State v Chand [2015] FJMC 52; Criminal Case 893.2014 (27 April 2015)

IN THE MAGISTRATE'S COURT
AT SUVA
CRIMINAL DIVISION

Criminal Case No. 893/2014

BETWEEN:

THE STATE

AND:

SAVITA DEVI CHAND

Prosecution: Sergeant Suliano Saunitoga
Accused: Mr Ashneel Nand, Kohli and Singh Suva

RULING

1. The accused was charged with one count of the offence of Annoying a Person contrary to section 213(1)(a) of the Crimes Decree No.44 of 1998. She was alleged to have committed the offence on the 29th May, 2014 at Wailoku in Tamavua, Suva.
2. After the matter was called on the 1st October, 2014 it was eventually heard on the 12th February, 2015. Following the case for the prosecution, counsel for the defence indicated her intention to make a "No Case To Answer" submission. She eventually filed this on the 17th February, 2015. It is now for ruling today.
3. Section 178 of the Criminal Procedure Decree states that "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 defence, the court shall dismiss the case and shall acquit the accused".
4. In Regina v Galbraith (C.A) [1981] Lord Lane CJ, in asking the question "How then should the judge approach a submission of "no case?" raised two points:
   • 1] If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
   • 2] The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence."
5. In Abdul Gani Sahib v. State [2005] HAA0022/05S, 28th April 2005, Madam Shameem held that the correct test in the Magistrate's Court under Section 210 of the Criminal Procedure Code is,
   • 1. Whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and;
   • 2. Whether on the prosecution case at its highest, a reasonable tribunal could convict.
6. In State v Aiyaz [2009] FJHC 186; HAC033.2008 (31 August 2009) his Lordship Justice Goundar stated:
   • The test for no case to answer in the Magistrates' Court under section 210 is adopted from the Practice Direction, issued by the Queen's Bench Division in England and reported in [1962] 1 All ER 448 (Moiden v R ( 1976) 27 FLR 206). There are two limbs to the test under section 210:
     • [i] Whether there is no evidence to prove an essential element of the charged offence;
     • [ii] Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.
   • An accused can rely on either limb of the test under section 210 to make an application for no case to answer in the Magistrates' Court." [Emphasis added]
7. The accused is charged with one count of the offence of Annoying a Person contrary to section 213(1)(a) of the Crimes Decree No.44 of 2009 which states:
   • 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 exhibits any object, intending that such word of sound shall be heard or that gesture or object shall be seen by the other person".
8. Prosecution called three witnesses. PW1 was Angela Lingam, 35 years old, unemployed living with her husband and four children in rented quarters. The accused lives in the same premises. She lives with her daughter and has separated from her husband, who is the son of the property owner. PW1 testified that she was cleaning the compound when she heard the accused uttering some indecent words and telling her daughter she knew PW1 was having an affair with her father. PW1 was annoyed and said this had been going on for some time and had even reported this to the nearby Police Community Post. PW1 said her own daughter was present and identified the accused in court. Under cross-examination, she was said she was certain it was the accused who had uttered those words and that they had been directed at her personally.
9. PW2 was Christina Faith, daughter of PW1. She said she had heard the words "Fuck off" and "Bitch" and recognized the voice as that of the accused.
10. PW3 was Luisa Kinisimere, 43 years old, the next door neighbor. She said the accused and PW1 had been having some problems with each other. She stated that she had heard the words being uttered but did not know who the words had been directed towards.
11. The evidence adduced by PW1 was credible. To a lesser extent that adduced by PW2 and PW3 were also credible. There was uniformity in the evidence. That they all pointed to the accused as having uttered those words does weigh against the accused. However, there was no clear proof that the words uttered had been directed at the complainant. I did not hear any evidence that the words had been directed at the complainant which leads me to rule that the prosecution has not proved beyond a reasonable doubt that this was the case.
12. The accused has no case to answer.
13. The charges are dismissed, and the accused is acquitted.
14. 28 days to appeal.
    

Alipate Doviverata Mataitini
Resident Magistrate

At Suva
27th April, 2015