Download Somal Shivnesh Sharma v State Judgement - Law Fiji

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO: HAA002 OF 2004S
Between:
SOMAL SHIVNESH SHARMA
Appellant
And:
THE STATE
Respondent
Hearing: 20 th February 2004
Judgment: 27 th February 2004
Counsel: Mr. G. O’Driscoll for Appellant
Ms P. Madanavosa for State
J U D G M E N T
The Appellant was convicted on one count of Driving a
Motor Vehicle whilst under the influence of alcohol, on the
13 th of October 2003. He was sentenced on the 10 th of
November 2003 to a fine of $1,000 (in default 3 months
imprisonment) and disqualified from driving for 12 months.
He now appeals against conviction and sentence.
The grounds of appeal are:
(1) That the learned magistrate erred in law
and misdirected himself on the evidence
by not giving any prudence to the
Appellant’s contention that the
regulations for breath test and
analyses were not complied with.

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(2) That the learned magistrate erred in law
by not allowing the Appellant’s Counsel
to mitigate on his behalf and proceeded
to enter a sentence that was harsh and
excessive as a result.
The Appellant was originally charged on two counts.
They read as follows:
FIRST COUNT
Statement of Offence
DRIVING MOTOR VEHICLE WHILST UNDER THE
INFLUENCE OF DRINKS OR DRUGS: Contrary to
section 102 and 114 of Land Transport Act
1998.
Particulars of Offence
SOMAL SHIVNESH SHARMA s/o Akilesh Sharma on
the 31 st day of August, 2001 at Nausori in the
Central Division drove a motor vehicle on
Dilkusha road under the influence of drinks or
drugs to such an extent as to have proper
control of the said motor vehicle.
SECOND COUNT
Statement of Offence
DANGEROUS DRIVING: Contrary to section 98(1)
and 114 of Land Transport Act 1998.
Particulars of Offence
SOMAL SHIVNESH SHARMA s/o Akilesh Sharma on
the 31 st day of August, 2001 at Nausori in the
Central Division drove a motor vehicle on
Dilkusha Road in a manner which was dangerous
to the public having regards to the
circumstances of the case.

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On the 16 th of October 2002, the Appellant pleaded
guilty on Count 1 and not guilty on Count 2. On the 9 th of
January 2003, he was represented by counsel, pleas were retaken
and he pleaded not guilty on both counts. The trial
commenced on the 11 th of September 2003.
PC Esili Nadolo, gave evidence that on the 31 st of
August 2001 at 11.45pm he attended a report of an accident
at Dilkusha Road, Nausori. He found a white vehicle
registration number CP929 inside a drain. He called for
the driver. The accused came forward and identified
himself. PC Nadolo could smell alcohol on his breath. He
gave the accused three options, to be examined by a police
officer, a government doctor or a private doctor at his own
expense. He chose to be tested by a Government doctor.
The officer then drew a rough sketch plan which he
tendered. He took the Appellant to the hospital where a
doctor examined him and took urine, and blood samples. The
Government Analyst found the Appellant’s blood alcohol
level to be 131.7mg and urine alcohol level to be 115.4mg.
The doctor concluded that the Appellant was under the
influence of alcohol to the extent that he was incapable of
having proper control of his vehicle.
Under cross-examination, the witness agreed that
although he arrived at the scene at 12 midnight, he did not
take the Appellant to the hospital until 1.45am. The
reason for the delay was that there was risk that people
would steal from the vehicle. The witness agreed that the
vehicle had not been inspected by the Land Transport

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Authority, and that the Appellant had not been subjected to
a breathalyser test.
PW2, DPC Vilikesa interviewed the Appellant under
caution and also charged him. In his interview, the
Appellant said that his friend had been driving the car
that night and that the car broke down on the Dilkusha
Road. The Appellant then sat in the driver’s seat to allow
it to be “push-started.” The interview then reads:
“The car start then we came down the slope and
I suppose to stop the car to change driver
then I went on and some people was coming on
the road and they want to cross and I tried to
evade them but the car went over a pipe and
tyre blew and I drove the vehicle to the
drain.”
night.
He admitted that he had drunk a “couple” of beers that
At the end of the prosecution case, counsel for the
Appellant made a submission that there was no evidence of
dangerous driving on Count 2. The Court agreed. The
learned Magistrate found that the accused had not driven
“in such a way that may cause havoc on the road or to other
road users.” He also found that it was wrong to try a
person for both dangerous driving and drink driving on the
same facts and acquitted him on Count 2. He found a case
to answer on Count 1.

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The Appellant decided to give sworn evidence. He said
that his car had got stuck at Dilkusha and it was pushstarted
as a result of which it rolled down the hill. The
tyre was struck by a galvanised pipe, it blew and the car
landed in the drain. He could not steer it in time. Under
cross-examination he said that he was driving the car when
it fell into the drain. He agreed that he had drunk “a
glass or two of alcohol, mixed with juice.”
Counsel for the Appellant submitted that there was no
evidence that the Appellant was so drunk that he was
incapable of driving, that the Appellant was charged
wrongly under section 102 of the Land Transport Act and
should have been charged under section 103 and that the
result of the blood test was unacceptable because the
Appellant had been detained for breath test for more than
30 minutes contrary to section 104(1)(c) of the Land
Transport Act.
Judgment was delivered on 13 th October 2003. The
learned Magistrate accepted the opinion of the doctor who
examined the Appellant and who concluded, on the basis of
the Analyst’s report, that he was incapable of having
proper control of a motor vehicle. He found that the
Appellant had been in the driver’s seat at the time of the
accident, and therefore had control of the vehicle for the
purpose of the meaning of the word “driving.” He found
that section 102 of the Land Transport Act replaced a
similar provision in the old Traffic Act which required
proof of drinking and of incapability. He held that the

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Appellant had been correctly charged and that his blood
alcohol level was well above the prescribed limit. He said
that there was increased public awareness that a high blood
alcohol level will result in substantial impairment of a
person’s ability to drive properly. He convicted the
Appellant and on the 10 th of November 2003, sentenced him to
$1000 and disqualified him from driving for 12 months. On
that day, the Appellant’s lawyer did not appear. Instead,
Mr. Ram Chand appeared for Mr. O’Driscoll. Inexplicably,
Mr. Chand was not asked to mitigate for the Appellant.
Instead the court asked the Appellant to mitigate himself.
He did so but there is nothing on the record to explain why
the learned Magistrate decided to take this step.
Ground 1
The main submission made by counsel under this ground
is that the blood test taken by the doctor and analysed by
the Government Analyst did not comply with the 30 minute
time limit under section 103 of the Land Transport Act.
Section 102(1) of the Land Transport Act provides:
“(1) A person who drives a motor vehicle or is
in charge of a motor vehicle while under the
influence of intoxicating liquor or any drug
to such an extent as to be incapable of having
proper control of the motor vehicle commits an
offence and is liable on conviction to the
prescribed penalty.”
Section 103(1) provides:

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“(1) A person who –
(a)
(b)
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
fails or refuses to undergo a breath
test or breath analysis when required
to do so by a police officer
commits an offence.”
Section 104 provides that a breath test or analysis
may be conducted on any person in respect of whom section
102(2) applies. That sub-section relates to the police
decision to forbid a person to drive and to order him to
hand his keys over to the officer. Section 104(1)(a)
provides:
“Provided that –
(a) no breath test or analysis shall be
conducted after 2 hours have elapsed from the
time the driver has been driving or in charge
of the motor vehicle unless the breath test or
analysis could not have been carried out
earlier due to the condition of the driver;
(b) a person shall not be detained for the
purposes of breath test or analysis for more
than 30minutes."
There are several reasons why section 103(a) did not
apply to the Appellant in this case. Firstly, he was never
subjected to a breath test or breath analysis. He was
examined by a medical practitioner and he consented to a

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blood test. The two hour time limit given is in relation
to a breath test, not a blood test. The 30 minute time
limit refers to detention for the purpose of a breath test.
The Appellant was not detained for the purpose of a breath
test. He was detained for medical examination, in the
course of which he agreed to a blood test.
Secondly, the Appellant is charged under section
102(1) of the Act. In order to prove that the Appellant
was too drunk to drive, the police were not required to do
a breath test, or even a blood test, at all. The court can
conclude in any case under section 102(1) that all
ingredients of the offence are proved from the Appellant’s
behaviour after the accident and from his manner of
driving. There is no detention time limit (other than that
under the Constitution) for an offence under section 102(1)
of the Act.
In the course of his submissions, counsel for the
Appellant submitted that the result of the blood test was
unreliable. The evidence was that the blood test was taken
before the doctor concluded that the Appellant was too
drunk to drive. It is not clear why the defence did not
request to cross-examine the doctor, and why it consented
to the medical report being tendered, if it disputed the
conclusion reached by the doctor. However, it was a
conclusion the trial Magistrate was entitled to reach.
Further the doctor was entitled to reserve his opinion
until he received the result of the blood analysis.

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In Shiu Charan v. Reginam (1972) 18 FLR 114, Grant J
considered the old offence of drunk driving (which has the
same elements as the section 102 offence) and held that
where the prosecution had led evidence of a lay witness who
said that the appellant was drunk, and of a doctor who
found the appellant too drunk to drive, the conviction was
safe. Archbold (2003) Para 32.71 states:
“The prosecution must prove not only the
influence of drink or drugs but also that
proper control of the vehicle is impaired by
drink or drugs (R v. Harkes 22 Cr. App. R. 172
(CA).) This may be shown by evidence of: (a)
the manner of driving; (b) the driver’s
physical condition; (c) the proportion of
alcohol in a specimen of breath, blood or
urine pursuant to section 15 of the RTOA
1988.”
Section 102 does not contain the equivalent of section
15 of the English legislation. However the principles
outlined by Archbold apply here, except that in the case of
(c), a court in Fiji should not assume that a
blood/breath/urine test proves incapability without the
taking and accepting of expert evidence in this regard. In
this regard that the learned Magistrate appears to have
concluded that the Appellant was too drunk to drive on the
basis of public knowledge he was in error. However, the
doctor’s expert opinion was before the court, and that was
sufficient to convict.
In DPP v. Ben Tausia Crim. App. No. 5 of 1984 the Fiji
Court of Appeal considered the kind of evidence capable of

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sustaining a conviction for the old offence of Drunk
Driving. It adopted the following passage from a decision
of Grant C.J. in R v. Chaudhary Cr. App. 95 of 1978:
“… the prosecution have to prove firstly, that
the driver was under the influence of drink,
on which the evidence of lay witnesses may be
received; and secondly that he was under the
influence of drink to such an extent as to be
incapable of properly controlling the motor
vehicle which may be established in a variety
of ways, such as the manner of driving, or the
circumstances of an accident, or the evidence
of a duly qualified medical practitioner who
has examined the driver and who, as an expert
witness, is in a position to express an
opinion that he was under the influence of
drunk to such an extent as to be incapable of
having proper control.”
In Ben Tausia the appellate judge had allowed an
appeal against conviction on the basis that there had been
no expert evidence and no accident. But the Court of
Appeal, in restoring the conviction said, at page 5:
“We accept the appellant’s submission that
neither Davies nor Chaudhary attempts to chose
the categories of evidence required to
establish inability to drive. Neither case
supports the proposition in law, put forward
on behalf of the respondent, that a person
facing this charge is entitled to an acquittal
where there has been no accident and no
medical examination.”
And at page 6:

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“The basic principle however, is that it is
for the Court eventually to decide, with the
assistance of opinion evidence where experts
are available or without it, on other
admissible evidence, where they are not,
whether the accused was unfit to drive. The
evidence of an expert even of a doctor, need
not necessarily be accepted (see Blackie v.
Police (1966) NZLR 409). Nor is there any
rule of law that in the absence of medical
opinion, a reasonable doubt must necessarily
remain in cases where there has been no
accident.”
In this case there was no evidence of manner of
driving. The learned Magistrate appears to have accepted
the Appellant’s defence of mechanical defect and therefore
that there was no fault displayed by him. We are left
therefore with the conclusion of the doctor, based on the
blood analysis. Was the learned Magistrate entitled to
accept this evidence alone, to convict? The authorities I
have cited, say that he was.
The evidence of a doctor, who gives his opinion that a
person is too drunk to drive, is the evidence of a
professional expert whose opinion is rendered to assist the
court (R v. Lanfear (1968) 2 QB 77). A lay witness may
give evidence that the accused was drunk, but he cannot say
that the accused was too drunk to drive. A medical
practitioner can give that opinion, and a court can rely on
that evidence to convict the accused even without any other
evidence. In this case, the doctor’s opinion was tendered
without dispute, the thrust of the defence being that there
was no evidence of manner of driving. The lack of that

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evidence might have been fatal if the police had not
obtained the doctor’s opinion. Further, the learned
Magistrate also referred to the prescribed limit under
section 103 of the Act to support his finding. As I have
said, this latter finding could not have justified a
conviction on its own. The court also needed to have the
expert opinion of a doctor as to unfitness to drive or some
other evidence to allow the court to infer unfitness from
the manner of driving and the accused’s own conduct (for
instance a staggering gait or a heavy smell of liquor). In
this case there was no evidence of manner of driving but
there was some evidence of the smell of liquor. In the
circumstances the learned Magistrate was entitled to find
the case proven beyond reasonable doubt.
Ground 2
Counsel did not appear on the day of sentence.
Instead he instructed Mr. Ram Chand to appear. However the
court asked the Appellant to mitigate in person. I can
only speculate as to the reason why. Perhaps Mr. Chand was
not asked to mitigate. Perhaps he did not ask for more
time to prepare for mitigation if he was not prepared.
Perhaps the Appellant asked to mitigate in person.
Whatever the reason, the practice of asking the accused to
mitigate when he has counsel appearing for him is very
unusual. It certainly warrants an explanation on the court
record as to the reason why the learned Magistrate saw fit
to break with the established practice of the Bar and
Bench.

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Despite this unusual occurrence, I note that the
Appellant did mitigate, that Mr. Chand who is a senior
member of the Bar obviously acquiesced in the proceedings,
and that the sentence passed on the Appellant is well
within the tariff for section 102 offences. For these
reasons, the appeal against sentence is dismissed.
Conclusion
This appeal against conviction and sentence is
dismissed.
………………………………………………………
Nazhat Shameem
JUDGE
At Suva
27 th February 2004