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Lisale v R [2003] TVHC 7; Case No 01 of 2003 (17 February 2003)

IN THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO: 1/2003

POPU LISALE

v

R

Hearing: 14 February 2003
Judgment: 17 February 2003

James Duckworth for the appellant
Sa’aga Talu for the respondent

JUDGMENT

The appellant appeared before the Resident Magistrate sitting at Funafuti on 22 January 2003 charged with one offence of driving a motor vehicle whilst his efficiency to drive was impaired by alcohol, contrary to section 23(1) of the Traffic Act. He pleaded not guilty and, following a trial, was convicted and fined $40 payable in one month with three months imprisonment in default. He now appeals against both conviction and sentence.

The evidence was that he was stopped near the Matagi Gali Bar in the evening of 5 December 2002 by a police constable for having no light on his motorcycle. The appellant admitted to the officer that he was drunk and so the officer instructed another constable to escort the appellant to the police station. It appears that the appellant told to drive his own motorcycle followed by one policeman on another. When they arrived at the police station, the appellant was asked to perform some basic tests to ascertain whether he was drunk. He also smelled of alcohol and, following the tests, the officer had no difficulty in finding he was drunk.

The appellant gave evidence in which he admitted he had been drinking and had been stopped after he arrived at the Matagi Gali Bar. He said the officer drove the appellant's motorcycle around to show that the rear light was only working intermittently and then told the appellant to drive to the police station to make a statement about the rear light. During cross-examination he agreed he had made a statement to the police and in it had said he had been drinking the previous morning; a statement he told the court was untrue.

There is nothing on the record to suggest the magistrate was given the accused's previous convictions although there is a list of convictions from August 1978 to November 1984 in the record which was presumably before the magistrate. Neither is there anything to suggest the prosecution or the accused made any final address.

The magistrate recorded his decision as follows:

"Police witness A1 told the court that he smelled a heavy smell from the accused's breath and that the accused also admitted to him that he was drunk. Accused told lies to the police when they took his statement. He also consumed three cans of beer that particular night. I therefore have decided that once you can tell lies to the police then you can also tell lies to anybody else. I have therefore formed an opinion upon (sic) reasonable doubt found you guilty as charged. Given the fact that the police allowed you to continue driving, I shall be very lenient on you this time by awarding a fine of $40.00 payable in one month, in default 3 months imprisonment."

The contents of that decision suggest that the magistrate based it on the wrong considerations and totally failed to address the necessary questions. Counsel for the respondent, properly, advised the court that he did not oppose the appeal against conviction.

The appellant was charged under section 23 of the Traffic Act. Subsections (1) and (3) are relevant:

"23 (1) Any person who drives or attempts to drive or is in charge of a motor vehicle whilst his efficiency is impaired by drink or drug shall be liable to a fine of $200 and to imprisonment for one year.

.............

(3) Where in any proceeding for an offence under this section in connection with drink it is proved that the accused person drove or attempted to drive or was in charge of a motor vehicle in question within 2 hours of consuming any liquor containing alcohol and it is further proved that:

(a) The accused person committed any offence under this Act in connection with the manner in which he drove any motor vehicle (whether the motor vehicle in question or any other motor vehicle); or

(b) The accused person was involved in an accident in circumstances which give the Court reasonable grounds to believe that the manner is which he drove any motor vehicle ... contributed to the accident,

the court shall presume that the accused person drove or attempted to drive or was in charge of the motor vehicle in question, as the case may be, whilst his efficiency as a driver was impaired by drink, unless the contrary is proved"

It is clear that the elements that the prosecution had to prove in this case before there could be a conviction of an offence under section 23(1) are:

1. that the accused drove a motor vehicle and,

2. at the time of that driving, his efficiency was impaired by drink he had consumed.

Whether or not he was drunk may well be relevant to the decision of whether or not his efficiency was impaired but the magistrate must decide that issue, namely whether the evidence satisfied him to the required standard that the accused's efficiency was impaired. If he finds that is proved he can convict. In the present case the magistrate never applied his mind to that question at all. On the contrary, he seems to have reached the decision that the appellant was drunk and considered that sufficient for a conviction of this offence. It is not.

It is not clear what relevance the magistrate attached to the fact the accused had told the court he had lied in his statement to the police. In his evidence he had admitted all the main facts and so his credibility was not in question. This court is left with the uncomfortable feeling that the magistrates decided that, if the appellant was a liar, he should be convicted whatever the actual offence charged. If that is the case it is most unfortunate and clearly a totally wrong basis for the conviction.

It is clear that the accused had been drinking that evening and, if the magistrate had concluded that he had consumed alcohol within the 2 hours immediately preceding the driving, he would be entitled to find that his ability was impaired if and only if one of the two extra elements set out in paragraphs (a) and (b) of subsection (3) were proved. In this case, no evidence was lead of such circumstances.

The conviction cannot stand and the appeal must be allowed.

It appears that, at the close of the prosecution case there was a submission of no case to answer. The court is also informed from the bar table that the prosecutor conceded there was no evidence before the court that the appellant's ability was impaired. In fact, it would appear the evidence was to the contrary, otherwise it must be hoped that the police would not have allowed him to continue to drive his motorcycle to the police station. That was strong evidence from the prosecution in support of the defence case.

Before the magistrate could convict of this offence, he would have to reject that evidence or it would not be possible to find the offence proved beyond reasonable doubt. If he did reject that evidence from the police witness and the accused, he should have stated his reason for rejecting it in the judgment. In fact the wording of his judgment in relation to sentence tacitly suggests the magistrate accepted that the accused was not impaired or he would not have considered it a reason to reduce the penalty. Despite all this the magistrate ruled there was a case to answer.

The magistrate keeps the court record and if there had been such a submission of no case, reference to it should have been placed in the record. That reference should also have included the evidence the magistrate found was sufficient to establish a prima facie case. It was not done.

It is also apparent that the magistrate denied the appellant the chance to make a final address to the court. Had the appeal not already been allowed, the failure to allow the accused to address the court at the conclusion of his case would be a fundamental failure and, in itself, would be sufficient grounds to quash any conviction that followed.

Another serious omission from the record is that, following conviction of the appellant, the magistrate sentenced the appellant without asking whether there was anything he wished to say in relation to sentence. In fact the magistrate included the sentence in his judgment which is, of course, his decision on guilt. This was also wrong. The finding of guilt and the decision of what is the proper sentence are two separate functions. They must not be considered together and the magistrate must always give the accused a chance to mitigate before he makes the second decision.

Section 25 of the Traffic Act requires a court which convicts anyone of an offence under section 23(1) to disqualify the convicted person from driving. In the present case, the magistrate failed to do so and, had the court had to consider the appeal against sentence, it would have had to correct that omission.

Two final points must be mentioned.

1. The practice has grown up and was followed in this case, of describing an offence contrary to section 23(1) in the Statement of Offence as "Drunk and driving". The Particulars of Offence in this case then state a little more accurately:

"Poopu Lisale on the 5 December 2002, at Funafuti upon a public road was drunk and drove a motorcycle whilst his driving efficiency was impaired by drinks".

The proper Statement of Offence in a case such as this should be driving whilst impaired by drink. The Particulars of Offence should not include reference to the fact he was drunk and should be confined to the impairment.

I hope the prosecuting authorities will take note of this and change the form of such charges. However, it should be remembered that it is the duty of the person conducting any prosecution in court to check that the charge is correctly worded and apply to change it if it is not, before it is put to the accused.

2. At the conclusion of the record the magistrate recorded that he had, correctly, advised the accused of his right to appeal the decision. However, he then added, "Your appeal should come to me."

I am not happy with that statement. The accused should be advised that any appeal is to be filed with the court registrar. It will, of course, have to be brought to the attention of the magistrate subsequently, but the suggestion that it must be given to the magistrate who has just convicted him is likely to deter any accused from appealing.

The appeal against conviction is allowed and the conviction quashed. If the appellant has paid his fine, it is to be returned to him forthwith.

Dated this 17^th day of February 2003.

Gordon Ward
Chief Justice