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State v Jenkins [2011] FJMC 101; Traffic Case 3284.2011 (6 September 2011)

IN THE RESIDENT'S MAGISTRATES COURT
AT NAUSORI

Traffic Case No. 3284 of 2011

BETWEEN:

STATE

AND:

DAVID CHARLES JENKINS

BEFORE HIS WORSHIP THE RESIDENT MAGISTRATE : Mr Mosese Vatutaleikeiviti W. Naivalu

Date of Hearing: 26 July 2011
Date of Decision: 6 September 2011

Prosecution : Corporal Rao
Accused : Nilesh Prasad of Mitcheil Keil Lawyers

RULING ON NO CASE TO ANSWER

The Accused has been charged with the following traffic infringement notice ("TIN"):

"Statement of Offence

Exceeding speed limit contrary to Regulation 24(4(b) and 87 of the Land Transport (Traffic) Regulations 2000.

Particulars of Offence

David C Jenkins on 20/04/11 at Nausori in the Central Division drove vehicle registration No. EB342 on Princess Road, Waila, Corbett Avenue at a speed of 77kmph such speed being in excess of the maximum speed limit permitted in the said area namely 60kmph by 17km"

1. PW1 was Special Constable No. 1423 Fazim Ali of the Nausori Police Traffic Department. He swore in the Koran in English. He has had 11 years of service in the Police Force in total with 9 years in the Highway Department.
   
2. He remembers 20 April 2011 as he was on duty at Corbett Avenue with Special Corporal Penijamini Kovelotu and Women Police Constable Maria Liku. It was approximately 1600 hours. His duties included operating the laser speed gun.
   
3. The laser speed gun is a type of gun that determines the speed of a vehicle on the road. It's a laser gun and must be aimed straight onto the approaching vehicle. He had been using it for the past 9 years. He targeted many vehicles that day and booked them for speeding. He was standing at the rear-right of the Police vehicle facing Sawani.
   
4. He clocked EB342 from a distance that he cannot recall as he concentrated only on speed and not distance, EB342 was heading towards Nausori. The reading was 77 kmph on a 60 kmph zone. He then crossed the road and explained to the driver the allowable limit and showed him the laser gun with the reading and told him that he had exceeded the speed limit by 17 kmph. He was then booked by WPC Maria and a Traffic Infringment Notice ('TIN") was issued to him immediately after. The limit was 60 kmph in that zone. The Accused was travelling alone at the time he was clocked. No vehicle was travelling in front of the Accused's vehicle but some were behind his vehicle. Although the following vehicles had arrived 5 minutes later, no vehicle was in front of him.
   
5. A laser gun can shoot for a distance of 1.2km or 1200 metres if aimed at the front of an oncoming vehicle and the speed of the vehicle is clocked. There is a 60 kmph sign at Princess Road, Tamavua which is a gazetted sign. At Waila Housing junction however there is a 50kmph sign which continues on to Nausori town. He could recognise the Accused if given that opportunity and pointed at him in the Accused box.
   
6. Under cross examination he confirmed that he had been using a laser gun for the past 9 years and that the gun only tests the speed of a vehicle. He also confirmed that the gun-beam should shoot straight at the vehicle. He agreed that if his sight was hindered he will not get a proper reading of approaching vehicles. An oncoming vehicle in front will attract a proper reading but if its obstructed the reading will read zero. He explained that the beam is just a small dot and all it requires is that the beam should just impact the vehicle so a vehicle travelling at 77 kmph will attract a proper reading. He confirmed that no vehicles were infront of the accused's car and that he's not lying. It was then put to him that the accused was going to bring witnesses to say that two vehicles were infront of the accused's vehicle but he remained adamant that he was telling the truth and that no vehicles were travelling infront of the Accused's vehicle.
   
7. He confirmed that there was a road sign of 60kmph in Tamavua. He said that it was just situated somewhere along the Princess Road. When clarification was sought that Princess Road started from the junction of the Fiji National University past Tamavua and upto the Rewa Bridge he agreed but said that he didn't know where this sign was only that it was at Tamavua, Princess Road somewhere. He was not sure as to where exactly was this sign. He said if he was driving at a speed and he approached a sign that necessitated a slower speed he would reduce his speed and had to maintain that speed until another sign appears with a different speed sign.
   
8. He was posed an illustration to reflect this. That if one drove from Suva to the West and at Pacific Harbour there was a 60 kmph sign which continued along Queens Road until the next sign at Nadi did that mean that the driver had to maintain a speed of 60 kmph between Pacific Harbour and Nadi on a 60 kmph, he answered yes. It was then put to him that this was unreasonable but he replied that it was not.
   
9. He was then shown a photograph of Princess Road (towards Nausori) slightly ahead of the Cunningham junction with a 50 kmph speed sign on the left of the photograph. When it was put to him that the accused will bring evidence to show that that was the only sign before the one in Waila Housing junction he replied in the negative and said that there were more signs up ahead. Mr Prasad then made an application for a scene visit at a time appropriate to the court along Princes Road to prove the Accused's contention and also to prove that the witness was lying. This first photograph was tendered as defence exhibit D1. The witness was shown a second photograph from where the witness had stood and "fired" his laser gun. He confirmed that that would be about the same place. The 3rd photograph was the same spot but with a vehicle approaching from Suva towards Nausori. Both photographs were tendered as defence exhibits D2 and D3.
   
10. In re-examination, he said that the photograph would have been recent as road works were still visible on the side of the road. He didn't know where the 60kmph sign in Tamavua was. He also confirmed that a driver had to maintain speed until a new speed sign appeared.
    
11. PW2 was Woman Police Constable No. 4432 Maria Liku who swore on the Holy Bible in English and is based with the Highway Department. She has served 9 years with Police but joined the Highway Department in 2008.
    
12. She remembers 20 April 2011 at about 4.00pm when she was on duty. She was booking all offenders with Special Corporal Kovelotu and SC Fazim Ali and remembers booking EB342 which was overspeeding. He was clocked at 77 kmph and SC Fazim Ali clocked him with the laser gun at Corbett Avenue. She was sitting at the rear seat behind the passenger seat of the highway vehicle while SC Fazim Ali was at the rear of the vehicle. The Police vehicle was facing towards Sawani. She had seen SC Fazim Ali stop the vehicle, then he approached accused, showed him the gun reading before demanding his driving licence before he brought the Accused to her and told her to book him after showing her the gun reading which she said was 77 kmph. The speed limit is 60kmph. The accused was coming towards Nausori from Suva.
    
13. She said that if she saw the Accused again she could identify him and pointed out to the Accused as being that driver. She said that no vehicles were in front of accused's vehicle.
    
14. In cross-examination, she said that no vehicles had been booked since they had just arrived at that area to work. She was in the Police vehicle looking through her specimen charges and that she had indeed seen 77kmph from the laser gun. There is no official print out to show the speed clocked. She said that she would stick to her answer that no vehicles was travelling ahead of the accused's vehicle. At first it was put to her as to how was it possible that she was looking on the road and at the same time looking at her specimen charges and that she was lying she answered in the negative. She agreed that she had started in 2008 and that before joining the Highway Department she had been on stand-by duties and used to go to court work among other duties. When asked whether she was familiar with the traffic regulations she answered in the affirmative. She also agreed that she had prepared the TIN. When given the TIN she confirmed that it was her handwriting in the TIN with her signature. When asked whether she wanted to change anything on it she replied in the negative. She confirmed that the accused was charged with "exceeding speed limit" being Regulation 24(4)(b) and 87 of LTA (Traffic) Regulations 2000 and that the accused had infringed this She agreed that the Section prescribes a penalty and not an offence.
    
15. In re-examination, when asked by the Prosecutor as to what was her understanding of the words "offences under this regulation" pursuant to Regulation 24 she replied that to her it meant "exceeding speed limit".
    
16. PW3 was Special Corporal No. 2080 Penijamini Kovelotu who swore in the Holy Bible in Fijian. He is with the Highway Department at Nausori Police. He remembered 20 April 2011 at around 4.00pm when he was on duty along Princess Road with WPC Maria and SC Fazim Ali at Corbett Avenue, Princess Road. He was the driver of the Highway vehicle while SC Fazim Ali had the laser gun and WPC Maria was the booking officer. He agreed that SC Fazim Ali clocked some offenders that day. He was sitting in the driver's seat. He said he knew the person that SC Fazim Ali had clocked being the driver of EB342, it was a company vehicle. After SC Fazim Ali had clocked him, he had approached him and showed him his speed, asked for his licence and gave it to WPC Maria who booked him. He said he didn't know the speed of accused and that there was no other vehicle in front of accused when he was clocked. He remembers the accused and if he sees him again he would recognise him and he pointed at the accused in the accused's box.
    
17. In cross examination he agreed that he gave a statement before he came to court after which he was shown his statement and he confirmed that it was his statement. He also confirmed that he didn't know the Accused's speed and he didn't wish to change anything in his statement. His statement was dated 8 July 2011 and he read out the portion highlighted by Mr Prasad. It meant that the accused was driving at 77 kmph and not 60 kmph. When asked as to which is the true statement, is it the statement he said in court under oath today or that of his recorded statement he replied that his recorded statement was true. He agreed that he had been in the service 11 years and he had sworn on the Holy Bible to speak the truth and he maintained that he was being truthful today. When put to him that he was lying he replied that he wasn't. He told the court that the accused's vehicle was the 1st vehicle that they had booked and that they had booked 3 to 4 vehicles in total during that shift. The witness statement was exhibited as DW4. There was nil re-examination.
    
18. That was the end of the Prosecution case.
    
19. After the Prosecution had closed their case, Counsel for the Defence submitted that there was no case for the Accused to answer pursuant to Section 178 of the Criminal Procedure Decree ("Decree"). Mr Prasad who had obviously "come prepared for the battle" immediately handed in written submissions in an effort to win the "ensuing war". Corporal Rao on the other hand who was in an unenviable position given that he was not the booking officer nor had drafted the charges had asked for a timetable for reply which was refused by the court in light of the objection by the defence since it was the State's case and the accused had responded and respected the TIN by turning up on the day to answer to the charges that to allow further time would defeat the whole purpose of due process. The State should have been ready therefore with a no case to answer submission or not.
    
20. Primarily the defence argued that the Statement of Offence was defective and that there is no offence such as Regulation 24 of the Land Transport (Traffic) Regulations 2000 as is drafted. This Mr Prasad submitted is defective on the face of it. The Statement of Offence therefore should have read as follows:
    

"Speeding contrary to Regulation 24 (1) (a) or (b) and (4)(b) and 87 of Land Transport (Traffic) Regulations 2000."

21. In the present case the Statement of Offence reads as follows:-
    

"Exceeding the Speed Limit contrary to Regulation 24 (4)(b) and 87 of Land Transport (Traffic Regulations 2000.

22. In effect the accused is not charged at all. The Prosecution has not identified the actual offending provision which the Defendant is alleged to have contravened being the Land Transport Act 1998 and/or Land Transport (Traffic) Regulations 2000 which leads to the subject penalty. By only citing the penalty provision there is no reference to the offending provision. Offending provision and the penalty provision must be pleaded in the Statement of Offence to create in law a proper and indictable Statement of Offence. This is in breach of Section 61(3) of the Decree.

23. Mr Prasad submits the recent High Court criminal appeal case of Eremasi Raileqe v. The State [2011] FJHC 366, a case which dealt with bail where His Lordship Justice Daniel Goundar stated the following:

" [7] The charge against the appellant was indeed defective. The offence alleged was breach of bail. There is no offence of breach of bail. The only offence under the Bail Act is absconding bail.

[9] The charge clearly did not disclose any offence. The entire proceedings were a nullity."

24.In applying Raileqe's (supra) case to the facts of the present case Mr Prasad submitted that the offence of "exceeding speed limit" is unknown to law therefore the charge is defective and that the correct statement of offence should have been "speeding" just as breach of bail was as opposed to absconding bail. Furthermore, Regulation 24(4)(b) states as follows:-

"Different penalties may be prescribed for the offences under this regulation in which a driver exceeds the speed limit by –

(a) Less than 15km/h;

(b) 15km/h or more but less than 30km/h; or

(c) More than 30km/h."

25. The other Regulation stated in the statement of offence is Regulation 87 which states:-

"A person who commits an offence under these Regulations is liable on conviction to the penalties prescribed for that offence in Schedule 2 to the Land Transport (Fees and Penalties) Regulations 2000."

26. He further submitted that both Regualtions 24 (4)(b) and 87 are penalty provisions and not offending provisions as required under Section 61(3) of the Decree. The State has the burden to first prove that the Accused committed the offence they have failed to do miserably. The Regulations cited are what the penalties would be for persons found guilty and nothing more. He therefore urges the Court to follow Justice Goundar's reasoning above and acquit the Accused on the basis that the State has failed to prove the charge.

27. However, Mr Prasad submitted that there was a further defect in the Charge.

28. Section 58 of the Decree states as follows:-

"Every charge or information shall contain –

(a) a statement of the specific offences or offences with which the accused person is charged; and

(b) such particulars as are necessary for giving reasonable information as to the nature of the offence charged."

(Emphasis theirs)

29. While, Section 66 of the Decree states as follow:-

"Subject to any other provisions of this Division, it shall be sufficient to describe any place, time, thing, matter, act or omission to which it is necessary to referee an any charge or information in –

(a) ordinary language; and

(b) in such a manner as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to."

(Emphasis theirs)

30. In the present case the "Particulars of Offence" on the TIN which the accused received reads as follows:-

"David C Jenkins on (blank)/04/11 at ..."

31. He submitted that the actual date when the alleged offence took place is absent. Both Prosecution and the court was shown this anomaly. The Court noted that indeed there was no date on the TIN which was supposed to be the original. However, strangely enough, the date 20/4/11 appears on the TIN in the court file.

32. Mr Prasad further submits the High Court criminal appeal case of Faiyaz Khan v. The State [2008] FJHC 267 where Justice Mataitoga allowed the appeal in upholding that the charge was defective due to omission of fact that the appellant was a holder of public service vehicle licence and that at the time of the alleged offence he was driving or attempting to drive a public service vehicle. Justice Mataitoga stated as follows:-

"The offence is a statutory offence, therefore the minimum requirement for the phrasing of the particulars of the charge should satisfy section 119 of the CPC. That provision requires that a statement of the specific offence with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence: State v. Brian Singh [2007] FJCA 46"

33. Justice Mataitoga further found as follows:-

"These omissions are incurable under section 122(1) of the CPC because there is fundamental error, namely, the failure to include the fact that the appellant was a holder of public service vehicle licence and that at the time of the alleged offence he was driving or attempting to drive a public service vehicle: R v Nottingham Justices ex Parte Brown (1960) 3 All ER 625."

34. Finally His Lordship found as follow:-

"In conclusion, I am satisfied that the charge the appellant was faced with in the Magistrates Court was defective because it discloses no offence chargeable under section 105 of the LTA. I find that defect incurable.

I am further satisfied that in this case the interest of justice does not require a retrial and I order accordingly."

35. Applying Khan's (supra) case to the present case Mr Prasad submitted that sections 119 and 122 of the CPC are now sections 58 and 66 of the Decree respectively. He submitted that this case is more serious in terms of the omission by the State. Failing to state the date of the allegation goes to the root of the charge. He submitted that the date of the offence is the genesis of any charge and failure to state that is fatal and as Justice Mataitoga found cannot be cured.

36. Mr Prasad further submitted that even if the State was correct in the above there was in any event still no offence committed under Regulation 24(1) of the said Regulations and that the Accused should be acquitted.

37. He explained how. Regulation 24(1) of the Regulation he submitted states:-

"Subject to sub-regulation (2), a person must not drive a vehicle on a public street –

(a) in a city or town at speed exceeding 50km/h

(b) outside a city or town at a speed exceeding 80km/h."

38. He submitted that the scene of the alleged offence, that is, near Corbett Avenue, Waila, Princess Road, which under the Regulation is "outside a city or town" hence has a maximum speed of 80km/h. The Defendant was driving at 77km/h, which is in fact below the speed limit. Hence no offence was committed. In light of the above Mr Prasad humbly requests the Court to acquit the Defendant under section 178 of the Decree on the basis that the State has failed to discharge its burden at the close of the Prosecution case.
    

LAW AND ANALYSIS

39. Section 178 of the Decree provides:
    

"If 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 or her to make a defence, the Court shall dismiss the case and shall acquit the Accused."

40. Previously, under the Decree this was equivalent to Section 210 and read:
    

""If 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."

41. In State v Aiyaz [2009] FJHC 186; HA033.2008 (31 August 2009) Justice Daniel Goundar differentiates the guiding rules between High Court and Magistrates Court.

"The test under section 293(1) is settled and is more stringent than the test under section 210 of the Criminal Procedure Code, which governs an application for no case to answer in the Magistrate's Court.

The test for no case to answer in the Magistrates Court under section 210 is adopted from the Practice Direction issued by the Queens Bench Division in England and repordet in [1962] 1 All ER 448 (Moiden v R (1976) 17 FLR 206).

There are two limbs to the test under Section 210:

(i) Whether there is relevant and admissible evidence implicating the Accused in respect of each element of the charged offence;

(ii) Whether the Prosecution has been so discredited by cross-examination or is manifestly unreliable that no reasonable tribunal could safely convict on it.

42. Either limbs of the test can be relied upon to make an application for "no case to answer".
    
43. In R v Jai Chand (1972) 18 FLR 101 Grant J (as he then was) in upholding a submissions that there was "no case to answer" said at p 103:
    

"It seems clear that the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before if. In other words, at the close of the prosecution's case the Court should adopt an objective test to be adopted as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence"

44. In Sisa Kalisoqo v R Cr App 52 of 1984 (FCA Reps 84/563) where, after setting out an oft-cited passage in the judgment of the Court of Appeal (UK) in R v Galbraith [1981] 1 All E.R 1060 at 1062 which sets out how a judge should approach a submission of no case, the Fiji Court of Appeal said at p.8
    

"In our view, the simple and narrow prescription of Section 293 precludes the adoption in this country of para. 2(a). It is of application where there is some evidence...and whether there is some evidence a Judge cannot say there is no evidence."

45. Paragraph 2(a) of the Galbraith (supra) passage reads:-
    

"The difficulty arises where there is some evidence but it is of a tenuous character for example because of inherent weakness or vagueness or because it is inconsistent with other evidence (a) where the judge comes to the conclusion that the Crown's evidence taken at its highest is such that a jury properly directed could not convict on it, it is his duty on a submission being made, to stop the case."

46. Fatiaki J in delivering his judgment on 30 April, 1996 in The State v. Vijay Kapoor and Kaylesh Chandra FLR 42 (1996) 58, at 60 of the judgment stated:
    

"In my view the phrase 'no evidence' as it occurs in Section 293 of the Criminal Procedure Code must mean 'no reliable evidence' or 'no credible evidence' and not simply any evidence no matter how inherently vague or unreliable vague such evidence may be".

47. The then Chief Justice TImoci Tuivaga in State v Rohit Ram Latchman Criminal Appeal No. HAA 00321.96S said at p5 of the judgment.
    

It is from the authorities cited that the test to be adopted by the adjudicating tribunal is an objective one and that is whether at that stage of the trial a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. This is distinct from the ultimate subjective test to be adopted at the close of the trial".

48. I have carefully considered the written submissions of particularly the Defence Counsel and oral counter-arguments by the Prosecution and thank them for their assistance. At this juncture I concede that the revelations arising from defence counsel submissions is not only basic yet novel which has taken more than a decade or so to unravel were the court to accept them.
    
49. It is clear therefore that Mr Prasad presents three scenarios as the crux of his arguments on no case to answer. Firstly, that the charge is defective on the face of it. Next, that the charge lacks the necessary standard particulars and finally, that were the State correct in the earlier scenarios, the Accused was still driving under the required speed limit of 80 kmph as he was clocked driving at 77 kmph. Hence, there being in effect no relevant nor admissible evidence before the Court the Court should therefore stop the case and acquit the accused. These arguments therefore in its traditional sense are mere preliminaries rather than the usual cogent substantive in terms of evidence adduced throughout the trial proper inasfar as the Prosecution case is concerned.
    
50. The Prosecution on the other hand presents that there is sufficient relevant and admissible evidence for the accused to be put to his defence. What more reliable and credible evidence can there be when the fact of the matter is that the accused was clocked at 77 kmph? But what is evidence if there is no offence or how will the elements of the charge to be discharged or satisfied if no offence is created as the defence seems to suggesting?
    
51. The effect of this ruling will have far-reaching repercussions in traffic infringements across the country in both Land Transport Authority and State prosecutions and it's a wonder that this was never tapped before in any court in the country since 2000 which is no doubt a credit to Mr Prasad's capabilities. There can never be a more perfect example of the trite pronouncement that "the Courts do not create the law but only interpret it" as in the present case. If anything, it is the accused's dogged determination to remain not guilty and proceed to trial rather than pleading a quick-exit guilty and just paying the $40.00 prescribed fine (which he was more than capable of paying) that has enabled the court to do its core function above.
    
52. In all circumstances and in taking into consideration Mr Prasad's submissions of no case to answer in particular the authorities of Raileqe (supra) and Faiyaz Khan (supra) and Section 61(3) of the Decree, together with the converse argument that the accused was driving well within the legal speed limit of 80 kmph at the material time, the court is left with no other option but to accept his submissions. As a result of "the cart being put before the horse" where the charge stipulated the penalty without the offence the court not only has its hands tied but its tied behind its back. I therefore find that there is no case for the accused to answer or that it be necessary for him to make his defence and acquit him accordingly.
    
53. In effect therefore, and in conclusion the court further finds that the offence of Exceeding speed limit contrary to Regulation 24(4)(b) and 87 of the Land Transport (Traffic) Regulations 2000 as appears on the TIN for which the Accused was charged is not an offence known to law. The charge clearly did not disclose any offence. Therefore the entire Prosecutions case was a nullity.
    
54. 28 days to appeal.
    

Mosese V. W. Naivalu [Mr]
RESIDENT MAGISTRATE