State v Drugu [2012] FJMC 198; Criminal Case 1045.2010 (20 August 2012)

IN THE MAGISTRATE’S COURT OF NASINU

Criminal Case No. 1045/2010

STATE

-v-

SENITIKI DRUGU

SAMISONI NASIA

Mr. Josaia Niudamu for the State (DPP Counsel)
Ms. Vani Ravono for the Accuseds

RULING
(ON NO CASE TO ANSWER)

The Application

[1] This is an application by the defence under Section 178 of the Crimes Decree No.44 of 2009 (Section 210 of the Criminal Procedure Code). At the close of the prosecution case, the defence submitted that there was no case to answer and as a result the accused should be acquitted.

The Governing Sections

[2] Section 178 of the Crimes Decree No.44 of 2009 states 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 210 of the Criminal Procedure Code state 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 to make a defence, the court shall dismiss the case and shall forthwith acquit the accused”

The Charge

[3] The accuseds are charged as follows:-

CHARGE:

Statement of Offence [a]

DRUNK AND DISORDERLY: Contrary to Section 4 of the Minor Offence Act, Cap 18

Particulars of Offence [b]

SENITIKI DRUGU and SAMISONI NASIA on the 22nd day of October 2010, at Nasinu in the Central Division were drunk and behaved in the disorderly manner in a public place namely Nasinu Road.

The Charging Sections

[4] Section 04 of the Minor Offences Act No 10 of 1971, Chapter 18 states as follows:-

“ 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.”

Applicable Case Law

[5] The court is called for making a determination of whether or not a prima facie case has been made out against the Accused. It should be noted that ample past and recent judgements of superior court could be found in this regard.

i)R V Jai Chand 18 FLR 101 at page 103;

ii)Rohit Ram latchan V The State Criminal Appeal No. AAU0015 1996S [High Court Criminal Action No. HAA0032J of 1996];

iii)Practice Note [1962] All ER 448;

(iv)State v Aiyaz [2009] FJHC 186; HAC033.2008 (31 August 2009) and;

(v) Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005

[6] Justice Grant in R V Jai Chand 18 FLR 101 at page 103 states that;-

“...the decision as to whether or not there is a case to answer should 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 mind to the law and the evidence 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”.

[7] In Rohit Ram Latchan V The State, the appeal judges were guided by the principles set out in the Practice Note [1962] All ER at page 448:-

“LORD PAKER, C.J:- Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, the court has had on many occasion to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any principle of law, we think as a matter of practice justices should be guided by the following considerations.

A submission that there is no case to answer may properly be made and upheld:

when there has been no evidence to prove an essential element in the alleged offence;

when the evidence adduced by the prosecution has been so discredited as a result of cross-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 on 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 answer, the decision should depend not so much on whether the adjudicating tribunal [ if compelled to do so ] would at the stage convict or acquit but on whether 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 case to answer’.

[8] In State v Aiyaz [2009] FJHC 186; HAC033.2008 (31 August 2009) Justice Daniel Goundar differentiates the guiding rules between High Court and Magistrates Court.

“The test under section 293(1) is settled and is more stringent than the test under section 210 of the Criminal Procedure Code, which governs an application for no case to answer in the Magistrates’ Court.

The test for no case to answer in the Magistrates’ Court under section 210 is adopted from the Practice Direction, issued by the Queen’s Bench Division in England and reported in [1962] 1 All E.R 448 (Moiden v R (1976) 27 FLR 206). There are two limbs to the test under section 210:

[i] Whether there is no evidence to prove an essential element of the charged offence;

[ii] Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.

An accused can rely on either limb of the test under section 210 to make an application for no case to answer in the Magistrates’ Court.” [Emphasis added]

[9] In Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005, Justice Shameem held that the correct test in Magistrate’s Court under Sec. 210 of the Criminal Procedure Code is,

1. Whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and;

2. Whether on the prosecution case at its highest, a reasonable tribunal could convict.

[10] According to Justice Shameem's guidelines, where the evidence is entirely discredited, no matter from which angle one looks at it, a court can uphold a submission of no case. However, where there is a possible view of the evidence might lead the court to convict, the case should proceed to the defence case. [Emphasis added]

[11] In order to decide whether there is sufficient evidence to put the accused to his defence, it is important to determine the elements of the offence and the evidence adduced in support of the said elements.

The Element of charge

[12] The elements of the offence of DRUNK AND DISORDERLY are that:

[a] accuseds

[b] are drunk and disorderly in any public place

[c] or who behave in a disorderly manner

The evidence

[13] To prove this charge prosecution called following witness;

PW1 – Waisale Waqalevu

PW2 – Malakai Cakau

PW3- Police Officer Aminiasi Kawa

Summary of evidence

[14] PW1 – Waisale Waqalevu; He stated that he was a Prison Officer for 22 years and he is currently attached at the Nasinu Corrections Centre. He has spent 3 years in the Nasinu Corrections Center. PW1 stated in his examination in chief that he can recall the 22nd of October 2010 he was attached at the Nasinu Corrections Centre. PW1 stated that on that particular day after 6pm they were returning from a parade from the Corrections Divisional Headquarters to Nasinu Corrections Centre. On their way to Nasinu Corrections Centre they went through Nasinu Road. They were travelling at a 30km per hour. On their way through Nasinu Road passed the Shop and Suva Supermarket they saw and heard swearing coming towards them and PW1 was sitting at the back seat of the twin cab with his working colleagues. PW1 and his colleagues then heard and saw Accused 1 (Senitiki Drugu) swearing at them in Fijian language mentioning "dou veicai" "magaijinamudou" (means fuck each other and your mothers vagina) and he was also showing his middle fingers. Accused 2 (Samisoni Nasia) was holding his hand forward and was moving forth and backwards showing his actions to PW1 and his colleagues. Both the accused were outside the Mean Product located at the Nasinu junction (about 20 meters from the junction). After they have heard and saw the actions and swearing from both the accused, the Officer-in-Charge then ordered the driver to return to where the swearing was coming from. As they returned to the Accused persons they were ordered to arrest the accused persons due to their actions. When PW1 and his colleagues questioned them for their action and trying to arrest them the accused persons resist arrest. The accused persons were scuffle, pushing and accused 1 tried to throw a punch at them but PW1 and his colleagues managed to arrest the accused persons and take them to Valelevu Police Station. PW1 and his colleagues then questioned the accused persons and they smelt liquor on them and also they managed to seize a bottle of 40oz Rum where half of the Rum was left in the bottle. At the Valelevu Police Station they were locked up and the statements of PW1 and his colleagues were taken.

[15] PW1 was cross examined at length. The witness admitted that his statement was recorded just immediately after accuseds were arrested. He admitted in his first report he forgot to mention that the accuseds were drunk. But he said he made two statements to the police. But he said he has no idea why he had given second statement or who asked him to give another statement. He said that second statement was taken after two weeks. He said he forget to mention that they were drunk. He admitted when the first statement was given his mind is fresh and had good memory. The witness admitted in the cross examination no liquor was found from the accuseds. The witness said the first accused swore at them and second accused did very unusual gesture. (Middle finger ups and down). The witness said there were 6 prison officers with uniforms and wearing boots. The first accused punched the witness, they overpowered the accuseds. The witness admitted "we use force on them". He admitted that the Valelevu Police is just around the corner but they have powers to arrest people as prison officers. At this stage the photos of injuries were shown to him and he admitted that injuries sustained when overpower them. He said no glass was found in possession. There were several omissions and contradictions with police statement, but witness said both his police statement and sworn evidence are correct. Statement tendered as DEX-1. He said there were three only two arrested. Photos were tendered as DEX-2.

[16] PW2 – Malakai Cakau; He stated that he is 34 years of age and he resides in Caubati Road. He has spent 9 years in the Fiji Corrections Service. He is currently attached at the Fiji Corrections Service Headquarters. He has been in the Fiji Corrections Service Headquarters for 2 years. He stated that on the 22nd of October 2010 he was based at the Nasinu Corrections Centre. He was on duty on that particular day. On the afternoon of the 22nd of October 2010, PW2 and his colleagues went to attend a parade at the Divisional Headquarters in Suva. After the parade on that particular day they returned in the vehicle with the other Prison Officers to the Nasinu Corrections Center. They followed the back through Princess Road, Naveiwakau, Nasinu Road and then to their final destination. The trip was normal until they went passed Valelevu Hospital which is the junction to Nasinu Road whereby they saw some youths in front of the shop. PW2 stated that by looking at them they were drunk since they were staggering and they went passed them slowly in their vehicle. While passing through these youths swore at them in Fijian and also show some actions and annoying signs. They continue doing it while the PW2 and other Officers were looking back at them. PW2 stated that this youths were acting in a very disorderly behavior and they were annoying PW2 and the other Officers. PW2 stated that there was more than 2 youths who were drunk. PW2 stated that the vehicle was moving very slowly and he can clearly identify this youths. They then turned the vehicle and stopped at these youths and they were told to arrest them. When they tried to execute the arrest the youths resist. They resist by pushing and retaliate towards them. During the scuffle, PW2 and the other Officer applied force to overpower these youths as they drunk. PW2 stated that Accused 1 swore at them by saying "douveicai" "magaijinamudou" (means fuck each other and your mothers vagina) and also showing his middle fingers and yelling after they passed them in their vehicle. PW2 also states that PW2 was also showing action by moving forth and backward. PW2 and the other Officers overpower them since both the Accused resisted arrest. They were then taken to Valeleu Police Station. They were handover at Valelevu Police Station and PW2 later knows at the Station that both the Accused are Special Constables of the Fiji Police Force.

[17] In cross-examination he said he was sitting with PW1. Because of road condition they travelled slowly. The accuseds swore and showed unusual gesture. In his statement he mentioned he was annoyed. The witness said that they were standing, but in the police statement the witness said they were sitting. The contradiction showed and the statement was tendered as DEX-3. The witness said there were two or more youth and they arrested them. He admitted that though they are prison officers but acted as police officers. They warned the accuseds. But he admitted in his police statement he had not mentioned that they were drunk. He also admitted DEX-2 injuries were caused by them. He admitted they overpower the accuseds and there were 5 prison officers to arrest the accuseds.

[18] PW3- Police Officer Aminiasi Kawa; On the 22nd of October 2010, he confirmed that both the accused brought under arrest for drunk and disorderly. He confirms that they were drunk.

[19] In cross examination the witness said that he rearrested the accuseds. They were brought by Prison Officer Tuinosavi. He said "They (Accuseds) were in front of me. They were steady, they were not staggering. They talked to me as that they were not drunk. They were not normal. Their eyes were red. it may caused by the assault." The witness reiterates that "They were not drunk, they were steady, and they were not staggering"

[20] Both parties have filed written submissions which I have carefully considered.

Burden of proof

[21] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[22] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubto whether the accused pers persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any rease doubt about the the guilt of ccu accused."

[23] In Miller v Minister of Pensions [1947] 2 All ER 372 Lord Denning stressed
i>"That degree is well settled. It need notd not reach certainty, but it must carry arry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted 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; nothing short will suffice."

[24] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen (1970 AC 618) reported in 72 New Law Reports 313 (Sri Lanka),

"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[25] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted.

Analysis of the evidence

[26]The defense has said there was no case to answer. In line with the above guiding principles, I now evaluate the evidence adduced before me. The defence highlighted certain contradictions and discrepancies. I note in DEX-1 the PW1 said that they were annoyed by saying "douveicai" "magaijinamudou" (means fuck each other and your mothers vagina) and also showing his middle fingers and yelling after they passed them in their vehicle. The witness in his statement said that the accused were drinking in the public place. (Then We found that they were drinking in the public place). Pw2 evidence was contradicts with his statement. In his evidence he said that the accused were standing, but in his police statement he said "two Fijian male youths were sitting at the Shop &..."

[27] I now consider the elements of charge;

Section 2 (a) of the Minor Offence Act defines the public places as:

(a) Any highway, public street, public road, public park or garden, sea beach, river, public bridge, wharf, jetty, lane, footway, square, Court, alley or passage whether a thoroughfare or not; or

(b) Any-

• (i) Land or open space, whether such land or space is closed or unenclosed; and
  
• (ii) Place or building of public resort, other than a dwelling house, to which for the time being the public have or are permitted to have access whether on payment or otherwise; "public road" means any highway, public street, public road, public bridge, wharf, jetty, lane, footway, square, Court, alley or passage whether a thoroughfare or not.
  

[28] According to this definition, it is understood and undisputed this incident happened in a public place. The accuseds have been identified by the witnesses. Those elements are proved. The question is that the accuseds are drunk and disorderly or behaved in a disorderly manner. There are two limbs on this. The accused must be drunk and they should behave disorderly or their behaviours deem to be disorderly manner. I address second issue first. Both witnesses said they were scolded in filthy words by the accused. In fact first accused swore at them and second accused showed unusual gesture. This is not normal manner or gesture of a prudent man. Thus, court can decide they behaved disorderly manner. Were they drunk? To prove this charge they or their state of minds should be in drunk. PW1 & 2 told they smelt of liquor and they were drunk. Both accused were arrested by prison officers including PW1 & 2. The incidence happened just close to the Valelevu Police station. These officers though police station was just walking distance, did not get the assistance of police. They overpowered the accuseds and the accuseds sustained injuries, which Both PW1 & 2 admitted that those were happened when arresting. They further admitted DEX-2 photos of injuries which created serious doubt of the incident. Witnesses said there was another youth with these accuseds but they release him since he did not create a problem. The bottle of Rum was with him. No glass was recovered from their possession. They were sitting but PW2 said they were standing in his evidence. The evidence contradicts inter se and per se.

[29] The witnesses said they were drunk. But no doctor's report was produced in evidence. After the incident, they were rearrested by PW3. This is his evidence ""They (Accuseds) were in front of me. They were steady, they were not staggering. They talked to me as that they were not drunk. They were not normal. Their eyes were red. It may caused by the assault." The witness reiterates that "They were not drunk, they were steady, and they were not staggering". PW3 is a prosecution witness and he says that they were not drunk and steady. Thus, prosecution's evidence regarding this main element of charge contradicts inter se. This contradiction goes to root of the case and makes solely discredit the PW1 & 2's evidence. They admitted that they assaulted, in their words overpowered the accuseds. PW1 & PW2 are directly entangled with the incident but PW3 is an independent witness. Hence, PW3 has no reason to say untruth in this court that the accuseds were not drunk and steady. I accept PW3's version. Therefore, PW1 & 2's evidence have been proved untruth. I apply legal maxim of "falsus in uno falsus in ominibus", once proved to be a lair on a material point, and always deemed to be lied on material points. I therefore reject PW1 & 2's evidence; those have been proved solely discredited by the defence.

[30] Further DEX-1(Police Complain) showed they were drinking in a public place and were not drunk and disorderly or manner. Both PW1 & 2 were not answering question in the cross examination. They were mute. This is unacceptable manner as experience government officers. Specially being prison officers, they could not face the cross examination. They are trained, practised witness and are not new to court system.
[31] In the case of McKinney v Queen (1991) CLR 458;

"It is well-recognised that a heavy practical burden is involved in raising a reasonable doubt as to the truthfulness of Police evidence of unrecorded confessional statement" and at page 475 their Lordship said "in the context of Police evidence in the circumstances of this case it is sufficient to say that "Police witness are usually practiced witness and it is not easy matter to determine whether a practice witness is telling the truth (emphasis is mine).

[32] This notion similarly applies to prison officers as they are in the judicial system and practised witnesses. But in the cross examination, their evidence was shaken and become unreliable. I hold the State failed to prove the element of drunk. Since PW1 & 2's evidence unreliable, it is not prudent to accept they were in disorderly or behaved disorderly as well.

[33] It is to be noted that the accuseds have no burden to prove their innocence. But the prosecution is to prove its charges beyond reasonable doubt touching every element of charge. In deciding, the court has to consider the following questions:

(i) Has the prosecution adduced sufficient evidence upon which the Court could convict on, should the accused after no defence?

(ii) Is the prosecution evidence so unreliable that no reasonable tribunal could safely convict on it?

[34] In answering above questions, I hold that the prosecution's evidence so unreliable, contradict each other that no reasonable tribunal could safely convict the accuseds. The prosecution has not adduced evidence in relation to drunk firmly and that is a vital element of this charge. Thus, the prosecution failed to prove all elements of the charge and it becomes no or insufficient evidence against the accuseds.

[35] In the light of above guidelines and as I previously observed in my judgement, I hold that there is no case to answer. Both accuseds are acquitted and discharged forthwith.

[36] 28 days to appeal

On 20th August 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu