State v Savatia [2013] FJMC 382; Criminal Case 141.2013 (23 October 2013)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 141/13

BETWEEN:

STATE

AND:

DANIELE SAVATIA

Prosecution: Cpl Chin Samy
Accused: No Appearance

Hearing: 16th October 2013
Judgment: 23rd October 2013

RULING ON FORMAL PROOF

1. The accused was charged with others for the offence of Drunk and Disorderly contrary to section 4 of the Minor Offence Act, Cap 18.
   
2. The particulars of the offence are:
   

"Daniele Savatia on the 12th day of April 2012 at Vaileka Town Rakiraki in the Western Division was drunk and disorderly in a public place namely Vaileka Town."

3. The suspect was not present in court thus prosecution proceeded to prove the case against him on formal proof.
   
4. Prosecution called a witness to prove its case. I now briefly consider the evidence to see whether the allegation against this accused has been proved beyond a reasonable doubt.
   

Evidence

5. PW1 – Tahir Ali
   
   • He is 47yrs old and has been a bus driver with Akbar Buses Company Ltd for 5 years.
   • On 12/4/12 at 6pm he saw some people standing at their Bus Company yard at Qalela sub-division, Rakiraki.
   • He saw one boy throw stone on bus. That person was drunk and was standing near bus. Can tell he was drunk.
   • That person was wearing white round neck t-shirt and a short person. Other persons were drunk too and seated. The way they were can tell they were drunk.
   • Can recognize that person if he saw him again. Doesn't know why he threw stone at bus.
     

Law & Analysis of Evidence

6. The question that needs to be resolved is whether the suspect was drunk and disorderly in a public place?
   
7. The elements for the offence of drunk and disorderly are:
   
   • The accused (Daniele Savatia); was
   • Drunk; and
   • Disorderly;
   • In a public place.
     
8. Before analyzing the evidence I borne in mind that prosecution has the burden of proving the charge against accused beyond a reasonable doubt. This burden never shifts to the accused and remains with prosecution throughout the trial. Accused although not present for the hearing, has nothing to prove and his always presumed innocent until proven otherwise. (see: Woolmington v DPP (1935) AC 462)
   
9. It's undisputed that the suspect and others were on the day and time in question present at the bus company yard at Qalela Rakiraki which is a public place.
   
10. PW1 testified under oath that the suspect and others were drunk. He realized from the way they were that they were drunk. He saw the suspect short built and wearing round neck white t-shirt throwing stone at a bus. He can recognize that person if he saw him again.
    
11. I note that PW1 has attempted to describe the suspect whom he had seen for the first time. There is no evidence that PW1 knows the suspect. An identification parade would have been appropriate to add credibility to PW1's identification evidence. PW1 stated that the suspect was short in built and wearing white round neck t-shirt. There are many people who are short in built and could have been wearing white round neck t-shirt on the day and time in question. There was no identification parade evidence adduced before the Court and I'm not satisfied beyond reasonable doubt with PW1's identification of the suspect.
    
12. In addition PW1's evidence on whether the suspect was drunk and disorderly is not clearly established. There is no evidence of how suspect and others were acting or conducting themselves. PW1 stated that gauging from the way they were, suspect and those other people were drunk. There is no clear evidence from PW1 as to how they were conducting themselves. Were they shouting or swearing? Were they staggering? Did he actually see them drinking alcohol? These are some of the questions or issues that come into mind when considering whether the suspect was actually drunk and disorderly. These has not been clearly established and I'm not satisfied that the element of drunk and disorderly has been proved beyond a reasonable doubt.
    
13. Considering the evidence of PW1 on formal proof, I'm not satisfied that prosecution has proved beyond a reasonable doubt the identity of the suspect and that he was drunk and disorderly as alleged.
    

Conclusion

14. Prosecution has failed to prove beyond a reasonable doubt the first, second and third element of the offence.
    
15. I therefore have doubts in the prosecution case and any such doubts must go in favor of the accused.
    
16. The accused is therefore acquitted and discharged accordingly.
    
17. Twenty eight (28) days to appeal.
    

Samuela Qica
Resident Magistrate

23rd October 2013