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Land Transport Authority v Prasad [2003] FJHC 93; HAA0107J.2002S (28 February 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0107 OF 2002S

Between:

LAND TRANSPORT AUTHORITY
Appellant

And:

RAM PRASAD
s/o Jag Dutt
Respondent

Hearing: 21st February 2003
Judgment: 28th February 2003

Counsel: Ms A. Neelta for LTA
Respondent in Person

JUDGMENT

The Respondent was charged in the Suva Magistrates’ Court with the following offence:

Statement of Offence

FAILURE TO COMPLY WITH PUBLIC SERVICE VEHICLE ROAD ROUTE LICENCE: Contrary to Sections 62(2) and 81 of Land Transport Act 1998.

Particulars of Offence

Ram Prasad, on the 4th day of January 2001 at Nasinu in the Central Division being the driver of Omnibus on Kings road did fail to comply with the terms of the Road Route License in respect of that Public Service Vehicle by not adhering to the condition of Road Route License number 12/6/33.

On the 7th of November he was acquitted of this charge by the learned Magistrate. The Authority appeals against acquittal.

The grounds of appeal are:

1. That the learned Magistrate made an error in law and fact by sighting and reading a letter tendered by the accused when tendering of such document was objected by prosecutor on the grounds that the letter was written by another person and can only be tendered through the writer and further concluding therein that the illegal trip was a “Special Trip.”
   
2. That the learned Magistrate made an error in law and fact in acquitting the accused person having ruled a prima facie case when the said accused failed to make defence under section 211 of CPC Cap 21 as the accused gave unsworn evidence and did not call any witness.
   

The trial, in the Magistrates’ Court, commenced on 26th July 2002. One witness, Mr Ifroz Imtiaz Buksh gave evidence. He was and is a Land Transport Authority authorised officer. He said that on the 4th of January 2001 at 5.04 pm he was at the Bhindi Industrial Subdivision to check on the route of Dee Cees bus CZ859. The route of the bus was to be a departure from Bhindi sub-division to Fletcher Road, Jerusalem Road, Nokonoko Road and Ratu Dovi junction. He followed the bus on this route and went to Fletcher Road, Kings Road, Ratu Mara Road, Kings Road and Nausori Bus Station. At Nausori bus station he boarded the bus and introduced himself to the Respondent who was the driver. He told him that the route he had followed had not been approved in his road route licence No. 12/06/33. The Respondent said that his boss, Mr Dewan Chand had authorised him to follow that route. Mr Buksh then issued a Traffic Infringement Notice and warned him that he would be prosecuted.

The witness tendered the Respondent’s Road Route Service licence and a map identifying the routes to be followed for CZ859. Under cross-examination the witness said that he did not need to correspond with the bus company on the road route approved and that he had no idea of the status of the trip to Nausori.

The prosecution closed its case. The learned Magistrate ruled that there was a prima facie case and that the Respondent was put to his defence. The Respondent gave unsworn evidence. He said:

“I shouldn’t be charged but the company should have been charged. I was wrongly charged by LTA on wrong information. I’m still driving, nothing had been done. The bus is still doing the same. If it had been unlawful, it should stop. I had done that for 2½ years before I was booked. If LTA had told the company, I would be victimised. I tender a letter from the Company.”

The prosecution objected to the tendering of the letter on the ground that the Respondent was not the author of it. There is no ruling on the objection other than a comment that the letter had been referred to by both prosecution and defence. However on the 31st of October the learned Magistrate said that the Respondent’s claim that the trip was a “special” trip to pick up garment workers, raised a doubt in his mind. He acquitted the Respondent.

In submissions in court, counsel for the Authority conceded that there could be no retrial after the order for acquittal, made after a trial on the merits of the case. However she said, the appeal was in relation to an error of law made by the learned Magistrate in relying on the substance of a document which had not been tendered, and which was not admissible. She said that a finding that there was such an error of law was sufficient for the purposes of this appeal.

The Respondent reiterated the stance he took in the Magistrates’ Court. He said that he had been driving the same route for 2½ years, that the trip was authorised by his employers and that he should not have been tried.

Section 62(1) of the Land Transport Act No. 35 of 1998 provides as follows:

“(1) No person shall drive or use any motor vehicle, or cause or permit one to be driven or used, as a public service vehicle unless it is licensed as a public service vehicle.

(2) No person shall drive or use, or cause or permit to be driven or used, any public service vehicle contrary to the terms of a public service vehicle licence or public service permit relating to that public service vehicle.

(4) A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to the prescribed penalty.”

Section 81 provides:

“A person who commits an offence under this Act or under regulations made under section 113, where no penalty is provided is liable on conviction to a fine of $500, to imprisonment for 6 months and to an award of up to 3 demerit points.”

The permit issued for CZ859, driven by the Respondent and valid until November 2006 did not authorise the route followed by him on the 4th of January 2001. The Respondent conceded that. The evidence was that on the trip to Nausori, the bus carried garment workers. It is not suggested that the garment workers were travelling free. Nor was it suggested that the route followed on that day was an aberration from the normal procedure. Indeed, the Respondent conceded that he had been making this (unlawful) trip for 2½ years. His only defence was that his employers should have been charged.

However the basis of the acquittal was that there was a reasonable doubt as to the nature of the trip. The learned Magistrate used the words “special trip.” There is no reference to any such description in section 62 of the Act. It is not clear what these words mean. The evidence was that the Respondent had been carrying passengers for hire on a route not authorised by his licence. This was not disputed by the Respondent. His argument that his employer should have been charged might have been a valid reason to reduce sentence. It was not relevant to the question of guilt.

Further, although it is not known what the contents of the letter were, which the Respondent tried to tender, there is nothing in the Respondent’s unsworn statement to suggest that the letter raised a valid defence to the charge. In any event, if the maker of the letter was not the Respondent, it was inadmissible and of limited weight.

The basis of the acquittal, that is, that the route followed by the Respondent might have been a “special trip” was therefore erroneous. It is not supported by the evidence, and in any event was relevant only to sentence, not to conviction. Given the Respondent’s admissions that he had been driving the same unlawful route for 2½ years, in his unsworn statement, the court ought to have proceeded to conviction.

What is the result of the resulting error of law and fact? Section 319(1)(b) of the Criminal Procedure Code provides that the High Court shall not order a new trial in any appeal against an order of acquittals. Despite this provision, the High Court has ordered retrial after acquittal where for instance the court had no power to order an acquittal in certain circumstances, or where the entire hearing was a nullity because the court did not have jurisdiction to hear the case.

The circumstances which lead to a declaration that a trial, in effect, never took place (in England leading to the issue of a writ of venire de novo) have been well-canvassed. In R –v- Rose and Ors. (1982) AC 82, the House of Lords (per Lord Diplock at p.832) said that a trial de novo could be ordered:

“... if there had been an irregularity of procedure which resulted in there having been no trial that had been validly commenced. It could do so if the trial had come to an end without a properly constituted jury ever having returned a valid verdict. It could not do so because of an irregularity in the course of the trial occurring between the time that it had been validly commenced and the discharge of the jury after returning a verdict.”

The rule is intended to protect an accused against double jeopardy, the question in Crane –v- DPP (1921) 2 AC 299 being whether the accused had ever been in jeopardy of a conviction (per Lord Sumner). Examples of cases where the courts have held that no trial took place at all, thus justifying an order for retrial, were R –v- Cronin 27 Cr. App. R. 179 where the judge had not possessed the qualifications to sit as a judge, R –v- Angel 52 Cr. App. R. 280, where the DPP’s consent to institution of proceedings had never been obtained and where there was a defective plea (R –v- Reilly 90 Cr. App. R. 40, Serupepeli Cerevakawalu and Others –v- State Crim. App. AAU0024 of 2001S). In R –v- Hendon Justices and others, ex parte DPP (1993) 1 ALL ER 411, the dismissal of a charge when the prosecutor had failed to appear for trial was held to be ultra vires and a nullity because the justices had no such statutory power and because the decision was so unreasonable that no reasonable bench could have so decided.

In Rajesh Chandra –v- The State Crim. App. AAU0056.1999, the Court of Appeal held that an acquittal after the erroneous refusal of an adjournment was a nullity. A rehearing was ordered.

The question is therefore whether the accused was ever in peril of being convicted, and whether the error of law was so fundamental that there was, in effect, no trial at all. The Respondent was clearly in such peril. The prosecution had closed its case, a prima facie case was found, the Respondent had given his unsworn statement and a decision was made as to guilt or innocence. Further the error made did not go to the jurisdiction of the court, nor was it an error that robbed the proceedings of their role and nature. The error of law was one of fact and of law which was made on the basis of the evidence led. I cannot say that there was no trial.

As such, despite finding that there was an error of law and in fact, I cannot order a re-hearing. This appeal succeeds to the extent that I find that the learned Magistrate erred in law and in fact in acquitting the Respondent on the basis that there was a doubt about the nature of the trip he made on the 4th of January 2001. However, no retrial is ordered.

Nazhat Shameem
JUDGE

At Suva
28th February 2003