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State v Chetty [2018] FJMC 113; Criminal Case 419 of 2015 (20 July 2018)

IN THE MAGISTRATES COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 419 - 2015

STATE

-v-

PRANISH PRAVINDRA CHETTY

For Prosecution : Inspector Lenaitasi [ Police Prosecution ]
Accused : Ms Henao and Mr Samy [ Legal Aid Commission ]

Trial Date : 9^th July 2018
Date of Judgment : 20^th July 2018

JUDGMENT

BACKGROUND

1. The Defendant is charged with:
   

Statement of Offence

FAIL TO SUPPLY SUFFICIENT BREATH SAMPLE: Contrary to section 103 [ 1 A ] [ i ] and 114 of the Land Transport Act ( Amendment ) Decree Number 74 of 2012.

Particulars of Offence

PRANISH PRAVINDRA CHETTY on the 27^th day of June, 2015 at Tavua in the Western Division, upon being required by a police officer namely Police Constable A/CPL 2907 Navin Samy, failed to provide specimen of breath which is sufficient to enable the test or analysis to be carried out to satisfactory achieve the objective of the test or analysis.

2. The defendant pleaded not guilty to the charge and the case proceeded to trial.
   

PW1

3. Prosecution witness 1 [ PW1 ] was Police Constable 3923 Deepak Sami.
   
4. He was on duty on the 27^th of June 2015 together with other police officers and they were in joint operation with the Land Transport Authority.
   
5. A vehicle registration number BW 952 was stopped and it was seen that the vehicle had excess passengers.
   
6. The defendant was the driver of that vehicle.
   
7. During the booking, PW1 was called over by the booking officer who described the defendant to be ‘heavily smelt of liquor’.
   
8. PW1 approached the defendant and asked him whether he drank any alcohol and the defendant replied ‘Yes’.
   
9. PW1 could also smell liquor on the defendant.
   
10. The defendant was informed to accompany PW1 to the police station to be tested on a dragger breathalyser machine no. 7110.
    
11. Police Constable Navin was at the police station and he was the operator or tester.
    
12. In cross-examination, PW1 said that the defendant was arrested at the police station.
    

PW2

13. PW2 was Sergeant 2907 Navin Samy.
    
14. He has been with the Fiji Police Force for the last 20 years.
    
15. He was on duty on the 27^th of June 2015.
    
16. Around 7.35pm he was approached by Police Constable Deepak and requested to test the defendant on dragger alcotest 7110.
    
17. PW2 has received training in relation to the operation of the dragger machine and he has received a certificate and is a certified dragger operator.
    
18. PW2 inserted some information into the machine such as the surname and first name of the subject to be tested, date of birth, the informing officer, arresting officers name and operators name.
    
19. The result will be printed by the machine which will include the above information. PW2 also signed on the print out after it is printed.
    
20. The result was ‘insufficient sample’.
    
21. The defendant was given 3 chances to blow into the machine.
    
22. The defendant was explained that he will have 3 chances and if he fails to give a sufficient sample, the machine will indicate that he failed to supply sufficient sample and that it can be an offence.
    
23. When the defendant blew the first two times, the result was ‘blowing not allowed’.
    
24. PW2 is of the view that it may be the result of the defendant blocking the mouthpiece with his tongue.
    
25. Before the 3^rd try the defendant was again explained and when the defendant blew, the result was insufficient sample.
    
26. PW2 tendered the following documents:
    

Prosecution EXHIBIT 1 – authorisation certificate

Prosecution EXHIBIT 2 – print out slip

27. The defendant was provided with a duplicate of the above.
    
28. PW2 has smelt liquor before and drinks liquor too. He smelt liquor on the defendant on that day.
    
29. When cross examined, PW2 said that he started using dragger 7110 machine in 2004.
    
30. His certificate of authorisation is issued by the Commissioner of Police.
    
31. The dragger machine is maintained by the Weights and Measures and then it is sealed.
    
32. PW2 said that he told the defendant how to blow into the machine, it was to be slow and continuous until he is told to stop. Despite this, the defendant did not follow.
    
33. PW2 said he could read the machine and it said ‘blowing was not allowed’ because the passage is blocked. It is possible that the defendant may have been blocking the passage with his tongue, saliva or teeth but PW2 is not sure.
    
34. PW2 denied that he did not improperly use the machine.
    

PW3

35. PW3 was Police Constable 5056 Shenal Chand.
    
36. He interviewed the defendant under caution.
    
37. He tendered the police caution interview of the defendant as:
    

Prosecution EXHIBIT 3 – police caution interview

38. In summary, the caution interview of the defendant reflects that the defendant said that he drank 2 glasses of beer on the day in question. He was aware that he can drink and drive but not excessively before driving. In one of his answers [ answer to question 22 ] he said that ‘I Just made a mistake and from now I will not drink and drive.’
    
39. That was the end of the prosecution’s case.
    
40. I found that there was a case to answer and provided the options available to the defendant.
    
41. The defendant said that he will give evidence and will call a witness but later changed his mind and decided that only he will give evidence.
    

DW1

42. DW1 is Pranish Chetty, the defendant.
    
43. He said that he was at Ba on the day in question at 10am.
    
44. He drank yaqona and 2 glasses of beer there. He rested and continued drinking.
    
45. He and his family left Ba around 6pm and came towards Tavua.
    
46. An LTA van came and he was told that he will be booked and he told them that he does not have any money to hire a taxi to go to Vatukoula.
    
47. His family disembarked from the vehicle and the defendant was taken to the police station.
    
48. He said that the police did not listen to him.
    
49. He was told that he was fussy and that he smelt of liquor.
    
50. At the police station he was explained by a police officer to breathe into the machine. They told him to inhale and put the pipe in his mouth.
    
51. He blew into it and he was told to take it out and blow again. He blew 3 times.
    
52. He said that he couldn’t blow well on the 1^st try. He said that he blew hard and he was told to blow harder. He demonstrated in court how he blew and how hard it was. He said that he blew as it was explained to him.
    
53. In cross examination, the defendant said that the police did not explain the procedure clearly to him.
    
54. He said that he only drank 2 glasses of beer on that day.
    
55. That was the end of the defence case.
    

ANALYSIS

Burden and Standard of Proof

56. I remind myself that the defendant is presumed innocent until proven guilty.
    
57. The prosecution carries the burden of proving his guilt.
    
58. Even if I reject the evidence of the defendant that he tried his best to provide a sufficient sample of breath, it does not necessarily mean that he is guilty.
    
59. However, the defendant has chosen to give evidence. His evidence is still evidence and I will afford what weight I need to the evidence he has given.
    
60. I remind myself that I must be convinced beyond a reasonable doubt that the defendant committed the offence before I find him guilty.
    
61. The elements of the offence for which, all, I must be satisfied of beyond a reasonable doubt are:
    
    1. The defendant;
       
    2. Does not provide a specimen of breath;
       
    100. Sufficient to enable the test or analysis to be carried out and satisfactorily achieved.
         
62. I’m satisfied beyond a reasonable doubt that there is no issue regarding the 1^st element or identification.
    
63. This element is proven.
    
64. It is the other two elements that is disputed.
    
65. I place no weight on the answer given by the defendant in his caution interview in answer to question 22 that he made a mistake and will not drink and drive again.
    
66. This answer is ambiguous.
    
67. I’m satisfied though that the defendant was drinking alcohol on that day or as he said he was drinking beer. We get this from his caution interview, his own evidence and the evidence of the police officers which I accept, who smelt liquor on him.
    
68. I’m convinced beyond a reasonable doubt that the defendant drank too much on that day.
    
69. He did not only drink 2 glasses of beer.
    
70. The officers were able to smell alcohol on his breath.
    
71. I accept that he must have been drinking at Ba for some time until he came to Tavua in the evening.
    
72. I’m mindful that the defendant is not charged with driving under the influence [DUI] or driving whilst there is excess alcohol in the blood which is above the prescribed limit.
    
73. However, the evidence that he smelt of liquor is circumstantial evidence of his motive not to provide any sample of breath to the police or to sabotage the process.
    
74. Circumstantial evidence can be powerful evidence but it must be considered with care in-order to avoid speculation. The circumstantial evidence must be consistent with the defendant having committed the act or the guilt of the defendant but that also the facts must negative any other reasonable conclusion. At the end of the day, the court must be satisfied beyond a reasonable doubt of the defendant’s guilt [ VarasikoTuwai v The State Criminal Appeal Number CAV 13 of 2015 ( 26^th August 2016 ) at paragraph 51 to 53.
    
75. I also accept the evidence of the police officers that the process was explained to the defendant.
    
76. When listening to the defendant giving evidence, he described how he was blowing in the machine and his position was that he did his best.
    
77. The defendant’s evidence when he was describing how he blew into the machine was comedic and I did not believe him.
    
78. PW2’s opinion that the defendant may have used his tongue, saliva or teeth to block the passage is opinion evidence. I’m not bound by it and I can reject it or agree with it.
    
79. I agree with it and I accept that the machine was working fine and that on the first 2 opportunities, he used either his tongue, saliva or teeth to block the passage of the machine and that is the reason why the first 2 results as in the print out slip [ prosecution Exhibit 2 ] read ‘BLOWING NOT ALLOWED’.
    
80. I accept the evidence of PW2 that when the defendant was given his 3^rd and final opportunity, he intentionally did not blow sufficiently into the machine.
    
81. The machine print out is corroborative of this where the 3^rd test read ‘INSUFFICIENT SAMPLE’.
    
82. The remaining 2 elements of the offence is proven beyond a reasonable doubt.
    
83. This means that I reject the evidence of the defendant on the point that he blew or tried to blow in the machine sufficiently.
    
84. I find the defendant guilty of failing to undergo a breath test or breath analysis by failing to provide a specimen of breath.

_____________________
LISIATE T.V FOTOFILI
Resident Magistrate

At Tavua this 20^th day of July, 2018.