State v Prasad [2016] FJMC 17; Criminal Case 1621.2013 (12 February 2016)

IN THE MAGISTRATE'S COURT AT SUVA

Criminal Case No. 1621/2013

STATE

-v-

MAHENDRA PRASAD

Cpl Luke for the Police Prosecution
Mr.Nandan The accused appeared in person

RULING ON NO CASE TO ANSWER

Relevant Facts

1. The accused name Mahendra Prasad, was charged for the offence namely ANNOYING ANY PERSON Contrary to Section 213 (a) of the Crimes Decree No. 44 of 2009 and one count of GIVING FALSE INFORMATION TO A POLICE OFFICER Contrary to Section 201(a) of the Crimes Decree No. 44 of 2009. Later prosecution withdraw the second count.

2. As per the charge the accused name Mahendra Prasad on the 4th day of September 2013 at,Nabua in the Central Division with intent to insult the modesty of Sunanda Asana Reddy, uttered the "I will buy a phone and you have to sleep with me"and touched the right tight an act of nature likely to offend the modesty of the said intending that such word be heard by the said Sunanda Asana Reddy.

3. Since the accused plead not guilty the trial commenced on the issue of annoying. The matter was fixed for hearing on 13/7/2015. Prosecution summonsed 4 witnesses to give evidence on behalf of prosecution. The accused defended by him. Accused and 2 witness gave evidence for the defence.

Relevant Law

4. The Section 213 of the Crimes Decree defines the offence as;

"213. — (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."

5. Therefore the elements of the offence of Annoying Any Person could be listed as follows. 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.

6. In the case of State v Raikavuka Summing Up [2014] FJHC 673; HAC122.2013S (16 September 2014) Salesi Temo J stated;

"The key to the offence is the act of insulting someone. In other words, it must be shown by the prosecution that, the accused intended to insult the complainant. It is commonly accepted that the easiest way to insult someone, is to swear at them, and intending such swear words to be heard by them, so as to insult them. In other words, if you swear at someone, intending such swear words to be heard by him, and you intended to insult him, you are guilty of the offence."

7. The "mens rea" or the mental element of this offence is accuses intent to insulting the modesty of the victim. hence merely uttering word dose not sufficient to raise criminal liability but the act of the accused must expressed and come along with the intention or expectation of insulting the modesty of the of the victim. If the word used is filthy indeed there is no much difficulty on adjudication. Even this is not a conclusive rule. As per P.K. Madigan J. insulting of the modesty must be read with the context such as status of person who was aggrieved by act of suspect; time and place (Wise v State [2015] FJHC 75; HAA31.2014 (4 February 2015)).

8. It is noticed by the court even some word/act may be sufficient to charge person for annoying when it read with the context of the matter even though the words/conduct are not abusive/filthy in nature in general context but used with the intention of insulting the modesty of victim. The "actus rea" of this offence is very wide and not limited to uttering word. It may be any conduct of the accused which may be uttering any word, or making any sound or gesture, or exhibiting any object etc. therefore the most crucial fact to be proven before court for this offence is the intention.

9. Wise v State [2015] FJHC 75; HAA31.2014 (4 February 2015) P.K. Madigan stated

"A difficulty with this case is that the charge was the annoyance to another by saying "fuck you" and not the nakedness of the accused. The Magistrate appears to have confused this point and relied on his nudity as the offensive behaviour rather than the words used as set out in the charge. The accused has not appealed his conviction but if he had he would have probably succeeded. In any event it is difficult to imagine that the words "fuck you" would have insulted the modesty of a typical police officer. The phrase must be said and heard many times per day in any police station in this land and probably even said by the officer himself to others".

10. In the matter of State v Ketewai [2009] FJMC 26; Criminal Case 150.2009 (9 December 2009); the accused convicted on the count of annoying. Even though there was no filthy word used by the accused convicted for indecent exposure since that was somewhat similar to the offence. Further in the matter of Kumar v The State [1995] FJHC 2; Haa0003j.1995b (7 February 1995); the accused was charged with annoying as with intent to insult the modesty of victim (a woman) by forcefully kissing her on the mouth and convicted.

11. The main issue before this court is to find out what really happened between parties? Whether the victim was annoyed or whether victim reported this matter as a reaction to reporting her by accused for stealing his phone?

12. 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."

Evidence

13. To prove their case Prosecution relayed called 2 witnesses including the complainant.

PW-1- Sunanda Asana Reddy-the complainant

PW-2- Anjala Devi- mother of the complainant

14. PW-1- Sunanda Asana Reddy (the complainant), stated " ........i know the accused. He is not related to me. On 4/9/13 I went to Nabua, I met my friend Nilesh .then went to Nilesh's place.then accused was introduced to me .we all went to have drink in Nilesh's car. We brought 1 bottle of gin. Went back to nilesh's place. We were talking and drinking. The accused kept asking for my number. I told him several times that I got no number. Then as it was 3pm I was supposed to go home. ....".

15. PW-1 continued "...accused offered to drop me. I went with him.he was talking like rapist. He said "I will but phone to you ". Then he started touching my right tight. Then he asked why you don't sleep with me. I said "I don't want". Then he changed the talk.then he stopped near phone shop and get off and asked me to select any phone.i select one .since I had no I/D he registered it under his name. I was 18 years old at that time. I can't recall the number of the phone. Then he asked me to go to the car.so I went. Then he insisted to sleep with him. The phone was in my bag. Then since I want to run away I asked him that I want to do my eye brows .he let me go and I pretend going to saloon and then ran towards the market. I went home and sleep .then police came. He took me to police station for stealing a phone. ........" Witness identified the accused at open court.

16. Accused given the right of cross examination and accuses counsel cross examined the witness. She admitted that she didn't know the accused at the time of incident and had 5-6 glasses of gin. It was suggested that witness was not annoyed and therefore she did not to seek assistance when she got off at Nabua and she continued to follow the accused whom she didn't know before but touched her legs and proposed to sleep with. And this court noticed witness did not explain this or denied the suggestion. She admitted fact that she went to accuses car after buying phone.

17. PW-2- Anjala Devi gave evidence. But this court cannot see any relevancy to alleged incident as she was testifying an incident happened at her home between her and accused. Therefore this court will disregard the same. Accused was given the right of cross examination of pw-2 but his counsel stated "no questions".

18. Prosecution closed their case. Defence made application as there is no case to answer for the defence as no evidence on the elements of the offence of annoying has established before this court. Accused seek time to file written submission.

Determination

19. After consider the evidence and written submission this court noticed that victim has continued to go with a man (accused) that she didn't knew before but touched her legs and suggested to buy a phone if she sleeps with him. This court finds this as an unrealistic attitude which cannot find with a reasonable girl who is 18 years old whom has been really annoyed.

20. There is no evidence that victim was under duress or influence of accused or the accused by forcefully take victim to mobile shop or to the car after bought the phone. It was evident that the victim has volunteered/willingly accompanied the accused after alleged annoying incident. She did not try to look for help once they both got off at Nabua.

21. Even if the victim was with intention to cheat accused and buy a phone with accuses cost still she could have report the matter to police after she got the phone as she has achieved her goal but she was annoyed by accuses act and words. But instated she did not report but went home and sleep. She did not report the matter until she was arrested by police upon accuses report of theft. This proves the fact that the PW-1 was

22. Above mentioned conduct of victim obviously sufficient to create reasonable doubt on the fact whether victim was really annoyed or she made her report as a reaction of accuses report against her and the benefit of the doubt is given to the accused. Therefore this court acquits the accused and discharge the accused from 1st count on the offence of annoying.

23.28 days to appeal.

On this 12th day of Feb 2016
Neil Rupasinghe
RESIDENT MAGISTRATE