State v Soko [2012] FJMC 22; Criminal Case 259.2009 (20 February 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 259/2009

STATE

V

SERU SOKO

For Prosecution: - Mr. Singh J.
Accused: - In person.

JUDGMENT

1. The accused was charged with the one count of "Drunk and Disorderly" contrary to section 4 of Minor offence Act No 18 which entails a punishment of one month imprisonment period and one count of "Resisting arrest" contrary to section 247 (b) of the Penal Code Act 17 which entails a punishment up to five years imprisonment period.
   
2. The particulars of the offences for these two counts are:
   

FIRST COUNT

Statement of Offence (a)

DRUNK AND DISORDERLY: Contrary to Section 4 of Minor Offence Act 18.

Particulars of Offence (a)

SERU SOKO, on the 24th day of January, 2009 at Suva in central Division, was drunk and disorderly in a public place, namely SCOTT STREET.

SECOND COUNT

Statement of Offence (a)

RESISTING ARREST:- Contrary to Section 247(b) of the Penal Code Act 17.

Particulars of Offence (b)

SERU SOKO, on the 24th day of January,2009 at Suva in the Central Division, after being lawfully arrested by SPECIAL CONSTABLE NUMBER 2608 MOSESE NIUSERE; in due execution of his duty, resisted the said arrest.

3. Accused pleaded not guilty for these two counts, wherefore, the case was set down for hearing. During the hearing the Prosecution called only one witness. The accused gave evidence on oaths but did not call any witness for the Defence. At the conclusion of the hearing, the Prosecution opted to not to make any closing submission but Accused sought time to file his closing submission. However the Accused failed to file his closing submission within the stipulated time and I therefore disregard his final submission. Upon considering the evidence presented by the prosecution and the defence, I now proceed to pronounce the judgment of this case as follow.
   
4. Section 4 of the Minor Offence Act stipulates 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".
   
5. In view of the section 4 of the Minor Offence Act, the main elements of the offence of Drunk and Disorderly" are
   
   1. The accused,
      
   2. Drunk,
      
   3. Disorderly,
      
   4. In any public place,
      
6. Section 2 (a) of the Minor Offences Act defines the public places as "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".

7. Section 247 (b) of the Penal Code stipulates that "Any person who-assaults, resists or willfully obstructs any police officer in the due execution of his duty, or any person acting in aid of such officer, is guilty of misdemeanor".
   
8. Upon considering the main elements and the definitions of the offence of "Drunk and disorderly and the offence of Resisting arrest, I now briefly review the evidence adduced by both the prosecution and the defense.
   
9. In view of the evidence given by the prosecution witness Cpl Joseph Dickson, the accused was seen standing near a car in front of the Post Fiji office at Scot Street. Having seen the accused was standing near a car at around 7p.m Cpl Dickson stopped his police vehicle and got off in order to question the accused. At that time it is alleged that the accused swore at the police officers and ran away. Cpl Dickson further stated that two police officers who were with him in his team chased the accused and arrested him.
   
10. The accused in his evidence vehemently denied the allegation of disorderly conduct and resisting arrest. He admits in his evidence that he had 6 bottles of long neck Fiji Gold beer bottles, rum and also had few drinks in a night club before he was arrested. He stated that he was not standing in front of the Fiji Post Office but he was walking to a toilet. He further stated that he informed Cpl Dickson the same and he allowed him to go to the toilet. At that time other two police officers who were with Cpl Dickson assaulted him and arrested.
    
11. In view of the evidence presented by the prosecution and the defence, the accused did not dispute his presence at the scene of this alleged incident and also did not dispute that he consumed alcohol prior to this alleged incident. Accordingly, I am of the view that the main cruxes of this instance case are that whether the accused acted in disorderly manner and resisted for his arrest.
    
12. Tompkins J in Melser and others v Police (1967) NZLR CA 437) has extensively discussed the meaning of "Disorderly Conduct". Tompkins J with the approval to "Police v Christie (1962) NZLR 1109) held that "Disorderly' is the antonym of "orderly', which means regular, obedient to discipline, not unruly, or well- behaved. In Black's Law Dictionary, 4th ed., 556, disorderly' is defined as being contrary to the rules of good order and behavior. It, of course, has other connotations to which I shall refer in a moment. 'To behave' means act or conduct oneself or to conduct oneself with propriety, and it will be remembered that the word 'behave' is a part of the section. To behave in a disorderly manner is, accordingly, to act in a manner which contravenes good conduct or proper conduct. The behavior in respect of which the section speaks is behavior in a public place, so it becomes simply a question whether or not the behavior in a public place seriously offends against those values of orderly conduct which are recognized by right- thinking members of the public".
    
13. In view of the general rule in law of Evidence, the onus of proof the charge beyond reasonable doubts against the accused is borne by the prosecution. There is no onus on the accused at any stage to prove his innocence or to prove anything else.
    
14. Woolmington v DPP (1935) AC 462), 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". Where the burden of proof, remains on the prosecution throughout the trial, in that circumstance, the accused need only to raise sufficient evidence to cast reasonable doubt on the issue". ("Andrews & Hirst on Evidence" 4th Edition, pg 59).
    
15. Lord Goddard CJ in R v Summers (36, Cr. App R. 14 at 15 CCA) held that "Jury before they convict, they must be satisfied so that they are sure of the guilt of the accused". furthermore, it was held in " R v Bentley ( 2001) 1 Cr App R 21" that on reviewing all the evidence, if they were unsure or left in any reasonable doubt as to the accused's guilt, that doubt must be resolved in the accused's favour".
    
16. Bearing in mind the aforementioned legal precedents on the standard of proof, I now proceed to analysis the evidence of the prosecution and the Defence with the main elements of these two counts.
    
17. The prosecution called only one witness and did not call any of other two police officers who were also involved in this alleged incident. The general rule is that there is no requirement that evidence be corroborated and no requirement that the tribunal of fact be warned of the danger of acting on uncorroborated evidence. (Blackstone's Criminal Practice 2009, pg 2396). However the court needs to act carefully with uncorroborated evidence if such evidence lack of consistence.
    
18. The prosecution witness Cpl Dickson in his evidence stated that the accused was heavily drunk and swore at the police officers. The accused then ran away and resisted for the arrest. In contrast, the accused denied the allegation of disorderly conduct and resisting arrest. Under this contrasting views from the Prosecution and the Defence, the court needs to carefully examine the credibility of the evidence of the prosecution in order to ascertain the verdict against the accused person.
    
19. I find that the evidence of Cpl Dickson is not consistence and credible. He stated in his evidence in chief that that accused swore at the police officers when he got down from the police vehicle and questioned the accused. In contrast Cpl Dickson stated in his re examination that the accused swore at them as soon as they stopped the police vehicle. These two contrasting positions of Cpl Dickson's evidence have created a doubt that at what time the accused swore at the police officers. I am of the view that this confusion is directly link to the roots of the first count of disorderly conduct which adversely affects the credibility of Cpl Dickson's evidence.
    
20. Under such circumstances, I am of the view that the uncorroborated nature of Cpl Dickson's evidence has created a reasonable doubt in respect of the first count.
    
21. I now turn into the second count. I find the inconsistence nature of Cpl Dickson's evidence in respect of the second count of "resisting arrest". He merely stated that it took nearly 20 minutes to put the accused into the police vehicle because he was so aggressive and heavily drunk. Cpl Dickson failed to precisely state the nature of his aggressiveness. Wherefore, I am prevented to ascertain whether such aggressiveness would fall within the ambits of assault, resist or willful obstruct. In contrast to his own version of aggressiveness of the accused person, Cpl Dickson further stated in his evidence in chief that once the accused was arrested he complied with the instructions which clearly deviated from his early version of his evidence where he stated that it took 20 minutes to put the accused into the police vehicle due to his aggressiveness and drunkenness. In view of these reasons, I am inclined to refuse the evidence of Cpl Dickson as his evidence is not reliable and inconsistence.
    
22. In view of the reasons set out in foregoing paragraphs, I conclude that the prosecution failed to successfully prove these two counts against the accused person beyond reasonable doubt.
    
23. Accordingly, I hold that the accused is not guilty for the offence of "Drunk and Disorderly" contrary to section 4 of the Minor Offences Act and the offence of "Resisting arrest' contrary to section 247(b) of the Penal Code Act 17 and acquit the accused from these two counts.
    
24. 28 days to appeal.
    

On this 20th day of February 2012.

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