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State v Ali [2002] FJHC 293; Criminal Appeal 12.2001 (22 April 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0012 OF 2001

Between:

THE STATE
Appellant

And

USMAN ALI s/o Suleman
Respondent

Mr. J. Rabuku for the Director of Public Prosecutions
Mr. A. Sen for the Respondent

JUDGMENT

This is an appeal by the Director of Public Prosecutions (DPP) against the acquittal of the respondent by the Labasa Magistrates Court on a charge comprising two (2) counts as follows:

Count 1:

Driving a Motor Vehicle while under the influence of

Intoxicating Liquor or Drug: contrary to Section 102(1) and 114 of the Land Transport Act 1998.

Count 2:

Dangerous Driving : contrary to Section 98(1) and 114 of the Land Transport Act 1998.

The original court record indicates that the charge was laid by the DPO/Northern using a CPC Form 4 on 29th January, 2001 and was issued out of the Labasa Magistrate Court on 14th February 2001 together with two CPC Form 5 summonses, one for each count, and returnable on 6th March 2001.

The original court record is unclear as to what exactly transpired on 6thMarch 01 but it appears that the respondent who appeared in person was not called upon to plead to the charge as he should have been, instead, the case was adjourned for a month ostensibly ‘to allow the prosecution to address (the trial magistrate) on the mode of initiating proceedings under the LTA Act.’

On the adjourned date 3rd April, 2001 the police prosecutor is recorded to have drawn the trial magistrate’s attention to `Sections 78 and 79 CPC and Section 112(6) LTA Act’ as furnishing the necessary power to institute the proceedings in the form in which it was commenced under the C.P.C.

The trial magistrate disagreed with the submission and ruled as follows:

‘The submission is incomplete and has not assisted the court on the issue. The proper mode of instituting proceedings is under the following Section 3(2) CPC which provides :

‘all offences under any other law shall be inquired into....... according to the same provision (CPC) subject to any enactment.......regulating the manner............of inquiring into etc.etc.

The LTA Act regulates its own manner of institution of proceedings under Section 92(a) which provides:

‘.......a Police Officer or Authorised Officer may institute proceeding........by serving personally on the person ...........a Traffice Infringement Notice’.

An exception to the above rule is provided by Section 83(1)(a) where offences under Section 100, 101, 102 and 106 proceedings are initiated by summons. Section 98(1) falls outside the above exception.

For the above reasons, I decide to acquit the accused. I give the prosecution ‘28 days to appeal.’

Within the 28 day period on the 27th day of April 2001 the DPP personally signed an appeal petition (filed on 1/5/01) setting out the following grounds of appeal:

‘(a) The learned Trial Magistrate erred in fact and in law in ruling that the police could not use Criminal Procedure Code Form No.6 to commence proceeding in this matter.

(b) The learned Trial Magistrate erred in fact and in law in acquitting the Respondent on the basis that the police used Criminal Procedure Code Form No.6 to commence proceedings in this matter.’

Field result goes here-The learned Trial Magistrate erred in fact and in law in acquitting the Respondent on the basis that the police used Criminal Procedure Code Form No.6 to Commence proceedings in this matter.

It is immediately apparent that the particular CPC Form No. referred to in both grounds of appeal is incorrect but as no issue was taken on the point by counsel for the respondent I am content to ignore the `typo’ for the purpose of disposing of this appeal which ought to be dealt with some urgency and which raises a simple question for consideration namely, whether the Land Transport Act (`LTA Act’) prescribes an exclusive procedure for instituting prosecutions for all offences under the LTA Act and regulations made thereunder, or whether the procedure under the Criminal Procedure Code (‘CPC’) remains available ?

I am grateful to counsels for the assistance provided to me at the hearing of the appeal.

In this regard State Counsel helpfully writes:

‘Section 86 of the LTA Act provides that a Traffic Infringement Notice (TIN) will be issued by a police officer or LTA officer for what the provision calls a “prescribed offence”. Section 87 then defines what a prescribed offence is. The minister is empowered through section 87(a) to make regulations after consultation with the Authority. By making regulations the Minister prescribes offences under section 87(a) and also prescribes fixed penalties and demerit points under section 87(b). TINS thus were only meant for prescribed offences and prescribed offences are offences that are prescribed under the regulations. The structure of the TIN fits perfectly into the offences under the regulations as all of them have fixed penalties. This enables the booking officer to fix a penalty on the offender and allow him 21days to pay.

Apart from the prescribed offences under the regulation, the Principal Act itself (LTA Act) also create specific offences. It follows then that the LTA Legislation have two types of offences and these are the Offences under the Principal Act and the Prescribed Offences under the Regulations.

With some specific offences under the Principal Act commencement procedures are provided for. For instances the commencement procedures for offences under section 100, 101, 102 or 106 of the Principal Act is found in section 83 of the Act itself. In brief section 83 provides for an issue of what appears to be an NIP – Notice of Intention to Prosecute and a Summons to the offender.

The Principal Act however has failed to provide commencement procedures for offences for instance under section 56, 97, 98 99 and 102 of the Act. These offences are not prescribed offences and have no fixed penalties as they do not form part of the regulations but are offences under the Principal Act. The question thus is what commencement procedures are to be used in the absence of the commencement provisions in the LTA Act in relation to the above offences.

It is submitted that the commencement provisions in the Criminal Procedure Code is appropriate. The procedures in the CPC is the standard procedure under which criminal and Traffic proceedings are conducted. The LTA Act itself does not have a procedure code so while they use the TINs to commence proceedings the procedures in the CPC are still followed in relation to other parts of the proceedings (guilty plea, mitigation, summoning of witnesses, issuing of bench warrants).

Section 3(2) of the CPC provides for “Trial of Offences under other Laws”. The section reads:

All offences under any other law shall be inquired into, tried, and otherwise dealt with according to the same provisions, subject, however to any enactment for the time being in force regulating the manner or place of inquiring into, trying or otherwise dealing with such offences.’

The CPC was designed primarily for criminal matters. The above provision however shows that offences under any other law can also be tried and enquired into using the CPC provisions. This would in effect also mean the forms. However this can only be done if there are no provisions under that other law regulating how and where proceedings should commence. Since the LTA Act does not have any special provisions regulating the commencement procedures of the particular offence in this case then the CPC (Form No.6) is the most appropriate way of commencing the proceedings.’

Counsel for the respondent for his part in seeking to support the ruling orally submitted that the trial Magistrate, without saying as much in his ruling, had relied upon two (2) rules of statutory construction in interpreting Section 3(2) of the CPC, namely, (in counsel’s words) ‘the specific overrules the general’ and ‘the later legislation overrules the earlier’.

Counsel further submits in support, that the correct procedure for the prosecution of all offences under the LTA Act is that which is set out in Section 92 of the LTA Act which deals with ‘prescribed offences’ which are offences for which counsel claims, there are prescribed penalties and, since the LTA Act has prescribed in a Schedule to the Act, penalties for all offences under the Act including offences against Section 97, 98, 99, 100, 101 & 102, therefore, Counsel submits Section 92 provides the appropriate procedure for prosecuting such offences.

In counsel’s submission there is no ‘lacuna’ in the procedure prescribed in the LTA Act for the prosecution of offences under both the LTA Act itself and the regulations made thereunder, insofar as, Section 93(4) of the LTA Act plainly provides that upon the non-acceptance of a TIN (by the non-payment of the fixed penalty), ‘the notice shall be regarded for all purposes as a Summons issued under the provisions of the Criminal Procedure Code’.

This latter submission is a ‘non-secquitur’ as the subsection does not relate back to the issuance of the `TIN’ rather its purpose is prospectively to enable the CPC forms and procedures for compelling or excusing the attendance of the offender to be invoked by the trial magistrate.

After careful consideration of counsel’s submissions, the provisions of the LTA Act and the numerous regulations made thereunder, I am satisfied that the submissions of counsel for the respondent are incorrect for the following reasons :

1. Section 92 is permissive in form (`may’) and not mandatory ;
   
2. The non-exclusive nature of the procedure outlined in Section 92 is confirmed by the clear words of Section 92(5) which provides that :
   

`Nothing in this section shall be taken to prevent the institution of proceedings under any other provision of this Act’ ;

3. In this latter regard Section 83 expressly provides in respect of offences against ‘Sections 100, 101, 102 or 106' that no conviction may be entered ( not no prosecution may be commenced) unless the offender was warned at the time of the offence and is thereafter summoned within 14 days [Section 83(a) & (b)] or a notice of intention to prosecute (`NIP’) was served on him within 14 days of the commission of the offence [Section 83(c)].
   

Given that the LTA Act prescribes no relevant Form (of summons) to be used under Section 83 one is driven to ask under what enactment is the nature or form of `Summons’ to be found if not the CPC ?

4. In similar vein, Section 80(2) of the LTA Act expressly provides, in contradistinction to the `TIN’ procedure under Section 92, that :

`Proceedings for an offence under this Act, (as opposed to a regulation), may be taken in a magistrates court on the information of an authorised officer authorised in respect of the relevant provision.’

In the absence of any prescribed Form or process in the LTA Act for the laying of an information before a magistrates court, the procedure and forms under the ‘CPC’ applies for the purpose of giving effect to the Section.

5. Section 92 is expressly confined in its application to `prescribed offences’ which, by definition, are those offences ‘prescribed under Section 87' of the LTA Act which, in turn, specifically empowers the Minister to make regulations :

` (a) prescribing the offences for which a Traffic Infringement Notice may be issued ; and

(b) prescribing the fixed penalty and the demerit points to be specified in the notice.’

Plainly `prescribed offences’ are those prescribed by the Minister in a regulation for which `a Traffic Infringement Notice may (not `shall’) be issued’ and carries with it a `fixed penalty’. This latter expression must in turn be distinguished from a `prescribed penalty’ which is a `term of art’ specifically referable to Section 114 of the LTA Act (not to a regulation made under Section 87), is set out in the Schedule to the LTA Act and relates only to the enumerated offences and sections. This fundamental distinction appears to have eluded the trial magistrate as well as counsel for the respondent.

By way of further clarification although offences under the LTA Act are specifically identified or created in the relevant section by the use of the expression `commits an offence’ or some other similar wording, no such similar expression or wording is to be found in the text of each regulation in the Land Transport (Traffic) Regulations 2000 (the `new regulations’) which are broadly drafted in the form of positive or negative commands.

Additionally the `new regulations’ does not include an offence creating provision such as to be found in Regulations 125, 128, 134 & 150 of the Traffic Regulations made under the Traffic Act (Cap.176) (the `old regulations’ ) and which regulations expressly makes it an offence for `any person contravening or failing to comply with any of the provisions (of the regulations).’

It might be that that was what was intended to be achieved by Regulation 87 of the `new regulations’ but the present wording leaves much to be desired. It could have clearly stated that : `A person who (contravenes or fails to comply with the provisions of these regulations) commits an offence (and) is liablconviction .ion .......’ but unfortunately it did not. Does that mean that the `new regulations’ creao offences ? I think not.

The `ambiguity’ is resolved, in my opin opinion, by considering the wording of Section 87(a) of the LTA Act and Columns 1 & 3 of Schedule 2 of the Land Transport (Fees and Penalties) Regulations 2000 which lists by Section or regulation number and by description the `prescribed offences’ in respect of which a ‘TIN’ may be issued.

In other words the fact that Regulations prescribe a particular process or procedure for the prosecution of offences viz by way of a ‘TIN’ means that the matter being proceeded against is a ‘prescribed offence’ and the absence of an offence-creating regulation is irrelevant.

By way of a concrete example Driving in excess of the speed limit contrary to Regulation 24 of the Land Transport (Traffic) Regulations 2000 is a `prescribed offence’ under the Land Transport (Fees and Penalties) Regulations 2000 and may be lawfully prosecuted by using the `TIN’ procedure. I have digressed however.

Returning then to the difference between a `fixed penalty’ and a `prescribed penalty’ the expression used in the enumerated offence sections under the LTA Act is : `...... liable on conviction to the prescribed penalty’ which is the maximum penalty for the offence within which the trial court retains a sentencing discretion quite unlike a `fixed penalty’ which upon payment is `deemed a conviction’ unless the offence for which it was issued does not attract any demerit points in which latter case it is `deemed not a conviction’, [see : Section 93(1) & (2)].

Having said that however it must be noted that the Land Transport (Fees and Penalties) Regulations 2000 (the `Regulations’) made by the Minister in the exercise of his powers under ‘Section 80, 87 and 113' of the LTA Act, amongst other things, prescribes a ‘fixed penalty’ for enumerated offences which includes offences under the LTA Act for which there already exists a `prescribed penalty’.

For instance Careless & Inconsiderate Driving, which are offences contrary to Section 99, have a `prescribed penalty’ under the LTA Act of `$500/3 months and 3 demerit points’ as well as a prescribed `fixed penalty’ under the above ‘Regulations’ of : `1 demerit point and a $100 fine.’

Why one may ask is there this apparent duplicity ? A possible answer is that the Minister being aware that both of the offences may be committed in numerous ways, some more serious than others, has additionally designated each a `prescribed offence’ thereby enabling less serious cases to be speedily prosecuted by the issuance of a `TIN’ whilst leaving more serious cases to be dealt with by other means viz under Section 80(1) and the `CPC’.

It is noteworthy that the `Regulations’ have not similarly mentioned or provided fixed penalties for what might be considered are the more serious driving offences under the LTA Act namely, Section 97 - Dangerous Driving Causing Death or Grievous Bodily Harm ; Section 98 - Reckless or Dangerous Driving ; Section 102 - Driving Under the Influence of Drink or Drugs ; and Section 103 - Exceeding the Prescribed Alcohol Limit.

Accordingly and in differing from the trial magistrate, I hold that none of the above offences are `prescribed offences’ for which the ‘TIN’ procedure is available, although there can be no doubting that they are made offences under the relevant provisions of the LTA Act.

How then are these serious offences under the LTA Act to be prosecuted (if at all), if the ‘TIN’ procedure is unavailable as a matter of statutory definition and proceeding under the `CPC’ is also unavailable as a matter of construction ?

I confess that any interpretation of the LTA Act and the `CPC’ which would render serious driving offences under the LTA Act unenforceable, must be resisted if at all possible, unless that conclusion is absolutely inevitable.

6. Section 92(2) (a)(ii) specifically recognises the applicability of the provisions of the ‘CPC’ to proceedings commenced by way of a `TIN’ , where an accused person `enters a written plea of guilty.’ In this regard Sections 81 & 88 and Form 6 of the `CPC’ would be relevant;

7. The two (2) rules of statutory construction referred to in counsel’s submissions are necessarily predicated on the existence of an irreconcilable conflict between the provisions of the LTA Act and the provisions of the ‘CPC’.

As such, in the absence of any ‘irreconcilable conflict’ between the statutes neither rule of statutory construction applies.

In my considered opinion there is no ‘irreconcilable conflict’ between the specific provisions in the LTA Act dealing with the prosecution of ‘prescribed offences’ under the LTA Act or the regulations made thereunder and the provisions of Section 3(2) of the ‘CPC’ which might be considered a general ‘catch-all’ provision that may be invoked in the event that no specific provision exists in the LTA Act dealing with the subject matter.

Accordingly, the answer to the question earlier posed at p.3 is: ‘No’ the LTA Act does not prescribe an exclusive procedure for the prosecution of offences under the LTA Act and the ̵PC’ procedures and Forms remain available.

For the foregoing reasons the appeal is allowed, the acquittal of the responde set aside and a fresh summons under the ‘CPC̵’ may be issued to compel the attendance of the respondent to answer the charges filed in court.

Finally, and bearing in mind that the present appeal is but one of twenty three (23) identical appeals by the Director of Public Prosecutions pending before this Court, I am content to exercise this Court’s powers of revision pursuant to Section 323 of the ‘CPC’ and I hereby make identical orders in respect of each of the following cases :

D.V. Fatiaki
JUDGE

At Labasa,
22nd April, 2002.