State v Prasad [2013] FJMC 345; Criminal Case 183.2013 (17 September 2013)

IN THE MAGISTRATES COURT OF FIJI
AT NAVUA

Criminal Case : 183/2013

STATE

VS

VIJAY PRASAD

For Prosecution : Sgt. Lenitasi
For Accused : Mr. Nand

Judgment

[1] The accused has been charged with one count of Indecently Annoying a person contrary to section 213(1) (a) of the Crimes Decree No. 44 of 2009.

[2] The particulars of the charges say that the accused on the 29th June 2012 at Tokotoko Back road, Navua in the Central Division with intent to insult the modesty of Manor Mani exhibited his private part to the said Manor Mani that such action be seen by the said Manor Mani.

[3] The accused pleaded not guilty for this charge and the trial was taken on 24/07/2013. The prosecution called 04 witnesses (2 civil witnesses and 2 police officers) and for the defence the accused gave evidence and also called his wife as a witness.

[4] In the following paragraphs I will briefly consider the evidence led by both parties before turning my attention to the relevant law provisions.

Summary of Evidence

[5] Following witnesses were called by the prosecution.

PW1- Manor Mani (the complainant)

PW2- Jay Wati

PW3- PC Maria (Interviewing Officer)

PW4- PC Pram (Charging officer)

[6] PW1 in her evidence said on that day she was going to work and saw the accused in his driveway. He made a sound to her and then showed his private part. PW1 went to his neighbor and informed about that. She was ashamed from his action. PW1 also identified the accused in the Court. In cross examination PW1 confirmed again that the accused showed his private part and also at that time no one else was there.

[7] PW2 said on that day PW1 came to her house and informed about the acccused's action. PW2 told her to inform about that to his mother. In cross examination she said she did not see the incident but PW1 told her on the same day.

[8] PW3 interviewed the accused and the statement was tendered as EX-01.

[9] PW4 charged the accused on 20/03/2013 and this was marked as EX-02.

[10] The Prosecution closed their case and being satisfied with the available evidence I explained the accused his rights in pursuant to section 179 of the Criminal Procedure Decree. The accused opted to give sworn evidence and in addition also called one other witness.

[11] The accused in his evidence said on that day he woke up late and denied standing outside that day or showing his private part to PW1. This he maintained in his cross examination too.

[12] DW2 was his wife and she said on that day the accused was with her and she did not think he committed that. Only the defence filed their closing submission on 06/09/2013 and I have considered that too for my judgment.

[13] Now I would briefly consider the relevant law provisions applicable in this case.

The Law

[14] The accused has been charged with one count of indecently annoying a person contrary to section 213(1) (a) of the Crimes Decree. Section 213(1) (a) states:

"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."

[15] Based on the facts in this case the prosecution has to prove following elements in this offence.

[a] the accused

[b] intending to insult to modesty of PW1

[c] exposed his private part and that shall be seen by PW1

[16] Viscount Sankey LC in Woolmington v DPP (1935) AC 462 observed 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".

[17] In State v RODNEY AUGUSTINE FONG HAC 300 OF 2011S His Lordship Justice Temo in his summing up defined the burden of proof and standard of proof in criminal trial as follows :-

"As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty."

Analysis of the Evidence

[18] The prosecution submitted through their witnesses that the accused on that day showed his private part to PW1 whilst she was going to her work. The defence denied this and said the accused was inside his house at that time.

[19] I have carefully gone through evidence from both sides. I believe PW1 was a credible witness. I have come to this conclusion based on her evidence as well as her demeanor in the Court. Even though there were some minor contradictions between her evidence and her statement to the police it did not damage her credibility.

[20] Also even though she has not made a complaint to the police quickly I find that she informed about this to the neighbor on the same day and this was also confirmed by that neighbor. This again enhances her credibility in this Court.

[21] On the other hand the accused denied this incident. But in his evidence in chief he admitted committing two similar kinds of incidents in the past. These have no relevance to this incident and should not have been asked by his counsel in the first place. Also to corroborate his evidence the accused called one more witness and this being his wife and I believe not an independent witness.

[22] For the above mentioned reasons I am satisfied that the prosecution has proven this charge beyond reasonable doubt against the accused.

[23] I find the accused guilty for this offence and convict him accordingly.

[24] 28 days to appeal

19/09/2013

H.S.P.Somaratne
Resident Magistrate