State v Suguta [2011] FJMC 123; Criminal Case 108.2011 (9 September 2011)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SIGATOKA
WESTERN DIVISION
IN THE REPUBLIC OF FIJI ISLANDS

SIGATOKA Criminal Case No: 108 of 2011

STATE

V.

EPELI KOROI SUGUTA

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution : PC Chetty
Accused : Present – In Person
Date of Hearing : 9th September 2011

JUDGMENT

Introduction

The accused is charged for being: "Drunk and Disorderly, contrary to Section 4 of the Minor Offences Act, Cap 18".

The particulars of the offence reads: "Epeli Koroi Suguta on the 18th day of November 2010 at Sigatoka in the Western Division were (sic) drunk and disorderly in a public place namely Korotogo back Road"

The Law

Section 4 of the Minor Offences Act, Cap 18 provides that "any person who is drunk and disorderly in any public place or who behaves in a disorderly manner therein shall be guilty of an offence and shall be liable on conviction for a first offence, to imprisonment for a term not exceeding one month and on conviction for a second offence, to imprisonment for a term not exceeding three months, and on conviction for a third or subsequent offence, to imprisonment for a term not exceeding one year."

Burden and Standard of proof

The burden of proof in this case is on the Prosecution, the State. The Prosecution is required to prove all the elements of the charge the accused is charged with beyond reasonable doubt. If the defence establishes to the Court's satisfaction that there is reasonable doubt, then the prosecution fails.

Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice.".

The Evidence

Evidence of the Prosecution Witnesses

The Prosecution called 2 witnesses: Pw-1 – Constable 2222 Isikeli Tasere, and Pw-2 – Constable 2742 Joe Willy.

Evidence of Pw- 1 - Constable 2222 Isikeli Tasere (Sworn on Bible in English)

Examination in Chief – "10 years in police force based in Sigatoka. Recall 18th November 2010. based at Korotogo Community Post. On 17th November doing mid night shift. Report of on 18th November at 7am. After mid night before 12.30 people were making noise at bus stop. Left to bus stop to see who was making noise at bus stop. Fijian boys drinking beer. We advised them to leave. The rest of boys respected our advise and left. One refused to leave. Man on other side refused to leave (pointed to accused). We managed to lead him to Korotogo Back Road and to lead him to his house. After that we left on foot patrol. From shop we could see him go to Police Post. Shop – Korotogo Shopping Center. We went up to him and asked him if he wanted anything. Before reaching the post we met. He did not say anything. He left.

Just after we departed we could hear him swear at us. Words used – Sona Levu, magai Tinana. Accused was on main highway. We followed him and arrested him. Accused heavily smelt of liquor. I was with Constable 2742 Joe Willy."

Cross-Examination – "bus stop is not 100m from police Post. We left out on Police Patrol. We did not swear at him. Accused refused to leave. We followed accused to lead accused home. Did not abuse accused. Accused returned from police post. We did not swear at accused. We followed accused to Korotogo Police Post. Accused acted aggressively. Accused smelt heavily of liquor. Used reasonable force. Used pepper spray on accused as accused was abusive."

Re-Examination – Nil.

Evidence of Pw- 2 – Constable 2742 Joe Willy (Sworn on Bible in English)

Examination in Chief – " last 6 years a Police. 18th November 2010 at Korotogo Community Police Post. Roistered at 7pm. At 20 past 12 at Community Post heard noise at bus shelter. We went to investigate, myself and Sikeli. Found some youths drinking at bus shelter. We told them to leave and go home. Rest left, only one of them did not adhere to our instructions. (pointed to accused in accused box). We patrolled at Shop. We went to post. Whilst we neared the post we saw accused come back from the post. We asked accused what he was doing at post. He did not answer. Went past us and started swearing. Used words "sonalevu, magai Tinana. We proceeded after him and arrested him. Brought him to station, searched and locked him. Accused smelt of liquor and was unstable. Accused was 100 yards away when he swore at us."

Cross-Examination – "accused refused to leave. Did not follow accused to back road. Accused did not mention anything. Did not swear at accused. Do not remember what I did to accused. ."

Re-Examination – Nil

At the close of the Prosecution case the Court ruled that the accused had a case to answer and the options were explained to the accused.

The Evidence of the Defence Witnesses

The accused gave sworn evidence and He called one other witnesses.

Evidence of Dw-1 – Epeli Koroi Suguta (Sworn on Bible in English)

Examination in Chief – "Butler at Outrigger. Was ill treated that day I was arrested. I respected them when they asked me to leave. I left. They slapped me kicked me – Joe Willy. They left me to go home then. I went to Police Post to ask them why they had to do that to me. On way back they passed me. They swore at me. Joe Willy swore at me. I swore back at them.

At Korotogo back road I asked them why they swore at me. They swore at me and sprayed pepper spray, punched, handcuffed me and kicked me on my ribs. Thrown in a van and taken to Sigatoka. Upon arrival wanted to call wife was refused. I was accused of an offence I id not commit."

Cross-Examination – "was at bus stop. Police told us to leave the bus stop. Went back to police post. I swore at Police after I was sworn at. I had beer that night." (accused also told the Court he went to police post knocked 3 times no-one inside. When I met them outside I did not want to talk to them)

Re-Examination – Nil

Evidence of Dw-2 – Varenava Bose (Sworn on Bible in Fijian)

Examination in Chief – "we were drinking at the bus stop on 17th November 20101. 2 Police came. They told us to finish drink and go away from shelter. We were on our way home when one of the police slapped the accused."

Cross-Examination – "accused is my friend. Accused asked me to be a witness. Accused drank with me that night."

Re-Examination – Nil.

Analysis of the Evidence

The Court has scrutinized all the evidence of all the witnesses in this case.

The accused was unrepresented in this case. The accused in his evidence in Court did not deny that he swore at the police officers or that he had beer that night. The accused told the Court that he was ill treated and sworn at and he swore back at the complainants (the Police Officers). The accused's allegation that he was slapped by the police officer is supported by the evidence of the other defence witness. This witness was not discredited, he was truthful that he was a friend of the accused, the accused asked him to be a witness and that they had drunk that night.

One point that the Court notes is crucial in this case is that the accused, who was drinking at the bus shelter went to the police post after he was asked to disperse. This is not even disputed by the Police officers. According to the accused he wanted to ask the Police why they had slapped and kicked him. The Court believes the accused. The accused went to the Police Post to see someone. When he went in no one was there. He went away. On his way back he saw the officers again. He went past them and kept quiet. Even the officers asked him what he wanted but the accused kept quiet. Would a person who is drunk and disorderly demonstrate such behaviour? The accused was controlled. He wanted answers he got none as no one was at the Police Post to assist him.

The Court noted the demeanor of all witnesses. The Court noted that the prosecution witnesses tried to be consistent. They were not truthful and telling the full story why a civilian would go to the police post after being asked to leave from a public place he was alleged to have been drinking at. The Court believes the accused version of events that he was assaulted and that he wanted to find out from the Police Post why they did that to him.

The Police Officers are not believed. The accused's version is believed by this Court. He has been truthful in Court. He did not deny he swore back when he was sworn at. It is a natural reaction if someone swears one will occasionally in such scenarios swear back. Also the Court believes the accused and his witness's version that the accused was assaulted.

The Court is not satisfied beyond reasonable doubt on the evidence tendered as to the accused's guilt. The accused is acquitted of the charge.

28 Days to appeal.

Chaitanya Lakshman
Resident Magistrate

Sigatoka
24th October 2011