State v Khan [2013] FJMC 71; Criminal Case 319.2012 (12 February 2013)

IN THE MAGISTRATE'S COURT AT NAVUA
Criminal Case : 319 /2012

STATE

VS

REENA KHAN

For Prosecution : Sgt. Lenaitasi
For Accused : In person

Date of Hearing : 06 Feb 2013
Date of Judgment : 12 Feb 2013

JUDGMENT

[1] The accused is charged with the offence of Annoying Person contrary to section 213(1) (a) of the Crimes Decree. The charge reads as follows.

Statement of Offence [a]

ANNOYING PERSON – Contrary to Section 213(1) (a) of the Crimes Decree No 44 of 2009.

Particulars of Offence [b]

REENA KHAN, on the 28th day of August 2012, at Navua town, Navua in the Central Division, with intent to insult the modesty of SANJAY RAM, uttered words such as "MAICHOD ", meaning " Mothers cunt ", and " BAJARU" meaning bitch intending that such words shall be heard by the said SANJAY RAM .

[2] The accused waived right to counsel and pleaded not guilty on 10 Dec 2012. During the hearing the prosecution called 03 witnesses and the accused gave sworn evidence.

SUMMARAY OF EVIDENCE
PROSECUTION CASE

[3] The prosecution called following witnesses.

Sanjay Ram (PW1) – The complainant in this case. He said on 28 Aug 2012 he was in Navua Town and saw the accused getting off a van. She came to him and asked why he was calling her husband. Then she started swearing at him using words like "Maicold" and "Bajru". The PW1 did not feel good about that and went to the police and complained about it.

[4] The accused was given the chance to cross examine the PW1. Answering to her questions the PW1 stated that he did not tell her husband about her or called him.

[5] WPC Maria (PW2) – The officer who conducted the interview of the accused on 30 Oct 2012. It was marked as EX-01.

[7] PC Pram (PW3) – The charging officer. The charge statement was marked as EX-02.

[8] Thereafter the prosecution closed their case. This court was satisfied about the prosecution's evidence and the accused was explained about following rights under section 179 of the Criminal Procedure Decree. .

[a] To give evidence on oath

[b] To call other witnesses

[c] To remain silent.

[9] The accused informed that she wanted to give sworn evidence.

DEFENCE CASE

[10] Reena Khan (Accused) – She said on that day she approached the PW1 and asked him why he was calling her husband. She also said she was really angry with the PW1 because of that.

[11] In cross examination she said she was angry and said Salal (junky) to the PW1.

[12] The defence did not call any other witnesses and also closed their case.

THE LAW

[13] The accused is charged with the offence of Annoying Person. The relevant section reads as follows.

"A person commits a summary offence if he or she, intending to insult the modesty of any person 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"

[14] Considering the facts in this case the prosecution has to prove the following facts in
this case.

[a] The accused intending to insult the modesty of the PW1

[b] Utters the swearing words

[c] Intending that such word shall be heard by the PW1

[15] The Sec 57(1) of the Crimes Decree No 44 of 2009 impose the prosecution with the legal burden of proving every element of the offence and Sec 58(1) of the same Decree says the burden must be discharged beyond reasonable doubt.

[16] In the landmark case of Woolmington v DPP (1935) AC 462 Viscount Sankey LC noted 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 Miller v Minister of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt' as follows. '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 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.'

[18] Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution in this case. If the evidence creates any doubt, this needs to be given to the accused.

[19] Keeping in mind the above principles now I will closely examine the evidence given by both parties.

ANALYSIS OF THE EVIDENCE

[20] The main witness for the prosecution's case is the PW1. He stated clearly on that day the accused approached him and swore at him in the Navua Town. The prosecution did not call any other eye witnesses but I am mindful there is no need for any corroboration.

[21] The defence failed to raise a doubt about his story through cross examination or through the accused's evidence. In fact in the cross examination the accused was more interested about asking about an incident involving her husband.

[22] The accused in her evidence admitted that she confronted the PW1 on that day and was angry with him. Also in cross examination she said she stated SALAL (Junky) to him which would be enough to prove this offence.

[23] I find that I have no reasons to doubt about PW1's evidence and satisfied that the prosecution has proved beyond reasonable doubt that the accused committed this offence.

[24] Therefore I find the accused guilty for the Offence of Annoying Person .

[25] 28 days to appeal.

12/02/2013

H.S.P.Somaratne
Resident Magistrate