State v Tabakau [1996] FJMC 2; Criminal Case No 0149 of 1995 (16 May 1996)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT NABOUWALU

CRIMINAL CASE NO: 149/95

STATE

and

SAKIUSA TABAKAU
JUDGMENT

The accused is charged with being drunk and disorderly in a public place viz. Nabouwalu market on the 6^th day of November 1995.

According to Isoa Qasau a shopkeeper he had been alone in the shop around 6.00am on 6/11/95. Some people had come to purchase things. The accused too came a little while after 6.00a.m. from the market. The accused had a bottle read liquid in his hands and a glass. Accused was not normal and smelt of liquor. The accused offered a drink to Rabona one of the customers who refused it. He rang up the police who came and took the accused away.

Under cross-examination the witness stated that the accused had come with another who had given the accused the bottle and the glass. He had called the police as the accused was drunk and was disturbing his customers.

Usaia Temo a baker at Manoa Bale’s bakery had come out around 6.30a.m for fresh air and seen the accused at the market shouting. The accused was making sounds.

Under cross-examination this witness stated that what he had heard was a ‘whoo’ noise. Police officers are not allowed to make ‘kailas’.

Salanieta Temo had come to the shop to buy bread and had met the accused on the way who had said “There is a lady who commits adultery. As their father are brothers they are not on talking terms. The accused was drunk. She thought that he was drunk from the nature of the remark. Under cross-examination this witness stated that the accused is related to her through the mother’s side too. If the relationship is that of THOU they could joke.

Samisoni Vananibula stated that he saw the accused drinking in the market with another. Both of them had come to the shop. He saw them drinking rum shouting and laughing in the market. It was the other person who was holding the bottle.

Police Constable 1195 Sakiusa on receiving the report had come to the shop in a vehicle. He had approached the accused and found him drunk. Accused was smelling of liquor and was taken to the police station.

The accused in his unsworn statement stated that born on 25/6/58 he had joined the Fiji Police Force on 13/9/79. After 7 years he got his first promotion as Corporal. Later he was detailed for Cell Block Duty in Government Buildings. During his period then there were no escapees. Then his father died and he got a transfer to Nabouwalu in 1994. His mother had got a stroke.

He had never been dealt with for any misconduct.

As regards the incident on the day in question he had drinks the previous night which was a Sunday. He had to meet a friend on Monday morning who had asked him for his fare to Savusavu. He still had the smell of liquor lingering in him. He came to see his friend around 6.00a.m. He saw the friend drinking at the market.

As they had met after a long time they greeted each other. He asked his friend not to drink and took the drink from him. He gave the drink to one customer who was present there.

He did not drink or behave in a disorderly manner. The shopkeeper made a report and he was taken away. He did not say anything. The market is not a public place.

The charge against the accused is being drunk and disorderly in a public place viz. Nabouwalu Market.

In a charge of being drunk and disorderly the prosecution has to prove beyond reasonable doubt that the accused had been drunk and that he had been disorderly.

Although there may be cases of drunkenness or disorderliness where such condition is so intense and obvious that even an ordinary layman of common sense has no difficulty whatsoever of determining it, yet there may be cases where it may be difficult to state whether a person is drunk or disorderly.

A mere smell of liquor or a tongue of smell lingering on the lips of a man who had been making offerings in the temple of Backickus the god of inebriation the previous night would not be sufficient to earn him the epithet of being drunk nor the high and coarse price of friends meeting after a long time experiencing their pleasure on a rough manner as some Fijians do should make them open to a charge of being disorderly.

Considering the evidence of the three witnesses who testified on behalf of the prosecution, the accused had come to a shop from the market where a person had handed him a bottle of liquor and a glass which the accused had handed in turn to another. The accused is also said to have made a whoo sound which is commonly heard where Fijians are present.

He is also said to have made a certain remark at his first cousin who seem to have been taken by surprise by the remark as they are the children of brothers. The remark “there goes a lady who commits adultery” the defence submits have been uttered as a joke in a light vein. The content in which the uttercome had been made shows beyond any doubt that it had made in pest.

Although in times of you there might have been various customs and prevalent among the Fijians which made certain types of associations or remarks taboo between members with a certain relationship, yet, in course of time and with the advent of foreigners with their different cultures such customs are becoming relaxed and less frowned upon.

The accused in his unsworn statement from the dock has put before Cut his erstwhile good character and the fact that he had become a Corporal within a short time of joining the Fiji Police Force and also the fact that he had been put in charge of the Cell Block in Government Buildings during which time there had been no escapes.

I have considered the evidence adduced in this case by the prosecution and the evidence by the accused. The prosecution witness seem to have misunderstood the behaviour of the accused and magnified the situation for the reason that the person involved is a policeman.

The unsworn statement made by the accused provide a rational and plausible explanation to every items of evidence adduced by the prosecution.

In my view the evidence led in the case fall far short of proving beyond reasonable doubt that the accused had been drunk and disorderly and in the circumstances I hold that the prosecution has failed to proved the charge against the accused beyond reasonable doubt and acquit the accused.

Accused acquitted.

(MOSES FERNANDO)

RESIDENT MAGISTRATE

16/05/96