State v Basha [2011] FJMC 55; Criminal Case 124.2010 (21 March 2011)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SIGATOKA
FIJI ISLANDS

Criminal Case No: 124 of 2010

STATE

V

MOHAMMED MUSTAPA MUNAF BASHA

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution : Insp. Goundar and later Sgt. Chetty
Accused : Present
For Accused : Mr S Sharma

JUDGMENT

Introduction

The accused is charged for using abusive language in a public place, contrary to Section 7 (2) of The Minor Offences Act (Cap 18).

The particulars of the offence is that: "Mohammed Mustapa Munaf Basha on the 18th day of October 2009, at Cuvu, Sigatoka in the Western Division used abusive language on Raj Kumar in a public place namely Cuvu College Ground with intent to provoke breach of peace."

The elements of the offence

The elements of the offence that the prosecution need to prove in order for it to prove the charge it laid against the accused is as follows:

1. That Mohammed Mustapa Munaf Basha,
   
2. on the 18th day of October 2009, at Cuvu, Sigatoka in the Western Division,
   
3. used abusive language on Raj Kumar, and
   
4. in a public place namely Cuvu College Ground with intent to provoke breach of peace.
   

The Evidence

The prosecution called 4 witnesses. Pw- 1 – Raj Kumar, PW-2 – Joesph Nitya Nand, Pw-3 Const Mesulame and Pw-4 Jonas Naceva.

Prosecution Evidence

Evidence of Pw- 1 - Raj Kumar – sworn on Ramayan in English.

Examination in Chief- "recall 18th October 2009, midday. Was seated and watching match in progress at Cuvu College grounds. Match – Cameroon and Downtown – local league match by Nadroga Soccer. 110 to 120 people in the ground. Referee was Munaf Basha. Approximately 3m from touchline.

Witnessed accused blew whistle for infringement. He started swearing and ran towards me. Munaf – in accused box. Accused was 20 yards from me. Accused said "mother fucker and fuck your mother – what you want". Accused continued swearing and ran towards me. Accused was 5-6m away from me. I stood up for self-defence.

I asked accused who he was saying to. He said to me. Accused continued to swear "mother fucker". I felt ashamed and angry. Players nearby intervened and controlled the situation. Players tried to calm the situation. Accused made gestures to me. Accused with hands made action. I called the police and police accompanied me off the ground. I gave statement to the police."

Cross-Examination – "one previous match. President of Liverpool. I was seated on the bench. Ref for that match was Munaf Basha. Ref awarded penalty against our team. Was disappointed. I did not swear at the accused. 15 people sat with me. Those 15 would hear accused swear. 21 years as President of Liverpool. Referee can speak to spectators and tell 4th official. Accused did not stop match and speak to me. I did not swear at the accused. I did not try to assault accused. Fiji FA had a meeting on this issue. Notified of fabricated allegation.

I told police of other witnesses that were there. Accused did not speak to me from 20 metres. Accused swore from 20 yards. Other people would have heard accused. I was not swearing from side-line. Did not take revenge as I was suspended by Nadroga Soccer.

Re-examination- "I was suspended by Nadroga Soccer. 23rd October 2009 after the incident. After accused's allegations. I said bull shit and attempted to assault accused. No notice was served. Did not attend Nadroga Soccer Tribunal. Was suspended without proper trial. No animosity with accused. Was not suspended on 18th October 2009.

Evidence of Pw- 2 – Joseph Nitya Nand – sworn on Ramayan in English.

Examination in Chief- "teach at Nadroga Navosa Arya School. On 18th October 2009 at midday at ground- Cuvu ground. Team was waiting for other members to arrive. I was with team mates on the side-line. Did not see Raj Kumar. Was on the other-side. Cannot recall match. I saw commotion on other side. Road end. I could not make out what happened. I just observed. I saw accused come to half-way line. He said to "hell with you and Nadroga Soccer". Accused said "ha tum jao gand marao". Where commotion was going on. Could not make out to whom."

Cross-Examination – "former coach of Nadroga Soccer. Relieved of duties. Talk to Satish Kumar (Executive). Other people around. Was on half-way line. I did not hear accused say "mother fucker". Accused swore. I wrote to withdraw the statement to police. Decree that Civil servants should not be witnesses. Someone called me and told me he is CEO-defence and Vice-President of Nadroga Soccer. Other people would hear the accused."

Re-examination- "CEO identified as Amit. I was afraid that I will loose my job. So gave statement. Told me to write letter. Do not know one Amit.

Evidence of Pw- 3 – Const. Mesulame – sworn on Bible in Fijian. [the caution interview was tendered by consent].

Examination in Chief- "was also the investigating officer. Was at Cuvu College grounds. Recorded statements of witnesses. Only interviewed Jospeh Nitya. Collected statements of other witnesses. I located accused and interviewed in English. Accused denied."

Cross-Examination – "took names of witnesses from complainant. Complainant gave 15 names. I tried to contact independent witnesses. He refused to give statements. Witnesses did not want to give statements. Accused charged after 5 months. Case dealt by former crime officer. Accused charged after letter by complainant. Needed independent witnesses. Charged accused on directive. Initially case lacked evidence. Former officer in-charge directed me to charge accused."

Re-examination- "did not make record of 15 names. Complainant gave names and phone contacts they refused to give statements. Had record of contacts.

Evidence of Pw- 4 – Jonas Naceva – sworn on Koran in Hindi.

Examination in Chief- "recall 18th October 2009 at the ground- was a game. Cameroon and Downtown. Referee – Munaf (witness pointed to accused in accused box). I was on the side-line at the ground. A free-kick was awarded to the team. Someone from outside said "murgi-chor" the accused went towards Raj kumar and said mother fucker – "Mai-chod". [witness pointed to complainant (Raj Kumar) sitting in Court].

Accused said "mother fucker" to the complainant. Complainant was seated next to me. Munaf pointed towards complainant and was swearing. Accused was saying "Mother fucker". Raj Kumar stood up in self-defence, then accused came towards him. Some players stopped Munaf. Then complainant went to call the Police."

Cross-Examination – "am a soccer player, playing for Nadroga Soccer. Last year played for Downtown. Played for Liverpool as well- played for 2 clubs. Played for Liverpool when incident happened. Raj Kumar was President of Liverpool. Donot know complainant's other names. Gave statement to Raj. I wrote the statement and I signed. Cannot recall what accused wore. Do not recall who won the match. I recall the incident. I am telling the truth. I did not sit at the back of the goal mouth. Did not hear complainant swear at accused. I was seated at the side-line. I was not far from side-line about 2 metres. Players of the kickers team were seated with my team players. Munaf was not referee in our game. Previous game. Sure. Can recall well. Was not coached to give evidence in court. Recall accused warned the complainant. Accused stopped the match. Raj Kumar did not say anything. Accused warned Raj. Accused swore at Raj. I did not concoct the story with the complainant. I am not telling lies in court. Complainant came personally to take my statement. No police officer came.

Re-examination- "whatever in police statement is true."

This was the prosecution case. Court ruled case to answer. Accused put to his defence and options explained to him.

Defence Evidence

D-1 – Munaf Basha (the accused) – Sworn evidence (Koran – English)

Examination in Chief- "recall 18th October 2009. was at Cuvu College Grounds, was referee (Downtown and Cameroon).

In 1st half called one player of Downtown to verbally caution him. As soon as I called him, a spectator (Ra Kumar) yelled "bullshit". I requested him not to pass remarks. Complainant stood up and said "fuck your father", "This is not Labasa, I will see you." He charged towards me. I went further back to observe what was happening.

My assistant Referees came to my aid. We started to observe what transpired. To prepare report for Nadroga Soccer Association. Raj was approximately 10 m from me. I did not go out of the ground. I have right to caution and warn spectators and even escort rowdy spectators. I referred Liverpool and Cuvu Blues match. I did not swear at the complainant.

Before the game. The complainant was seated in the technical area. I gave a penalty there was opposition by the complainant. I wrote to Nadroga Soccer Association compiled a report after the game. I have the report. Wrote to local league Director.

Nadroga Soccer Association charged the complainants he was indefinitely suspended. Prior to incident relationship was good with complainant. I did not abuse the complainant. Jonas played for complainants club. He was a player for Liverpool. Complainant was the President.

Cross-Examination – "50 -60 spectators that day. I knew it was complainants voice that's said "bullshit". I did not have full concentration on spectators. Before game had knowledge where complainant sat. when I called to caution player knew where complainant was – from the direction he was appox 10m. complainant was reacting when I told him not to pass remarks. I felt bad when he said "bullshit".

I asked complainant not to pass remarks. Complainant swore at me. Complainant is no longer suspended by NSA. We not in talking terns with complainant. Before incident were talking. I did not swear at the complainant. All telling lies. I did not swear at the complainant."

Re-examination- "when I heard the words "bullshit" match was stopped.

D-2 – Altaf Buksh (sworn on Koran in Hindi)

Examination in Chief- "part of referee's panel of NSA. Recall 18/10/09 was present. Recall match recall referee. Accused the referee. Was assistant Referee. Gave was on. Accused called to caution one player. Complainant shouted "bullshit" Referee. Accused said to complainant not to disturb the game. Complainant tried to disturb the game. Complainant tried to threaten the accused.

Cameroon players took complainant away. Accused did not swear at the complainant. Referees give reports to NSA. Was not incited to give evidence. Was 10m from the accused. If accused used abusive words would hear."

Cross-Examination – "accused asked me to come and give evidence. I was assistant referee. I was on side complainant sat. When word "bull shit" came accused went to complainant and said not to pass remarks." Accused did not swear at the complainant. When incident took place I was about 10m from incident. I heard complainant swear and say ref "bullshit and this is not Labasa – Ref fuck your father".

Re-examination- "was summoned to give evidence."

D-3 – Munen Krishna (sworn on Ramayan in Hindi)

Examination in Chief- "18/10/2009 was at Cuvu College grounds. I represent Downtown Club. At the match when we played Cameroon – free kick by the referee, awarded against Downtown. I heard complainant shout abuse at the ref "bullshit Ref". Ref went to the sideline stopped complainant. Complainant swore at the ref. I was captain of club. I was 10 m from accused. Complainant did swear at accused's father and said to send accused back to Labasa. Was subpoenaed to give evidence.

I am not in talking terms with complainant. I warned complainant not to swear. Not pressured to give evidence."

Cross-Examination – "not in talking terms with complainant. Was present in the ground. Complainant lodged report about accused. I am here willing to give evidence. When complainant said "bullshit" accused stopped the game and went to sideline and asked complainant not to say anything. Accused did not swear.'

Re-examination- "prior to incident in talking terms with complainant."

D-4 – Amit Avinesh Ram (sworn on Ramayan in Hindi)

Examination in Chief- "recall 18/10/09 was at ground. Was playing soccer playing for Downtown. Game on. Accused was ref. he cautioned a player from outside complainant said "Ref bullshit". Accused stopped the game and went and warned complainant not to pass comments. Complainant swore at the accused. Accused did not swear at complainant. I was a player, if accused swore I will hear was near to the referee. Was summoned to give evidence. Am giving evidence on own free will."

Cross-Examination – "was soccer player. About 20-30 spectators. When free-kick awarded no other people shouting. Was close to complainant, could hear. Accused went to see complainant. Some exchange of words between accused and complainant. Accused did not swear at complainant.

Re-examination – nil.

Analysis of the Evidence

The Court gave the Prosecution and the Defence time to file simultaneous submissions with respect to this case. Both have made submissions. The Court has considered their submissions.

The accused was charged for using abusive language in a public place, contrary to Section 7 (2) of The Minor Offences Act (Cap 18).

The onus in this case, is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. 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 Court noted the evidence of the witnesses and noted their respective demeanors. The prosecution called 4 witnesses and the Defence called 4 as well. This case ultimately boils down to the prosecution witnesses and the defence witnesses versions.

The complainant (Raj Kumar) told the court "accused was 20 yards from me. Accused said "mother fucker and fuck your mother – what you want". Accused continued swearing and ran towards me. Accused was 5-6m away from me. I stood up for self-defence." The 2nd Prosecution witness stated in Court that he "did not see Raj Kumar. Was on the other-side. Cannot recall match. I saw commotion on other side. Road-end. I could not make out what happened. I just observed. I saw accused come to half-way line. He said to "hell with you and Nadroga Soccer". Accused said "ha tum jao gand marao". Where commotion was going on. Could not make out to whom." Pw-4 told the Court "Someone from outside said "murgi-chor" the accused went towards Raj kumar and said mother fucker – "Mai-chod". [witness pointed to complainant (Raj Kumar) sitting in Court]. Accused said "mother fucker" to the complainant. Complainant was seated next to me. Munaf pointed towards complainant and was swearing. Accused was saying "Mother fucker". Raj Kumar stood up in self-defence, then accused came towards him. Some players stopped Munaf.

The Accused told the Court that "In 1st half called one player of Downtown to verbally caution him. As soon as I called him, a spectator (Ra Kumar) yelled "bullshit". I requested him not to pass remarks. Complainant stood up and said "fuck your father", "This is not Labasa, I will see you." He charged towards me. I went further back to observe what was happening" D-2 told the Court "Complainant shouted "bullshit" Referee. Accused said to complainant not to disturb the game. Complainant tried to disturb the game. Complainant tried to threaten the accused. Cameroon players took complainant away. Accused did not swear at the complainant. Referees give reports to NSA. Was not incited to give evidence. Was 10m from the accused. If accused used abusive words would hear." D-3 stated "I heard complainant shout abuse at the ref "bullshit Ref". Ref went to the sideline stopped complainant. Complainant swore at the ref. I was captain of club. I was 10 m from accused. Complainant did swear at accused's father and said to send accused back to Labasa. While D-4 stated in Court "was playing soccer, playing for Downtown. Game on. Accused was ref. he cautioned a player from outside complainant said "Ref bullshit". Accused stopped the game and went and warned complainant not to pass comments. Complainant swore at the accused. Accused did not swear at complainant. I was a player, if accused swore I will hear was near to the referee."

The Court has noted all the evidence and as earlier stated this case boils down to which version the Court believes. The Prosecution witnesses are not consistent with their evidence. One instance is that the Complainant told the Court that the accused said "mother fucker and fuck your mother – what you want". Accused continued swearing and ran towards me. Accused was 5-6m away from me." The 2nd witness told the Court "I saw accused come to half-way line. He said to "hell with you and Nadroga Soccer". Accused said "ha tum jao gand marao." The complainant states that the accused was close (5-6m) to him whereas the 2nd witness states the accused was at the half-way line. The accused states that the complainant stated "mother fucker and fuck your mother" whereas the 2nd witness states "accused come to half-way line. He said to "hell with you and Nadroga Soccer". Accused said "ha tum jao gand marao." There is inconsistency in the evidence of the prosecution witnesses. However the Court has taken noted the 4th Prosecution witness is consistent with the complainant. The 2nd Prosecution witness and the inconsistencies do not assist the prosecution case.

The 2nd prosecution witnesses evidence has created doubts in the Courts mind as to what actually happened. All the defence witnesses are consistent and they maintain that the accused did not swear at the complainant.

The Court has to decide which version it believes. It is an onerous task deciding when two sides come to Court one with one version and the other side with another. The Court in applying the law and the facts in this case has to be satisfied beyond reasonable doubts as to the commission of the offence. Having noted the evidence and the demeanor of the witnesses the evidence against the accused is not so strong 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 not proved beyond reasonable doubt and but nothing short of that will suffice in criminal cases.

The Court is satisfied that the prosecution has not proved its case beyond reasonable doubt. A number of doubts linger in the Courts mind which cannot be reconciled and the Court cannot on the evidence at hand convict the accused.

The accused is acquitted of the charge.

28 Days to appeal.

Chaitanya Lakshman
Resident Magistrate

Sigatoka
21/03/11