State v Janif [2012] FJMC 240; Criminal Case 484.09 (30 April 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 484/09

BETWEEN

THE STATE

AND

MOHAMMED JANIF

JUDGEMENT

1. The Accused is charged for failure to confine an animal by fence. The statement of offence and the particulars of offence are as follows;
   

Statement of offence

Fail to confine animal by fence contrary to Section 3(1) & (2) of the Trespass of Animal Act, CAP 166.

Particulars of offence

Mohammed Janif on the 23rd day of April 2009 at Lautoka in the Western Division being the owner of a bull, failed to confine such bull within a fence at all times.

2. Section 3 of the Trespass of Animals Act reads as follows;
   

3- (1) Every owner of any animal shall keep such animal confined within corral, fold, pen, stable or building at all times other than-

(a) any time when such animal is properly and securely tethered
(b) any time when such animal is under the charge of some person who accompanies the animal in such manner as to have reasonable control over it
(c) at any time when such animal is upon land completely enclosed by a fence as defined in this Act.

(2) Subject to the provisions of subsection (3) where any animal is found not confined within corral, fold, pen, stable, or building at a time when such animal is required to be so confined by the provisions of subsection (1), the owner of such animal shall be guilty of an offence and liable upon conviction to a fine not exceeding $ 20.

(3) It shall be a defence to a charge under provisions of subsection (2) for the owner to prove-

• (a) that he took all reasonable steps to ensure that the animal was confined as required by subsection (1) at the time relevant to the charge or
  
• (b) that he took all reasonable steps to ensure that the animal was properly and securely tethered at the time relevant to the charge or
  
• (c) that he took all reasonable steps to ensure that the animal was in charge of and accompanied by a person competent to exercise reasonable control over the animal at the time relevant to the charge
  
• (d) that he took all reasonable steps to ensure that the animal was on land completely enclosed by a fence at the time relevant to the charge.
  

3. The case was taken up for trial on the 16th December 2011. The Accused was unrepresented and the Prosecution was conducted by a Police prosecutor. The Prosecution called three witnesses. After the Prosecution case was closed the Court held that there is a case for the Accused to reply. Subsequently the Accused and another witness gave evidence.
   
4. The Prosecution has to prove the following elements to prove the charge against the Accused;
   
   1. The date and place of the incident
   2. The Accused is the owner of the bull
   3. The Accused failed to confine the bull within a fence
      
5. The Prosecution has to prove that the Accused was the owner of the bull initially to establish the offence. I will now consider the evidence led in connection with this element. The Complainant said that the Accused is his neighbour and he had seen the Accused grazing the bull at the back yard. The witness said that the Accused owns the bull. The Complainant was cross examined by the Accused in the following manner;
   

Q: How do you know the bull is mine?

A: I have seen the Accused grazing that bull in my back yard.

Q: what is the brand mark on the bull?

A: there is no brand mark.

Q: The back yard is vacant land and anybody can graze their bulls?

A: yes.

Q: That bull could be any body else's bull?

A: At that time no body had a bull. Other people had cows. It was him who had the bull.

6. Prosecution witness, WPC 2316 Arieta said that she went to the incident when it was reported. However she did not mention any thing about the owner of the bull or did not say that she investigated about the owner of the bull.
   
7. P.C. 2390 Avikash Maharaj gave evidence that on the 23rd April 2009 he attended a report regarding failure to confine an animal. He said when he visited the scene the Complainant told him that the bull belongs to Janif. The witness further said that on the 12th June 2009 he visited the Complainant again and since there was no reconciliation he proceed to interview the Accused. The caution interview was tendered and the Accused had not given any answers and had only said that he will talk in Court. The witness was cross examined by the Accused in the following manner regarding the owner of the bull;
   

Q: How do you know its my bull?

A: After Mr Saravan informed about the owner of the bull I came to know. It was confirmed when you said that you will repair the gate.

Q: You have only seen one bull?

A: yes

Q: Why didn't you tell me to come and see the bull?

A: I went there. His vehicle was not there.

Q: Did you inquire from neighbours?

A: Yes I questioned Sarvan's family. They told me its Accused's bull.

Q: You asked only Sarvan not any body else?

A: The Accused agreed to repair the damage.

8. The Accused said while giving evidence that he is not the owner of the bull. He said that the bull belongs to his brother, Mohammed Ifzal. During the cross examination he further said that his brother is in Australia and a Fijian man looks after the bull.
   
9. Etuvate Tuitavuki gave evidence for the Defence and said that he looks after the bull of the Accused's brother. He further said that when he goes for cane cutting he leaves the bull with the Accused. He also said during the cross examination that the bull was tethered on the 23rd April 2009 and later he found out that some one had cut the rope and had released the bull. However the witness said that he is unaware of the incident alleged in this case.
   
10. I have carefully examined the evidence led in this case pertaining to the ownership of the bull. It is very clear that it is the duty of the Prosecution to prove that the bull belongs to the Accused as far as the charge is concerned. Although the Complainant and a Police officer merely said that the bull belongs to the Accused there was no reliable evidence to suggest that the Accused is the owner of the bull. It should be noted merely because some one looks after an animal does not mean that such person is the owner of the said animal. There should be other evidence to establish that the Accused is the owner of an animal. Further the Accused was successful in creating a doubt in the Prosecution case by giving evidence that the bull belongs to his brother. This was further corroborated by the Defence witness.
    
11. The burden is on the Prosecution to prove the elements of a charge beyond reasonable doubt. The Accused even need not prove his innocence. It should be noted that for this charge it is imperative to prove that the accused is the owner of the bull. But I am not satisfied that the Prosecution was able to prove that the Accused is the owner of the bull beyond reasonable doubt. In the circumstances I do not find any reason to consider the other elements of the offence since the charge fails when the Prosecution could not prove that the Accused is the owner of the animal.
    
12. Accordingly I acquit the accused.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

30.04.2012