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State v Sharma - Judgment [2012] FJMC 96; Traffic Case 3592.2011 (18 May 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Traffic Case No 3592/11

BETWEEN

THE STATE

AND

POOJA POONAM SHARMA

JUDGEMENT

1. The Accused is charged with one count of improper use of mobile communication. The statement of offence and the particulars of offence are as follows;
   

Statement of offence

Improper use of mobile communication contrary to regulation 51 and 87 of Land Transport (traffic) Regulation 2000.

Particulars of offence

Pooja Poonam Sharma on the 20th May 2011 at Lautoka in the Western Division drove a private motor vehicle on Queens's road Natabua and caused improper use of mobile communication.

2. The Accused was charged on the 5th July 2011. The Accused pleaded not guilty and sought an order from this Court to get the call details of her phone number 9968385 from the mobile service provider company. Accordingly the Court granted her application and called for a report on the call details of the said number.
   
3. On the 02nd August 2011 the case was taken up for trial. The Accused was unrepresented and the Prosecution was conducted by a Police Prosecutor. The prosecution called only one witness. After the Prosecution case was closed the Court held that there is a case for the Accused to reply. The charge was read out and explained to the Accused again and the Court proceeded to act under Section 179 of the Criminal Procedure Decree.
   
4. The Accused gave evidence and said that she will call two other Defence witnesses. The Accused gave evidence and then sought another trial date to bring her witnesses. On the second day of the trial the Accused informed Court that her witnesses are unavailable. Accordingly the case for the Defence was closed and the case was fixed for judgement.
   
5. Regulation 51 of the Land Transport ( Traffic) Regulations 2000 reads as follows;
   

"No driver whilst driving a motor vehicle on a public street may use any form of two way communication device unless the vehicle is first brought to a standstill in accordance with these regulations."

6. According to Regulation 87, the prescribed penalty for this offence in the Schedule 2 to the Land Transport (Fess and Penalties) Regulations 2000 is 500 dollars fine and/or 3 months imprisonment.
   
7. The burden of proof lies on the Prosecution and in this case the Prosecution has to prove the following elements to secure a conviction;
   
   1. The date, time and the place of the alleged incident.
   2. The identity of the Accused.
   100. The Accused was driving the vehicle on a public street.
   4. The Accused was using a two way communication device whilst driving.
      
8. The Prosecution witness, PC 1411 Sant Raj gave evidence that on the 20th May 2011 at about 2.55 pm he was on duty along Natabua flats on Queen's Road. He said he was on a motor cycle and was stationed after booking another person. Then he had observed another vehicle coming from Nadi side and he said that the Registration number of the vehicle was "ATIL 6". The witness said that it was driven by the Accused and he noticed that she was holding a phone over her ear and was driving with one hand only.
   
9. The witness further said that the vehicle did not stop although he signalled to stop and he had to follow the vehicle and sound the siren to stop it. He further said that she only put down the phone when he went beside the vehicle to signal the Accused. PC Sant Raj said that when he approached the driver and informed about the offence the Accused had told him that she was not talking over the phone and was only listening to music.
   
10. The witness was cross examined by the Accused in the following manner;
    

Q: You charged me for improper use of mobile communication. But in your statement you said I was listening to music?

A: She told me she was listening to music.

Q: You should have recorded in the charge that it was improper use of mobile and holding it for listening to music?

A: I have charged her for improper use of mobile communication.

Q: You said that I did not stop when you signalled?

A: You did not stop.

Q: There were vehicles in the back and the front. I cannot stop it any where I want. I had to find a safe place to park my car?

A: The vehicles were far away. There was ample space for her to stop. It was about 1 km from the place I signalled and the place she stopped.

Q: I put to you that I can park anywhere I want. Not where you want?

A: That is another offence. If a police officer stops a vehicle and the driver fails to comply that's another offence. She had enough space to stop from the point I signalled to the Point she stopped.

Q: When I stopped I put my glass down and you said that I was talking on the phone?

A: That's correct.

Q: My Vodafone report says that I was not talking?

A: She was driving with the phone over her ear and was driving with one hand. She told me that she was listening to the music. So there won't be any call details.

Q: I have a music system in the vehicle. When he stopped me the music was still on the radio. Why should I listen to the phone?

A: I did not hear any radio. That was what she told me. That she was listening to the music on the phone.

11. It appears that the Accused does not dispute the time, date and the place of the incident. Further there was no dispute regarding the identity of the Accused. I am satisfied that the Prosecution proved those elements beyond reasonable doubt. Further there was no dispute that the said vehicle was driven on the Queen's Road which is a public street. The only issue the Court has to consider is whether the Accused was using a mobile phone whilst she was driving.
    
12. The contention of the Accused was that she was not talking over the phone. She even called for a report on her call details. Although the report was not formally tendered in evidence, I decided to consider it in the interest of justice specially because the Accused was unrepresented. The Accused requested a report regarding her call details pertaining to the 20th May 2011, from 1 pm to 3 pm. I have perused the call details. It appears that there are seven out going calls from 1 pm to 4 pm on the said date and one out going call was at 2.57 pm. Further there is one incoming call at 2.59 pm.
    
13. Although the durations of these calls are given, the exact time duration of a unit is not clear. The Prosecution witness said that he was on duty at about 2.55pm on the 20th May 2011. Neither the Prosecution nor the Accused specifically mentioned the exact time on which the Accused was booked or was signalled to stop upon observing the alleged act. However since the Prosecution witness said that he was on duty at about 2.55 pm, it can be assumed that the Accused may have been booked soon after that time.
    
14. The report on the call details does not show that there were no calls originated or received during these times. If there were no calls at all during this period the Accused might have been able to create a doubt in the Prosecution case. But in these circumstances the Court cannot accept the contention that the Accused was never on the phone during the period in question.
    
15. Be that as it may, it should be noted that the Prosecution need not necessarily prove that a person was talking over a mobile phone to charge under this offence. The regulation only requires the Prosecution to prove that a person was using a two way communication device. The qualification of the offence is that it was a two way communication device and the offender used it.
    
16. It does not categorically say that a person shall talk over the device to commit the offence. A two way communication device such as a mobile phone can be used for purposes other than talking. In such a situation it would be illogical to argue that the phone was not used since there was no verbal communication. There are so many other instances where a mobile device can be used. For instances when a person checking a number, when a person holding a phone to dial a number, when a person holding the phone until the call is picked up and other similar instances can fall within the scope of using a mobile phone. The crux of the offence is not paying proper attention to the road while driving and not keeping his or her both hands on the steering wheel.
    
17. It should not be misunderstood that the offence is not constituted merely because there was no talking. The offence is constituted by the use of a two way communication device. Further it should be understood that talking whilst driving or listening to music whilst driving are not offences as long as the driver complies with the basic requirements and standards of driving without risking his or her life and the lives and properties of the other users of the road.
    
18. I have considered the evidence given by the Accused. Her evidence was as follows;

"When the officer booked me he said that I was talking on the phone. I wasn't talking on phone. He charged me for talking on phone. When I came out I did argue with him because I wasn't talking on phone. My Vodafone report says that I wasn't talking on phone. I just need justice."

19. At no point of time did the Accused say that she was not holding the mobile phone. Her repeated argument was that she was not talking over the phone. Thus I reiterate that a person need not necessarily talk over a phone whilst driving to be charged for this offence. It is sufficient for the Prosecution to prove that the person was holding a phone to use it for any other purpose. In the modern day context phones are so sophisticated and a person could simply use it for sending a text message, browsing internet, listening to music or even watching movies. The offence only requires that device to be a two way communication device and for that person to use it whilst driving. The offence does not categorically require a person to use it only for talking.
    
20. The Accused emphasised in two occasions that she wants justice. It should be noted that the primary obligation of a Court of law is to mete out justice. But one should not misconstrue justice as an endorsement of a misconception held by an Accused.
    
21. Be that as it may, I have considered the evidence produced by the Prosecution as well as by the Accused. I am mindful of the risk of acting on uncorroborated evidence. Although the evidence of the Prosecution witness was not corroborated, I am convinced that the only witness for the Prosecution gave solid, consistent and clear evidence. The Accused could not challenge the credibility of the witness nor did the Accused could create any doubt in the Prosecution case. I am satisfied that the Prosecution proved beyond reasonable doubt that the Accused was using a two way communication device namely a mobile phone whilst she was driving.
    
22. In the circumstances I find the Accused guilty and I convict her for the offence she is charged with accordingly.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

18.05.2012