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State v Kumar [2012] FJMC 252; Traffic Case 1075.2011 (31 July 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Traffic Case No 1075/11

BETWEEN

THE STATE

AND

NILESH KUMAR

RULING ON NO CASE TO ANSWER

1. The Accused is charged with one count of driving 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)(2) and 114 of Land Transport Act No 35 of 1998 and another count of disobedience of lawful orders contrary to section 202 of the Crimes Decree number 44 of 2009.
   
2. The case was taken up for hearing today and the case was stood down in the morning as it appeared that the accused has a counsel. Further the Prosecution informed Court that one of the witnesses is on his way. Later the case was taken up for hearing and the Defence Counsel was still not present. The accused was inquired whether the learned Defence Counsel has informed him any thing regrading the trial. The accused answered in negative and further added that he sent a message to the Counsel in the morning.
   
3. This case was fixed for hearing when the learned counsel appeared in Court on the 8th June 2012 apparently since the Counsel agreed to this date. Today the learned counsel does not appear for the trial and there is no other communication made to the Court regarding his absence.
   
4. Every accused person has a right to legal representation. However it should be noted that right to counsel is not an absolute right. There are other considerations that a Court will have to give regard to in situations like this.
   
5. The Accused and the Defence Counsel had ample time to prepare for the case or at least to inform the Court in advance that the trial cannot be proceeded due to some reason. However in absence of any such explanation or move by the Defence, the Court has no other option than proceeding with the trial.
   
6. Accordingly the Prosecution was invited to start their case. The Prosecution called the Police witness who arrested the accused and the Officer who recorded the caution interview. Further the caution interview was marked as Prosecution Exhibit 1.
   
7. After calling the second witness the Police Prosecutor made an application to Court to stand down the matter saying that the other witness namely ASP Liwai, who conducted the breathalyser test is on his way. The Court refused to stand down the case as it is of paramount importance for the Prosecution witnesses to be present in Court when the cases are taken up. Accordingly the Prosecution case was closed without calling any other witness.
   
8. I am compelled to note that this is an absurd application to request the Court to wait for witnesses to come. I do not think that in any other jurisdiction in the world that the Courts stand down cases for the witnesses to come whenever it is convenient to them. Specially when it comes to official witnesses like Police Officers, I think this is a very serious concern.
   
9. There is no doubt that there should be some discipline in the Police Force at least to attend Court on time. I do not think the witness being a Senior Police Officer he sets a good example to the other officers as well. Lack of discipline in Police Force and lack of respect to Court invariably deteriorate the standards of any civilized society. It should be noted that the conduct of the Prosecution and the Prosecution witness who cannot attend Court on time fall far short of the standards of a Disciplined Police Force.
   
10. Having said that now I will proceed to consider whether the Prosecution has made out a Prima Facie case against the Accused to reply.
    
11. Section 178 of the Criminal Procedure Decree states as follows;
    

"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."

12. Justice Nazhat Shameem in Abdul Gani Sahib V The sate discussed the tests that are applicable in considering whether there is a no case to answer. Accordingly the court has to consider;
    
    1. Firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence and;
       
    2. Secondly, whether on the prosecution case, taken at its highest, a reasonable tribunal could convict.
       
13. I have considered the evidence led by the prosecution. Prosecution witness PC 4347 Mikaele Tauvou gave evidence that on the 27th February 2011 he stopped the accused at about 11.20 pm on the Vitogo Paipai road. He said the accused was smelt of liquor. He further said he failed to test the accused on Dragger Alcotest 7410 as the battery was drained and the accused was taken to the Police Station for testing. The witness said that he handed over the accused to ASP Liwai Gotegote for dragger testing.
    
14. No other witnesses were called by the Prosecution to corroborate the arrest of the Accused on Vitogo Paipai road. There was no mention about the other Officers who may have been with the arresting Officer PC 4347 Mikaele Ratuvou. It should be noted that it is the duty of the Prosecution to prove the charges against the accused. It is important that the Prosecution adduce corroborative evidence specially regarding the facts in issue.
    
15. PC 3844 Sanjiv Chandra gave evidence that he recorded the cautioned interview of the Accused. He said he gave all the rights and the Accused signed the recorded interview. The Accused did not cross examine the witness. Further the cautioned interview of the Accused was tendered as evidence by the Prosecution.
    
16. It should be noted that statements of Accused persons are tendered to corroborate the Prosecution case, if there is any confession in the caution interview. Yet, the Prosecution has to be mindful whether the confession of the accused fall in line with the prosecution case. It should be noted that there is nothing called partial confessions. Either an Accused has to confess to the offence or offences he is charged with or deny the commission. If an Accused person does not admit to the entire commission of the offence which covers the elements of such offence it cannot be considered as a confession which can be used to prove the Prosecution case. The Prosecution should rely on a cautioned interview only when an Accused admits the offence he is charged with. Any thing fall short of that would create a contradiction in the Prosecution evidence.
    
17. However in the present case the prosecution tendered the cautioned interview as a part of the prosecution evidence. But on the perusal of the cautioned interview it appears that the accused has totally denied driving a vehicle. Although he had admitted that he was drunk he has categorically stated that his vehicle was driven by his wife and the Police came and arrested him at his house which is at Vitogo Paipai road.
    
18. Since the Prosecution has relied its case on two different versions, namely the evidence of the Police Officer who arrested the accused and the statement of the Accused, a clear doubt is created whether the Accused was in fact driving the said car or not. Secondly the Prosecution failed to adduce evidence that the Accused was having excess alcohol in his blood, as the Officer who conducted the breathalyser test did not come to Court to give evidence. Thirdly there was no evidence adduced to show that the Accused has been disqualified from driving in a previous case. Further when the Prosecution evidence is so discredited by the contradiction in the caution interview and the testimony of the Prosecution witness, whether the Accused was in fact driving, there is no evidence to implicate the accused in respect of the elements of the second count as well.
    
19. In the circumstances I decide that the Prosecution failed to make out a case against the Accused sufficiently to require him or her to make a defence in respect of the first and the second counts.
    
20. Accordingly I acquit the accused from the first and the second counts.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

31.07.2012