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State v Ratuvou [2002] FJHC 140; HAA0060J.2002S (2 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0060 OF 2002

Between:

THE STATE
Appellant

And:

KAMELI RATUVOU
Respondent

Ms S. Shah for Appellant
Mr R. Prakash for Respondent

Hearing: 26th July 2002
Judgment: 2nd August 2002

JUDGMENT

This is the State=s appeal against the sentence imposed by the Suva Magistrates= Court on 28^th May 2002 in respect of the following charges:

FIRST COUNT

Statement of Offence

DRIVING A MOTOR VEHICLE WHILST THERE IS PRESENT IN THE BREATH A CONCENTRATION OF ALCOHOL IN EXCESS OF A PRESCRIBED LIMIT: Contrary to Regulation 103(1)(a) of Land Transport Act No. 35 of 1998.

Particulars of Offence

KAMELI RATUVOU on the 22^nd day of December, 2001 at Nabua in the Central Division drove a motor vehicle registration number CR 470 on Ratu Mara Road whilst there was present in 100 millilitres of his breath a concentration of 88 microgrammes of alcohol which was in excess of the prescribed limit.

SECOND COUNT

Statement of Offence

DANGEROUS DRIVING: Contrary to Section 98(1) and 114 of Land Transport Act 35 of 1998.

Particulars of Offence

KAMELI RATUVOU on the 22^nd day of December, 2001 at Nabua in the Central Division drove a motor vehicle on Ratu Mara Road in a manner which was dangerous to the public having regards to all the circumstances of this case.

The sentence imposed on Count 1 was disqualification from driving for 12 months, and on Count 2, disqualification from driving for 6 months. The Director of Public Prosecutions appeals against sentence on the following grounds:

(a) the learned Magistrate erred in law when he failed to impose a fine or a term of imprisonment together with disqualifications.

(b) that the sentence imposed by the learned Magistrate was manifestly lenient in all the circumstances of the case.

At the hearing of the appeal, counsel for the Respondent raised several issues pertinent to the question of whether the convictions were valid. He submitted that although there was no appeal against the conviction, the charge on Count 1 was defective because it did not refer to the penalty section, because it referred to alcohol content in breath in contrast to section 103 itself which referred only to alcohol content in blood, and because the facts did not adequately disclose the offence thus rendering the plea equivocal. I will deal with these preliminary issues before I turn to the substantive appeal.

The charge

Section 103(1)(a) of the Land Transport Act No. 35 of 1998 provides:

AA person who .... drives or attempts to drive a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his blood ... commits an offence.@

Section 103(2) of the Act provides:

AA person who is convicted of an offence under subsection (1) is liable to the prescribed penalty.@

Section 114 of the Act provides:

A(1) The penalties prescribed in the third column of the Schedule are prescribed as the maximum penalties for offences against the sections of the act respectively mentioned.

(2) Where the prescribed penalty is shown by A$..../.... months@ or similar, the court may impose a fine up to the maximum amount shown or a term of imprisonment up to the maximum period shown or both such fine and such imprisonment.@

The schedule to the Act provides (inter alia) as follows:

Section Offence Prescribed Penalty

S.103(1)(a) First Offence $2,000/2

years and mandatory

disqualification from 3

months to 2 years.

The Land Transport (Breath Tests and Analyses) (Amendment) Regulations 2000 (Legal Notice 148 of 2000) provide as follows:

A1. These Regulations may be cited as the Land Transport (Breath Tests and Analyses) (Amendment) Regulations 2000 and are deemed to have commenced on 12^th December 2000.

2. The Land Transport (Breath Tests and Analyses) Regulations 2000 are amended -

(a) in regulation 3(3) by deleting Ablood@ and inserting Abreath@ in the 2^nd line;

(b) in regulation 4(1) by deleting ALion Alcometer Model DS-190" and inserting AAlcotest 7410.@

The Legal Notice is signed J. Koroitamana, Minister for Tourism and Transport, and is dated 20^th December 2000.

The Amendment Regulations do not purport to amend section 103(1)(a) of the Land Transport Act. Section 113 of the Act gives powers to the Minister for Transport to make regulations to prescribe (inter alia) Amatters necessary to regulate breath tests or breath analysis.@ In accordance with this power, the Land Transport (Breath Tests and Analyses) Regulations 2000 were passed. Those Regulations do not (and indeed they could not) purport to amend section 103(1)(a) of the Act, under which the Respondent was charged. The Act itself provides for the creation of an offence, under section 102(1), of Driving whilst under the Influence of Intoxicating Liquor or any Drug thereby being incapable of having proper control of the motor vehicle. Section 104 of the Act provides that a police officer may require Aa person in respect of whom section 102(2) applies to undergo a breath test or breath analysis according to the procedures prescribed in the regulations.@

The Land Transport (Breath Tests and Analyses) Regulations 2000 (Legal Notice No. 63 of 2000), under Regulation 3, provides as follows:

A(1) For the purpose of section 103(1)(a), the prescribed concentration of alcohol is 80 milligrams of alcohol in 100 millilitres of blood.

(2) Evidence that there is alcohol in the blood in excess of the prescribed concentration at a relevant time may be given by reference to a sample of the person=s blood taken with his or her consent, or by reference to the reading on a breath analysing instrument in accordance with sub-regulation (3).

(3) A reading on a breath analysing instrument in microgrammes of alcohol per 100 millilitres of blood is to be multiplied by 2.2 in order to arrive at the number of milligrams of alcohol in 100 millilitres of blood.@

Regulation 9 provides:

A(1) In proceedings for an offence under section 103(1)(a) or 105(1) evidence may be given of the concentration of alcohol present in the blood of the person charged, as determined by a breath analysing instrument operated by a police officer authorised in that behalf by the Commissioner of Police, and the concentration of alcohol determined as aforesaid is deemed to be the concentration of alcohol in the blood of that person at the time of the occurrence of the event referred to in section 103(1)(a) or 105(1) where the breath analysis was done within two hours after the event, unless the defendant proves that the concentration of alcohol in his blood at the time of that event was less than the prescribed limit.@

The Act, and the Regulations, are silent on the way in which charges ought to be drafted. Section 3 of the Criminal Procedure Code provides that all offences shall be dealt with according to the provisions of the Criminal Procedure Code subject to the enactment of special procedures for special offences. Section 122 of the Criminal Procedure Code applies to all charges and informations. Section 122(a)(ii) provides that the Statement of Offence Ashall contain a reference to the section of the enactment creating the offence.@ There is no requirement to state the penalty enactment. Thus the draft charge in the schedule to the Code, for murder refers, only to section 199 of the Penal Code, not to section 200, which prescribes the penalty for murder.

There was therefore no requirement for the prosecution to specify the penalty provisions of the Land Transport Act, in the charge under section 103(1)(a).

Counsel also submitted that section 103(1)(a) was in relation to alcohol in the blood and was defective because the evidence tendered by the prosecution showed the amount of alcohol in the breath. The offence created by section 103(1)(a) is that of driving with excess alcohol in the blood. The Statement of Offence referred instead to Abreath.@. The Particulars of Offence refer to 88 microgrammes of alcohol in the breath. The printout of the Drager Alcotest 7110 that was tendered in court by the prosecution, indeed shows that the Respondent had 88 microgrammes of alcohol in the breath. Regulation 3(3) of the Land Transport (Breath Tests and Analyses) Regulations 2000 provides that the breath test result (and I note a misprint in the Regulation in that the word >blood= is used instead of >breath=) must be multiplied by 2.2 to arrive at the result of the number of microgrammes of alcohol in the blood. The Particulars of Offence are therefore erroneous. The charge should have read:

AKameli Ratuvou on the 22^nd day of December 2001, at Nabua in the Central Division, drove a motor vehicle Registration No. CR470 on Ratu Mara Road whilst there was present in 100 millilitres of his blood a concentration of 193.6 microgrammes of alcohol which was in excess of the prescribed limit.@

The charge was therefore clearly defective. The Regulations were passed to assist law enforcers to calculate blood alcohol levels by using breath test machines. It is the responsibility of the prosecutor to make the necessary calculations to charge with the corresponding blood alcohol level. Further section 103(1)(a) does not create an offence of driving whilst there is present in the breath an excess concentration of alcohol, the offence is of excess alcohol in the blood. Thus the Statement of Offence refers to a charge which is not provided for under section 103(1)(a). Regulation 3 of the Land Transport (Breath Tests and Analyses) Regulations 2000, does not create an offence. It merely sets out the prescribed limits and provides for a calculation to translate breath alcohol to blood alcohol. The offence is of blood alcohol, and charges under the section must refer to blood alcohol.

The charge was therefore defective because it failed to disclose the ingredients of the offence.

This matter is before the High Court on an appeal against sentence. However the Court can, in its revisionary jurisdiction, quash convictions based on invalid charges. Although the point was raised for the first time on appeal, and section 342 of the Criminal Procedure Code does not permit objections to the charge to be raised at appeal when they were not raised at trial, the Respondent was not represented at the hearing in the Magistrates= Court. Pursuant to the proviso to section 342, I therefore have allowed this objection to be raised.

The question is whether the defect in the charge must result in the quashing of the conviction. Not all defects lead to the quashing of convictions. An omission in R -v- Nelson (1977) 65 Cr. App. R. 119, to set out an essential element of the offence was held to be only a technical breach and appeal against conviction was dismissed. In R -v- Power (1978) 66 Cr. App. R. 159, the Statement of Offence referred to the wrong offence under the Perjury Act 1911. The Court of Appeal held that there had been no antial miscarriage of justice and upheld the conviction. In R -v- Ayres (1984(1984) AC 447, the Statement of Offence was for conspiracy to defraud. The Particulars of Offence disclosed an agreement to obtain money by deception. The House of Lords held that if the Statement and Particulars of Offence related to and were intended to charge a known and subsisting offence, but are pleaded in terms which are inaccurate, incomplete, or otherwise imperfect then the question is whether the accused was thereby prejudiced or embarrassed.

The question is therefore whether the charge alleged an offence known in law. If it does, then could the defect have been cured by amendment? And, was the accused prejudiced or embarrassed by the defect, in his defence?

In this case, the charge alleges an offence under section 103(1)(a). What is wrong about the charge is the reference to Abreath@ instead of Ablood.@ If the prosecution had conducted the calculation laid down in Regulation 3(3) the charge could have been amended to read blood instead of breath. I find therefore that the charge was defective but was not a nullity. It could have been amended.

Was the accused prejudiced by the defect? He was unrepresented. He appears to have waived his right to counsel on the 28^th of May. The summary of facts read as follows:

AOn the 22/12/01 about 2.40am complainant driving taxi along Rt Mara Road towards Suva and at Grantham Road junction, the red light turned green when the accused ran the red light turned onto the complainant=s car and an accident occurred. The matter was reported to police, accused was found under influence of alcohol. Accused was breath-tested, interviewed and charged.

Tender the copy of the reading of the metre.@

The Respondent said that he admitted the facts in respect of each count. He admitted drinking after he had taken alcohol. In mitigation he said he had been driving slowly and said he was no longer driving. He said he was the spiritual advisor for Catholic Youth from Navua Town to Wainadoi and that he had left alcohol.

The reference to breath in the charge is only understandable to a lay person, if it is explained to him or her, that Regulation 3(3) of the Breath Tests and Analysis Regulations, allows blood alcohol level to be calculated from breath alcohol level.

The tendering of the Alcotest 7410 does not explain what the Respondent was actually charged with. He was unrepresented and the charge is a technical charge. Counsel for the Respondent referred me to Varinava Tuabua -v- Reginam Lautoka High Court App. 32/85, Balram -v- Reginam Lautoka High Court App. 57/83, and Barry Jennions -v- Reginam 18 FLR, all of which support the proposition that courts should approach with caution, guilty pleas to offences which require expert evidence to prove. In the case of a represented accused person, an evidential link might well have been made between breath and alcohol contest (thus leading to an amendment of the charge). However in this case, the Respondent was not represented, the breath analysis printout referred to breath alcohol level, and not as required, to blood alcohol level, and he could not have known that his charge was defective.

In the circumstances I am not satisfied that he was not prejudiced by the defect in his charge on Count 1, and I quash his conviction accordingly. Counsel also raised the question of whether the facts adequately disclosed the offence. As I have found, they did not because there was no reference to the blood alcohol level which was really the substance of the charge.

Sentence

Although the conviction on count 1 is quashed and with it, the sentence, both counsel suggested to me that some guidance might be helpful as to appropriate sentences passed under section 103(1)(a) of the Land Transport Act. At the hearing of this appeal, State counsel quite rightly abandoned a submission that a fine or imprisonment was mandatory, and relied instead on her second ground of appeal, that the learned Magistrate erred in her discretion to impose such fine or imprisonment.

On the understanding therefore that my remarks in respect of sentences for section 103(1)(a) offences, are strictly obiter dicta, I make the following observations.

Section 114(2) of the Act provides that Athe court may impose a fine up to the maximum amount shown or a term of imprisonment up to the maximum period shown or both such fine and such imprisonment.@ The word Amay@ creates a discretion. This discretion may be exercised by imposing a fine in any sum up to the maximum, but may also be exercised by not imposing a fine at all. It may be exercised by not imposing either fine or a period of imprisonment. What is mandatory is a period of disqualification. The minimum mandatory term of disqualification (on first conviction) is 3 months. The Magistrate has a discretion to impose more than 3 months but may not impose less.

As to offences of Dangerous Driving under section 98 of the Act, the Magistrate may impose fine or imprisonment and/or disqualification for 6 months.

Disqualification for section 98 offences is not mandatory, and imposing a term of disqualification is discretionary.

The Director of Public Prosecutions has appealed against sentence in respect of Count 2. No fine was imposed and the Respondent was disqualified from driving for 6 months. State Counsel was not able to refer me to any tariff for sentences under section 98 of the Act. However I do not consider that the learned Magistrate erred in her discretion to impose a period of disqualification. It appears that the Respondent is a volunteer worker with no source of income. The imposing of a period of disqualification for 6 months would appear to be more suited to a person with no apparent means to pay a fine. The appeal against sentence on Count 2 is therefore dismissed.

Summary

In the revisional jurisdiction of the High Court, the Respondent=s conviction is quashed on Count 1, on the ground that the charge was defective and the Respondent thereby prejudiced.

The State=s appeal against sentence on Count 2 is dismissed.

Nazhat Shameem
JUDGE

At Suva
2^nd August 2002