State v Prasad [2013] FJMC 195; Criminal Case 31.2012 (20 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 31/2012

STATE

v

SHANI PRASAD

Police Inspector Joji Cakau for the Prosecution
Mr. Wasu Sivanesh Pillay( NEEL SHIVAM LAWYERS) for the accused.

Judgment

1] The accused is charged with following count;

CHARGE:

Statement of Offence [a]

ANNOYING ANY PERSON: Contrary to Section 213 [1] [a] of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

SHANI PRASAD, on the 21st day of December, 2011 at Nasinu in the Central Division, with intent to insult the modesty of Sushila Devi uttered the words “Bajjaru” meaning “Prostitute” intending that such words shall be heard by the said Sushila Devi.

2] The case was heard on 15th February 2013.

3] To prove this charge the prosecution called following evidence.

4] PW1: Sushila Devi, she said she can recall 21st day of December 2011. In the evening she was doing business in front of Hot Bread at Makoi. She was selling vegetable. She said in her evidence “I was serving a customer. it was about 5.30 pm and the owner of the Hot Bread was talking to me. She wanted to buy a cake mix. And I advised her to go to Shop N Save and buy the cake mix and you can bake the cake at home. Then the accused went from my side and she look back, she swear to me. When she look back to me nobody was there only my customer and I was talking to that lady, Hot Bread lady.

What did that person tell you, the one who you mentioned as the accused, what did she tell you, you told that she swore at you, what did she tell you?

What is the exact word? Bajaru Sir. Bajaru.
Bajaru means, prostitute, bitch.

How do you feel? I feel very bad I am not that, she said to me she swear I am not that person heh, what she said to me. I didn’t feel good that’s why I went to report.”

5] In cross examination she admitted that the accused Ms. Prasad used to hire PW1 husband’s van and her husband assaulted her. There was a DVRO case in Nausori Court and she took a DVRO against the accused. Finally that DVRO was heard and it was dismissed. She admitted when the DVRO was dismissed Nausori Magistrate remarked “she (the accused) wasn’t the problem; the problem was you (PW1) and your husband”. The witness admitted the problem was that she suspected her husband was having an affair with the accused lady. She said on the day of incident the accused swore at her but she did not know where she was going. The defence suggested that while the accused was walking past PW1’s store, PW1 said a certain word to the accused’s husband, PW1 said kutta, meaning dog, but PW1 denied it. PW1 said she was talking to Irene Lata (PW2). Further PW1 said khajwaae to the accused, Shani Prasad meaning itchy. But the witness denied it. She aslos said she did not try to provoke the accused Shani. She said the accused did say Bajaru and she got a witness.

6] PW2: Irene Pravin Khan: She said she is the owner of the Nasinu Hot Bread Shop. It is located beside Shop N Save 8 miles. On the 21st day of December2011, she was in her shop. Around 5.30pm she talked to one Sushila Devi. This conversation was in front of her Hot Bread Shop. In her evidence she said “Sir we were talking and I was going to bring the cake. And Sushila informed I shouldn’t bring the cake instead I should bring the cake mix and bake a cake. Sir whilst we were talking the accused and her husband they passed the first witness. And the accused Sir said that look at that bitch. But Sir don’t know whom she said those words to. And Sushila informed me that she said those words to me. Sir there was another man somewhere around and he also informed me that the accused person swear at Sushila”

7] The defence objected that the third person was not called as witness and therefore it become hearsay. The court ruled out this evidence is admissible. This witness did not mention the name of the third person. The witness gathered from this evidence by seeing and hearing the third person. The direct evidence is a witness relates what he or she directly experienced by sense. Real meaning of direct evidence is “Evidence in the form of testimony from a witness who actually saw, heard, or touched the subject of questioning”. In this case the she heard the third person (another man) saying it was referred to PW1, is direct evidence and valid in law. I therefore accept this part of evidence. This witness also said she does not know the accused before the incident and she does not have any enmity against her.

8] In cross examination, this witness admitted she knows PW1 for number of years. She said PW1, Ms. Devi didn’t say anything to the accused party and she didn’t hear any word, but whatever the accused, Ms. Prasad said she heard. The defence suggested PW2 and PW1, Ms. Devi are trying to get the accused, Ms. Prasad into trouble, but PW2 denied saying she does not have any enmity against the accused person. Pw2 said she was not sure to whom the accused passed remarks.

9] Thereafter, by consent the accused’s caution interview and charge stamen tendered as Exhibit 1 and 2. This court has gone through these documentary evidence.

10] Since there is a case to answer, right to call defence is explained. The accused opted to give sworn evidence.

11] DW1: the Accused: Shani Prasad, On 21st day of December 2011, around 5.30 pm, she was suppose to go to Church but at time first she went to Shop N Save Supermarket to exchange her money $50 note and from there. She accompanied her husband. She exchanged the money from Shop N Save Supermarket. Thereafter she just passed the bread shop PW1 Sushila Devi said to her khajuwaaye, it means itching your vagina. The accused said she did not react for that saying. Further the accused said PW1 said kutta to her husband. Kutta means like dog. The accused said PW1 is saying she is having affair with husband and going around in his van, but no one saw them going around. The accused said they have reported it to the police. The accused said Pw 1 sent filthy text messages. One of them sent by the PW1 on 10/8/11, (time was 11.10am and the number is 9205240) is showed to the court by the accused. It says;

“Hi you bitch what the fuck you want, why are you texting, can’t you talk, what your dog bite your mouth, when you kissing him, are you from Labasa, I think so, the day I catch you it will be your last day to hold the phone, I will break your hand and push it into your ass, you watch out”.

12] The accused said in further text she sent “agar hum tumhara gaald nahi mara toh hum das baap ke” meaning if you don’t mess you up or if you don’t fuck you up then you are the son of 10 fathers, meaning my mother... she said all this text messages coming to her before this incident.

13] The accused said after the incident she went to the church. She did not complain to the police. The accused further said PW1 got DVRO against that the accused should not go near sit down the vehicle and go near. She said she is never having affair with PW1’s husband.

14] In cross examination the accused admitted she was angry with PW1 because she is making false allegation at the time of the incident. She said there is no cross reports. The accused said because they are getting late to the church they did not make complain to the police.

15] DW2, Navin Prasad, is accused’s husband. He said he can recall 21st day December 2011.At 5.30pm on that day, they were going to the Church, and before that they went to the Shop N Save to change money. He said “We pass the Hot Bread Kitchen that lady sitting down there one this side, you feel to my wife that you are feeling itchy, then we even don’t bothered what she saying. Then we went to Church.” She said PW1 did not say anything apart from that. Then they went to the church.

16] In cross examination he said he is married to Shani Prasad. He admitted that he loves his wife. So he does not want anything happen to his wife. He is not lying to save his wife. PW2, Irene Khan is friend of PW1. But he does not know why she is giving false evidence against them. DRVO case was dismissed.

17] Thereafter defence closed the case. Both have filed closing submission. I am mindful of it.

18] It is clear the prosecution has the legal liability to their charge beyond reasonable doubt. 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 common law”. The burden of proof of the accused person’s guilt beyond reasonable doubt lies with the Prosecution.

19] In this case State v Seniloli [2004] FJHC 48; 2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors:

“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 doubt as to whether 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 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 guilt of the accused”.

20] The offence of indecently insulting or annoying any person is stated at Section 213 of the Crimes Decree, it reads:

“213. – (1) 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; or

(b) Intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.”

21] I now evaluate the evidence. The elements of the offence of Annoying Any Person are that:

(a) The accused on the dates as per the charge (identification and date);

(b) Uttered any word, or

(c) Made any sound or gesture, or

(d) Exhibited any object

(e) Intending that such word or sound shall be heard or that such gesture or object shall be seen, by the other person (the victim).

22] The parties have no dispute on date, time and place. It was on 21st day of December 2011, around 5.30 pm, close to Shop N Save. In this case PW1 said that the accused said “Bajaru”. Bajaru means prostitute or bitch. It is obvious if that word uttered it would definitely annoyed the receiving person. I return defence suggested that the PW1 said kutta, meaning dog, to the accused’s husband and khajwaae to the accused, Shani Prasad meaning itchy. If these uttered it would have surely annoyed the receiving person too. On 22nd December 2011 following day the accused gave statement to the police. It was tendered by consent as EX-1. In Question 18 the Police officer who interviewed her asked Do you wish to say anything. But she failed to mention that the PW1 said kutta, meaning dog, to the accused’s husband and khajwaae to the accused, Shani Prasad meaning itchy. The accused totally denied that charge. In accused’s evidence, she said though she did not tell anything, but she was insulted by the PW1. She said PW1 got DVRO in Nausori courts and it was dissolved with remarks to PW1’s account. The accused also tendered text messages to court. In that the court can note PW! Mention “ why are you texting, can’t you talk,”. It means the accused also sent text to PW1. In reply she texted her. The prosecution was bit worried that these text did not put to PW1, when she was giving evidence. If so, she could have answered them. Further she may have chance to show texts which have been sent by the accused. The defence counsel failed to cross examine PW1 regarding texts messages.

23] In Browne v. Dunn (1893) 6 R. 67, H.L. held that a cross examiner cannot rely on evidence that is contradictory to the testimony of the witness without putting the evidence to the witness in order to allow them to attempt to justify the contradiction. Thus, he should put evidence regarding text to PW1.

24] The Queen [2005] HCA 74; (2005) 80 ALJR 329 Gleeson CJ and Heydon J stated that the principle in Browne v Dunn needed:

“.to be applied with some care when considering the conduct of the defence at criminal trials. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness the ground of the challenge be put to the witness in cross--‐examination. This requirement is accepted and applied day by day, in criminal trials. However, the consequences of a failure to cross--‐examine on a certain issue may need to be considered in the light of the nature and course of the proceedings”

25] However, this court can see there is previous enmity between the parties other than this evidence. The defence contention is because of this the PW1 can make false allegation. What about the other way around. Because of this, the accused said Bajaru to PW1. I now apply the credibility of the witnesses of both parties.

26] When credibility concerns following tests are applied.

Test of Spontaneity

27] The victim, PW1 reported the matter to the police as soon as possible. It appears that there is no time to concoct a story. On the other hand, the accused did not complain that the victim swore at her. She said she went to the church. It is ok. But accused failed to give statement still she was questioned and even that statement the accused did not state that they were scolded by the victim.

28] In R v Lillyman (1896) 2 Q.B. 171 Hawkins L.J. said that evidence of the fact that a complaint was made is admissible provided it was made as speedily after the acts complained of as could reasonably be expected. His Lordship said that it is for the trial judge who tries the case to decide whether the complaint is made as speedily as could reasonably be expected and that here is no one else who can decide it. (Emphasis is mine)

29] In R v Cummings (1948) All E.R. 551 Court of Criminal Appeal held that it was for the judge who tried the case to decide whether the complaint was made as speedily as could reasonably be expected. Once the trial judge holds that it was an early complaint, an appeal court could not interfere with the exercise of his discretion as to the admissibility of the evidence. I hold the victim’s evidence pass this test. The PW1’s story is truth and probable.

Test of consistency and inconsistency.

30] It should be noted that the evidence of the prosecution witnesses are mostly in line with each other; there are no omissions or contradictions by the prosecution part. In contrary the accused’s husband gave evidence but he failed to tell that PW1 uttered Kutta to him in the cross examination. Parties have serious enmity, if so this is a criminal charge and why they failed to report this to the police.

Test of probability and improbability.

31] This matter the PW1 said the accused said Bajaru to her. The parties had DVRO and it was dismissed by Nausori Court blaming the PWI, she is the trouble for this. This remark may have boosted the accused to swear this when they met. Thus, this complaint is probable.

Test of independency (interest or disinterest)

32] When I apply this test, I must consider PW2’ Ms. Irene Khan’s evidence. She heard what the accused was saying at the moment. PW2 have not seen the accused before. They don’t have any grudge and the witness has no interest to put the accused in peril. Thus, PW2’s evince is highly independence in this regard. On the other hand, the accused called her husband as witness. They are husband and wife. Any husband does not want her wife to be in jail. Thus, this evidence could be held unreliable as husband has interest to this case. But PW2 does not have any interest, she must be telling the truth.

33] When a court decide a case , it should consider evidence in whole. In Attorney General of Hong Kong v Wong Muk Ping [1987] 2 WLR 1033 the Privy Council observed as follows:-

"...... any tribunal of fact confronted with a conflict of testimony had to evaluate the credibility of evidence in deciding whether the party who bore the burden of proof had discharged it. It was the commonplace of judicial experience that a witness who made a poor impression in the witness box might be found at the end of the day, when his evidence was considered in the light of all the other evidence, to have been both truthful and accurate. Conversely, the evidence of a witness who at first seemed impressive and reliable might at the end of the day have to be rejected. Such experience suggested that it was dangerous to assess the credibility of the evidence given by any witness in isolation from other evidence in the case capable of throwing light on its reliability." (Emphasis is mine)

34] In the light of above evidence and rules of evidence, I consider the standard of proof. In Miller v Minister of Pensions [1947] 2 All E.R. 372, the standard of proof to convict the accused in a criminal case is clearly discussed by Lord Denning. He went on saying:

"That degree is well settled. It need not reach certainty, but it must carry 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."(Emphasis added)

35] In this case the defence took two stances. Firstly they totally denied the charge. Secondly, in the cross examination they said the "bajaru" was not directed to the PW1. Specially this was stressed in PW2's evidence. PW1 said it was directed to her .there were three person in close proximity. That is PW1 and PW2 and the accused's husband. There were no reasons PW2 and the accused husband to be blamed by the accused. Only left person was PW1 and they had enmity amongst them. The court can hold it was directed to PW1. The defence said because of previous enmity the victim lodged false allegation. But this is double edged weapon, it could cut either way. One can say because of this enmity the accused uttered this word to PW1. In her evidence she admitted she was angry with PW1, what she was doing. When, I evaluate the evidence, the PW2 strengthens the victim story. I have no doubts that the prosecution proved its charge beyond reasonable doubt.

36] I convict the accused as charge. I now call mitigation before sentencing.

37] 28 days to appeal

On 20th May 2013, at Nasinu, Fiji Islands

Sumudu Premachandra,
Resident Magistrate-Nasinu