State v Ali [2024] FJMC 28; Criminal Case 591 of 2020 (23 July 2024)

IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 591/2020

BETWEEN: STATE

PROSECUTION

AND: JASHEEM SHAMIM ALI

ACCUSED

Counsel: WPC 5006 Maryan Ratucove for Police Prosecution
Accused in person.

Date of Trial: 5 June 2024
Date of Judgment: 23 July 2024

JUDGMENT

Introduction

1. Mr. Jasheem Shamim Ali (“the Accused”) is charged with 1 count of Assault Causing Actual Bodily Harm contrary to section 275 of the Crimes Act 2009 and 1 count of Breach of Bail Condition contrary to section 25(1)(c) and 26(1) of the Bail Act 2002 and Bail Amendment Act No. 28 of 2012. The particulars of the offences are:
   

Count 1

Statement of Offence

Assault Causing Actual Bodily Harm: Contrary to Section 275 of the Crimes Act 2009.

Particulars of Offence

Jasheem Shamim Ali on the 24^th day of October, 2020 at Tabua Place, Ba Town in the Western Division assaulted Jamsheed Ali thereby causing him actual bodily harm.

Count 2

Statement of Offence

Breach of Bail Condition: Contrary to Section 25(1)(c) and 26(1) of the Bail Act 2002 and Bail Amendment Act No. 28 of 2012.

Particulars of Offence

Jasheem Shamim Ali on the 24^th day of October, 2020 at Tabu Place, Ba Town in the Western Division whilst being released on bail by Ba Magistrate Court vide criminal case number 150/20 with the condition not to reoffend, breached the said bail condition by reoffending.

2. The Accused entered a plea of Not Guilty to both counts on 16 March 2022. Trial was initially scheduled for 4 September 2023 but on that date, the Accused was not present as he had been in remand for another matter and the Accused’s counsel also withdrew. The Trial was then vacated. Trial was then fixed for 5 June 2024 and it proceeded on that date with Prosecution calling 2 witnesses. Prosecution closed its case thereafter and the Court found that there was a case to answer for both counts. The Accused was explained his options and he opted to remain silent and not call any witnesses.
   

Burden of Proof

3. It is imperative to highlight that as a matter of law, the onus or burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no burden on an accused to prove his or her innocence as an accused is presumed to be innocent until proven guilty.
   
4. It is for the prosecution to prove the accused’s guilt beyond a reasonable doubt. If there is doubt, so that the court is not sure of the accused’s guilt, or if there be any hesitation in the court’s mind on any of the ingredients or on the evidence led by prosecution, the accused must be found not guilty of the charges and accordingly acquitted.
   

Summary of Evidence

5. Prosecution called 2 witnesses to prove its case. The Complainant, Jamsheed Ali testified that he has 2 children namely Jamsheen Ali and Jaswin Nisha and that he has a taxi and kava shop. He stated that his Kava Shop is named Royal Kava Lounge Bar and that at first the Accused was running the shop then other staff ran the shop. The Complainant stated that on 24 October 2020 at about 11:30am he same to his Kava shop to see the accounts but due to the pages being torn he couldn’t get the right information. On that particular date, the Accused was running the shop. When the Complainant asked the Accused, the Accused got angry with the Complainant. It was at this point in his evidence that the Complainant pointed to the Accused.
   
6. The Complainant then testified that the Accused punched him and the Complainant fell on the floor and then the Accused left the shop. The Complainant then called his father who took him to the Police Station and after that he was admitted in the Hospital. The Complainant then testified that the Accused punched him once and that the punch on his face on the right hand side of his lower lip. He confirmed that he had received injuries and that he was seen and admitted at the Ba Mission Hospital.
   
7. The Complainant confirmed that the Doctor filled out a Medical Form and he confirmed his Medical Report when it was shown to him as he had signed the same on 24 October 2020. The Medical Report was then marked as ‘MFI 1’. The Complainant also confirm that on 24 October 2020, the Accused has another case in Ba Magistrates’ Court for Breach of Curfew and that he was on bail for that case.
   
8. As the Accused was representing himself, the Court explained the process of cross-examination to the Accused, who then cross-examined the Complainant. When it was put to the Complainant that only a small portion of the page was ripped, the Complainant stated that the page was torn – that half a page wasn’t there. When it was put to the Complainant that he kept blaming the Accused and then pushed the Accused, the Complainant agreed and explained that when the Accused came close to him, he pushed the Accused. The Complainant agreed that he had asked the Complainant if he wanted to work and that the Accused told the Complainant that he did not want to work there. The Complainant then stated that after that, the Accused punched him and he fell down whilst the Accused walked out of the shop.
   
9. The Court then questioned the Complainant if the exchange between him and the Accused was a heated exchange. He testified yes but it wasn’t too heated. He had just questioned the Accused about the torn page and the Accused said it wasn’t him and when the Accused came near the Complainant, he pushed the Accused away so he could move away from the counter space and that is when the Accused punched him. None of the parties had a follow up question from the above.
   
10. Prosecution’s last witness was Doctor Varanaisi Tarai (‘Dr. Tarai’) whose evidence was that on 24 October 2020, she based at the old Ba Mission Hospital and that she had carried out a medical examination on that date. When shown MFI 1, Dr. Tarai confirmed that it was the Fiji Police Force Medical Examination Form of Jamsheed Ali with the date of examination being on 24 October 2020. Dr. Tarai then testified that her initial impression as per Page 3 Section D Part 11 was that the Complainant was in pain due to headache and jaw pain but otherwise he was oriented.
    
11. Dr. Tarai then stated that her specific findings as per Section D Part 12 was that the Complainant had sustained a right upper lip laceration which was 1cm long and 1 cm deep with active bleeding and gum swelling. She explained that this meant that the he had a laceration on his right upper lip and the other on his left lower lip with swelling inside the mouth on the right lower side. Further, she testified that the right temporal region which is the right side of the head had mild swelling with no active bleeding but upon touch, the Complainant was in pain.
    
12. In her professional opinion, Dr. Tarai stated that through her examination there was a soft tissue injury of the muscle and of the lining of the inside of the mouth. She stated that the soft tissue injury can be caused by a blunt force by someone or can be caused by an object or by the person – him/herself. Dr. Tarai confirmed that such an injury could be caused by a punch to the face. The Medical Examination Report was then tendered as ‘PEX1’.
    
13. The Accused did not cross-examine the Doctor.
    

Evaluation of Evidence

14. In evaluating the evidence, the Court must determine the testimonial trustworthiness of the evidence given by the witnesses based on the credibility and reliability of their evidence. In doing that, the Court should consider the promptness/spontaneity, probability/improbability, consistency/inconsistency, contradictions/omissions, interestedness/disinterestedness/bias, the demeanour and deportment in Court and the evidence of corroboration where it is relevant. (vide State v Moroci Criminal Case No. HAC 161 of 2023 (26 April 2024)).
    
15. For a proper analysis of the evidence for Count 1, it is imperative for the Court to turn its mind to the elements for assault causing actual bodily harm, which are:
    
    1. the accused
    2. commits an assault causing actual bodily harm
    3. to another.
       
16. From the outset there is no issue with the identification of the Accused. The Court will need to ascertain whether the Accused had assaulted the Complainant which led to him receiving the injuries.
    
17. The Complainant’s evidence is that the Accused assaulted him by punching him once on his face on the right-hand side of his lower lip and that he had received injuries. The Accused did not challenge this evidence at all but rather challenged the events that led to the assault.
    
18. Further, to substantiate the injuries that the Complainant had received, Prosecution led the evidence of the Doctor who examined the Complainant and who tendered the Complainant’s Medical Examination Report as PEX1 which highlights the Complainant receiving a soft tissue injury which was a cut on the right upper lip - deep small cut about 1cm long and 1cm deep with active bleeding with noted lip swelling on the lower lip and on the right lower mucosa as well as a cut on the right temporal region with swelling and tenderness on palpitation with active bleeding. Again, the Complainant did not challenge this evidence especially when the Doctor confirmed that such injuries could be caused by a punch to the face.
    
19. Therefore, I find the Complainant was being truthful with respect to the Accused assaulting him by punching him on his face on the right-hand side of his lower lip. Further, the Complainant’s evidence with respect to being assaulted in conjunction with Dr. Tarai's evidence regarding the injuries is credible and reliable.
    
20. Thus, the evidence in totality allows the Court to draw an indisputable inference that it was the Accused who assaulted the Complainant which led to the Complainant sustaining soft tissue injury which was a cut on the right upper lip - deep small cut about 1cm long and 1cm deep with active bleeding with noted lip swelling on the lower lip and on the right lower mucosa as well as a cut on the right temporal region with swelling and tenderness on palpitation with active bleeding.
    
21. Now, turning to the second count of Breach of Bail Condition, the elements for this offence are:
    
    1. the accused
    2. who has been released on bail
    3. and who fails without reasonable cause
    4. breaches any condition of bail imposed by court commits an offence.
       
22. The only evidence that Prosecution elicited with respect to this offence was the evidence of the Complainant who had stated that on 24 October 2020, the Accused had another case in Ba Magistrates’ Court for Breach of Curfew and that he was on bail for that case.
    
23. Prosecution failed to elicit any evidence that when the Accused had committed the offence of Assault Causing Actual Bodily Harm, he had been on bail for another matter and one of his bail conditions was not to re-offend. The Investigation Officer in this matter was never called to give evidence to this effect and to tender the Bail Undertaking Form for the relevant Ba Magistrates Court matter in which the Accused was allegedly bailed with certain bail conditions.
    
24. Consequently, this Court is satisfied that the Prosecution has failed to present evidence to prove the elements of Breach of Bail Condition beyond a reasonable doubt.
    

Determination

1. I find that Prosecution has discharged its burden in proving all the elements of the First Count of Assault causing Actual Bodily Harm beyond reasonable doubt. I, therefore, find the Accused, Jasheem Shamim Ali, guilty as charged.
   
2. I find that Prosecution has failed to discharged its burden in proving all the elements of the Second Count of Breach of Bail Condition beyond reasonable doubt. I, therefore, find the Accused, Jasheem Shamim Ali, not guilty as charged and hereby acquit him forthwith.
   

N. Mishra
Resident Magistrate