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State v Sarida [2012] FJMC 243; Traffic Case 1762.2010 (4 May 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Traffic Case No 1762/10

BETWEEN

THE STATE

AND

PENAIA SARIDA

JUDGEMENT

1. The accused in this case is charged with one count of driving a motor vehicle whilst there was present in the blood a concentration of alcohol in excess of the prescribed limit contrary to Section 103(1)(a) and 114 of the Land Transport Act No 35 of 1998.
   
2. The particulars of offence are as follows;
   

"Penaia Sarida on the 27th day of August 2010 at Lautoka in the Western Division drove a van registration number FG 053 along Lautoka Police Barracks Road, whilst there was present in 100 millilitres of his blood a concentration of 211.2 milligrams of alcohol, which was in excess of the prescribed limit."

3. The case was taken up for hearing on the 13th December 2011. The Prosecution called three witnesses. After the Prosecution case was closed the Court held that there is a case for the Accused to reply. The Defence Counsel informed Court that the Accused will remain silent and no witnesses will be called for the Defence.
   
4. Section 103(1)(a) of the Land Transport Act reads as follows;
   

"A person who drives or attempts to drive a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his blood commits an offence."

5. Accordingly the prosecution has to prove the following elements;
   
   1. The date, time and place
   2. The identity of the accused
   100. That the accused drove a motor vehicle
   4. That there was a concentration of alcohol in his blood in excess of the prescribed limit
      
6. Prosecution witness, Special Constable 2320 Eroni Serukalou gave evidence that on the 27th August 2010 at about 3.15 am when he was on night duty at the Single men's Barrack a vehicle came towards the ready Action Unit Base. He said he was alone at that time. He said the vehicle came in a zigzag manner and he felt suspicious as it was the end of the road where the Ready Action Unit Base is located. The witness said that he stopped the said vehicle registration number FG 053 and forcefully switched off the ignition. He said the driver was heavily smelt of liquor and he identified the Accused as the driver of that vehicle. The witness further said when the Accused came out of the vehicle he could not even stand properly. Constable Eroni said then he rang the Lautoka Police and informed the Traffic Branch to come.
   
7. I.P. Ram Prasad gave evidence that on the 27th August 2010 at about 3.30 am he conducted a breathalyser test on the Accused. He said he is authorized to conduct breathalyser tests. The witness tendered the results of the test and the operator certificate respectively marked as Exhibit 1 and 2.
   
8. The Prosecution tendered the caution interview as Exhibit 3. P.C. 3441 Mahendra Singh gave evidence that he recorded the caution interview of the Accused on the 27th August 2010 at about 9.50 am. He said the Accused admitted the offence in his interview. The Accused was represented by the Counsel from the time plea was taken. At no point did the learned Counsel inform the Court that they wish to challenge the caution interview. Without doing so P.C. 3441 Mahendra Singh was cross examined at length regarding the way in which the interview was conducted. It should be noted that it is the duty of the Defence to inform the Court whether they wish to challenge the caution interview when the Accused is represented. In any event I decide to disregard the caution interview since there is other evidence produced by the prosecution.
   
9. There was no dispute regarding the date, time and place of the incident. Further the Accused was identified by the witnesses and identity of the Accused too was not in dispute. Therefore I am satisfied that the Prosecution has proved those elements beyond reasonable doubt.
   
10. According to the evidence of the prosecution the first witness Special Constable 2320 Eroni Serukalou had not been on traffic duty on that day. He had merely been on duty at the barracks. The Accused had been stopped by him on suspicion since the vehicle was coming towards the round about where Police Unit is located. According to the Prosecution evidence later the Accused had been handed over to the Traffic unit. However this witness was crossed examined by the defence extensively regarding the omissions in his statement. The witness admitted that he did not make an exhaustive statement. But I am of the opinion that merely because the witness did not record the incidental details it has not caused any damage to the Prosecution case in view of the other evidence.
    
11. The Defence submitted in its written submissions that the Accused should be acquitted as there are contradictions in the evidence given by Prosecution witnesses regarding the state of the Accused. I have considered the contention of the Defence. It should be noted that mere inconsistencies in irrelevant facts will not collapse a Prosecution case if the elements of the offence are proved with consistent and credible evidence. The two main elements of this offence are whether the Accused drove the said vehicle and whether the Accused had a concentration of alcohol in his blood in excess of the prescribed limit. The evidence pertaining to these issues were not challenged by the defence or even not touched. Special Constable 2320 Eroni Serukalou gave evidence that he stopped the Accused when he was driving vehicle registration number FG 053. I.P. Ram Prasad gave evidence that he conducted the breathalyser test on the Accused. He further submitted the results of the test to corroborate that the reading was in excess of the prescribed limit.
    
12. The Prosecution witnesses were cross examined at length by the Defence regarding the appearance and the state of the Accused at the time he was arrested. It should be noted that as far as the charge in this case is concerned it is totally irrelevant to prove that the accused was incapable of standing or the Accused looked drunk. All what the Prosecution has to prove is that the concentration of alcohol in the blood of the accused was in excess of the prescribed limit. Therefore how ever much the Defence has cross examined on issues such as driving in a zigzag manner, smelling liquor, staggering of the Accused and having blood shot eyes, those issues do not have any bearing on this instant case. Vice versa a person can be found drunk and incapable under Section 102 of the Act without any evidence of blood or breath alcohol. ( Prasad v The State [2004] FJHC 63)
    
13. Regulation 9 of the Land Transport (Breath Tests and Analysis) Regulations 2000 provides as follows;
    

"In proceedings for an offence under section 103(1) or 105(1) evidence may be given of the concentration of alcohol present in the blood of the person charged, as determined by a breath analysing instrument operated by a police Officer authorized in that behalf by the Commissioner of Police, and the concentration of alcohol determined as aforesaid is deemed to be the concentration of alcohol in the blood of that person at the time of the occurrence of the event referred to in section 10391)(a) or 105(1) where the breath analysis was done within two hours after the event, unless the defendant proves that the concentration of alcohol in his blood at the time of that event was less than the prescribed limit."

14. The Accused did not prove at any stage that the concentration of alcohol in his blood at the time of the event was less than the prescribed limit as required Regulation 9 of the Land Transport (Breath Tests and Analysis) Regulations 2000.
    
15. I have considered the evidence produced by the Prosecution. I am satisfied that the evidence pertaining to the elements of the offence remains untouched by the defence and I am satisfied that the prosecution has proved beyond reasonable doubt that the Accused drove the vehicle registration number FG 053 whilst there was present in 100 millilitres of his blood a concentration of 211.2 milligrams of alcohol in excess of the prescribed limit.
    
16. In the circumstances I find the Accused guilty of the offence he is charged with and convict him accordingly.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

04.05.2012