Gani v State [2011] FJHC 712; HAA020.2011 (30 September 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA 020 OF 2011

BETWEEN:

MOHAMMED GANI
Appellant

AND:

STATE
Respondent

Mr A. Sen & Mr K. Padayachi for the Appellant
Ms. M. Fong for the State

Date of Hearing: 23rd August and 21st September, 2011
Date of Judgment: 30th September, 2011

JUDGMENT

[1] On the 8th December, 2010 the appellant was convicted of the count of criminal intimidation contrary to Section 330(a) of the Penal Code, Chapter 17 in the Magistrates Court at Labasa, following a trial. He was sentenced on 22nd March 2011 to 12 months imprisonment suspended for two years, as well as a fine of $200.00.

[2] The appellant now appeals that conviction on grounds which can be summarized as follows:

(i) the charge was erroneous and unsupported by the evidence.

(ii) the elements of the criminal intimidation were not satisfied by the prosecution evidence.

(iii) there can be no criminal intimidation when the accused is on his own property.

(iv) the sentence is harsh and excessive.

The appellant had earlier appealed against sentence, but abandoned that appeal before me.

[3] The facts elicited at trial were these: The victim of the intimidation is an enforcement officer with the Land Transport Authority (LTA) in Labasa. He and a colleague mounted a general vehicle checkpoint near the Naseakula Mosque on the 10th December 2008. They stopped the driver of a silver Nissan Sunny for not wearing a seat belt. They asked for the drivers' licence and checked the registration of the vehicle. It was displaying trade plates. While the officers were checking the validity of the trade plates with their head office, the driver drove off and into the AA car yard. The LTA officers followed in their vehicle and into the yard parking about 8 metres from the target vehicle. At this point the accused ran towards the LTA vehicle holding a 12 inch long pinch bar and threatened to smash the windscreen of their vehicle and to threaten to break the LTA officers' jaw and "end his life that day". The LTA driver immediately reversed his vehicle out of the yard back onto the roadway where the accused continued his intimidation with the pinch bar to demand the miscreant drivers' licence be returned. The officers in fear for their safety drove off.

[4] Mr Padayachi submits that not only were the LTA officers trespassing on the accuseds' land, they were conducting LTA enquiries and therefore the charge should have been one of obstruction of investigation, rather than criminal intimidation. He further supremely submits that when the LTA officers made their complaint to the Police, the police acted on this "hearsay" evidence, and that they charged the accused without knowing what actually happened at the scene.

[5] As the Magistrate quite properly said in his carefully reasoned verdict, the Police are at liberty to lay whatever charges they believe are appropriate to the complaint they have received and indeed the complaint was of intimidation. Maybe a charge of obstruction to investigation could also be made out, but this was not the charge laid. It would be impossible for the Police to charge anyone with an offence if they were precluded from acting on what Mr Padayaci calls "hearsay evidence". A complaint is made and the charge laid. The validity of the charge is thereafter tested by judicial proceedings which would certainly knock out any false claims by the complainant.

[6] The submission that the LTA officers were trespassing on the accuseds' property cannot be sustained. Under Section 75 of the Land Transport Act 1998, the officers are empowered to enter any premises for the purposes of inspection. And after an inspection at the Mosque was aborted, they were following up at the AA yard.

[7] The Magistrate has conducted a very thorough and detailed analysis of the evidence and no matter whether it was a pinch bar or a PVC pipe used, the accused was certainly menacing the victim and he was so fearful that he fled the scene with his colleague.

[8] None of the grounds of appeal have been made out and the appeal against conviction is dismissed.

[9] The appeal against sentence having been abandoned is dismissed.

Paul K. Madigan
JUDGE

At Labasa
30th September, 2011