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State v Senibua [2012] FJMC 51; Criminal Case 4545.2011 (10 April 2012)

IN THE FIRST CLASS MAGISTRATE'S COURT
WESTERN DIVISION AT NADI

Criminal case No. 4545/11

STATE

v

MARIKA VAKACOKOWALE SENIBUA

Sgt. Naidu for prosecution
Mr. Tunidau for accused
Date of Ruling: 10 04.2012

RULING
[On no case to answer]

The Application

[1] This is an application by the defence counsel under Section 178 of the Crimes Procedure Decree of 2009. At the close of the prosecution case, the defence counsel submitted that there was no case to answer sufficient enough to put the Accused to his defence and as a result the Accused should be acquitted.

Prosecution's Response

[2] It was submitted on behalf of the state that:

The defence filed its written submission on no case to answer on 06 March 2012. On 08 March 2012 prosecution sought time to file reply to the defence's written submission. Accordingly the court granted 7 days for the prosecution to tile reply and the matter was adjourned to 27 March 2012. The matter was called on 27 March 2012 to check on the prosecutions reply but the prosecution did not file the reply till then and sought further time to file their reply. This was objected to by the defence. Nonetheless the court exercising its discretion granted final 3 days for the prosecution to file their reply and the matter was fixed for ruling on 02 April 2012. However, the prosecution have failed to file their reply until today.

The Governing Section

[3] (i) The provisions for a no case to answer submissions in the Magistrates Court is found in section 178 of the Criminal Procedure Decree which reads thus:-

"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".

(ii) Repealed Penal Code also had similar provision under section 210. Both sections are verbatim except for the word "forthwith". The word "forthwith" is left out from section 178 of the Criminal Procedure Decree 2009. Therefore case decided under section 210 of Criminal Procedure Code may be applied to the present situation.

The Charge

[4] The accused was charged as follows:

First Count

Statement of Offence

REFUSED TO UNDERGO BREATH ANALYSIS WHEN REQUIRED TO DO SO BY A POLICE OFFICER contrary to Regulation 103 (1) (b) and 114 of Land Transport Act No.35 of 1998.

Particulars of Offence

MARIKA VAKACOKOWALE SENIBUA on the 22nd day of April 2011 at Nadi in the Western Division, upon being required by a police officer namely PC 3401 Ajay Chand Varma refused to undergo breath analysis under Regulation 103 (1) (b) of Land Transport Act No.35 of 1998, refused to undergo that analysis in accordance with the direction of the said PC 3401 Ajay Chand Varma.

THE CHARGING SECTION

[5] Section 103-(1) (b) of the Land Transport Act states:-

"A person who fails or refuses to undergo a breath test or breath analysis when required to do so a police officer".

[6] The prosecution must prove the following elements of the charge:

i. The accused

ii. Failed or refused to undergo a breath test or breath analysis

iii. When required by a police officer

THE LAW

[7] The general principles governing a no case to answer application in the Magistrates Court was set out in the long standing case of R v Jai Chand (1972) 18 FLR 101. In upholding a submission that there was no case to answer in the Magistrates Court Grant CJ stated 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 it. In other words, at the close of the prosecutions case the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. However, the question does 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 or evidence can never be enough nor can any amount of worthless discredited evidence."

[8] In Moidean v Reginam Criminal Appeal no. 41 of 1976, the Court of Appeal also set out the incidences when a submission of no case to answer may be properly made and clarified to a greater extent what the learned Magistrate is to focus on.

[9] Moidean (supra) pointed out the following instances in which a no case to answer application may be upheld:

1. When there is no evidence to prove an essential element in the alleged offence;
   
2. When the evidence adduced by the prosecution has been so discredited as a result of cross examination or;
   

100. The evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it.
     

[10] In HAW TUA v PUBLIC PROSECUTOR (1981) AC 136, the Privy Council in dealing with an appeal form the court of Criminal Appeal from Singapore inter alia made the following remarks:-

"The Proper attitude of mind that the decider of fact ought to adopt towards the prosecutions' evidence at the conclusion of the prosecution's case is most easily identified by considering a criminal trial before a judge and jury, such as occurs in England and occurred in Singapore until its final abolition in capital cased in 1969. Here the decision-making function is divided; questions of law are for the judge, question of facts are for the jury. It well established that in a jury trial at the conclusion of the prosecution case it is the judge's function to decide for himself whether evidence has been adduced which, if it were to be accepted by the jury as accurate, would establish each essential element in the alleged offence: for what are the essential elements in any criminal offence is a question of law. If there is no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove anyone or more of those essential elements, it is the judge's duty to direct an acquittal, for it is only upon evidence that juries are entitled to convict, but if there is some evidence, the judge must let the case go on."

The evidence

[11] The prosecution called three witnesses, namely (i) PC Ajay Varma (PW1), (ii) PC Josuva (PW2), (iii) Tavita (PW3) and PC Vinesh Prasad (PW4).

[12] The prosecution also marked and tendered the following documents:

a. Certificate of Authority - Exhibit 1

b. Certificate of Verification - Exhibit 2

c. Dragger Alco Test 7110-1st Test - Exhibit 3 -

d. Dragger Alco Test 7110-2nd Test - Exhibit 4

e. Dragger Alco Test 7110-3rd Test - Exhibit 5

f. Statement Form - Exhibit 6

g. Caution Interview - Exhibit 7

[13] The application for no case to answer would be determined on the evidence so far laid before this court. I would therefore state what each witness has testified.

[14] The summary of evidence of PW1 is as follows:-

a. He is a traffic officer. He deals with all accident matters, scene visits and attends for drunk and driving.

b. In 2010 he was authorized to do test by Commissioner of Police. He produced and marked the Certificate of Authority as Exhibit 1.

c. On 22 November 2011 he was on traffic operation since 1900hrs till 0600hrs. At about 10.00pm he was doing random breath testing.

d. He stopped one LTA vehicle registration number 37 of which the accused was the driver. He was driving from Nadi towards Nadi Airport. The Accused was alone in the vehicle.

e. He smelt of alcohol from the accused's breath. The Accused was staggering and heavily smelt of liquor.

f. He asked the accused to go for a test and the accused refused. He had the machine with him.

g. He then took the accused to the Nadi police station with the help of other two police officers.

i. At Nadi Police Station he tested the accused by the dragger machine which is collaborated. He produced and marked a Certificate as Exhibit 2 in proof of collaboration.

j. He gave the accused three chances for the test and the accused volunteered for the test.

k. He tested the accused for the 1st time and he got the print out indicating "insufficient sample". He tested the accused for the 2nd time and he got the print out indicating "insufficient sample". He tested the accused the 3rd time and he got the print out indicating "insufficient sample"

l. When the accused refused he has committed the offence. Then he was taken to Namaka police station and locked up.

m. The accused did not provide sufficient breath. He breathed for few minutes and stopped. The accused knew the system and trying to play out.

[15] Under cross examination the complainant stated as follows:

1. He cannot recall exactly how many tests he has done. He said he has done more than 10. He has done a month course to do the test.
   
2. He can test all the drivers whether they are drunk or not.
   

100. Before the test he tested other condition of the accused like asthma.
     

4. He did not write that in his statement. The accused admitted that's why he went through the test. He also admitted that that is not mentioned in his statement.
   
5. When the defence counsel put to him that he hasn't asked about the accused ailment and given time to provide medical report he denied.
   
6. He admitted that he has to check the medical report before going through the test.
   
7. When suggested by the defence that the dragger machine was not really collaborated he said that he had only Certificate of Collaboration.
   
8. He said that when there in no interference he will assume the machine is in operating temperature that is 20c.
   

[16] The summary of evidence of PW2 is as follows:-

a. On 22 April 2011 he was engaged in after noon shift mobile patrol.

b. He saw an LTA vehicle was going astray wherein the accused was the driver.

c. He was with PC Ajay Varma.

d. He got off the vehicle and checked. PC Tavita was also there.

e. He felt smell of liquor from the accused's breath. The accused was very drunk. He cannot talk clearly. He was swearing at.

f. The accused refused to take off the vehicle to the side when PC Ajay Asked. He refused three times. We escorted the driver to the police station.

[17] Under cross examination PW 2 stated that:

a. Everything relevant must be put in the statement

b. He admitted that what he stated in court is not in his statement.

c. He said that what he told in court happened on that day but forgot to record in his statement.

d. He admitted that smelling of liquor in not an offence.

e. The accused was swearing at PC Ajay.

[18] The summary of evidence of PW3 is as follows:

a. On 22 April 2011 he on operation duty from 3.00pm to 11.00pm. At about 10.00 he was patrolling Namaka area.

b. He found an LTA vehicle. It was parked on the side of the road. The accused is the driver.

c. The accused was heavily smelt of liquor. He could not control of himself.

d. The accused was tested on the road side at the same time. Then he was taken to the Namaka police station. PC Josuva and he escorted. He was swearing at us. He was heavily drunk. From there we brought him to Nadi police station.

[19] Under cross examination PW3 stated that:-

a. He admitted that he cannot say whether the accused is fully drunk without a test.

b. He said that he had forgotten to record 'swearing' and 'spitting' in his statement.

c. He said he cannot recall the accused refusing the test. He admitted that the accused was put to Alco Test for three times at the road side.

[20] The summary of evidence of PW4 is as follows:-

a. He is the investigating officer in this case.

b. He interviewed the accused in English. He was interviewed for refusing to undergo for the breath test. The accused understood the charge but refused to sign.

c. He also charged the accused. The accused did not make any statement and he refused to sign.

He tendered the caution interview and the charge statement as Exhibits 6 and 7 respectively.

[21] Under cross examination PW4 stated that:-

a. He charged the accused for refusal at the police station.

b. the accused refused to PC Ajay.

c. there has been no statement regarding refusal at the road side.

d. He confirmed that the charge is for the incident at the police station.

e. He denied that the machine was defective.

f. He admitted that the machine was not properly collaborated.

g. The accused need to be tested thrice.

i. PW4 confirmed on oath that because there were three results, there was no refusal as charged.

The Determination

[22] It is for the court to determine whether there is sufficient evidence in respect of each one of element of the offences charged to put the accused to his defence. It is not for this court to decide whether each element has been proven beyond reasonable doubt. That is the course that I will adapt at the end of the trial if I find a case to answer. If there is no evidence in respect of any one element of the offence then the charge should be dismissed and the accused acquitted under section 187 of the Crimes Decree.

[23] The accused has been charged with one count of refusing to undergo breath analysis when required to do so by a police officer, contrary to regulation 103 (1) (b) and 114 of the Land Transport Act No. 35 of 1998.

[24] On the second and third counts the accused had pleaded guilty to both.

[25] In support of its case the prosecution has tendered the Certificate of Authority (Exh-1), Certificate of Verification ( Exh- 2),Dragger Alco Test 7110-1st Test ( Exhibit 3), Dragger Alco Test 7110-2nd Test ( Exhibit 4), Dragger Alco Test 7110-3rd Test ( Exhibit 5), Statement Form (Exhibit 6) and Caution Interview ( Exhibit 7) and oral evidence of PW1, PW2, PW3 and PW4.

[26] The charge is one of refusing to undergo breath analysis when required to do so by a police officer. The prosecution shall prove that the accused refused to undergo for a breath test when required to do so.

[27] PW1 stated that the accused should undergo for the breath analysis test by the dragger machine for three times according to regulations. PW1 produced three Alco Test results marked respectively as Exh-3, Exh-4 and Exh-5. All three results are negative results.

[28] PW1 produced three negative Alco Test results as stated above. This shows the accused had undergone breath analysis for three times.

[29] PW2 in examination in chief stated that he felt smell of liquor from the accused's breath. The accused was very drunk and he cannot talk clearly. He was swearing at. He further stated that the accused refused to take off the vehicle to the side when PC Ajay Asked. He refused three times. We escorted the driver to the police station. On that day he was performing duty with PC Ajay, PW1.

[30] Under cross examination PW2 admitted what he said in court is not in his statement. He told that he forgot to record everything in his statement. He also said that he accused refused for road side test and swore at PC Ajay (PW1).

[31] Interestingly, it is to be noted that PW1 when giving evidence in court had no mention that the accused swore at him (PW1).

[32] PW3 in examination in chief stated that the accused was tested on the road side at the same time. Then he was taken to the Namaka police station. PC Josuva and he escorted. He also stated that the accused was swearing at us. He was heavily drunk. We brought him to Nadi police station from Namaka.

[33] Under cross examination PW3 admitted that what he told in court is not in his statement. He told he forgot to record "swearing and spitting" in his statement. He further said that he could not recall the accused refusing to test.

[34] PW2 and PW3 contradict inter see. PW2 stated that the accused swore at PC Ajay. But PC Ajay in his evidence did not mention anything that the accused swearing at him. PW3 stated that the accused swore at us and spitted. While PW2 says that the accused swore at PC Ajay PW3 says the accused swore at us. PW2 and PW3 confirmed under cross examination that whatever they said is not in their statement. PW1 stated that the accused refused to undergo breath analysis test at the police station. PW2 spoke of the accused refusing three times to take off the vehicle to the road side. PW3 stated that he could not recall whether the accused refused to undergo breath test.

[35] As explained above PW1, PW2 and PW3's evidence were clearly discredited in cross examination as a result their evidence cannot be relied upon.

[36] The charge is that of refusing to undergo breath analysis when required to do so by a police officer. PW1 tendered to the court three tests results (Exh3 to Exh5). There have been three results which show that the accused had undergone a breath analysis three times. In the circumstances one cannot say that the accused refused to undergo a breath analysis.

Conclusion

[37] In my judgment it appears to me that a case is not made out against the accused person sufficiently to require him to make a defence.

[38] I therefore dismiss the charge and acquit the accused from 1st count for refusing to undergo breath analysis when required to do so by a police officer, contrary regulation 103 (1) (b) and 114 of the Land Transport Act No. 35 of 1998.

.............................................................
M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi on this 10th day of April 2012