State v Wise [2012] FJMC 19; Criminal Case 120.2010 (5 January 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 120/2010

STATE

V

HERBERT WISE

For Prosecution : - Sgt Feroz,
Accused : - In person,

JUDGMENT

1. The accused was charged with the offence of "Contempt of Court" contrary to section 194 (1) (a) of the Crime Decree No 44 of 2009. The particulars of the offence are " Herbert Wise, on the 07th day of April 2010, at Navua Magistrate Court, Navua in the Central Division, showed disrespect in manner of the order being made by Magistrate Irani Wakishta Arachchi".
   
2. Accused pleaded not guilty for the offence, wherefore, the case was set down for hearing. During the hearing the Prosecution called SC Freddly Peni who was the court orderly on the day of this alleged incident took place. Sergeant Farook Mohammed who was the prosecution officer on the said date. PC Semsi Seru who is the interviewing officer of the accused person's caution interview. At the conclusion of the prosecution case the accused gave evidence on oaths but did not call any witness for the defence.
   
3. At the conclusion of the hearing the learned prosecutor informed the court that the prosecution relies on the evidence presented and does not wish to submit any final submission. The accused tendered his final submission in writing. Upon careful perusal of the evidence presented by the prosecution and the defense and the defence's written submissions, I now proceed to pronounce the judgment in this case as follows.
   
4. In view of the general rule in law of Evidence, the onus of proof the charges beyond reasonable doubts against the accused is borne by the prosecution. There is no onus on the ed used at any stage to prove his innocence or to prove anything else.
   
5. Section 194 (1) (a) of the Crime Decree reads as " A person commits a summery offence against this section if he or she – within the premises in which any judicial proceeding is being had or taken or within the precincts of those premises, shows disrespect in speech or manner to or with reference to –
   
   1. The proceedings; or
      
   2. Any person before whom such proceeding is being had or taken, "
      
6. Having considered the elements of the offence of Contempt of Court, I now briefly summaries the facts of this case in line with the evidence adduced by both the prosecution and the defense.
   
7. The prosecution alleged that the accused lay on a bench outside the court room within the precincts of the court premises of Navua Magistrates' court and yawned while the learned Magistrate was conducting the court proceedings inside the court room. Having heard the disturbing noise of the yawn, the learned Magistrate had ordered the court orderly PW1 to maintain the order in the court house and the court premises. The court orderly then opened the door of the left side of the court house and found the accused was lying on a bench. The accused refused to get up and sit inside the court house when the court orderly ordered him to do such. Then the learned Magistrate ordered the court prosecution officer Sergeant Farook to go and removed the accused. Sergeant Farook stated in his evidence that when he approached the accused and ordered him to either get inside the court room and sit down or go away from the court premises as he is disturbing the court proceeding . At that time Sergeant Farook asked him to remove his sun glass if he wants to come inside the court room for which he questioned the Sergeant who is the Magistrate ordered him to remove his sun glass and remained outside the court house. When the accused disobeyed the learned Magistrate's order to move out from the place where he was lying or get into the court house after removing his sun glass, the learned Magistrate ordered the court orderly to bring the accused before her and warned him if he does not follow her order he could be charged with contempt of court. The accused still did not obey the order of learned Magistrate.
   
8. The accused person in his sworn evidence did not deny of lying on the bench beside the court room and yawning when the Magistrate was conducting the court proceeding. He admitted in his evidence that it was dead silent when he yawned. He then admitted that he refused to remove his sun glass as it was his right to wear it and also refused to go inside the court room as it was his right of choice. The accused further admitted that he did not want to follow the order of the learned Magistrate as it was his right to wear the sun glass and also he had an irritated eye.
   
9. Having considered the evidence of the prosecution and the defense, I find that the main nexus of this instance case is whether the conduct of the accused on this day amount to a showing disrespect to the court proceeding or the person before whom such proceeding is being taken and the accused had intention to do such. The accused did not dispute that he yawned while he was lying on the bench beside the court room and refused to get into the court room and remove his sunglass.
   
10. The section 13 (1) of the Crime Decree No 44 of 2009, stipulates that an offence consist with physical element and fault element and in pursuant of section 14 of the Crime Decree, in order to for a person to be found guilty of committing an offence the following must be proved –
    

(a) The existencsuch physichysical elements as are, under the law creating the offence, relevant to establishing guilt;

(b) Ipect of each such phys physelement for which a fault element is required, one of the fthe fault elements for the physical element.

11. Moreover section 18 has defined the fault element of the offence as "A fault element for a particular physical element may be intention, knowledge, recklessness or negligence". Section 19 has defined the intention in three spheres, as
    
    1. A person has intention witp respect to conduct if he or she means to engage in that conduct.
       
    2. A person has intentith respect to a circumstancstance if he or she believes that it exists or will exist.
       
    A person has intention with respect to a result if he or she means to brinabout or is aware that it will occur in the ordinary courseourse of events".
    
12. Section 19 of the Crime Decree has defined the knowledge as "A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events".
    
The accused has been attending court hearing regularly either to attend his own cases or to hear the ordinary court hearings. He admitted in his evidence that he is well aware of the procedures of the court. With such knowledge, I am inclined to draw an inference that the accused had knowledge that lying just beside the court house and yawning indeed a disrespectful act to the proceedings and the presiding learned Magistrate. The evidence of PW1, and PW2, specifically stated that they heard a sound of yawning from outside and it clearly disturbed the proceeding of the court house. I agree with his contention that yawning is a natural human conduct, but it is not an accepted conduct from a reasonable person to lie just beside a court room when Learned magistrate is conducting the court proceeding. The discipline and the order in the court premises and precincts of the premises need to be well maintained and it is a requirement that everyone has to maintain such an order and discipline in order to maintain the dignity and the respect of the rule of law. If the accused had respect to the court house he would have refrained from lying on the bench and yawn. I am of the view that the accused refusal of remove his sun glass when learned Magistrate ordered him to do so is an act of disrespect to the learned presiding magistrate. Having considered these reasons I do not accept the accused person's explanation for his conduct on the day of this alleged incident took place.

14. In view of the reasons set out in above paragraphs, I am of the view that the prosecution has successfully proved that the accused person on the 7th day of April 2010 at Navua Magistrates' court showed disrespect in manner of the order being made by Magistrate Irani Wakishta Arachchi.
    
15. Accordingly, I find the accused guilty for the offence of Contempt of Court contrary to section 194 (1) (a) of the Crime Decree No 44 of 2009 and convicted for the same.
    

On this 5th day of January 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.