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State v Sami [2006] FJMC 11; Traffic Case No 5096 of 2000 (16 June 2006)

IN THE FIRST CLASS MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

TRAFFIC CASE NO.: 5096 OF 2000

STATE

V

BHIMA SAMI s/o Pon Sami

For Prosecution: Sgt. Shaukat Ali
For Accused: Mr Rajesh Gordon

Date of Hearing: 15/06/06
Date of Ruling: 16/06/06

RULING ON SUBMISSION OF NO CASE TO ANSWER

The accused has been charged with the following offence:

Statement of Offence

Driving Motor Vehicle Whilst In The Influence Of Drinks And Drugs: Contrary to section 112 and 114 of Land Transport Act, 1998.

Particulars of Offence

Bhima Sami s/o Ponsami on 23rd July, 2000 at Lautoka in the Western Division, being driver of a motor vehicle on Kings Road Luvu drove the said motor vehicle whilst under the influence of drinks/drugs to such an extent as to be incapable of having proper control of the said motor vehicle.

At the end of the prosecution case the counsel for the accused had made a submission of no case to answer. The accused was originally charged under the old Traffic Act on 23rd of July, 2000 and during the cause of this trial the prosecution sought leave to file a charge under the Land Transport Act and I gave them leave to do so.

The defence has submitted that the charge as it stands is still defective as it is alleged that the accused drove a motor vehicle "whilst under the influence of drinks/drugs" to such an extent as to be incapable of having proper control. The submission is that drinks was contained in the old Traffic Act and section 102 which has replaced it does not contained the word drinks and instead it contains "under the influence of intoxicating liquor". I guess drinks in its ordinary sense of word may include intoxicating liquor but since the wording of section 102 is different to the wording of the previous Act the prosecution when framing charges should state that "a person who drives a motor vehicle whilst under the influence of intoxicating liquor or drug to such an extent to be incapable of having proper control". I guess it is a moot point but nonetheless it can have serious implications.

The evidence in this case is that two police support officers namely Seremaia Sauqaqa (PW1) and Valerio Naweri (PW2) were manning a police post on the Kings Road at Pala’s Autoport with the officers from Fiji Military Forces. The accused was following a truck and he was stopped by PW1 and PW2. It is unclear as to who stopped him because both PW1 and PW2 claim that they stopped him and they smelt liquor on his breathe. He was asked to get out of the car and again there is conflict as to what transpired. PW1 said that he got him to get out of the car and made him walk on the road and he was unable to walk in a straight line and was staggering and then he was made to sit in a police van and driven to Lautoka Police Station. PW2 did not say that the accused was made to walk in a straight but he said that the accused was very drunk and he assisted him by holding on to his hand and made him sit in the police van. At the Lautoka Police Station the accused was handed over to PC Bal Govind who later handed him to the Traffic Department. The accused was attended to by PC Satish in the Traffic Department and he later handed over the accused to Cpl. Paul Taito (PW4) who carried out an examination of the accused by asking the accused to walk in a straight line and standing with his eyes closed. According to PW4 he was unable to walk in a straight line and stand with his eyes closed and from this he concluded that the accused "was not capable due to his drunkenness and instructed PC Satish to have him locked in the cell".

The accused was locked in the cell and the following morning he was interviewed by Cpl. Abbas Hussein (PW5) and during the interview the accused admitted to consuming some Gin.

Section 102 (5) (a) reads as follows:

"He is entitle to have his capability to have proper control of the motor vehicle determined by a police officer (in this subsection referred to as "the senior police officer") of a higher rank than the police officer who gave the direction or imposed the prohibition, if the last mention police officer is of a rank lower than inspector: or

Section 102 (6) reads as follows:

"If a police inspector or other senior police officer or medical practitioner as the case may be certifies that he is of the opinion that a person is capable of having proper control of a motor vehicle the police officer who has possession on the ignition keys and other keys of the motor vehicle shall forthwith return them to the accused and, if the motor vehicle has been rendered in mobile, shall forthwith caused it to be returned to running order."

In accordance with Section 102 (5) (6) it is clear that the determination as to the accuseds’ capability to have proper control of the motor vehicle shall be determined by a senior officer and a senior officer includes a police inspector. PW4 Paul Taito conceded that no senior officers were present and he carried out the examination. He is only a corporal by rank and there is no evidence before me as to when he was appointed a corporal and there is also no evidence to suggest that he is a senior officer and in fact by his own admission he is not a senior officer so in my view he could not have carried out the determination.

In the circumstances I uphold the submission of no case to answer and acquit the accused.

[Mohammed Shafiullah Khan]
Resident Magistrate