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State v Nand [2010] FJMC 67; Traffic Case 1469 of 2009 (8 July 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Traffic Case No 1469/09

BETWEEN

THE STATE

AND

AVINESH NAND

JUDGEMENT

1. The accused in this case is charged with one count of driving a motor vehicle with non confirming mass of plus load.
   
2. The statement of offence and the particulars of offence are as follows;
   

Statement of offence

Driving a motor vehicle with non confirming mass plus load contrary to regulation 80(2)(c)(1)(a) and 122 of Land Transport (vehicle registration and construction) regulations.

Particulars of offence

Avinesh Nand on the 23rd day of April 2009 at Lautoka in the Western Division drew a motor vehicle no Es 732 fitted with 16 tyres exceeded the required maximum axle load of 21.4 tones of said motor vehicle by 12.14.

3. The accused in this case has been booked on the 23rd April 2009. The case was first called on the 14th July 2009 and the accused pleaded not guilty to the charge. The case was taken up for hearing on the 17th May 2010. The prosecution called two witnesses. After the prosecution case was closed, the court decided that the prosecution has made out a case against the accused sufficiently require him to reply. The accused gave evidence and no witnesses for the defence were called.
   
4. Prosecution witness, Ponipate Turelu gave evidence saying that he is an authorized officer of the LTA and on the 23rd April 2009 he was on duty at Navutu round about with another officer checking for overloading vehicles. He said at about 12.20 pm a vehicle registration No ES 732 came loaded with gravel and they weighed the vehicle at the LTA weigh bridge. He said it was 33.54 tons and the standard weight of a ten wheeler truck is 21.4 tons. He said the excess weight was 12.14 tons.
   
5. The witness said that the driver of the truck was explained about the excess weight and the drivers name is Avinesh Nand. He identified the accused as the person who drew the truck.
   
6. The accused was explained of his right to cross examine and was given him the opportunity to cross examine the witness. Yet the accused said that no questions.
   
7. Prosecution witness, Sani Melie gave evidence saying that he is an authorized officer of the LTA and he booked Avinesh Nand and issued a TIN for carrying an excess load. He corroborated the evidence of the first prosecution witness Ponipate Turelu.
   
8. The accused was explained his right to cross examine the witness but the accused did not cross examine this witness too.
   
9. After the prosecution case was concluded it was decided that the accused has a case to reply and he was explained that he can give evidence, call witnesses or remain silent. The accused informed court that he will give evidence.
   
10. He gave the following evidence;
    

"My vehicle was hired by the Department of National Roads. Then the country was facing a national disaster by floods. They hired our vehicles to repair the washed away roads. I was carrying gravel. It was government property and the government machines loaded that gravel. They gave me instructions to take to Lautoka. I followed the instructions. It was the orders of the Prime Minister to repair all the partly washed roads."

11. The prosecution challenged the evidence of the accused. The accused failed to produce any other evidence when the prosecution asked whether he can submit any proof to say that he got instructions from the government. Further he admitted that he carried excess weight during the cross examination. Finally the accused said that "I am a driver I wont be able to pay 1000 dollars. The court may impose a less fine"
    
12. It should be noted that the evidence led by the prosecution was not challenged by the accused. Further he admitted that he indeed carried excess weight. His only defence was that he acted on the instructions of the government. But no evidence was produced to prove his position. Besides I do not consider that it is a tenable defence to say that the accused acted on the instructions of a third party when he admits the fact that he did commit the offence.
    
13. I decide that the prosecution has discharged its burden and proved beyond reasonable doubt that the accused committed this offence.
    
14. I convict the accused for the offence he is charged with.
    

Rangajeeva Wimalasena
Resident Magistrate

Lautoka.
08.07.2010