State v Kumar [2015] FJMC 106; Criminal Case 635.2013 (16 February 2015)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 635/2013

STATE

V

SHANEEL SHALESH KUMAR

Mr. Kumar D. (State Counsel) for the prosecution
Mr. Kumar S. for the accused

RULING ON NO CASE TO ANSWER

1] The accused is charge with following offence;

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

shaneel shalesh kumar kumar on the 19th day of October 2012 at Nakasi in the Central Division, with intent to insult the modesty of Shabrina Shabeena Nisha, intruded upon her privacy by sending a text message from his mobile phone number 9309732 to the said Shabina Shabreen Nisha's mobile phone number 8358142 where said text message contained the word "Fucking" thereby doing on act of a nature likely to offend the modesty of the said Shabina Shabreen Nisha.

2] The accused pleaded not guilty to the charge and case was heard on 31/01/2013. At end of the prosecution case the defense counsel made oral submission of no case to answer.

3] The section 178 of Criminal Procedure Decree stats;

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defense, the court shall dismissed the case and shall acquit the accused"

Therefore at this ruling of "No Case to Answer" the bench has to address below basic issue. That

(a) Is there any evidence which is relevant and admissible on each element of the offence, and is the evidence such that a reasonable tribunal could convict taken at its highest?

4] Her Ladyship Justice Shameem Sahib v The State [2005] FJHC 95; HAA0022J.2005S (28 April 2005) precisely held that

"In the Magistrates' Courts, both tests apply. So the Magistrate must ask himself or herself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and second whether on the prosecution case, taken at its highest, a reasonable tribunal could convict. In considering the prosecution case at its highest, there can be no doubt at all that where the evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a submission of no case. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defence case".

5] in the case of R -v- Galbraith (1981)1 WLR 1039; 2 All E.R. 1060; 73 Cr App R 124(CA) The judgment of the court was given by Lord Lane CJ who described the two schools thus - (1) that the judge should stop the case if, in his view, it would be unsafe (alternatively unsafe or unsatisfactory) for the jury to convict; or (2) that he should do so only if there is no evidence upon which a jury properly directed could properly convict. The Court of Appeal said, (citing Lord Widgery's view with approval) at 1041, 1061, 126;

" If a judge is obliged to consider whether a conviction would be "unsafe'' or "unsatisfactory", he can scarcely be blamed if he applies his views as to the weight to be given to the prosecution evidence and as to the truthfulness of their witnesses and so on. That is what Lord Widgery C.J., in Reg. -v - Barker (Note (1975) 65 Cr. App. R. 287, 288, said was clearly not permissible:

"... Even if the judge has taken the view that the evidence could not support a conviction because of the inconsistencies, he should nevertheless have left the matter to the Jury. It cannot be too clearly stated that the judge's obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge's job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying. To do that is to usurp the, function of the jury ..."

6] The onus rests with the Prosecution to prove Beyond Reasonable Doubt each and every element of the alleged offence and that the onus never shifts to the Defense. The general principle was set out in R v Jai Chand (1972) 18 FLR 101. In upholding a submission that there was no case to answer Grant CJ stated at p.103.

"it seems clear that the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the Prosecution's case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence".

7] The offence of INDECENTLY ANNOYING PERSONS has described in Section 213(1) of the Crimes Decree 2009. In which it has mentioned as follows;

"(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; or

(b) intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.

Penalty — Imprisonment for one year"

The elements of the offence of Annoying Any Person are that:

(a)The accused (any person) on the dates as per the charge (identification and date); Uttered any word, or Made any sound or gesture, or Exhibited any object

(b) Intending that such word or sound shall be heard or that such gesture or object shall be seen, by the other person (the victim) which is likely to offend the modesty of the victim.

8] Woolmington v DPP [1935] AC 462 held 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". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

Further In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons 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 counsels 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 reasonable doubt about the guilt of the accused."

9] Since the accuse is not disputing the sending SMS from his phone the only issue to be resolve by this bench could be line up as follows;

(i) Whether the accused has sent the text in issue or someone else has done it?

(ii) And if the accused has sent the text what was his intention of the accused or dose the "mens rea" of the offence exists or not?

(iii) if the evidence as such that the accused is not responsible for the sending of the text in issue whether the accused entitle for acquittal or he is only entitle for a discharge?

10] The hearing commenced on 31/01/2014 and state called 4 witnesses for the prosecution.

PW-1] Shabbina Shabreen Nisha Buksh

PW-2] Abdul Imran Khan

PW-3] Sgt Jamesa Lave

PW-4] Seamus Chang

And as the documentary evidence on the 14/7/2014 the prosecution with the consent of the accused marks below mentioned documents.

EX-1] - copies of photographs of display of SMS of the accused's phone.

EX-2] – the record of interview.

EX-3] - the record of the interview. (Hand written original document).

11] PW-1 gave evidence and identified the accused at open court. She stated that the accused was introduced to her by her brother. She and the accused used to call each other with regard to her personal matters. Her phone number is 8358142 and the accused used to call her for dating her. She mentioned 9718455 and 9309732 as the 2 phone numbers of the accused which was given to her by her brother and the accused. On the 19/10/2012 her husband has notice a text massage sent to her phone from the phone number 9309732 which belongs to the accused. Which states "wen u free than wat time an where?" Then the witness husband has replied "wat for?" and the accused's has replied "Fucking". She added that after the accused was called by her husband from her phone in front of her and questioned about the text and the accused has made an apology stating "it was wrong number" and the accused threat to destroy her marriage life.

12] There is no independent eye witness. Even though the accused mentioned in her evidence that she did read the text with her husband as per her 1st statement from dated 19/10/2012 specifically mentioned that she did not read the texts. The defense argued since the complainant did not see the text the act of the accused is not amount to an annoying. But as the mood of annoying is " SMS" (a text) of a phone as long as the SMS remaining in the phone will consider as annoying unlike uttering of words face to face. Therefore this court is satisfied with the prosecution on existence of annoying word which is part of proving the element (a) of the offence.

13] But this bench noticed that the 1st police statement of witness dated 19/10/2012 dose not bear any positive allegation against the accused. The witness did not specifically mention whether she was annoyed by the text or act of the accused. Contrary to this statement the witness has given another lengthy statement on 25/10/2012 with allegation of annoying against the accused. In this the accused has said the text massages received by her phone showed to her by her husband. This is discredited the evidence of the witness. She further stated that the accused threatened to destroy her marriage life but even though it is very serious matter never mentioned this at her 1st police statement. This creates huge doubt in the mind of this bench as it is not the behavior of reasonable person.

14] It is noticed by this court at the time of charging the accused the police investigators and charging officers had information and knowledge about connection of one VIMAL to alleged incident who taken the responsibility of sending the SMS s from the phone number 9307932. The record of interview of the accused marked as EX-2 and EX-3 the question number 77 specifically proves the same.

Q77- "According to your cosine brother Vimal he was the one who send the massages,can you tell me how Vimal knows Shabina Shabreen Nisha s number( Mobile)?

A- " I have no idea"

As per above question and answer one Vimal Sandeep Kishor has given statement to police admitting the responsibility of sending text in issue to victim. And the said statement dated 1/11/2012 is available in the disclosure. But as a matter of the law of evidence the same cannot consider as evidence of this case since it has not marked in the trail. Therefore it is not admissible. Since the prosecution did not intend to call the Vimal Sandep Kishor but since it seems important to the case this court issue orders to call him as a witness under section 116 of Criminal Procedure Decree and after service of summon the witness did not appear and bench warrant was issued against him and it is still pending. Since the prosecution close their case this bench was compelled to issue ruling on no case to answer with available evidence before the court.

ISSUE NUMBER (i)

(i) Whether the accused has sent the text in issue or someone else has done it?

15] Since the accused denied and stating that it was not the act of the accused but someone else who has sending of the text massage from phone number 9309732 to the victim and ownership of the same number, the prosecution must prove the ownership of the Phone SIM without reasonable doubt. In addition the alleged incident of this matter was not face to face annoying but texting with a mobile device. Therefore it is very important for the prosecution to prove the extreme use of mobile phone or the device by the accused without reasonable doubt. This court noticed that the content of the SMS s exchanged between this phones are part and partial of usual conversation. But what is important here is whether the used words in the conversation by the sender at any point of time is amount to annoying the receiver and nothing else. As the word "fucking" has used this court has no doubt about the nature of word which is sufficient to insulting the modesty of the receiver which is amount to annoying.

16] As per EX-1 the accused has received text stating " m vimal pliz delet al da message" from phone number 8769918. The prosecution did not verify the number until today. But this text; irrespective of the owner of the sending number (8769918) of this massage proves that the receiver of the text available in the mobile phone SIM 9309732 even if it belongs to accused, was used by the accused but one "VIMAL" together. More specially the phone number 9309732 was not in exclusive use of the accused but was commonly used with one VIMAL. This creates reasonable doubt in the mind of this bench. Since the prosecution formally did not explain this to the court at the trail about the existence of VIMAL or his connection to the alleged incident. This is fatal as the prosecution has contradicted itself with its own evidence. This court answers issue number (i) negatively as the phone was used commonly with person named VIMAL. Therefore the person who annoyed (send the text) is uncertain. If the accused and the other person call VIMAL charged together the conclusion of this ruling might be something deferent.

ISSUE NUMBER (ii)

(ii) And if the accused has sent the text in issue what was his intention of the accused or dose the "mens rea" of the act exists or not?
17] Since the answer for the issue number (i) is negative the issue number (ii) is not arising. Therefore this court will not answer issue number (ii) of this matter.

ISSUE NUMBER (iii)

(iii) if the evidence as such that the accused is not responsible for the sending of the text in issue whether the accused entitle for acquittal or he is only entitle for a discharge?

18] It is important to note that so far this bench did not hear all the evidence of this case but merely issuing this ruling against the prosecution with available evidence. Therefore at this stage the accused is entitled to the privilege of benefit of doubt. This must not consider as recognition of the innocents of the accused as at the issuing of judgment after considering all the merits at a full trail. Specially still the bench warrant is pending against the other person who seems to have reasonable connection to this matter and failed to appear and give evidence under section 116 of CPD.

19] As it is apparent that the evidence drawn out during Prosecution's case has failed to prove the connection of the elements of the offence to the accused. More specifically the prosecution has failed to prove precisely the person who has committed the alleged crime and it is an element of the offence or that the accused was the sender of the text in issue is without reasonable doubt. This court thinks the evidence which is relevant and admissible before this court on each element of the offence, is insufficient and based on the same it is difficult to think that a reasonable tribunal could convict the accused taken at its highest. Therefore this court gives the benefit of doubt to the accused and discharge the accused.

20] Hence this court as per section 178 of CPD upholds that there is no case to answer. The case dismissed and the accused is acquitted.

21] 28 days to appeal

On 16th Feb 2015, at Nasinu, Fiji Islands

Neil Rupasinghe
Resident Magistrate-Nasinu