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State v Lal [2010] FJMC 8; Traffic Case 3268.2009 (27 January 2010)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT NAUSORI
FIJI ISLANDS

Traffic Case No. 3268 of 2009

STATE

V

1. ASHA ASMITA LAL
2. JITEN KUMAR
   

BEFORE CHAITANYA LAKSHMAN
RESIDENT MAGISTRATE

For Prosecutor: ns. Ali
Accused: Both Present

JUDGMENT

The accused are charged as follows: 1st Count – Driving motor vehicle without driving licence, contrary to section 56 (3) (a) (6) and 114 of the Land Transport Act 1998 – Asha Asnita Lal w/o Jiten Kumar on the 27th day of March 2008 at Naqali in the Central Division drove a motor vehicle registration number DO 843 on Viria Road, Naitasiri without being holder of driving licence in respect of the said motor vehicle.

2nd Count – Driving Motor vehicle in contravention of the Third Party Policy Risk, contrary to section 4 (1) (a) (2) of the Motor Vehicle (Third Party Insurance) Act. - Asha Asnita Lal w/o Jiten Kumar on the 27th day of March 2008 at Naqali in the Central Division drove a motor vehicle registration number DO 843 on Viria Road, Naitasiri without being holder of driving licence in respect of the said motor vehicle.

3rd Count – Permitting another person to drive a motor vehicle without being the holder of a driving licence, contrary to Section 56 (3) (a) and 114 of the Land Transport Act 1998 – Jiten Kumar (f/n Ram Deo) on the 27th day of March 2008 at Naqali in the Central Division being the owner of private motor vehicle registration number DO 843 permitted Asha Asnita Lal w/o Jiten Kumar to drive the said motor vehicle without being holder of driving licence of the appropriate class on Viria Road.

The case was heard on 20th January 2010.

The Evidence

The Prosecution in this case called 5 witnesses. Pw-1 was Constable Paula, PW-2 was Sgt Mesake, PW-3 was Rajnesh Kumar, PW-4 was Merewalesi Volavola and PW-5 was Constable Elia.

The Material evidence of PW-1 was that on 27th March 2008 at 10 am they met the 1st accused driving vehicle # DO 843, where PW-2 asked PW-1 to check the 1st accused’s driving licence. They found that the 1st accused was driving with a learners permit. She was warned. On 28th March 2008 the police received a report from a neighbor, Rajnesh Kumar that a lady was driving the same vehicle. PW-1 received instructions to stop the vehicle and take it to the police post.

In cross examination PW-1 told the court that one, Rajnesh Kumar informed the police by coming to the police post.

PW-2 gave evidence that on 28th March 2008 they received a complaint that the 1st accused was driving a vehicle without holding a drivers licence. A Police officer was detailed to investigate and the officer returned with the key and the 1st accused came to the police post on her own. The 1st accused was interviewed by PW-2 in English. No force or threat was used and the 1st accused voluntarily gave statement. Her husband was also present inside the office.

The evidence of PW-3 was that on 28th March 2008 at 2.30 pm when he was at home he received a call from the police Paula too pick him from naqali so he can pick his clothes. While I was driving towards the koro I met Asha Lal. Paula got of and asked the 1st accused for the driving licence. Paula then asked her to park on the side and he took the key. He asked her to come to the police station.

In cross examination PW-3 told the Court that PW-1, Paula called him and that they (the accused) and he were not in talking terms.

PW-4 in evidence told the Court that on 27th and 28th March 2008 the 1st accused did not hold a driving licence. She was issued a licence on 2nd April 2008

PW-5’s evidence was that he interviewed the 2nd accused in 2008.

The 1st accused’s evidence was as follows: "on 4th April 2008 she returned from school met Paula he stopped her vehicle and requested for her driving licence and asked her children to get of the vehicle."

In cross examination she told the Court, "before, 2nd April 2008 I did not drive the vehicle. Husband did not give me the vehicle to drive. No, police did not tell me that I drove without licence. Interview on 4th April 2008. Police have back dated it."

The prosecution in cross examination asked the 1st accused about question 6 in her caution interview which was Q:6 – you were driving DO843 yesterday 27/3/08 at 1030hrs. You were driving then warned by police is it true? A: yes, that’s true."

The evidence of the 2nd accused was that on 27th March he was not at home and on 4th April he asked his wife to pick children as he was sick.

In cross examination he told the court that he did not go to the police post on 28th March 2008 only on 4th April.

The 3rd defence witness was Akuila Vakadranu. In cross examination he told the Court he was not told what to tell in Court and that he can earn money even without the 2nd accused’s employing him. In cross examination he was not sure if the dates were 27thor 28th March 2008 or 4th April 2008.

The 4th Defence witness was Vijay Kuar the mother of the 2nd accused.

The Court has considered all the evidence of all the witnesses. The onus in this case as with all criminal cases is on the prosecution to prove its case and prove it beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated:"it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ’of course it is possible but not in the least probable,’ the case is proved beyond reasonable doubt, but nothing short of that will suffice."

The Prosecution evidence is that the 1st accused was seen driving on 27th March 2008 and warned. A report was received that she was driving on the 28th March 2008.The prosecution evidence is that the 1st accused was asked to come to the Police post and she was interviewed on 27th March 2008 and that her husband was present.

The 1st Accused has denied in Court that she drove the vehicle on 27th and 28th March 2008. She stated that she drove on 4th April 2008 when she had the licence. The 2nd accused was interviewed and he told the police that his wife drove on 4th April 2008 and she held a provisional licence then.

In scrutinizing the evidence the Court finds a number of anomalies. Firstly, the caution interview of the 1st accused is dated 27th March 2008. The prosecution evidence is that the 1st accused was called to the Police post on the 28th March 2008. The question that this Court poses is how the interview was conducted a day earlier. It is also possible that the date is incorrect or even written after the interview. But this is fatal to the prosecution case. The 1st accused has stated in cross examination that the "interview was on 4th April 2008 and police have back dated it".

The other crucial evidence of the prosecution that that does not tie up is the evidence of PW-1, Constable Paula and PW-3, Rajnesh Kumar. The evidence of PW-1 was that they received a report from PW-3 that the 1st accused was driving the vehicle. PW-1 told the Court that PW-3 reported by coming to the police post. The evidence of PW-3 was that he was called by Paula that when he was driving towards the Koro he met he met the 1st accused and PW-3 got off and asked checked her licence. The version of PW-1 and PW-3 differs substantially. The evidence on the report that the 1st accused was driving by PW-1 and PW-3 is different and does not reconcile. PW-1’s evidence is that they received a report and that they attended the report, while PW-3’s version is that PW-1 was with him when they saw the 1st accused driving and checked her licence.

The date of the alleged offence is crucial as the prosecution has claimed that the 1st accused drove on 27th and 28th March 2008 while she held a learners permit. Both the accused have given sworn evidence that the 1st accused drove after she obtained her provisional licence. The Caution Interview is dated the day the 1st accused was warned and before the alleged offence (28th March 2008) took place. The Court is surprise that when the 1st accused was found breaking the law on 27th March 2008 that she was left of with a warning. Does the Police Force have this policy that they warn such offenders and only charge them for a 2nd offence?

The prosecution case is riddled with inconsistencies that do not support the 1st Count against the 1st Accused. The Court for the reasons given above has reasonable doubts on the evidence of the prosecution. The onus was on the prosecution to prove its case beyond reasonable doubt. The 1st count fails as do the other related two counts. Both the accused are acquitted of the charges against them.

28 days to Appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE

27/01/2010