State v Newal [2014] FJMC 15; Criminal Case 817 of 2011 (16 January 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 817/2011

STATE

v

ATISH NEWAL

For Prosecution: WPM Mere
For Accused: Ms. Ratidara from the Legal Aid

Date of Hearing: 15th January 2014
Date of Judgment: 16th January 2014

JUDGMENT

1. The accused is charged in this Court for following offence;
   

INDENCENTLY ANNOYING ANY PERSON: contrary to Section 213(1)(a) of Crimes Decree No. 44 of 2009.

Particulars of offence

Atish Newal on the 8th day of April 2012 at Lami in the Central Division with intent to insult the modesty of Raj Kumar uttered abusive words intending that such words be heard by the said Raj Kumar.

2. The accused pleaded not guilty for this charge and the trial was taken on 15th January 2014. For the prosecution side two civil witnesses were called and also for the defence the accused gave sworn evidence and called one alibi witness.
   
3. PW1 was Raj Kumar, who was the complainant in this case. He said on 08thApril 2011 he was in Lami taxi base when the accused drove past him. The accused swore at him saying "Maichod" and that he has taken PW1's wife and so on would take the daughter too. PW1 felt bad and made a report to the police. He also identified the accused.
   
4. In cross examination PW1 denied making false compliant against the accused and re- examination said he made the compliant to the police on the same date.
   
5. PW2 was Naisara who was also present on the scene and he also said that the accused swore at PW1. In cross examination, he said before the incident, he has not seen the accused.
   
6. By consent the charge statement and caution statement of the accused were tendered as Exhibit 01 and 02 respectively.
   
7. The prosecution closed the case after that and the accused was given his rights pursuant to section 179 of the Criminal procedure decree. The learned counsel from the Legal Aid informed the Court that the accused wanted to give sworn evidence and also they want to call one alibi witness.
   
8. The accused in his evidence denied being in Lami on that day. He said he picked up one Waqa (DW2) around 08.30 that day and being with him in the morning. He went with DW2 to do his shopping. In cross examination too, he mentioned this story.
   
9. DW2 was Waqa who was called by the defence as an alibi witness. He said the accused picked him up around 08.30 and went with him to do the shopping in Suva.
   
10. The defence did not call any other witnesses and also closed their case. Both parties opted not to file closing submissions and based on the evidence I would pronounce my judgment as follows.
    
11. The accused is charge with one count of Annoying Person contrary to section 213(1) (a) of the Crimes Decree.
    

Section 213(1) (a) provides that:

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

12. In landmark case of 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".
    

13. In State v Nalave [2013]FJHC 496 His Lordship Justice Silva in his summing up defined the burden of proof and standard of proof in a criminal trial in the following manner:

"The burden of proving their guilt rests on the prosecution and never shifts. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find each accused guilty, you must be satisfied so that you are sure of her guilt. If you have any reasonable doubt as to her guilt, you must find her not guilty."

14. In Miller V Minister Of Pension [1947] 2 AER Lord Denning also explained the 'proof beyond reasonable doubt' as
    

'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.'

15. In State v Nalave(supra) His Lordship Justice Silva also explained about the alibi defence and the burden imposed on the prosecution in such a situation.
    

"The 2nd accused's defence is one of alibi. She says that she was not at the scene of crime when it was committed. As the prosecution has to prove her guilt so that you are sure of it, she does not have to prove she was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. Even if you conclude that alibi was false, that does not by itself entitle you to convict the accused. It is a matter which you may take into account, but you should bear in mind than an alibi is sometimes invented to bolster a genuine defence."

16. Having considered the relevant legal principles now I would turn my attention to the evidence presented in this case.
    
17. The prosecution called the complainant and another eyewitness. PW1 said on that day the accused swore at him and this was corroborated by PW2. But in cross examination PW2 admitted that it was fleeting glance and also he has not seen the accused before the incident.
    
18. Also the accused has taken up the alibi defence. He testified that on that day he was not in Lami and was in Suva with a client. He elaborated in his evidence in chief the places he was in and also time he was there. To corroborate he also called Waqa who was with him that day.
    
19. From the evidence of the accused and his other witness I find that he has managed to raise a doubt about his where about at the time of the offence. The prosecution failed to call any witnesses to rebut this evidence and failed to raise doubt about the defence's version.
    
20. Therefore I find that the defence has managed to raise reasonable doubt about the prosecution's evidence. This doubt has to be given to the defence.
    
21. I find that the accused not guilty for this offence and acquit him accordingly
    
22. 28 days to appeal.
    

16th January 2014

H.S.P.Somaratne
Resident Magistrate, Suva