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State v Danford [2010] FJMC 99; Traffic Case 4448 of 2009 (27 August 2010)

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

Traffic Case No. 4448 of 2009

STATE

V

CHARLES DANFORD

BEFORE CHAITANYA LAKSHMAN
RESIDENT MAGISTRATE

For Prosecutor: Cpl. Shalen Kumar
Accused: Present (in Person)

Judgment

The accused is charged with failing to undergo breath analysis when required to do so by a police officer: contrary to Section 103 (1) (b) and 114 of the Land Transport Act of 1998. The particulars of the offence reads "Charles Danford on the 13th day of September 2009 at Nausori in the Central Division upon being required by a police officer namely Cpl 2846 Paulino failed to undergo that breath analysis in accordance with the direction of the said Cpl 2846 Paulino."

The case was heard on 19th July 2010 and 9th August 2010.

The Elements of the Offence

The Prosecution in this case is required to prove the following elements of the offence the accused is charged with:

(i) The identity of the accused (Charles Danford),
(ii) Date of the offence (13th day of September 2009),
(iii) That the accused (Charles Danford) failed to undergo breath analysis,
(iv) Upon being required by Cpl. 2846 Paulino, in accordance with Cpl 2846 Paulino's Direction.

The Evidence

The Prosecution in this case called 3 witnesses. Pw-1 was Asish Ashnil Kumar, PW-2 was Cpl. Paulino and PW-3 was Const. Elia.

The Material evidence of PW-1 was that on he recalled 13th September 2009. He was employed as a police officer with the traffic Department. At 5pm he was at the single man's barrack. He saw 2 vehicles on Rewa Bridge facing towards town. He went to check and noticed 2 drivers arguing in high tone. One was a private vehicle and the other a taxi. Spoke to the taxi driver and while standing next to him could smell liquor from his breath, had red blood shot eyes. He was mumbling while speaking. He could not control himself. Suspected the driver was drunk. He was arrested and taken to police station and notified Cpl Paulino to test the accused. Pw-1 identified the taxi registration as LT3595 and that the vehicle was driven by Charles Danford and pointed him out as the accused in the accused box.

In cross examination PW-1 told the court that there was an accident. The Taxi was in front and the other vehicle at the back. He did not know who was at fault. The other driver was taken to the Police Station. He though the accident as investigated. He had no idea if anyone was charged.

There was no re-examination of PW-1.

PW-2 gave evidence that he has 12 years' service in Police Force and was in the traffic department for last 2 years. On 13th September 2009 he recalled at 11mins past 12 he was at the traffic office. He questioned accused 3 times to undergo test. Accused failed to supply and a printout was obtained. There was insufficient sample. Accused blew three times. Insufficient sample means not enough sample. Identified accused as Charles Danford. The printout was tendered as PE-1.

In cross-examination PW-2 stated that the Court he asked accused 2nd time to blow hard. Accused was drunk. He could not blow in the mouth piece.

There was no re-examination of PW-2.

Pw-3's evidence was that he has 4 years' service in the Police Force. Based in traffic department. Recall 14th September 2009 was at traffic office. Interviewed Cahrles Danford. Interviewed for refusing to undergo. The Caution interview was tendered as PE-2. Identified the accused in the accused box.

In cross-examination PW-3 stated that Pc Isoa was in office.

There was no re-examination of PW-3.
The Court ruled that the accused had a case to answer.

The Court explained the options to the accused as provided under Section 179 of the Criminal Procedure Decree 2009. He told the Court he had no witnesses and he himself would give sworn evidence.

The Defence Case

The material evidence of the accused that he blew in the breathalyzer 3 times nothing showed and then they locked him up. They charged him for refusing to blow and later amended to fail to undergo.

In cross-examination the accused's evidence was that he was the driver of LT 3959, a taxi and hold licence. On 13/09/09 was bumped from behind. Had no liquor that day. I was tested on the breathalyzer. 2 police tested me. I did not refuse the breathalyzer test. I blew 3 times.

There was no re-examination of the accused. The accused also did not have any other witnesses.

Analysis of the Evidence

Section 103 of the Land Transport Act 1998 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 the 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."

The accused is charged with breach of Section 103 (1) (b) of the Act. "a person who fails or refuses to undergo a breath test or breath analysis when required to do so by a police officer, commits an offence."

The evidence of Pw-1 is that "he questioned accused 3 times to undergo test. Accused failed to supply and a printout was obtained. There was insufficient sample. Accused blew three times. Insufficient sample means not enough sample."

The Section which the accused has been charged with provides for where a person fails to undergo a breath test or refuses to undergo a breath test.

From the evidence it is clear that the accused did not refuse to undergo a breath test and neither had he failed to undergo a breath test. The accused blew three times and the result of Drager 7110 shows insufficient sample. The Court finds that failing to undergo a breath test is different from failing a breath test. The accused blew three times and at no point he refused or failed to undergo breath test. This element of the offence is not proven by the prosecution.

The Court acquits the accused.

28 days to Appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE

27/08/2010