In The High Court of Tuvalu
At Funafuti

Criminal Appellate Jurisdiction

HC Crim. App. 2/10

Between:

Regina
Appellant

v

Taimi Munatuu
Respondent

L Italeli for appellant
I Isala for respondent

Hearing: 15 March 2011 
Judgment: 21 March 2011 

Judgment

[1] This is an appeal by the Crown against an acquittal by the learned Senior Magistrate on 27 September 2010. The respondent had been charged with an offence, contrary to section 23 (1A) of the Traffic Act, of driving whilst his driving efficiency was impaired by drink.

[2] The Crown appeals on four grounds, namely that the learned Senior Magistrate erred:

1.	in finding that it is the duty of the prosecution to prove its case "beyond reasonable grounds without any doubts";

2.	in finding that an expert witness is required to give evidence as to the intoxication of the accused, alternatively that a police officer lacked such expertise as a witness;

3.	in finding that the officer who stopped the accused must be the one to ascertain his intoxication;

4.	in holding that the prosecution had not proved the elements of the offence under section 23.

[3] Section 23(1) provides that, "A person who drives or attempts to drive or is in charge of a motor vehicle whilst his efficiency as a driver is impaired by drink or a drug" commits this offence.

Ground One

[4] In his judgment the Senior Magistrate reminded himself of the burden and onus of proof in these words:

 "In a criminal charge, it is the duty of the prosecution to prove its case beyond reasonable grounds without any doubts. So, the onus of proof is rested on the prosecution from the beginning to the end. Any doubt whatsoever, the benefit will go to the defence."

[5] The standard of proof required of the prosecution in any criminal case is to prove the essential ingredients of the offence beyond reasonable doubt. In the English courts, judges tend to avoid the expression 'beyond reasonable doubt' and to direct the jury that they must be sure the defendant is guilty before they can convict. Where a magistrate is directing himself, there is no difficulty continuing to use the well-known phrase "beyond reasonable doubt" but it is important that the magistrate understands exactly what that entails.

[6] The phrase used in this case, that the case had to be proved 'without any doubt' and that the benefit of 'any doubt whatsoever' will go to the defence, is clearly setting the standard higher than that required for it to be beyond reasonable doubt. This was a serious misdirection and the resulting acquittal must be set aside on that ground alone.

Ground Two

[7] There is no record of the Magistrate's Court proceedings before the Court and so the evidence relevant to the second ground must be taken from the judgement:

"The police smelled alcohol from the accused's breath without asking the accused to blow his breath and the accused's eyes were red without asking the accused why he got red eyes. So the police officer is not an expert witness to tell the court on the drunkenness stage of the accused. He can tell the court that the accused has red eyes."

[8] That passage contains two errors which must be corrected. The first is that the prosecution has to prove that the driver was impaired by drink -- not that he was drunk.

[9] The second is the suggestion that it needs an expert witness to determine that fact. It is for the prosecution to satisfy the court by the evidence that the accused had been drinking alcohol and that it was affecting him sufficiently to impair his ability to drive properly. That will be done by calling witnesses who can describe the actions, words or conduct which they observed from the accused. It is for the magistrate to decide, on the basis of his assessment of that evidence, whether he is satisfied to the criminal standard that the accused was impaired by drink.

[10] Frequently, in such cases, a police officer will give his opinion of why the conduct he describes made him feel the accused was drunk. That opinion should be ignored by the magistrate. The witness is not an expert in such matters and so his opinion is of no value to the magistrate and should not be given. What is important is the magistrate's decision based on the description of the circumstances at the time as given by credible witnesses.

Ground Three

[11] In his judgment, the learned magistrate stated:

"The only time the drunken state of the accused was determined when the accused with his passenger and other police officers arrived at the police station where the accused went through three different tests and the accused failed all. These three tests were conducted by different police officers who were at the station but the court thinks that the police officer who stopped and booked the accused at the scene must be the one to conclude the driving state of the accused."

[12] It is clear that the prosecution must prove that the impairment to the accused person's driving efficiency occurred whilst he was driving, attempting to drive or in charge of a vehicle. In such cases the evidence of the officer at the scene is clearly critical. If he can give no evidence to suggest the driver was impaired subsequent tests showing impairment will be insufficient to prove the offence. If, on the other hand, there is evidence of impairment given by a witness at the scene and that is followed shortly afterwards by further tests at the police station, the magistrate may well feel that together they prove the impairment when he was driving.

[13] So long as there is evidence to indicate impairment at the scene and further tests are taken within a reasonably short space of time thereafter, the direct link between the results of the subsequent tests and the evidence from the scene maybe sufficient cumulatively to satisfy the magistrate that the accused was impaired at the time of his driving, etc. It matters not who conducts tests and where they conduct them so long as they are closely enough linked evidentially to the driving for the magistrate to be satisfied that they all indicate his condition at the time he was driving.

[14] The last part of the passage quoted above where it is suggested that the officer is the person to conclude the fitness of the accused to drive, further demonstrates the issue raised in ground two.

Ground Four

[15] In order to prove an offence under section 23(1), the prosecution must satisfy the magistrate that the accused drove, attempted to drive or was in charge of a motor vehicle and, at the time he drove, attempted to drive or was in charge, his efficiency was impaired by drink. Without any record of the evidence, it is difficult effectively the deal with this ground. However, on the face of the judgment it would appear there was evidence of the necessary ingredients of the offence and it might be that, had the magistrate directed himself correctly on the matters covered in the previous three grounds, he would have found the case proved. However, his conclusion would depend on his view of the evidence as a whole and, without a record of that evidence, this Court is unable to make such a decision.

[16] The misdirections in grounds one, two and three are each sufficient to allow the appeal and for the acquittal to be set aside. The case should be tried afresh but the circumstances at present mean it must be returned to the same magistrate. I order, therefore, that the magistrate should rely on his notes of evidence taken at the previous trial and give judgment having directed himself correctly on the matters covered by grounds one, two and three. 

[17] Before leaving this matter, I must make reference to the lack of a record of the proceedings in the Magistrate's Court. When I questioned counsel about its absence, I was advised from the bar table that the record was requested but the request was declined on the ground that it was not supplied to counsel.

[18] Section 274 of the Criminal Procedure Code provides:

"Upon receiving a petition of appeal the magistrate shall forthwith forward the petition of appeal together with a record of the proceedings to the Registrar of the High Court."

[19] By section 275, the judge can then consider whether to allow or dismiss the appeal summarily. If he does not, section 276 requires the Registrar to:

"(a) enter the appeal for hearing;

(b) serve a notice of hearing on the parties;

(c) supply the respondent with a copy of the petition and a copy of the judgment or order appealed against;

(d) except where the appeal is against sentence only, supply the respondent with a copy of the proceedings;

(e) where additional grounds of appeal are filed by the appellant ... serve notice on the respondent of such filing and supply the respondent with a copy of the document containing such additional grounds of appeal."

[21] The effect of those sections is that, whenever a petition of appeal is filed in a criminal case, it is necessary to send the record of the proceedings to the Registrar of the High Court and section 276 requires the Registrar to supply a copy of the proceedings to the respondent. I am unsure why that provision is limited to one party only and it is quite clear that a fair hearing of the appeal will only be achieved if both sides have similar access to the record.

[22] I direct that, in future, the record of proceedings sent to the High Court when a criminal appeal is filed should, unless the appeal is summarily concluded, be copied by the Registrar and a copy supplied to each party. I further direct that that there shall be no charge to either party for that copy record. However, this Court will not hesitate to use its power under section 278 to order an unsuccessful appellant in a unmeritorious appeal to pay costs. 

Dated: 21st day of March 2011.

Hon. Gordon Ward
CHIEF JUSTICE