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State v Michael [2012] FJMC 79; Traffic Case 992.10 (9 March 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Traffic Case No 992/10

BETWEEN

THE STATE

AND

NAREND MICHAEL

JUDGEMENT

1. The accused was initially charged on the 10th May 2010 and later the Prosecution filed amended charges on the 01st June 2010. The statements of offences and the summary of facts are as follows;
   

1st Count

Statement of offence

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),(2) and 114 of the Land Transport Act No 35 of 1998

Particulars of offence

Narend Michael on the 9th day of May 2010 at Lautoka in the Western Division drove a motor vehicle registration number DP 575 on Kings Road Vitogo whilst there was present in 100 millilitres of his blood a concentration of 101.2 milligrams of alcohol, which was in excess of the prescribed limit.

2nd Count

Statement of Offence

Careless Driving contrary to Section 99(1) and 114 of Land Transport Act No 35 of 1998.

Particulars of offence

Narend Michael on the 9th day of May 2010 at Lautoka in the Western Division drove a motor vehicle registration number DP 575 on Kings Road Vitogo without due care and attention.

2. The accused waived right to counsel and the case was taken up for hearing on the 28th September 2010. The Prosecution called three witnesses and after the Prosecution case was closed the Court held that there is a case for the accused to reply. The accused gave evidence and called three other witnesses for the Defence.
   
3. At the very out set it should be noted that in this case the accused did not dispute any fact other than the fact that he drove the vehicle at the time of the incident.
   
4. The following elements seem common to both counts among the elements that the prosecution has to prove in respect of the two counts;
   
   1. The date, time and place
   2. Identity of the accused
   100. That the accused drove the vehicle registration number DP 575 at the time of the incident
        
5. In respect of the fist count the prosecution has to prove, apart from the above elements, that the accused drove the vehicle registration number DP 575 whilst there was present in 100 milliliters of his blood a concentration of 101.2 milligrams of alcohol which was in excess of the prescribed limit.
   
6. Secondly the Prosecution has to prove that the accused drove the vehicle without due care and attention.
   
7. I have given due consideration to the evidence adduced in this case on behalf of the prosecution as well as for the Defence. It is clearly discernible that the Accused does not dispute the date, time and place of the accident. The Prosecution led evidence to prove that the incident took place on the 9th May 2010 on Kings Road, Votogo at about 4.30 pm.
   
8. Further the Accused did not dispute at any time that the vehicle registration number DP 575 involved in an accident with the vehicle driven by the Complainant, Naren Singh.
   
9. The identity of the accused was also not in issue. The Complainant and the Accused, both said that they knew each other for more than 20 years. However the Accused disputed that he drove the vehicle at the time of the incident.
   
10. I will now deal with the issue whether it was the accused who drove the vehicle as it is common to both the counts. The accused said while giving evidence that on the day of the incident the vehicle Number DP 575 was driven by his son, Nitendra Michael. The Accused said that he was sitting at the back seat when the accident took place. The Accused called his son, Nitendra Michael and two other witnesses to corroborate him.
    
11. At a glance, the Accused has taken up a tenable defence which has a potential to create a doubt in the Prosecution case. Yet it has to be carefully analyzed whether the Accused was able to create any effect on the Prosecution evidence by correctly putting forward his defence in the instant case. It should be noted that if an accused person intends to put forward a defence of this nature, it should be done from the very out set of the trial and the consistency of the defence has to be maintained right through out the trial.
    
12. In this context it should be firstly noted that the Accused did not raise this issue when the Complainant gave evidence. The Complainant, Naren Singh gave evidence on this point in the following manner;
    

" I cannot recall the number of that vehicle. But I know the driver. He is here today. (Points out to the accused) I have known the accused for more than 20 years. He came and said he wants to settle with me. I asked him to pay the damages. My right side of the vehicle and right passenger door was damaged. My brother asked for $600. My brother took the vehicle on rent. So the accused didn't have that much of cash. Then we called the Police."

13. It appears that at no point, the Accused suggested during the cross examination of the Complainant that he did not drive the vehicle. There was no reference by the accused that it was driven by his son or some body else. If the Accused intended to dispute this fact he should have raised it from the very outset without waiting for the last moment. The Complainant would have been the best person to answer this issue had it been put to him by the Accused during the cross examination. But the Accused failed to suggest to the Complainant that he was not the driver of the vehicle number DP 575. Instead the accused cross examined the Complainant in the following manner;
    

Q: The vehicle which was overtaking, was it over speeding?

A: yes

Q: How far was it parked?

A: its like that corner of the Court building to the other corner.

Q: I told you I will pay the money?

A: He came out of the vehicle and asked to settle.

Q: You saw me coming out of the vehicle?

A: 4 of them came out.

14. When the Complainant gave evidence that "I know the driver", the accused did not take any effort to dispute that. The Complainant is the only eye witness to this incident and he is the only witness who is capable of establishing the nexus that it was the accused who drove the vehicle. But the Accused failed to challenge his evidence.
    
15. It is interesting to see what the Accused has stated in different instances when he was questioned whether he told the Police that it was not him who drove the vehicle. At one point the Accused answered in the following manner during the cross examination;
    

Q: Did you inform the Police about that?

A: I informed Sanjiv, a Police Officer about that. He told me to shut up.

Q: Is he the constable who attended the scene?

A: Yes

Q: What did you tell him?

A: I told him we are going to settle the matter. He wanted to tow the vehicle to the Police.

Q: Did you tell the Police at any time that you were not the driver?

A: They did not ask me.

16. Thus it is very evident that the Accused has given a contradictory evidence when he was questioned whether he informed the Police about the driver of the vehicle. Further he said in reply to cross examination that he did not mention it even at the caution interview and said that he remained silent. When he was inquired as to why he did not tell that to the Police he said that; "I wanted to remain silent and come and tell the Court".
    
17. Although the Accused said that he wanted to tell the Court, he did not make any effort to inform the Court until the evidence of the Complainant was concluded. Further the Accused did not give any reasonable or a satisfactory answer as to why he was unable to do so.
    
18. It does not appear that the accused has not acted in a manner, a reasonable person would have acted if he was wrongly charged when he really knows who the real culprit is. It should be noted that a Court of Law would believe or disbelieve evidence based on the circumstances, consistency, probabilities and the demeanour of witnesses among other things. Mere denial or fabricating a different version of how an incident took place will not be sufficient to create a doubt in the Prosecution case.
    
19. Furthermore it is worthwhile to see the evidence given by Nitendra Michael, the son of the Accused. He said he was driving the vehicle registration no DP 575 when the accident took place. He further said;
    

" My dad was sitting at the back and said that he will settle the matter. He told me to go and get a spare tyre. He was there. I left with my uncle. When I came with the spare tyre he was not there. When I called he said he was at the Police Station trying to settle the matter. I went home and told my mother. She said she will go to the Police Station. Then I went to see my girl friend."

20. Also it is interesting to see the answers given by this witness, Nitendra Michael who is a 22 year old IT Engineer. Following are some excerpts of the cross examination;
    

Q: Why didn't you tell the Police that you were driving?

A: I was not there when the Police came.

Q: Did you go to the Police when your father was taken to the Police Station?

A: No. My father said every thing is ok.

Q: Did you know that your father was arrested and put him in cell?

A: No I was not at home. I was at my fiancé's place.

Q: After your father was charged and brought to Court didn't you think as a responsible person that you should tell the Police?

A: I went to the Police Station the next day. My father told me not to tell the police. He said we will take it to Court. So we came back.

Q; You knew your father was drunk?

A: yes.

21. It should be noted that it is difficult to believe the evidence given by this witness.
    
22. I have considered the evidence given by the other Defence witness's too. All in all it should be noted that the Accused's version of the story cannot be accepted as genuine as it sounds highly improbable. I am of the view that the evidence produced by the Defence is not sufficient to create any doubt in the Prosecution case. I am satisfied that the Prosecution has proved that the Accused was the driver of the vehicle registration no DP575 at the time of the accident. Therefore I decide to reject the evidence of the Defence in this regard and proceed consider the other elements of the offences the accused is charged with.
    
23. The accused did not challenge that he was drunk. Be that as it may, the result of the breathalyser test was not disputed by the Accused at any time. The Prosecution witness, P.C. 3844 Sanjiv said that he is authorized to conduct breath test analysis by the Commissioner of Police. He tendered the dragger test result as Exhibit 1. I am satisfied that the Prosecution proved beyond reasonable doubt that there was a concentration of alcohol in the blood of the accused in excess of the prescribed limit.
    
24. The Complainant Naren Singh gave evidence that on the date of the incident he was coming from Ba towards Lautoka when the vehicle of the accused over took his vehicle. He said at that point of time there was another on coming vehicle and the vehicle which tried to overtake him hit his vehicle. It appears that the Accused has driven the vehicle without due care and attention to the other vehicles on the road. I am satisfied that the Prosecution proved beyond reasonable doubt that the Accused drove the vehicle registration no DP 575 in a careless manner without due care or attention.
    
25. In the circumstances I decide that the Prosecution proved the first and the second count against the Accused beyond reasonable doubt. I find the Accused guilty of the first and second counts and convict the Accused for the two counts accordingly.
    

28 days to appeal

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

09.03.2012