State v Ali [2013] FJMC 397; Criminal Case 535.2010 (11 November 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 535/2010

STATE

V

YASIN ALI

For Prosecution: WPC Mere
For Accused: Present in Person

JUDGMENT

1. The accused was initially charged with Unlawful wounding contrary to Section 261 of the Crimes Decree.
   
2. On the trial date the prosecution amended the charge. According to the amended charge the accused is charged with the offence of "Assault Occasioning Actual Bodily Harm" contrary to Section 275 of the Crimes Decree.
   
3. The particulars of the offence stated that "Yasin Ali, on the 14th day of March 2010 at Suva in the Central Division, unlawfully assaulted RAGINALD SURUJ NARAYAN, thereby occasioning him actual bodily harm.
   
4. The accused pleaded not guilty to the amended charge and the trial was taken on the same day.
   

Summary of Evidence

5. The prosecution called 2 witnesses. PW1 was Reginald Narayan the complainant in this case.
   
6. PW1 in his testimony said that on the 14th March 2010 at 11pm he went to the accused's shop to buy soft drink. He gave $5 but the accused did not give the change. When he asked for the change the accused chased him out. The accused called him by names and threw a stone which hit the PW1's forehead. There were no injuries. PW1 also identified the accused. In cross examination too he said there were no injuries.
   
7. PW2, PC/Neil interviewed the accused and his statement was marked as Exhibit No. 1. He said the police could not locate the stone.
   
8. The prosecution closed the case after this and the accused was given his rights in pursuant to Section 179 of the Criminal Procedures Decree. He opted to give sworn evidence.
   
9. In his testimony the accused denied throwing a stone at PW1 and this he mentioned in his cross examination too.
   
10. Both parties did not choose to file closing submission.
    
11. I will briefly consider the applicable law in the following paragraphs before analyzing the evidence.
    

The LAW

12. The accused is charged with the offence of "Assault Occasioning Bodily Harm" contrary to Section 275 of the Crimes Decree No. 44 of 2009.Section 275 states that :"A person commits a summary offence if he or she commits an assault occasioning actual bodily harm."
    
13. Based on the those section the elements of the offence are as follows:
    

[a] the accused

[b] Commits an assault

[c] Occasioning bodily harm

14. Woolmington v DPP (1935) AC 462 Viscount Sankey LC 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".

15. In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Shameem in her summing up said :

"The standard of proof in a criminal case is one of proof beyond reasonable doubtmust be satisfied so that you feel sure of the guilt of the accused persons before you express anion that they are guilty. If you have any reasonable doubt as to whether the accused personersons 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 reasonablbt about the the guilt of the accused."

ANALYSIS OF EVIDENCE

16. I have considered evidence pres by both parties as well asll as demeanor in the court. Based on these I am satisfied with the prosecution's version.
    
17. Only ground that I am not satisfied about are the injuries to the victim.
    
18. PW1 in his evidence admitted that even though the stone hit his forehead he did not receive any injuries. The prosecution also did not tender any medical report to show any injuries to the victim.
    
19. Therefore I decide that there is no evidence about the injuries to the victim which is also an element of this offence.
    
20. Accordingly this Court can't convict the accused for this charge.
    
21. Now I would draw my attention to section 160 of the Criminal Procedure Decree which would be applicable in this kind of situation. Section 160 provides:
    

"160. — (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence&#160 such comh combination is proved but the remaining particulars are not proved, the person may be convicted of the minor of&#160hough he or shor she was not charged with it.

(2) When a person ison is charged with an offence and facts arved which reduce it to a minor offence, the person may be convicted of the minor offence&#1ce alh he or she was not chargcharged with it."

22. The accusedharged with the Assault Occasioning Actual Bodily Harm cont contrary to section 275 of the Crimes Decree. As noted earlier the prosecution has failed to tender any evidence about the injuries. But I am satisfied with the other two elements in this charge.
    
23. Section 274 of the Crimes Decree deals with the Common Assault and provides as follows:
    

"A person commits a summary offence if he or she unlawfully assaults another person."

24. From the available evidence I am satisfied that the accused can be convicted for the above offence.
    
25. Therefore I find the accused guilty for the offence of Common Assault contrary to section 274 of the Crimes Decree and convict him accordingly.
    
26. 28 days to appeal.
    

H.S.P.Somaratne
Resident Magistrate, Suva

11th November 2013