Download Vinod Prasad v State Judgement - Law Fiji

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO: HAA055 OF 2003S
Between:
And:
VINOD PRASAD
STATE
Appellant
Respondent
Counsel: Mr. M. Raza for Appellant
Mr. J. Rabuku for State
Hearing: 13 th February 2004
Judgment: 23 rd February 2004
J U D G M E N T
The Appellant was originally charged in the Suva
Magistrates’ Court of the following two offences:
FIRST COUNT
Statement of Offence
FAIL TO UNDERGO BREATH ANALYSIS WHEN REQUIRED
TO DO SO BY A POLICE OFFICER: Contrary to
Regulation 103(1)(b) of Land Transport Act No.
35 of 1998.

2
Particulars of Offence
VINOD PRASAD s/o Kashi Prasad on the 16 th day
of November, 2002 at Suva in the Central
Division, upon being required by a police
officer namely PC 2521 Mitieli D to supply
enough sample for breath analysis under the
Regulation 103(1)(b) of Land Transport Act No.
35 of 1998 failed to undergo that analysis in
accordance with the direction of the said PC
2521 Mitieli.
SECOND COUNT
Statement of Offence
DRIVING A MOTOR VEHICLE WHILST THERE IS
PRESENT IN THE BLOOD A CONCENTRATION OF
ALCOHOL IN EXCESS OF THE PRESCRIBED LIMIT:
Contrary to Regulation 103(1)(b) of Land
Transport Act No. 35 of 1998.
Particulars of Offence
VINOD PRASAD s/o Kashi Prasad, on the 16 th day
of November, 2002 at Suva in the Central
Division, drove a motor vehicle registration
number SHAVIN on Laucala Bay Road whilst there
was present in 100 milliliters of his blood a
concentration of 294.8 milligrams of alcohol
which was in excess of the prescribed limit.
He pleaded not guilty on the 9 th of December 2002.
There were several adjournments, and on 19 th August 2003, it
appears as a result of representations made by the Defence,
the charges were withdrawn and an “amended charge” filed.
The charge was read to the Appellant and he pleaded not
guilty. The trial proceeded on the basis of that charge.
It read as follows:

3
Statement of Offence
INCAPABLE OF HAVING PROPER CONTROL OF MOTOR
VEHICLE DUE TO INTOXICATING LIQUOR: Contrary
to Section 102 of the Land Transport Act No.
35 of 1998.
Particulars of Offence
VINOD PRASAD s/o Kashi Prasad, on the 16 th day
of November 2002 at Suva in the Central
Division, whilst driving a motor vehicle
registration SHAVIN was under the influence of
intoxicating liquor to an extent whereby he
was incapable of having proper control of the
said motor vehicle.
The prosecution called 8 witnesses.
Viliame Takayawa was that on the 16 th
The evidence of
of November 2002 at
about 4.30pm he was driving past the Yat Sen School from
Cost-U-Less when he saw a black sports car coming behind
him being driven very fast.
footpath.
It hit the side of the
The witness thought that the car would hit his
car, and he moved forward, also hitting the footpath.
stopped.
The black car had stopped on an island made of
concrete in the middle of the road opposite the school. He
then saw the Appellant come out of the driver’s seat and
fall onto the grass.
driver.
He
He stood up with the help of a taxi
Constable Tamaiti attended a report that there had
been an accident opposite the Yat Sen School. He said he
saw a vehicle grey in colour with a number plate SHAVIN
parked in a way that blocked the lane running from the
University to Flagstaff. He was told that a man who was
sitting in a taxi, had been the driver of the car. He

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approached him and saw that he was his superior officer
Inspector Vinod Prasad. He smelt heavily of alcohol and
could not control himself when he stood up. He helped him
to the Police Post then told the Traffic Branch to check
him.
PW3 was PC Satish, a traffic officer who drew the
sketch plan of the scene. The sketch shows the Appellant’s
vehicle parked diagonally across the right lane of the
Laucala Bay Road. The plan also shows the way the car
travelled prior to the accident, but as the witness agreed,
he had not witnessed the accident. However he did say that
he saw the dried mark of the tyre on the grass verge and
scattered soil and was able to deduce the path of the
vehicle.
Constable Mitieli Davui gave evidence that he attended
the report and was instructed to visit the scene. He saw a
private car Reg. No. SHAVIN parked on the road blocking
other cars opposite the Yat Sen School. He went to the
Flagstaff Police Post and saw the Appellant sitting on a
bench. He told Constable Mitieli that he was the driver of
the accident car. He was then asked to blow into an Alco-
Test machine. He blew 6 times but produced insufficient
breath samples. He was then asked to go to the Central
Police Station where he was handed over to Corporal Maikeli
Tuwai who tested his breath using the Dragger Test Machine.
Cpl. Maikeli then gave evidence that he used the
Dragger 7110 test machine to test the Appellant’s breath.
He had, according to the reading, 134 micrograms of alcohol
in his breath. He said in evidence that the Appellant

5
smelt heavily of alcohol and was staggering but agreed that
he had not said so in his statement. His evidence was also
that the Dragger machines were tested every year in
Australia. Under cross-examination he said that he did not
know that the machines should have been re-tested in Fiji,
and that only one person in Fiji was qualified to re-test
the machines.
PW6 was Senior Superintendent Jerome Kanimea who
interviewed the Appellant under caution. In that
statement, taken on the 17 th of November 2002 the Appellant
said that on the 16 th of November he had drunk “a few beers”
at the Palm Club in Nasese. He left the Club at 5pm in the
vehicle SHAVIN. His nephew Nilesh Chad was driving. He
denied that he was the driver and said he did not know what
happened because he was asleep at the time. When he was
charged he said again that he was not the driver of the
vehicle.
Inspector Alusio Waqa, who was the charging officer
said he saw the Appellant on the 16 th of November at Central
Police Station. He said that the Appellant needed to be
supported by two police officers when he was brought into
the Station, that the Appellant was so drunk that he could
not control himself. He then told Cpl. Maikeli to conduct
the breathalyser test and locked the Appellant in a cell
overnight because he was too drunk to be interviewed at
that time.

6
Under cross-examination the Inspector said that he had
not recorded any statement. He said that the Dragger
machines were tested in Australia but because of Fiji’s
different climatic conditions, should be re-tested in Fiji.
At the end of the prosecution case, the defence made
submissions that there was no case to answer. The learned
Magistrate concluded that there was and put the Appellant
to his defence. The Appellant remained silent and called
Tauz Khan a technical engineer and managing director of
Safe Way Electronics Ltd. He said that he was licensed to
repair the breathalyser machines, to re-calibrate them and
have them verified by the Weights and Measures Department.
He said that he used to test the machines annually until 3
years previously when the Department decided to have them
tested in Australia. He said that in his opinion the
machines ought to be re-tested in Fiji because of the
climatic conditions (temperature humidity and atmospheric
pressure) which affected accuracy of readings. He said
that such inaccuracy might lead to a variance of 10-15
grams. Under cross-examination he agreed that the
certificate of verification for the machines had been
signed by the Chief Inspector of Weights and Measures, and
that he had not been involved with the machines for the
past 3 years.
In closing submissions, counsel submitted that the
breathalyser machines were unreliable, that the Appellant
had not been examined by a senior police officer or medical
practitioner, and that there was no evidence that the
Appellant had been drunk and incapable of driving.

7
The State said that the result of the Dragger machines
was not necessary for conviction, but that there was
sufficient evidence that the machines were reliable. The
State also said that there were other evidence as to the
Appellant’s manner of driving, and of his drunk condition
to justify conviction. Further, he said that there was no
real dispute that the Appellant was the driver of the car
at the time of the accident.
The learned Magistrate delivered judgment on 18 th
September 2003. After summarising the evidence, he
concluded that the evidence of the prosecution witnesses
showed that the Appellant was incapable of having proper
control of the vehicle due to intoxication, that he was
driving the vehicle SHAVIN, that he caused the accident,
that the breathalyser tests proved that he had in his blood
an excessive amount of alcohol, and that the Appellant had
received proper notification of the prosecution. He
convicted the Appellant accordingly and fined him the sum
of $1000 (in default 3 months imprisonment) and
disqualified him from driving for 12 months “on the
condition that you should only be allowed to drive your car
registration SHAVIN to work from 6am to 6pm at your working
days with effect from today.”
The Appellant’s amended petition of appeal contains
the following grounds of appeal:
1.a)
In relying on the evidence of the
Dragger Test machine to find the
Appellant guilty of the charge;

8
b) In relying on the evidence of the
Police Officers to find the Appellant
guilty of the charge.
c) In failing to consider Tauz Khan’s
evidence which was crucial to the
Defence/Appellant’s case.
d) On relying totally on the evidence in
examination in chief to find the case
proved beyond reasonable doubt.
2. That the learned trial magistrate failed
to consider that evidence given in court
by the prosecution witnesses were not in
the witnesses statement to the Police.
3. That the learned trial magistrate failed
to consider the contradictions in
prosecution’s case.
4. That the learned trial magistrate failed
to consider and/or attach any weight to
the evidence in cross-examination of the
prosecution witnesses.
5. That the learned trial magistrate failed
to give any reasons why he believed the
prosecution witnesses.
6. That the learned trial magistrate
shifted the burden of proof on the
defence when convicting the Appellant.
7. That the learned trial magistrate erred
in law in convicting and sentencing the
Appellant whereas the Statement of
Offence does not disclose any offence.
8. That the fine of $1,000 was harsh and
excessive.
These grounds can be put into three broad categories;
one, the objections to the breathalyser test results, two,
the submission that a conviction under section 102 of the

9
Land Transport Act is impossible without a medical/police
examination, and three, that the prosecution witnesses were
so unreliable that no weight should have been put on their
evidence. I deal with these in turn.
The Breathalyser Test
follows:
Section 102 of the Land Transport Act provides as
“(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.
(2) If a police officer is of the opinion
that a person who is driving or attempting
to drive or is for the time being in charge
of a motor vehicle is, by reason of his
physical or mental condition, however
arising, incapable of having proper control
of the motor vehicle, the police officer may
–
(a)
(b)
forbid that person to drive the
motor vehicle;
direct that person to deliver up
to the police officer forthwith
all ignition keys and other keys
of the motor vehicle that are in
that person’s possession; and
(c) take such steps as may be
necessary to render the motor
vehicle immobile or to remove it
to a place of safety.

10
(3) A person who fails to comply with a
direction given to him under subsection (2)
or does an act that is for the time being
forbidden under that subsection is guilty of
an offence against this Act, but no person
shall be convicted of an offence under this
subsection unless the court before which he
is charged is satisfied that the police
officer had reasonable grounds for believing
that, in all the circumstances of the case,
the direction or prohibition was necessary
in the interests of the defendant, or of any
other person, or of the public.
(4) Subject to subsection (5), if a police
officer exercises the powers conferred by
subsection (2), the police officer shall
retain the ignition keys and other keys of
the motor vehicle and cause the motor
vehicle to be kept immobile or in a place of
safety until such time as, in the police
officer’s opinion, the person referred to in
subsection (2) is capable of having proper
control of the motor vehicle.
(5) A person who is directed or forbidden to
do anything, pursuant to subsection (2),
shall, at the time when the direction or
prohibition is given or imposed or at any
time thereafter, be informed by the police
officer that –
(a) he is entitled to have his
capability to have proper control
of the motor vehicle determined by
a police officer (in this
subsection referred to as “the
senior police officer”) of a higher
rank than the police officer who
gave the direction or imposed the
prohibition, if the last-mentioned
police officer is of a rank lower
than inspector; or

11
(b) he is entitled to request an
examination by a qualified medical
practitioner, and if it is
reasonably practicable that the
request be granted the police
officer who gave the direction or
imposed the prohibition shall make
the necessary arrangements
accordingly.
(6) If a police inspector or other senior
police officer or medical practitioner, as
the case may be, certifies that he is of the
opinion that a person is capable of having
proper control of a motor vehicle, the
police officer who has possession of the
ignition keys and other keys of the motor
vehicle shall forthwith return them to the
person and, if the motor vehicle has been
rendered immobile, shall forthwith cause it
to be returned to running order.”
Section 103 of the Act provides for a separate offence
of driving a motor vehicle while there is more than the
prescribed concentration of alcohol in the blood. The Land
Transport (Breath Tests and Analyses) Regulations 2000
provide (as amended by Legal Notice 148 of 2000) as
follows:
“3(1) For the purpose of section 103(1)(a) the
prescribed concentration of alcohol is 80
milligrams of alcohol in 1000 millilitres of
breath.
(2) Evidence that there is alcohol in the
blood in excess of the prescribed
concentration at a relevant time may be given
by reference to a sample of the person’s blood
taken with his or her consent, or by reference
to the reading on a breath analysing
instrument in accordance with sub-regulation
(3).

12
(3) A reading or a breath analysing instrument
in microgrammes of alcohol per 100 millilitres
of blood is to be multiplied by 2.2 in order
to arrive at the number of milligrams of
alcohol in 100 millilitres of blood.”
Section 103(1) of the Act provides:
“(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 103(3) provides:
“A person convicted of an offence –
(a)
(b)
under section 102(1) is not liable to
be convicted of an offence under
subsection (1) of this section arising
out of the same circumstances;
under subsection (1) of this section is
not liable to be convicted of an
offence under section 102(1) arising
out of the same circumstances.”
It seems clear, on a reading of these provisions, that
on finding a driver with more than the prescribed amount of
alcohol in his breath, the prosecution must choose which
provision to charge him/her under. Charging under both
sections 102 and 103 is not possible because of the effect

13
of section 103(3)(a) and (b), unless they are drafted in
the alternative. Further, although the State submitted
that a conviction on section 103 is possible as a lesser
offence, even if all the ingredients of section 102 are not
present, it does not appear to me that the ingredients of a
section 103 offence of driving while in excess of the
prescribed limit of alcohol in the breath, are necessarily
some of the ingredients of a section 102 offence. The
prosecution, to prove a section 102 offence, does not have
to lead evidence, or to prove that the driver had more than
80 milligrams of blood alcohol. A person can be found
drunk and incapable under section 102 of the Act without
any evidence of blood or breath alcohol.
What are the elements of the section 102(1) offence
Firstly, that the accused drove a vehicle, secondly that at
the time of driving he was under the influence of alcohol,
and thirdly that he was thereby incapable of having proper
control of the motor vehicle. There is nothing in the
section which requires proof of the exact level of blood
alcohol of the accused, but there is also nothing in the
section which prohibits such evidence being led.
Section 102(5) provides that a person is “entitled to
have his capability to have proper control of the motor
vehicle determined by a police officer” or to “request an
examination by a qualified medical practitioner”, but that
entitlement is specifically in relation to a police
officer’s powers, under section 102(2) to forbid the driver
to drive, and direct him/her to give up his car keys. It
is a procedural safeguard in relation to a person who is
forbidden to drive because he/she is suspected of being

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drunk and incapable. Section 102(5) does not provide that
the only way that incapability to drive can be judged, is
the senior police officer’s determination or a medical
examination.
Insofar as State counsel purported to agree with the
Appellant that a conviction was not possible under section
102(1) without such examination, I consider that he made
that concession in error. In this case, the Appellant did
not seriously argue that he was not the driver of SHAVIN at
the time of the accident. Nor did counsel make that
submission on appeal. There was good evidence that the
Appellant was the driver. Further, there was no real
dispute that the Appellant had drunk some alcohol before
driving the car. What was in dispute was whether he was
thereby incapable of controlling the vehicle.
Section 39 of the Traffic Act (now repealed) read:
“Any person who, when driving or attempting to
drive or when in charge of a motor vehicle on
a road or other public place, is under the
influence of drink or drug to such an extent
as to be incapable of having proper control of
the vehicle shall be guilty of an offence…”
I see no difference between the repealed offence and
the section 102(1) offence. I consider therefore that the
evidential requirements would be identical. As such, the
prosecution, to prove a section 102(1) offence needs to
lead evidence of consumption of alcohol (admission, smell
of liquor, unsteady gait) and of manner of driving. If
there is expert evidence of the latter, well and good.
However, whether or not there is expert evidence of

15
incapability, the court must decide on all the evidence,
the question of ability to control the vehicle. Even
evidence of a breathalyser test is only one consideration
in the case. This is because the prosecution must prove
not only the consumption of alcohol, but also resulting
inability to control the vehicle. (R –v- Hunt (Reginald)
(1980) RTR 29, MacNeill –v- Fletcher (1966) JC 18, R –v-
Hawkes 22 Cr. App. R. 172). Further, where a suspect has
caused an accident as a result of the consumption of
alcohol, in an area where the breathalyser equipment is not
available, he/she may still be charged under section
102(1).
The evidence in this case was that the vehicle came
down Laucala Bay Road, hit the side of the footpath, and
came to rest on a concrete island in the middle of the
lane. PW1, Viliame Takayawa also said the vehicle came
very fast. In cross-examination he agreed that he had not
said that in his statement to the police. Nor had he said
that the car was on the island. However there was no real
dispute that the car was found parked in the middle of the
road as shown on the sketch plan. There were tyre marks
suggesting an erratic journey from the Laucala Bay Road,
over the grass verge, and into the middle of the road.
That was the evidence of manner of driving. That
evidence together with the evidence of the smell of alcohol
(PW1, PW2, PW4, PW5 and PW7) and of staggering and
inability to control himself were sufficient on their own
to allow the learned Magistrate to conclude that the
Appellant was drunk and unable to control his vehicle.

16
However the prosecution also led evidence of the
breath tests. The evidence was that Cpl. Maikeli used a
Dragger 7110 test machine to test the Appellant’s breath.
The result was that there were 134 micrograms of alcohol in
his breath. If accepted, this was well in excess of the
prescribed limit.
The defence case was that the Dragger machine was
unreliable because it had not been tested in Fiji. The
defence led the evidence of an expert who used to test the
machines, but who no longer does so because the tests are
now carried out in Australia. The evidence was that the
machines are being tested annually but in Australia.
Of course, the test result was not the sole basis of
the conclusion reached by the court. Further, the expert
called by the defence said that the extent of the
inaccuracy was as much as 30 micrograms. I note that even
if the result was inaccurate by 30 micrograms, the
Appellant was still in excess of the prescribed limit.
Lastly, the learned Magistrate obviously considered that a
3 year lapse in working with the Dragger machines, rendered
the expert evidence less than compelling. This is a
conclusion he was entitled to reach. Expert evidence, like
other evidence must be weighed and considered by the court
in reaching an ultimate conclusion. What weight should be
put on any expert evidence is a matter for the trial court.
In this case the learned Magistrate clearly decided that
the reading on the Dragger machine was reliable despite the
evidence of the expert. This is a conclusion he was
entitled to reach, after hearing all the evidence. Indeed,
the result of the Dragger machine could not have been

17
conclusive because it is evidence only of consumption of
liquor, not of incapability. Insofar as there is no real
dispute about consumption, the Dragger result was not of
central importance to the case. Grounds (a), (b) and (c)
are dismissed. Further, the submission that a section 102
conviction was impossible without a formal police or
medical test, is also unsuccessful for the reasons I have
given.
Contradictions in the Prosecution Case
The crux of counsel’s submissions are that the
witnesses gave evidence of details which were not in their
statements. One witness (the charging officer) made no
statement at all.
Indeed, there is no law that requires witnesses to
give evidence strictly in accordance with their statements.
Most witnesses give evidence in greater or lesser detail in
court. Much depends on their memories, the skill of
whoever took their statement and the way their evidence is
led in court. Inconsistencies between statement and
evidence may assist the court in weighing up reliability
and credibility. However the out-of-court statements are
not evidence. What is said in the witness box is evidence.
In this case, the learned Magistrate clearly believed the
witnesses despite the lack of detail in their statements.
One witness (PW1) said that he gave his statement with some
reluctance because he was afraid of being victimised. The
learned Magistrate was entitled to accept the evidence of
the prosecution witnesses, not only because he heard them
and saw their demeanour, but also, as he said, because the

18
evidence was consistent with the prosecution charges.
Finally, one police officer (the charging officer) gave no
statement at all. In practical terms, this might have been
unsurprising if the only evidence given by him was of the
charge statement which had already been disclosed to
counsel. However he also gave evidence that the Appellant
was drunk when he was brought into the Central Police
Station and had to be supported by two other police
officers. Obviously this evidence came as a surprise to
counsel and if the prosecutor knew he was going to lead
this evidence, then it should have been recorded in a
statement and disclosed to the defence. Alternatively if
no statement was recorded, then counsel should have been
allowed to seek an adjournment to prepare crossexamination.
Despite the lack of disclosure of Inspector Waqa’s
evidence however, I see no prejudice to the Appellant.
Counsel who did not seek an adjournment, cross-examined
vigorously, along the same lines as he had cross-examined
other prosecution witnesses. Further IP Waqa said very
little more than the other police witnesses as to the
Appellant’s state of intoxication.
For all these reasons I find that the learned
Magistrate was entitled to rely on the prosecution
evidence, and was entitled to come to the conclusion he
did. Indeed, on a reading of the court record, the
evidence of intoxication, and of the manner of driving,
appears to be both consistent and compelling.

19
In respect of counsel’s submissions that he put too
much weight on the prosecution evidence and failed to give
reasons for his decision, I cannot agree. The prosecution
called 7 witnesses and the learned Magistrate summarised
the evidence of each one. He also summarised the evidence
of the one defence witness. The reasons for his decision
to convict are clear on page 35 of the court record. He
found that the Appellant was not only drunk, but that he
was incapable of driving his motor vehicle. He decided to
accept the validity of the Dragger Alcotest result in
relation to the Appellant’s state on the 16 th of November
2002. I do not consider that he erred.
In his amended grounds of appeal, the Appellant does
not pursue the issue of the Notice of Intended Prosecution.
This appeal against conviction is dismissed.
Sentence
The maximum sentence under section 102(1) is $5000
fine and disqualification for 5 years. Counsel made no
submissions on sentence at the hearing of this appeal, but
I consider a fine of $1000 in the circumstances of this
case to be far from excessive. The evidence was that the
Appellant was so drunk he was staggering and could not
control himself. His manner of driving was so erratic that
it was fortunate that no one was injured. He was driving
in the afternoon on a busy road and could have caused
injury and damage. The fine is not excessive nor wrong in
principle.

20
However, I have questions as to the lawfulness of the
order of “partial” disqualification. As I did not request
counsel for submissions on the disqualification, I intend
to give them an opportunity to make such submissions. I
will rule on sentence thereafter. The appeal against
conviction is dismissed.
…………………………………………………
Nazhat Shameem
JUDGE
At Suva
23 rd February 2004