State v Narayan [2012] FJMC 112; Criminal Case 50.2012 (23 May 2012)

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

Criminal Case No: 50 of 2012

State

-v-

Bimlesh Narayan

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution : ASP. Anil Prasad - Police Prosecution
Accused : Present – In Person
Date of Hearing : 23rd April and 9th May 2012

RULING – NO CASE TO ANSWER

Introduction

The accused is charged as follows: “Indecently Insulting or Annoying Any Person, contrary to Section 213 (1) (a) of Crimes Decree 2009”.

The particulars of the offence reads:

“Bimlesh Narayan between May and August 2011 at Navosa Central College, in the Western Division with intent to insult the modesty of Merelita Namata made a gesture with his tongue, intending that such gesture shall be seen by the said Merelita Namata.”

The Law

Section 213 (1) of the Crimes Decree 2009 provides for Indecently insulting or annoying any person. It states that:

“(1) A person commits a summary offence if he or she, intending to insult the modesty of any person —

(a) utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person; or

(b) intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.

Penalty — Imprisonment for one year.”

The Elements

The Elements of the charge of insultinannoying any any person under Section 1 (a) are:

(i) The accused on the dates as per the charge (identification and date),

(ii) ed any word, or

(iii) made any sound or gesture, or<, or

(iv) exhibited any object,

(v) intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person (the victim)

The Law

Part XIII - of the Criminal Procedure Decree 2009 provides for the Procedure in Trials before Magistrates Courts. Division 1 of Part XIII deals with Provisions Relating to the Hearing and Determination of Cases. Section 178 of the Criminal Procedure Decree 2009, falls within Part XIII and it provides that ”if at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused.”

Section 178 of the Criminal Procedure Decree 2009 is identical to Section 210 of the Criminal Procedure Code, Cap 21, which it has replaced.

This Court is also guided by a long standing Criminal Practice Direction, cited as A Practice Note [1962] 1 All ER 448 which provides that:

"A submission that there is no case to a may pmay properly be made and upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredas the result of cross-exam-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. Apart from these two situations a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If however, a submission is made that there is no case to r, the decisdecision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a to answer."

This Court also takes note of R v. Jai Chand [1972] 18 FLR 101, where Justice Grant stated that:

"thision as to whether or not there is a case to answeanswer&#16>sshould depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its to the law and the evidencidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence".

The Prosecution Case

The Prosecution called 8 witnesses.

Analysis

The Court noted all the evidence that has been given in this Court. The Court also notes that the accused is unrepresented in this case and has defended himself in person. The Court further notes that at the close of the prosecution case the Court is to determine if a case is not made out against the accused person sufficiently to require him or her to make a defence. The Court has analysed all the evidence given in Court and the caution interview and the charge sheet of the accused which were tendered in Court.

Having considered the evidence of the prosecution witnesses, the Court at this stage is not so much concerned at this stage on conviction or acquittal but on whether the evidence is such that the Court properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. From the evidence tendered in Court at the close of the prosecution case the Court has adopted an objective test as distinct from the ultimate subjective test as adopted at the close of the trial.

While the Court has noted all the evidence tendered in Court at the end of the prosecution case the Court would like to re-state some of the evidences of the witnesses from the Court records in analyzing the issues. The evidences of the eye-witnesses to the alleged incident are as follows:

PW-1, the complainant in examination in-chief stated: "some thing unusual happened to me. Accused winked his eyes and showed his tongue to me. He did that several times. One case when I was in class accused was career teacher. He sat opposite me. Accused kicked my leg from bottom of desk. Happened in classroom 501. Accused sat opposite me". In cross-examination the complainant stated "Aporosa was there when accused winked. When we walked past accused's office. Did not tell police in statement."

Pw-2, Aporosa stated in examination in chief that "... accused kicked complainants leg under the table. Rubbed his shoes on her thighs. Complainant yelled out inside the classroom. Complainant sat in front of me. Happened in our classroom.... he sat beside the complainant." In cross-examination Pw-2, Aporosa stated "when complainant rubbed his shoes and complainant yelled one Sitiveni was next to me. He was the only one there. In re-examination Pw-2, Aporosa stated "accused sat beside the complainant."

Their is marked difference between the complainant's statement and that of the 2nd witness. There is no evidence by PW-2 of the winking incident or the incident as per the charge of showing her the tongue. PW-2 states that the complainant yelled. The Complainant did not herself give evidence of this. The complainant had mentioned that PW-2 was with her when the accused had winked at her. PW-2 did not give any such evidence. The complainant told the Court that the accused sat opposite her while PW-2 stated that the accused sat beside the complainant. Pw-2 also mentioned that Sitiveni was next to him when the alleged incident happened.

Pw-3, Sitiveni in Examination in Chief stated that he "observed accused kick and rub complainants leg and thigh. Complainant was in classroom. Complainant was seated in chair. Accused was standing in front of complainant. Accused was standing and complainant was seated. I was seated beside the complainant – left side. Complainant yelled. She stood up and told us what happened.... I informed Aporosa (PW-2) when accused kicked complainants thigh. Did not inform anyone else....Police came home to take my statement."

The version of PW-3 is quiet in contrast to what the complainant (PW-1) and PW-2 stated. While The Court also notes that the versions of PW-1 and PW2 are different. PW-3 states that the accused was standing and the complainant was seated. The complainant stated that the accused sat opposite her and PW-2 had mentioned that the accused sat beside the complainant. PW-3 stated that he informed Aporosa (PW-2) when accused kicked complainants thighs. PW-2 had stated that Sitiveni was next to him when the incident happened. There is no clarity whether PW-2 himself saw or he was informed by PW-3 as per their respective evidences. These inconsistencies are quiet glaring and the evidence of the witnesses are clearly unreliable.

The charge against the accused is that he gestured with his tongue to annoy the complainant. The prosecution witnesses evidence as analysed by the Court is virtually "all over the place" and the details are so manifestly unreliable and has been discredited as a result of cross-examination that no reasonable tribunal could safely convict on it.

For the foregoing reasons the Court Finds that the accused has no case to answer and acquits the accused. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
Sigatoka
23rd May 2012