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State v Chand [2010] FJMC 78; Traffic Case 5347 of 2008 (2 September 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Traffic Case No 5347/08

BETWEEN

THE STATE

AND

AVILASH ROHIT CHAND

JUDGEMENT

1. The accused is charged for refusing to undergo a breath test. The statement of offence and the particulars of offence are as follows;
   

Statement of offence

Refuse to undergo a breath test or breath analysis when required to do so by a police officer contrary to Section 103(1)(b),(2) and 114 of the Land Transport Act No 35 of 1998.

Particulars of offence

Avilash Rohit Chand s/o Suresh Chand on the 28th day of July 2008 at Lautoka in the Western Division refused to undergo a breath test or breath analysis when required to do so by a police officer namely W/PC 2620 Geeta Prasad.

2. The accused was charged on the 02nd September 2008. The case was taken up for hearing on the 25th August 2010. The prosecution was conducted by a Police Prosecutor and the accused was unrepresented. Two witnesses were called by the prosecution and after the prosecution case was closed, the court held that the prosecution has made out a case for the accused to reply. The accused and another witness gave evidence for the defence.
   
3. Section 103 of the Land Transport Act reads as follows;
   

103. – (1) A person who –

(a) drives or attempts to drive a motor vehicle or is in charge of a motor vehicle while more than prescribed concentration of alcohol is present in his blood; or

(b) fails or refuses to undergo a breath test or breath analysis when required to do so by a police officer,

commits an offence.

4. Thus it is very clear that driving, attempting to drive or being in charge of a vehicle when drunk is an offence. However in this case it has to be noted that the charge against the accused is refusing to under go a breath test only.
   
5. In this case the prosecution has to prove the following things beyond reasonable doubt;
   
   1. Date and place of the alleged incident
      
   2. The identity of the accused
      
   3. That the accused was required to undergo a breath test
      
   4. That the accused refused to do so
      
6. The prosecution witness, Detective Constable 3821 Finau said in evidence that on the 28th July 2008 he was on duty and at about 7.20 pm he was going in a police vehicle along the road which goes to Vessesi village. He said they were coming towards Lautoka. He said that they noticed a taxi, Registration No LT 182 was going two vehicles ahead of them towards the same direction. The police witness said the taxi was going in a zigzag manner causing obstruction to the oncoming vehicles. The police vehicle had overtaken the other two vehicles and had stopped the Taxi. The witness further said that when the Taxi driver got off he was staggering and was heavily smelt of liquor. Then he said they took him to the Police to do a breathalyser test.
   
7. The prosecution called the officer who required the accused to do the breath test. W/PC 2620 Geeta said that she was attached to the highway section of the Lautoka Police and she is authorized to conduct breathalyser tests by the Commissioner of Police. She said the breath analyser machine was in working order and it was adjusted correctly.
   
8. She said at about 7.55 pm a person by the name of Anilash Rohit Chand was referred to her for breath test. She said she required him to undergo the breath test and explained the procedure of doing the test. She said she entered the details of that person in to the machine and told him to blow when the machine was ready. She said he refused to blow. The witness said that she told several times to that person to blow and she said that he told her that he does not want to blow. She said that person was very drunk.
   
9. WPC Geeta further said that after a while the machine gave the reading as a print out and it was tendered in evidence marked Police Exhibit 1. Details of the accused are stated in that and it says " No sample". She identified the accused as the person who refused to undergo breath test on the 28th July 2008.
   
10. The accused cross examined the two witnesses of the prosecution. Later the accused and another witness gave evidence. The accused does not dispute the date and time the alleged incident took place. The identity of the accused is also established by the prosecution and it was not in dispute. Even the accused admitted the fact that he was drunk on that particular day.
    
11. The only contention of the accused was that he was not driving the vehicle and the police took him to Police on his birth day. It should be noted that having a birth day party is not an excuse for a person to commit an offence.
    
12. Be that as it may, the accused's version was that on that particular day he was sitting in his taxi which was parked on the road in front of his house. He said another person was with him and he was called to give evidence for the accused. The accused repeatedly admitted that he was drunk when he was taken to the Police. But he denied the fact that he was driving the vehicle. Even if I believe the accused's version, still it is very clear that whether the accused was driving or sitting in his car is immaterial, as far as the charge in this case is concerned.
    
13. It has to be re iterated that the accused is only charged for refusal to undergo a breath test. He is not charged for driving a motor vehicle under the influence of liquor. Therefore it is immaterial to ascertain whether the accused was driving or not. Section 103 says it is an offence even to be in charge of a vehicle while more than prescribed concentration of alcohol is present in his blood. The accused admitted that he was sitting in the driving seat when the police officer came and took him.
    
14. Thus it is clearly discernible that the Police officer had a lawful right to take him to the Police station to verify whether he is drunk even if the accused's version is accepted.
    
15. However it should be noted that the evidence given by the accused and the defence witness was contradictory to each other. The accused said that the police vehicle was stopped behind his car. But the defence witness who claimed to have been in the accused's car, said that the police vehicle came and stopped in front of their vehicle. Following are the answers the defence witness gave when he was confronted with this issue;
    

Q: You said a 4x4 vehicle came and stopped in front of the vehicle?

A: Yes

Q: Avilash said the police vehicle parked behind his vehicle. Which one is true?

A: He may be telling the truth.

Further the defence witness answered in the following manner when he was re examined by the accused;

Q: Where did they park?

A: They parked the vehicle in front.

Q: The vehicle was parked behind when the officer came to me?

A: yes

16. It appears that the evidence given by the defence witness is very inconsistent and confusing. The credibility of the defence evidence is shaken by contradictory evidence and in the circumstances I decline to accept the version, that the accused's Taxi was only parked by the side of the road.
    
17. The only two issues the court has to consider in this case are whether the accused was required by a police officer to undergo a breath test and whether the accused refused to do so.
    
18. The prosecution produced evidence to show that the accused was required by WPC Geeta to undergo a breath test and the accused refused to do so. Even the accused admitted that he refused to do the breath test when he was asked. Therefore I am satisfied that the prosecution proved all the elements of the charge beyond reasonable doubt.
    
19. In the circumstances I find the accused guilty and convict him for the offence he is charged with.
    

28 days to appeal.

Rangajeeva Wimalsena
Resident Magistrate

Lautoka
02.09.2010