IN THE MAGISTRATES COURT LAUTOKA
WESTERN DIVISION

TRAFFIC CASE NO: 1941 OF 2013

STATE

VS

MICHAEL JACAM

Prosecution: - PC / Sharma
Accused :  In Person
Date of Judgment: 4th August 2014

JUDGMENT

The Accused has been charged with the following offence under Land Transport [Traffic] Regulations 2000

"Statement of Offence"

Illegal Parking contrary to section 20 [1][l] read with section 87 of Land Transport [Traffic] Regulations 2000

THE LAW

20.	(1)	No person may, unless approved by the Authority-

(l) leave a vehicle on a part of a public street if a prohibition or restriction on parking or stopping is in force.

Hence the prosecution has to prove following ingredients that 

[a] the accused 
[b] on 7.6.2013
[c] without approval of the Authority
[d] left the vehicle 
[e] on a part of Public Street.
[f] when the restriction or prohibition is in force for
[g] of parking or stop.

According to section 57(1) of the Crimes Decree the onus is in the prosecution to prove the aforesaid elements and in section 58 (1) particularly says that burden of proving of said elements beyond reasonable doubt is also in the responsibility of the prosecution:- 

In Miller V Minister Of  Pension [1947] 2 AER Lord Denning explained the  'proof beyond reasonable doubt' as 'That degree is well settled it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the 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. 

Therefore it should be noted that proving beyond reasonable doubt is somewhat proving not beyond all doubts but proving according to a reasonable prudent man think that the facts before court have been proved with no reasonable doubt. 

Case for the prosecution

The evidence of the prosecution witness was that on 7.6.2013 when he was on mobile petrol in the town he had seen the vehicle of the accused was stopped and picking up a customer in front of the Shop and Save Super Market. According to the witness that place is allocated for Yasawa Street taxi base. The witness said that he noticed that the taxi of the accused was from another base although he picked the customer. As the taxi driver have not been allowed picking up passengers from another taxi base as there can be traffic by the permitted vehicles comes to the taxi base the witness said that he booked the accused accordingly by issuing a traffic infringement notice. 

At the cross examination the witness admitted that there was no permitted taxies were lined up to the base at the time of the picking.

Then prosecution closed the case. After explaining rights of the accused in terms of section 179 of the Criminal Procedure Decree the accused elected to give evidence and called a witness as court found that there is a case by the accused to answer.

The accused first gave evidence. The accused admitted that he picked the passenger from the place alleged by the prosecution. He said that there was no parking meter available and also there were no taxies available on the base by that time he stopped his taxi in order to provide the service to the passenger.

At the cross examination the accused admitted his base is in Wailu. That there were parking lots provided around the place where he picked the passenger. Although he admitted that it is prohibited to operate from another base contrary to the base provided him he said that he just picked the passenger and not operated from that taxi base.

Then his evidence was concluded. DW2 was called to give evidence. In his evidence he stated that on that day he waited a 10-15 minutes for a taxi. Then he saw that the taxi of the accused was going down to the Yasawa Street. He said then he stopped the taxi and when they were going after getting on a traffic officer came and booked the accused.

At the cross examination the witness admitted that he also was a taxi driver. There were no taxis available at that time.

Then the accused also closed the case.

In regards to the aforesaid elements there is no dispute on the following elements.

On 7.6.2013 the accused on a part of public street stop the vehicle.

The question before this court is now whether the accused 

[c]without approval of the Authority
[d] left the vehicle 
 [f] when the restriction or prohibition is in force for
[g] parking or stop.

Regarding the element without approval the accused admitted that he has been approved only to operate from the given base. But his contention is that he has not been prohibited picking up passengers in as much operation from another base is concerned. 

The section 113 of the Land Transport Act provides that 

113. - (1) The Minister, after consultation with the Authority, may make regulations necessary to give effect to the provisions of this act and in particular to prescribe – 

Accordingly it is evident that the accused has been charged contravene to Regulation prepared by the Minister consolidation with the provisions set out in the Land Transport Act 1998. 
According to the section 2 of the Land Transport Act
'public street' means-

(a) any land  or place vested in the State for the purpose of a road or public road, as defined in any  Act;
(b) any street, road, land, thoroughfare, footpath, bridge or other place open to or used by the public for passage with vehicles and includes every carriageway, footpath, traffic island, median, nature strip or any area provided to separate vehicular traffic on any such street, road, land, thoroughfare, footpath, bridge or other place, regardless of whether such place has been vested in the State for the purpose of being a road or public road as defined in any  Act; or

The evidence by the prosecution was that the accused stop the vehicle in other base in order to passenger to get into the taxi of the accused. 

That part was admitted by the accused and his defense was that he is not prohibited by the Authority to pick the passengers from the bases. And thereby he stopped the vehicle for the passenger to get in.

According to section 2 of the Land Transport Act 

Parking' means the act  by which a vehicle is stopped for a purpose other than-

(a) picking up waiting persons or setting down passengers, regardless of whether the driver leaves the vehicle unattended;
(b) loading or unloading goods; or
(c) stopping in compliance with the provisions of this  Act;

According to the same section stopping' means the act by which a vehicle is stopped other than in compliance with the provisions of the  Act including for the purpose of picking up waiting passengers or settling down passengers or loading or unloading goods;

Therefore with the two section set out above now the court has to see whether the act by the accused is contravene to the provisions of the act.

Regulation 32 of the Land Transport [Public Service Vehicle] Regulation 2000 stipulates that 
Subject to the regulation 34 a taxi must not be operated from or with in any base or stand other than the base or stand specified in the permit under which it operates.

As correctly stated by the counsel for the accused in the case of Prasad v Stated reported in 2011 FJHC 710 it is decided that the section 32 should be read subjected to section 34. 

In section 34 it states that,

"A taxi may stop for the purpose of picking up a passenger at a place while- (emphasis is mine)
(a) travelling within the base from which the taxi is authorized to operate; or
(b) returning to the base from which the taxi is authorized to operate from any other base or area."

The contention of the accused is that the prosecution has failed to elicit the evidence before this court that the accused was returning to the base where he has been authorized to operate and thereby the benefit of the doubt should go to the accused.

Now the question before this court is; Did the accused park his taxi in a public street?

There is no dispute of the place that the accused stopped the taxi is a public street. There is no dispute that the accused then obliged to pick the passenger according to the section 34 of the Land Transport [Public Service Vehicle] Regulation 2000.

His defense was that he did not operate but he only picked the accused and there is no provision prohibiting him to pick the passengers. Although he stated to court that his base was 1.5 km away from the place where he picked in his defense he did not stated that whether he was returning to his base.

The defense argued that the prosecution has failed to prove that element. But nowhere in that section stipulates that the prosecution has to prove that the accused has been returning to the taxi base. That fact itself within the knowledge of the accused and when the prosecution tendered evidence that the accused have committed the offence of illegal parking if it is with in the knowledge of the accused that he has been returning to his taxi base it is incumbent that the accused should bring the evidence in rebuttal. There was no such evidence from the accused.

Hence this court is satisfied that the prosecution is able to prove the following elements against the accused beyond reasonable doubt that the accused 

[1] on 7.6.2013
[2] without approval of the Authority
[3] left the vehicle 
[4] on a part of public street.
[5] when the restriction or prohibition is in force for
[6] of parking or stop.

Thus I found the accused guilty and convicted as charged for committing offence of illegal parking.

28 days to appeal.

LakminiGirihagama
Resident Magistrate
Lautoka
4th August, 2014