IN THE MAGISTRATE'S COURT OF NASINU

TRAFFIC CASE NO.1057/2010

STATE

VS

HEMANT KUMAR

Police Sgt Volavola for the State 
Accused Present and appeared in person

Judgment

[1] The accused is charged with traffic offence. The charge read as follows;

CHARGE

Statement of Offence [a]

FAILING TO HAVE A LICENCE FOR A PUBLIC SERVICE VEHICLE: Contrary to Section 62 (1) (4) and 114 of Land Transport Act 1998.

Particulars of Offence [b]

HEMANT KUMAR on 7/11/09 of Nasinu in the Central Division drove a private vehicle registration number EV910 as a minibus on Matanikorovatu Road without being licenced as a public service vehicle.

[2] This case was heard on 07th November 2011 and case was fixed for judgement today.

Summary of evidence

[3] At the trial, prosecution called one witness to prove the charge.

[4] PW 1-Rakesh Deo PC 3702; He said that he was a Police Officer before but now he is a Taxi Driver. On 07th November 2009 about 10.20am he was on duty with another police officer. They were in Caubati. He said they came across 7 seater van and passengers were not related to the driver. Then, they booked him for FAILING TO HAVE A LICENCE FOR A PUBLIC SERVICE VEHICLE. The van is registered for private use. Its Registration number is EV 910. The accused was identified. He said he issued a TIN to the driver. 

 [4] The accused was given to cross examine the witness. The witness said there were three Indian passengers in. But he does not have the names of passenger and they are not here to give evidence. The witness was suggested that he is lying to the court. But it was denied. The witness said that he can identify the passengers if they are produced. Then, the accused produced Krishna Kumari, but the witness said that she was not in. 

 [5] Thereafter prosecution closed their case. Since there is a case to answer, then, Defence was called, rights of the accused had been explained and the accused opted to give sworn evidence called another witness.

[6] The accused gave evidence as follows; DW1-Hemant Kumar. He said "it was a Saturday, I myself, my wife and granddaughter were going to buy eggs. Officers stopped me. I informed the passengers are my wife and granddaughter. The officer did not listen to me. He asked my driving licence. Then he booked me for the offence. ...I have been working for Suva city council for 36 years as a foreman. I have never used a government vehicle. All my children are in good positions and I am earning $35,000 per year. The accused further said therefore he does not want to do these types of things"

[7] In cross examination, the accused said that passengers were in back, because of the small child. The accused said when police stopped he was driving; they did not ask any question from passengers. 

[8] DW2- Krishna Kumari; She said at particular day, they were going to Ramasamy shop. The officers stopped her husband and said you were picking passengers, but he denied. He said that passengers were his wife and granddaughter, but they did not listen and booked him. She further said her husband was not operating a public transport service and he is a foreman of Suva City Council. 

[9] She said that she cannot remember the date and she always going shopping with her husband. She said she was there when the police booked him for this offence. Then, Defence closed their case. 

The Law 

[10] This offence is defined by s 62 (1) of the Land Transport Act. It says;

62. - (1) No person shall drive or use any motor vehicle, or cause or permit one to be driven or used, as a public service vehicle unless it is licensed as a public service vehicle.

(2) No person shall drive or use, or cause or permit to be driven or used, any public service vehicle contrary to the terms of a public service vehicle licence or public service permit relating to that public service vehicle.

(3) An owner of a motor vehicle that is licensed as a public service vehicle shall ensure that at all times –

(a) the prescribed licence label is affixed to the motor vehicle; and

(b) the correct public service vehicle identification number is clearly marked on it.

(4) A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to the prescribed penalty.

[11]The penalty is mentioned in section 114 of the said Act. It says;

62(4)	Failing to display public service vehicle label or number	(a) First offence - $500/3 months and 2 demerit points (b) Second offence - $1,000/6 months and 3 demerit points	

[12] The burden of proof is vested on the prosecution in this matter and they should prove this charge beyond reasonable doubt. What is proof of beyond reasonable doubt is described in several cases. 

[13] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt about the guilt of the accused."

 [14] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen reported in [1970] AC 618, 72 New Law Reports 313 (Sri Lanka) 

"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[15] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted. 

Analysis of the evidence

[19] Now I evaluate the evidence adduced before me. The accused denied the charge. At the trial the prosecution did not call any witnesses apart from the PW1. He said that there was another witness who is a police officer. But even they did not call him. The charge is FAILING TO HAVE A LICENCE FOR A PUBLIC SERVICE VEHICLE. The accused drove a private vehicle. The PW1 said there were three passengers. But the prosecution failed to call any passengers to prove that the accused charged a fee for their trip. The witness said that passengers told to him that they are going to pay him. But this all become hearsay evidence without calling a passenger. 

[20] To prove this type of charge, prosecution must call a passenger. At least the prosecution failed to give a name of passenger. In contrast, the accused produced a witness but PW1 said that she was not a passenger at that time. How can the PW1 say that she was not the passenger when he did not get any names of the passengers? There is no burden lies on the accused to prove his innocence and his innocence is presumed until guilty is proven by the prosecution beyond reasonable doubt. The prosecution has failed to prove that the accused transported passengers for money. It is unsafe to convict the accused on available evidence. I therefore acquit the accused. 

On 08th February 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate- Nasinu