State v Chand [2015] FJMC 99; Criminal Case 203.2008 (24 September 2015)

IN THE MAGISTRATE'S COURT AT SAVUSAVU
CRIMINAL JURISDICTION

Criminal Case No. 203 of 2008

STATE

v

KAMAL CHAND

Prosecution : Mr Fotofili. L
Accused : Mr Sen. A

Ruling : 24 September 2015

RULING

1. The Accused, Kamal Chand is charged with one count of Indecently Annoying Female contrary to section 154 (4) of the Penal Code, Cap. 17.
   
2. The particulars of the offence is that on the 18th day of May 2008, at Korovesi, Savusavu in the Northern Division, with intent to insult the modesty of Hansa Wati uttered the words "I want to fuck you" intending that such words be heard by the said Hansa Wati.
   
3. The Accused pleaded not guilty to the charge on 14 July 2008. Five hearing dates have been vacated and the hearing finally proceeded on 6 May 2015.
   
4. The Prosecution called the Victim as his witness and that is the only evidence adduced and tendered by the Prosecution. The Prosecution closed his case and the Defence Counsel informed the court that he wishes to make an oral submission of no case to answer. The Prosecution also make his oral submission in reply to the no case to answer submission. Both the Prosecution and the Defence Counsel wish to file case authorities and were directed to file the same.
   
5. The Prosecution filed his case authorities on 18 May 2015. The Defence filed a no case to answer submission on 20 May 2015. In regards to the submission filed by the Defence Counsel, I will consider only the case authorities stated in the submission and I will not consider the other contents of the submission for two reasons. First, parties were not directed to file further written submission as they both opted to make oral submission. Second, the prosecution had no opportunity to respond to this further written submission.
   
6. Section 154(4) of the Penal Code, Cap. 17 state;-
   

"Whoever, intending to insult the modesty of any woman or girl, 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 such woman or girl, or whoever intrudes upon the privacy of a woman or girl by doing an act of a nature likely to offend her modesty, is guilty of a misdemeanour, and is liable to imprisonment for one year.

7. The Defence Counsel in his submission submits that the words uttered by the Accused should be capable of insult and it did insult the modesty. The Victim stated in her evidence that the Accused swore at her and she swore back at the Accused. The Victim did not walk away but engaged in exchange of swear words. The Defence Counsel submits that if the Victim felt insulted she should walk away. Further submit that the Victim never stated in her evidence that the Accused insulted her modesty. The threshold requirements are not met. The Victim was providing contradictory evidence, therefore, is not a credible witness and her demeanour and veracity is confusing and questionable.
   
8. The Prosecution submit that there is evidence touching on all the elements of the offence. The Accused and the Victim were within a speaking and hearing distance. There is element of intention to insult the modesty of the Victim. They knew each other and they were not in a good term and not in talking terms. There is circumstantial evidence that the Accused intend to insult the modesty of the victim. Both the Accused and the Victim were swearing at each other.
   
9. The test for no case to answer in the Magistrate Court was set in R v Galbraith (1971) 73 Cr. App. R. 124, and applied by the court in the case of Abdul Gani Sahib v the State (unreported) Criminal Appeal No. HAA 0022 of 2005 (28 April 2005). The test are:
   
   1. Whether there is no evidence that the accused committed the offence.
      
   2. If there is evidence, whether it is so discredited that no reasonable tribunal could convict on it.
      
10. The Accused was charged in this case for uttering the word "I want to fuck you". The Victim confirms in her evidence that her relationship with the Accused were not good before and at the time of the incident. On the date of the incident the Victim and her daughter returned from cutting copra when the Victim saw the Accused building steps on his house. The Victim talk to the Accused about the steps and the Accused uttered "maichod" to the Victim. According to the Victim maichod means "fuck your mother". Accused then told Victim "I can fuck you". The Victim was so angry and told the Accused to "come I want to see how you will fuck me". The Accused pull down his long pants halfway. The Victim went home and called the police.
    
11. At this juncture of the proceeding, the main consideration is to see whether there is or some evidence adduce that the Accused committed the offence and whether the prosecution's evidence was so discredited that no reasonable tribunal can convict on it. As stated in Moidean v Reginam (1976) 27 FLR 206, where it considered the practice note issued by the Queen's Bench Division in England and reported in [1962] 1 All ER 448;-
    

"A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence: (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it."

12. In assessing the prosecution's evidence against the required test to be applied by this court in case like this, I find that there is evidence against the Accused. I have also considered the prosecution's evidence after the cross examination and find that the prosecution's evidence was not so discredited and not manifestly unreliable. The Victim had confirmed in her evidence that the Accused told her that he can fuck her. The Victim was so angry and exchange words with the Accused including swear words uttered by both of them. The Victim went home and called the police. This evidence of the Victim has not been challenged or discredited during the cross examination. The Victim maintained her account of evidence in regards to the word uttered by the Accused and the commission of the offence.
    
13. Accordingly, the Accused need to make and put his defence in this case.
    
14. In my ruling, I make the following orders;
    
    1. The Defence submission of no case to answer is dismissed.
       
    2. Hearing date to be set for the continuation of hearing for the defence case.
       

28 days to appeal

Cama M. Tuberi
RESIDENT MAGISTRATE