appeal shall lie against an order of acquittal except by, or with the sanction in writing of the Director of Public Prosecutions or of the Commissioner of the Independent Commission Against Corruption.
(3) Where any sentence is passed or order made by a Magistrates Court in respect of any person who is not represented by a lawyer, the person shall be informed by the magistrate of the right of appeal at the time when sentence is passed, or the order is made.
(4) An appeal to the High Court may be on a matter of fact as well as on a matter of law.
(5) The Director of Public Prosecutions shall be deemed to be a party to any criminal cause or matter in which the proceedings were instituted and carried on by a public prosecutor, other than a criminal cause or matter instituted and conducted by the Fiji Independent Commission Against Corruption.
(6) Without limiting the categories of sentence or order which may be appealed against, an appeal may be brought under this section in respect of any sentence or order of a magistrate's court, including an order for compensation, restitution, forfeiture, disqualification, costs, binding over or other sentencing option or order under the Sentencing and Penalties Decree 2009.
(7) An order by a court in a case may be the subject of an appeal to the High Court, whether or not the court has proceeded to a conviction in the case, but no right of appeal shall lie until the Magistrates Court has finally determined the guilt of the accused person, unless a right to appeal against any order made prior to such a finding is provided for by any law.”
[12] Section 248 (1) of the Criminal Procedure Act provides that “Every appeal shall be in the form of a petition in writing signed by the appellant or the appellant’s lawyer, and (filed) within 28 days of the date of the decision appealed against.”
[13] However, Section 248 (2) of the Criminal Procedure Act sets out that “The Magistrates Court or the High Court may, at any time, for good cause, enlarge the period of limitation prescribed by this section.”
[14] Section 248 (3) of the Criminal Procedure Act stipulates:
“For the purposes of this section and without prejudice to its generality, "good cause" shall be deemed to include —
(a) a case where the appellant’s lawyer was not present at the hearing before the Magistrates Court, and for that reason requires further time for the preparation of the petition;
(b) any case in which a question of law of unusual difficulty is involved;
(c) a case in which the sanction of the Director of Public Prosecutions or of the commissioner of the Fiji Independent Commission Against Corruption is required by any law;
(d) the inability of the appellant or the appellant’s lawyer to obtain a copy of the judgment or order appealed against and a copy of the record, within a reasonable time of applying to the court for these documents.”
[15] Section 256 of the Criminal Procedure Act refers to the powers of the High Court during the hearing of an Appeal. Section 256 (2) and (3) provides:
“(2) The High Court may —
(a) confirm, reverse or vary the decision of the Magistrates Court; or
(b) remit the matter with the opinion of the High Court to the Magistrates Court; or
(c) order a new trial; or
(d) order trial by a court of competent jurisdiction; or
(e) make such other order in the matter as to it may seem just, and may by such order exercise any power which the Magistrates Court might have exercised; or
(f) the High Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the Appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(3) At the hearing of an appeal whether against conviction or against sentence, the High Court may, if it thinks that a different sentence should have been passed, quash the sentence passed by the Magistrates Court and pass such other sentence warranted in law (whether more or less severe) in substitution for the sentence as it thinks ought to have been passed.”
[16] In terms of the provisions of Section 113 of the Land Transport Act No. 35 of 1998 (“Land Transport Act”), the Minister in charge of Transport has been given the power to make Regulations necessary to give effect to the provisions of the Act.
[17] Accordingly, the Land Transport (Vehicle Registration and Construction) Regulations 2000 (“VRC Regulations”), were promulgated and came into operation with effect from 10 July 2000. The regulations relevant for this case are Regulations 80 (9) (d), 87(1) (a) and 122.
[18] Regulation 80 of the VRC Regulations deals with ‘Maximum Loads’. Regulation 80 (9) is reproduced below.
“The maximum permissible aggregate mass, expressed as the GVM or GCM of the vehicle, in respect of all the axles of a motor vehicle, a trailer, articulated vehicle or combination vehicle is-
(a) ........
(b) .......
(c) .......
(d) the manufacturer’s gross vehicle mass or gross combination mass as the case may be, whichever is the least”.
[19] Regulation 87 of the VRC Regulations sets out the ‘Offence of Excess Load’ in the following manner:
“87 (1) It is an offence to drive, use or cause or permit to be driven or used in a public street any vehicle having a wheel load, axle load or aggregate axle load in excess of the limits prescribed by-
(a) regulation 80;
(b) a permit issued under regulation 83;
(c) an exemption under regulation 4 (2); or
(d) Schedule 1 (road sign No 24) to the Land Transport (Traffic) Regulations 2000.
(2) For the purpose of this regulation, the carrying of excess loads prescribed by regulation 80 or by a permit or exemption amounts to separate offences, except that exceeding the maximum axle load or aggregate axle load is not a separate offence from exceeding the maximum wheel loads on each axle.”
[20] Regulation 122 of the VRC Regulations provides: “A person who fails to comply with the provisions of these Regulations commits an offence and is liable on conviction to the corresponding penalty prescribed for that offence in Schedule 2 of the Land Transport (Fees and Penalties) Regulations 2000.”
THE GROUNDS OF APPEAL
GROUND 1
[21] The first Ground of Appeal is that the Learned Magistrate erred in law and/or in fact when she failed to consider the legal principle or maxim of Quit facit per alium facit per se that can apply in this instance.
[22] Quit facit per alium facit per se is a Latin legal maxim that means "he who acts through another does the act himself." It is a fundamental principle in the law of agency, often used to establish liability for the actions of an employee or an agent, in the context of an employer's or principal's responsibility. This maxim highlights that the person who directs or authorizes another to act is also responsible for that action, regardless of whether they were directly involved. It is a concept of vicarious liability, where one party is held responsible for the actions of another, even if those actions were not their own.
[23] As could be observed from the above explanation it is clear that this would be a principle that is used more in a civil law context rather than in the criminal law context. What would be more relevant and appropriate in the criminal law context would be the provisions of Section 111 of the Land Transport Act, which deals with ‘Liability of Employers’. Section 111 reads as follows:
111. If an offence under this Act is committed by an employee or agent of another person in the course of the employment or agency, the employer or principal, as the case may be, is also liable for the offence if it is shown that the act or omission constituting the offence-
(a) was consented to or connived at by the employer or principal; or
(b) was attributable to gross neglect on his part.
[24] Therefore, there is no denying the fact that in terms of the provisions of the Land Transport Act, the employer can be held liable for an offence committed by an employee, if it is established that the employee was acting in the course of the employment.
[25] In Land Transport Authority v. Nasoqo Investments Limited [2021] FJHC 129; HAA 029.2019 (26 February 2021); His Lordship Justice Daniel Goundar held as follows:
[32] In this case, it was the driver of the vehicle who allegedly committed the traffic infringement acting as an agent of the company that owned the vehicle. A company is liable for an alleged traffic infringement by an employee if the employee was acting under the instructions of his employer at the time the alleged infringement occurred. Service of a TIN on an agent, is therefore, service on the principal under Regulation 5(2)(a).
[26] Furthermore, Part 8 of the Crimes Act No. 44 of 2009 (“Crimes Act”) deals with Corporate Criminal Responsibility [Sections 51 to 56].
[27] Section 51 of the Crimes Act provides:
51. — (1) This Decree applies to bodies corporate in the same way as it applies to individuals. It so applies with such modifications as are set out in this Part, and with such other modifications as are made necessary by the fact that criminal liability is being imposed on bodies corporate rather than individuals.
(2) A body corporate may be found guilty of any offence, including one punishable by imprisonment.
[28] With regard to the physical elements of an offence, Section 52 of the Crimes Act sets out that “If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate”.
[29] With regard to the fault elements of an offence attributable to a body corporate, Section 53 (1) of the Crimes Act states as follows: If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorized or permitted the commission of the offence.
[30] Section 54 of the Crimes Act makes reference to the fault element of negligence in relation to a body corporate. The Section is re-produced below:
(1) The test of negligence for a body corporate is that set out in section 22.
(2) If —
(a) negligence is a fault element in relation to a physical element of an offence; and
(b) no individual employee, agent or officer of the body corporate has that fault element —
that fault element may exist on the part of the body corporate if the body corporate’s conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers).
(3) Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to —
(a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or
(b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.
GROUNDS 2 AND 3
[31] The second Ground of Appeal is that the Learned Magistrate erred in law and/or in fact in stating that the Prosecution failed to prove an essential element which is knowledge to permit to carry excess weight. The third Ground of Appeal is that the Learned Magistrate erred in law and/or in fact when she failed to consider that the offence is a strict liability offence and there is no Mens Rea element of the offence.
[32] In my opinion, the second and third Grounds of Appeal are inter-connected and as such, would be discussed together.
[33] Chapter II of the Crimes Act sets out the General Principles of Criminal Responsibility. Section 10 of the Crimes Act sets out the Purpose of the Crimes Act as follows:
(1) The purpose of this Chapter is to codify the general principles of criminal responsibility under laws of Fiji.
(2) This Chapter contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.
[34] Section 11 of the Crimes Act is the all-important provision relating to the Application of the Act. The Section is re-produced below:
(1) This Chapter applies to all offences against this Act.
(2) All courts in criminal proceedings or trials shall apply the provisions of this Act in relation to offences under other laws to the fullest extent possible.
(3) Nothing in this Act shall affect the validity of any proceeding taken in relation to any offence under any law that is not framed or expressed in accordance with the provisions of this Act.
[Emphasis is mine].
[35] It is clear from a reading of Section 11 (2) of the Crimes Act that the provisions of the Act can be made applicable to offences under other laws as well. Thus the provisions of the Crimes Act or more specifically the General Principles of Criminal Responsibility formulated in the Act are applicable to offences under the Land Transport Act as well.
[36] Section 14 of the Crimes Act stipulates as follows:
In order for a person to be found guilty of committing an offence the following must be proved –
(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;
(b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.
[37] Section 15 of the Crimes Act makes reference to the physical elements of an offence in the following manner:
(1) A physical element of an offence may be —
(a) conduct; or
(b) a result of conduct; or
(c) a circumstance in which conduct, or a result of conduct, occurs”.
(2) In this Decree—
"conduct" means an act, or an omission to perform an act or a state of affairs;
"engage in conduct" means —
(a) do an act; or
(b) omit to perform an act.
[38] Similarly, Section 18 of the Crimes Act makes reference to the fault elements of an offence in the following form:
(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
(2) Sub-section (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.
[39] It is the Appellant’s contention that the offence for which the Respondent was charged was a strict liability offence. During the hearing of this matter, Learned Counsel for the Appellant took up the position that this was an absolute liability offence. This was on the basis of the public safety aspect of the provisions. However, Learned Counsel submitted that if Court is of the view that absolute liability is excluded, then to consider that the said offence was one of strict liability.
[40] The Crimes Act provides for two situations where fault elements are not required in respect of an offence. These are where the offence is defined as a strict liability offence (Section 24 of the Crimes Act) or an absolute liability offence (Section 25 of the Crimes Act).
[41] Section 24 of the Crimes Act which deals with a strict liability offence is re-produced below:
24. — (1) If a law that creates an offence provides that the offence is an offence of strict liability —
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 35 is available.
(2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence —
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 35 is available in relation to that physical element.
(3) The existence of strict liability does not prevent an offender from raising any other defence that is applicable to the offence for which he or she is charged.
[42] Similarly, Section 25 of the Crimes Act which deals with an absolute liability offence is re-produced below:
25. — (1) If a law that creates an offence provides that the offence is an offence of absolute liability —
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 35 is unavailable.
(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 35 is unavailable in relation to that physical element.
(3) The existence of absolute liability does not prevent an offender from raising any defence that is applicable to the offence for which he or she is charged.
[43] When reading the above provisions it is manifest that for an offence to be considered as a strict liability offence or as an absolute liability offence, specific mention must be made of this fact in the law creating the offence.
[44] On a careful examination of the provisions of the Land Transport Act (the enabling legislation) and the relevant provisions of the VRC Regulations (the subsidiary legislation), I find no basis to establish that the offence for which the Respondent was charged is a strict liability offence or that it is an absolute liability offence.
[45] In the Magistrate’s Court of Lautoka the Respondent was charged with the offence of Permitting Another Person to Drive a Motor Vehicle with Excess Permissible Gross Weight Load, contrary to Regulations 80 (9) (d), 87(1) (a) and 122 of the VRC Regulations.
[46] To prove this charge the Prosecution has to establish beyond reasonable doubt the following ingredients or elements of the offence:
(i) The Accused [In this instance the Respondent Company];
(ii) On the specified day [In this case on the 11 August 2018];
(iii) At Lautoka, in the Western Division;
(iv) Being the owner of truck registration number IO 896;
(v) Permitted Avneel Asish Lal to drive the said vehicle, in a public street;
(vi) Having a wheel load, axle load or aggregate axle load in excess of the limits prescribed by Regulation 80 [Specifically Regulation 80 (9) (d)].
[47] When reading the above it is evident that the Regulations setting out the offence does not specify the requisite fault element of the offence.
[48] Section 23 of the Crimes Act makes provision for situations where an offence does not specify a fault element.
“23. — (1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.”
[49] In the instant case, the Learned Resident Magistrate has held that the fault element should be one of ‘knowledge’ (on the part of the Respondent). Her No Case To Answer Ruling is found from pages 4 to 10 of the Magistrate’s Court Record.
[50] Therein she states (at paragraph 8 of her Ruling) that the Defence main two points of arguments are (i) the owner denies knowledge of overloading and (ii) challenged the accuracy of the weighing device and the weighing process.
[51] At paragraph 9 of her Ruling the Learned Resident Magistrate states that the Defence in its first argument takes up the position that the owner denies knowledge of overloading. Further, that the Prosecution must demonstrate by way of evidence that the Accused (the Respondent) knowingly permitted the driver to drive the truck with the full knowledge that the truck was carrying excess load on both occasions.
[52] At paragraph 10 of her Ruling the Learned Resident Magistrate has stated that the Defence further submitted that the Prosecution did not call the driver as a witness in this matter so as to give evidence that he was actually authorized to drive the vehicle with excess weight.
[53] Having analyzed the evidence of the two Prosecution witnesses, at paragraph 21 of her Ruling the Learned Resident Magistrate states that it is important at this stage that the Prosecution has to present sufficient evidence to prove the elements of the offence. However, that the Prosecution has failed to present in Court that Goundar’s Timber Supplies permitted the driver to carry excess load.
[54] The Learned Resident Magistrate has further stated that while the Prosecution witnesses were not discredited, the evidence presented by the Prosecution failed to prove an essential element which is knowledge on the part of the Respondent to permit to carry excess weight.
[55] Accordingly, the Learned Magistrate has upheld the objections taken by the Respondent and found that there was No Case to Answer.
[56] However, I disagree with the decision made by the Learned Magistrate. It would place a very high burden on the Prosecution if in such cases they have to establish that the owner of a vehicle not only permitted the driver of the vehicle to drive the said vehicle, but also to establish that the owner permitted the driver to drive the vehicle with an excess load. No owner of a vehicle would ever admit that they permitted the driver to drive the vehicle with an excess load. If that were to be the case it would lead to an absurdity and the Prosecution would not be in a position to establish any offence contrary to Regulation 80 (9) (d) read with Regulation 87(1) of the VRC Regulations.
[57] In my opinion, the fault element in such cases would be one of ‘recklessness’ on the part of the owner of the vehicle. This is on the basis of Section 23 (2) of the Crimes Act which provides that if the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result of a conduct, recklessness is the fault element for that physical element.
[58] In the instant case, there is no dispute that the physical element of the offence is that the Respondent, being the owner of the vehicle [truck registration number IO 896], permitted Avneel Asish Lal to drive the said vehicle, in a public street. Permitting to drive the said vehicle would tantamount to conduct. The fact that at the time of the offence, the vehicle was carrying an excess load, would be the result of that conduct. Therefore, in terms of Section 23 (2) of the Crimes Act, recklessness would be the fault element for that physical element.
[59] It must also be stated that as per Section 21 (4) of the Crimes Act: “If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.”
[60] For the aforesaid reasons, I am of the opinion that the Learned Magistrate had erred in law in stating that the evidence presented by the Prosecution failed to prove an essential element which is knowledge on the part of the owner to permit to carry the excess weight.
[61] In the Magistrate’s Court, the Prosecution (LTA) called two witnesses in support of its case. The first witness was Adriu Nadredre, who was the Authorized Enforcement Officer LTA, who stopped the vehicle driven by Avneel Asish Lal and directed it to the LTA Office to be weighed. He has submitted in his evidence that the driver of the vehicle gave a statement and signed the said statement stating that he was permitted by Goundar’s Timber Supplies to carry a load of millings (Millings typically refers to small pieces of wood or shavings that are produced during the milling process) from Higgins Yard, Lomolomo to Tavua. The said statement of the driver was tendered to Court as a Prosecution Exhibit [A copy of the statement is found at page 93 of the Magistrate’s Court Record].
[62] The next witness for the Prosecution was Ajesh Chand, Authorized Officer LTA, who carried out the weighing of the vehicle. He testified that the truck was weighed at the LTA Office. The machine used for such weighing is calibrated annually and a certificate is issued by the Department of Weights, Measurement and Standards. According to the witness, the machine is fixed and it has a certificate on the machine to confirm that it has been calibrated.
[63] The permitted gross weight of the vehicle is 21,400 kilograms (21.4 tonnes). At the time the truck was weighed, it had an aggregate weight of 30.02 tonnes. A copy of the weighing certificate is found at page 97 of the Magistrate’s Court Record. Therefore, the total excess gross weight was 8.62 tonnes.
[64] It is clear from the evidence led by the Prosecution in this case that the owner of truck registration number IO 896 at the time of the offending was the Respondent. It has also been established that the Respondent permitted Avneel Asish Lal to drive the said vehicle, in a public street and that the said Avneel Asish Lal was acting in the course of his employment at the time of the offending. It has also been established by the Prosecution that at the time the vehicle was carrying a total excess gross weight of 8.62 tonnes of millings.
[65] Considering the facts of this case in its totality, I am of the opinion that this Appeal should be allowed and the Respondent should be called upon to make its defence.
[66] I am conscious of the fact that the alleged incident took place on 11 August 2018 and now over 6 years has lapsed since that day.
[67] I am aware that the Learned Resident Magistrate who heard the case is no longer in service. Therefore, this matter will now have to be handled by another Magistrate in the Magistrate’s Court of Lautoka. In the circumstances, I believe it is pertinent for this Court to make reference to Section 139 of the Criminal Procedure Act.
[68] Section 139 of the Criminal Procedure Act which deals with conviction or commitment on evidence partly recorded by one magistrate and partly by another is reproduced below:
(1) Subject to sub-sections (1) and (2), whenever any magistrate, after having heard and recorded the whole or any part of the evidence in a trial, ceases to exercise jurisdiction in the case and is succeeded (whether by virtue of an order of transfer under the provisions of this Decree or otherwise), by another magistrate, the second magistrate may act on the evidence recorded by his or her predecessor, or partly recorded by the predecessor and partly by second magistrate, or the second magistrate may re-summon the witnesses and recommence the proceeding or trial.
(2) In any such trial the accused person may, when the second magistrate commences the proceedings, demand that the witnesses or any of them be re-summoned and reheard and shall be informed of such right by the second magistrate when he or she commences the proceedings.
(3) The High Court may, on appeal, set aside any conviction passed on evidence not wholly recorded by the magistrate before whom the conviction was had, if it is of opinion that the accused has been materially prejudiced, and may order a new trial.
[69] Section 139 (1) of the Criminal Procedure Act permits a Magistrate who is succeeding another Magistrate or taking over the case from another Magistrate to act on the evidence recorded by his or her predecessor, or partly recorded by the predecessor and partly by the succeeding Magistrate. The succeeding Magistrate has the option to re-summon the witnesses and recommence the proceeding or trial (a trial de-novo).
[70] In terms of Section 139 (2) of the Criminal Procedure Act when the succeeding Magistrate commences the proceedings, the Accused has the right to demand that the witnesses or any of them be re-summoned and reheard. The Section also stipulates that the Accused shall be informed of such right by the succeeding Magistrate when he or she commences the proceedings.
FINAL ORDERS
[71] In light of the above, the final orders of this Court are as follows:
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT LAUTOKA
This 24th Day of April 2025
Solicitors for the Appellant: Office of the Land Transport Authority, Nasinu.
Solicitors for the Respondent: Dayal Lawyers, Barristers & Solicitors, Ba.
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