State v Prasad [2013] FJMC 157; Criminal Case 72.2011 (17 April 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT NAVUA

Criminal Case : 72/2011

STATE

VS

SUDESH PRASAD

For Prosecution : Ms. Fatiaki for the State
For Accused : Ms. Whippy

Hearing : 27 March 2013
Written Submissions : 10 April 2013
Judgment : 17 April 2013

Judgment

[1] The accused was charged with the offence of Annoying Person contrary to section 213 (1) (a) of the Crimes Decree No. 44 of 2009.

[2] It was alleged that the accused on the 26 Dec 2010, at Weiwawa, Navua with the intent to insult the modesty of Ravin Naiker, uttered word magaitinamu meaning 'mothers vagina' intending that such word would be heard by him.

[3] The accused pleaded not guilty for the charge and this matter proceeded to hearing on 27 March 2013.

[4] The prosecution called 05 witnesses and for the defence accused gave sworn evidence. Both parties filed closing submissions and I have considered them carefully.

Summary of Evidence

[5] PW1, Ravin Naiker was the complainant in this case. He said on 26 Dec 2010 he was in Pac Harbor with Sharon Prasad and came back to Weiwawa to drop her. On their way they met SC Leoni and Kunal who were patrolling that area. When they reached Sharon's house he saw a vehicle FJ 309 parked in the compound. PW1 also saw the accused in the driver's seat with one Babu drinking beer. Whilst PW1 was talking with Sharon, SC Leoni came there with Kunal and PW1 instructed them to check that vehicle which he did accordingly. Later Sharon got off and came near PW1 and was talking when suddenly the accused came and got hold of PW1's collar. The accused swore at him saying 'magaitinamu' and was asking why he reported the matter. Then he went back and PW1 got off and went to the accused and asked him about swearing. The accused was drunk and PW1 instructed SC Leoni to arrest him. PW1 further stated because of swearing he felt bad.

[6] In cross examination by learned counsel for accused PW1 said at that time it was not dark and he could see the other vehicle. He also saw that the accused was drinking with Babu and denied he has any personal grudges against him.

[7] PW2 was Sharon Prasad who stated that she was with PW1 in Pac Harbor and on their way home saw a vehicle parked in her compound. She saw the people in the vehicle and was concerned about that. At that time Sc Leone passed with Kunal from that place and she asked PW1 to inform about the vehicle. The vehicle's light was on and she saw the accused with her brother in the vehicle. After that she got off and came near PW1 and was talking when she heard the accused swearing. The accused was trying to hold PW1's collar and he was drunk. PW2 further said the accused was her former boy friend and she reported about this to the police.

[8] In cross examination PW2 said she was suspicious about the vehicle and at that time the accused was smelling liquor.

[9] PW3, SC Neori stated on that day he was doing patrol with Kunal and met PW1 and PW2 and talked to them. Later PW3 arrived at Sharon's place and saw a mini bus parked in her compound. He heard voices inside and saw the accused inside. Later he saw the accused swearing at PW1 saying 'magaitinamu'. PW3 arrested the accused and saw him drunk at that time.

[10] PW3 in cross examination stated that PW1 instructed him to check the vehicle and the accused swore at PW1. Pw3 further stated that the accused was drunk and he was arrested because he tried to punch PW1.

[11] PW4 was Kunal who was with SC Leoni on that night. He said presently he is working as a police officer and at that time was working as a community officer. On that night he saw the vehicle parked and heard the accused swearing at PW1. PW4 told him to refrain from that and the accused went to the vehicle. Later the accused came back and started to swear at PW1 again and PW3 arrested him.

[12] In cross examination PW4 stated PW2 never came out of the vehicle and the accused swore.

[13] PW5, Cpl Ulasi said on that night he saw the accused in the police station and he was drunk. The accused opted to be checked by a police officer and later he was locked in a cell. In cross examination PW5 stated at that time the accused was drunk and in re –examination said he was incapable of driving because of that.

[14] The prosecution closed their case after that. Based on the above evidences I was satisfied that there was a case against the accused. He was explained about his rights under section 179 of the Criminal Procedure Decree and the accused opted to give sworn evidence.

[15] The accused stated that PW2 was his former girl friend and he was in good terms with PW1 too. On that night Babu invited him and they were drinking. The accused saw PW1 and went to talk to him. PW1 got angry and threaten him. The accused also denied assaulting or swearing at PW1. Later SC Leoni came and arrested him but did not explain about the reason. Later PW5 asked him to walk in the police station but he was not charged for Drunkenness. The accused further said PW1 was not in good terms because of Sharon and he threatened to arrest him on that day. Also at that time the light of the accused's vehicle was not on and he could not see PW1's vehicle. In cross exanimation he again denied swearing at PW1 on that night.

[16] The defence did not call any other witnesses and also closed their case. Both parties have filed their closing submission in the registry on 10 April 2013.

The Law

[17] The accused was charged with the offence of Annoying Person contrary to section 213 (1) (a) of the Crimes Decree. Section 213 (1) (a) reads as follows :-

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

[18] Section 57 of the Crimes Decree has imposed the prosecution with burden of proving every element of the offence.

[19] Based on the facts in this case the elements the prosecution needs to prove are:-

[a] the accused

[b] intending to insult to modesty of PW1

[c] uttered words intending that such word shall be heard by PW1

[20] Section 58 (2) of the Crimes Decree states that this burden must be proved beyond reasonable doubt by the prosecution. This is in line with the famous dictum in Woolmington V DPP [1935] A.C. 462 where it was stated 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. "

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

"The standard of proof in a criminal case is one of proof beyond rease doubt. This meansmeans that you must be satisfied so that you feel sure of the guilt of the accused persons before xpress an opinion that they are guilty. If you have any reasonable doubt as to whether the the accused 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 reasonable doubt about the of the accused."

[22] In Miller v Minister of Pension [1947] 2 AER Lord Denning explained the 'proof
Beyond reasonable doubt as follows. 'That degrewell ed. It need not rnot reach each certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the doubt. The law would fail to protect the community if it admitted 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 favor, 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, but nothing short of that will suffice.'

Analysis of Evidence

[23] PW1 in his evidence in chief stated that the accused swore at him saying "magaitinamu". This he maintained in his cross examination too. PW2, PW3 and PW4 were all present at that time. All these witnesses stated that the accused swore at PW1 using the word "magaitinamu".

[24] The learned defence counsel in the hearing as well as in her closing submission pointed out to the Court that there were number of contradictions between the prosecution's witnesses. I have noted that too.

[25] Contradictions were about the time PW1 left the Pac harbor, the relationship between PW1 and PW2, where the accused vehicle was parked, where PW2 at the time of the offence and number of times the accused allegedly swore at PW1. The learned defence counsel submitted that these contradictions between the prosecution's witnesses raise a reasonable doubt about the prosecution's version of the incident.

[26] The Learned State Counsel also admitted that there were contradictions between the witnesses and submitted that these are only minor contradictions. I believe following cases would be relevant to decide this point.

[27] In Prasad v State [2002] FJHC 77 ; AAU the Fiji court of Appeal held :

" Some of the inconsistencies, related to peripheral issues, such as whether the Appellant was sitting or standing on the steps when the complainant saw him on the day of the offence, whether he dragged the complainant or carried her in to the bed room, whether the kitchen knife was left in the kitchen or carried in to the bed room. We agree with the learned judge that those inconsistencies are not significant, they do not detract the complainant's evidence that she did not consent"

[28] In State v Alifereti [2008] Justice Mataitoga summarized this to the assessors in the following manner.

" In the course of the trial there are bound to be some inconsistencies in the evidence of a witness or with that of another. You are to ask yourselves; did the inconsistencies relate to peripheral issues or did the inconsistencies go to the core of the witness evidence ."

[29] As noted above the contradictions were about the time pW1 left the place, the relationship between PW1 and PW2, where the accused's vehicle parked. These can be termed as minor contradictions in this case. There was no dispute between the prosecution's witnesses about the swearing of the accused on that day.

[30] Only significant contradictions arose from PW4's evidence. He stated that the accused swore at PW1 two times and PW2 was in the vehicle at that time which were inconsistent with other witnesses. Even then he also stated that the accused swore at PW1 saying "magaitinamutu".

[31] In Court there would bound to be contradictions between witnesses called by parties. That is to be expected. If all would repeat the same story without any contradictions that would mean most likely before the trial they have discussed the case with each other. But on the other hand if there is any major inconsistency between the witnesses then that would affect the credibility of the witnesses raising doubt of the evidence.

[32] In this case I consider that there were only minor contradictions and do not think that would affect the prosecution's version. Therefore I reject the defense's submission about that.

[33] The accused whilst giving evidence totally denied the charge. According to him on that day he went to just talk to PW1 and PW1 threatened him. That is a serious allegation against PW1. But the accused he did not complain that to police or anyone. Also that time there was another person called Babu with him. But defence did not call him as a witness.

[34] Another ground mentioned by the learned defence counsel was the drunkenness of the accused at the time of the arrest. According to all prosecution's witnesses the accused was drunk at the time of the offence. The learned counsel in her submission dealt lengthily with this aspect. Why he was not charged for any drunk related offence is not relevant for this case. The accused was charged for swearing at PW1 saying 'magainamutu' and prosecution has submitted enough evidence for that.

[35] I have also considered the demeanor of the witnesses and satisfied with the prosecution's witnesses in this issue too.

[36] For the above mentioned reasons I believe the prosecution has proved beyond reasonable doubt that the accused committed the offence of Annoying Person contrary to section 213 (1) (a) of the Crimes Decree.

[37] Therefore I find the accused guilty for the offence of Annoying Person contrary to section 213(1) (a) of the Crimes Decree No. 44 of 2009.

[38] 28 days to appeal.

17 March 2013

H.S.P.Somaratne
Resident Magistrate