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Prasad v State [2011] FJHC 710; HAA018.2011 (30 September 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA 018 OF 2011

BETWEEN:

JITENDRA PRASAD
Appellant

AND:

STATE
Respondent

Mr. W. Pillay for the State
Mr K. Padayachi for the Appellant

Date of Hearing: 23rd September, 2011
Date of Judgment: 30th September, 2011

JUDGMENT

[1] On the 24th March, 2011 in the Magistrates Court at Labasa this appellant was convicted after trial of one count of Improper Operation from Base contrary to Regulations 32(1) and 58 of the Land Transport (Public Service Vehicle) Regulations 2000 (the "Regulations"). He was fined $100 and now appeals against conviction.

[2] The prosecution case was that on the 7th July 2009 the appellant had stopped his taxi outside the Ram Jattan Supermarket in Labasa town and was standing outside his vehicle. The taxi was licensed to operate from Naseakula Village and not from Labasa Town. When the accused was asked why his taxi was there, he declined to offer an explanation. There was a no stopping sign at the place where the vehicle stopped but no charge was laid as a result of this infringement. The appellant gave evidence in his trial that rather than operating his taxi from that place, he had dropped a passenger at the Supermarket and was merely waiting for him to complete his shopping before taking him back on the return journey.

[3] Section 32(1) of the Regulations states:

"Subject to this regulation and regulation 34, a taxi must not be operated from or within any base or stand other than the base or stand specified in the permit under which it operates."

[4] The appellant has filed nine grounds of appeal which are mostly repetitive, but appear to go to the lack of evidence on which the Magistrate could legitimately convict the accused. Despite orders for the Prosecution to file submissions ahead of the hearing they did not do so, but Mr Pillay did address me orally in response to the appeal.

[5] Counsel for the Appellant submits that it must have been obvious to the complainant that if a taxi is outside a supermarket, he has a passenger shopping inside. Such a deduction being far from crystal clear, it could have been equally obvious that the driver was plying for hire.

[6] He complains that the driver was not summoned for parking in a non stopping zone. The point is although he could have been, he wasn't, and dwelling on other possible charges do not help his appeal.

[7] The appellant has filed various grounds which can only be described as the "scatter gun" approach, in the hope that at least one of his grounds might find favour with the Court.

[8] He submits, quite correctly, that section 32 must be read in conjunction with s.34 of the Regulations which gives reasons for a driver to pick up a passenger beyond his home base: section 34(2) reads,

A taxi may stop for the purpose of picking up a passenger at a place while-

(a) traveling within the base from which the taxi is authorised to operate; or

(b) returning to the base from which the taxi is authorised to operate from any other base or area.

[9] Unfortunately, counsel does not say why he relies on this proviso. However section 34(2)(a) being clearly not relevant it is assumed that he is submitting that the passenger who he said was shopping was going to return to the drivers base. However there was no evidence of that at trial and it is not the purpose of an appeal to try to make out a possible defence that was not raised at trial.

[10] The Magistrate analysed the evidence and the applicable law in a very careful Judgment, he finding that the driver had no right to be stopped in the urban area and that if he indeed was waiting for a shopping passenger; he had to comply with Regulation 32(4) which states:

"Upon arrival of a taxi with passengers at a base other than the base from which the taxi is authorised to operate, the taxi may carry those passengers within the base for the time and purposes the passengers require, but when the passengers are finally set down must-

proceed to an open taxi stand within the base for the purpose of picking up passengers for the return journey to the base from which the taxi is authorised to operate; (emphasis added).

[11] These regulations are very explicit and for the appellant to try and argue otherwise is to no avail. The conviction is sound and the Magistrate has made no error of law. There is absolutely no basis for the appellant to claim as he does that the onus of proof was reversed in the hearing, and in addition the appellant's ground that the Magistrate has imputed prohibitions and restrictions on the driver without evidence is equally misconceived. Those prohibitions and restrictions are found in the law, within the Regulations themselves.

[12] This appeal is totally without merit and is dismissed. It is frivolous and an abuse of the appeal process.

Paul K. Madigan
JUDGE

At Labasa
30th September, 2011.