State v Lata [2024] FJMC 29; Criminal Case 79 of 2022 (30 July 2024)

IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 79/2022

BETWEEN: STATE

PROSECUTION

AND: SHEETAL SHAYAL LATA

ACCUSED

Counsel: WCPL 3443 Vaciseva Marawa for Police Prosecution
Ms. B. Kumari for the Accused.

Date of Hearing: 13 June 2024
Date of Ruling: 30 July 2024

JUDGMENT
[TRIAL IN ABSENTIA]

Introduction

1. Ms. Sheetal Shayal Lata (“the Accused”) was charged with 2 counts of Breach of Domestic Violence Restraining Order with both counts being contrary to section 77(1)(a) of the Domestic Violence Act 2009. The particulars of the offences are:
   

Count 1

Statement of Offence

Breach of Domestic Violence Restraining Order: Contrary to Section 77(1) (a) of the Domestic Violence Restraining Act 2009.

Particulars of Offence

Sheetal Shayal Lata on the 28^th day of February 2022 at Clopcott, Ba in the Western Division, having notice of a domestic violence restraining order without reasonable excuse contravened the order by threatening Iqbal Mohammed.

Count 2

Statement of Offence

Breach of Domestic Violence Restraining Order: Contrary to Section 77(1) (a) of the Domestic Violence Restraining Act 2009.

Particulars of Offence

Sheetal Shayal Lata on the 28^th day of February 2022 at Clopcott, Ba in the Western Division, having notice of a domestic violence restraining order without reasonable excuse contravened the order by threatening Nilufa Nisha.

2. The Accused was produced for this matter on 2 March 2022 and subsequently bailed on the same date. On 2 June 2022, the Accused pleaded Not Guilty to both counts. On 15 August 2023, a Trial date was set in the Accused’s presence. The Trial was set for 13 June 2024.
   
3. The matter was listed for Trial on 13 June 2024 with there being no appearance by the Accused. The Learned counsel for the Accused informed the Court that the Accused had not presented herself to their office and that she had no Hearing instructions from the Accused.
   
4. Pursuant to section 171(1) of the Criminal Procedure Act, this Court decided to proceed with the Trial as if the Accused were present given that the Accused was present when the matter was set for Trial. Trial in absentia subsequently proceeded before this Court.
   
5. Prosecution called 4 witnesses and thereafter closed it case. The Court found that there was a case to answer. The Learned counsel for the Accused then informed the Court that she had no instructions with respect to raising a defence. As such, the matter was adjourned for Judgment.
   
6. It is important to note that the Accused’s absence from this Trial has not been taken negatively. It is the Court’s overriding duty to ensure that a hearing conducted in the absence of the Accused is conducted as fair as circumstances permit to lead to a just conclusion and the Court should not deviate from the applicable procedures and principles of conducting a fair and just hearing in the absence of an accused (vide Kumar v State; Criminal Case: HAA 34 of 2015 (15 December 2015).
   

Burden of Proof

7. 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.
   
8. 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

9. Prosecution called 4 witnesses to prove its case. The first witness was Iqbal Mohammed (‘Mr. Mohammed’), the First Complainant in this matter. Mr. Mohammed stated on 28 February 2022, he was at home with his sister - Zarina and his brother’s wife – Razia. He stated that at about 11am, his daughter – Neha and his brother’s wife – Sheetal were fighting and that he daughter was hurt and crying. His brother, Sahil told him to take Sheetal to the Hospital. It was then that Sheetal threatened to kill them all.
   
10. Mr. Mohammed stated that when Sheetal sad these words, he did not like it. He then testified that Neha was crying as she had been assaulted by Sheetal. He further stated that he had taken out a Domestic Violence Restraining Order (‘DVRO’) against Sheetal after his brother had taken a DVRO against her. He then stated that he could not recall the time or date or even year the DVRO was taken out against Sheetal but he had stated that if the document was shown to him, he would be able to recall.
    
11. When shown a document and asked if it was similar to the DVRO he had taken out, Mr. Mohammed stated that he could not recall. When asked if he could recall what order were given in the DVRO, he stated that he could not recall and that he was told to take out one and he did. When further questioned, if the orders had been explained to him when he had taken out the DVRO, he stated yes but that he could not recall what was explained. When asked why he had taken out the DVRO, he testified that Sheetal use to fight a lot and make obscene gestures such as showing her middle finger and her back part. When finally questioned if he knew what a DVRO was, Mr. Mohammed testified that he was advised by his children to take out a DVRO since Sheetal was not moving out of his house.
    
12. The next witness for Prosecution was Nilufa Nisha (‘Ms. Nisha’), the Second Complainant. Ms. Nisha stated that on28 February 2022, she was at home sick. At about 11am, Ms. Nisha stated that her head was paining, and she was crying. She stated that her father, Iqbal Mohammed was with her alongside her aunties, Archana and Zarina in their sitting room when Sahil Mohammed who is her father’s cousin came and told her father to take Ms. Nisha to the Hospital. Ms. Nisha further testified that when Sahil said this then his wife - Sheetal Shayal Lata, came in and started saying, “Hum tumoole sabke khatam kar dega” meaning that she was going to kill all of them. Ms. Nisha stated that Sheetal was shouting this.
    
13. Ms. Nisha then testified that her aunty – Zarina told Sheetal and Sahil that they have a DVRO and why they had entered the house. It was then that Sahil stood up and took his wife away. Ms. Nisha stated that she was afraid. Ms. Nisha then explained that one time when she had come back from Suva, Sheetal had started shouting at Ms. Nisha and had hit her. They then complained and there was a case but before the case, they took out a DVRO.
    
14. When questioned who had applied for the DVRO, Ms. Nisha stated that her father – Iqbal Mohammed did. When asked who the Respondents were, she stated Sheetal Lata and Sahil Mohammed. When questioned if she recalled the date her father filed the DVRO, she testified February 2022. When asked who the protected party was under the DVRO, Ms. Nisha started herself, her father, mother and brother. When shown the DVRO, she confirmed that her father was the Applicant, that Sheetal Lata and Sahil Mohammed were the Respondents and that her father, mother, herself and her grandmother were the protected parties. She then confirmed that the DVRO was sealed on 3 February 2022 and that section 27 orders (which were read out in Court by Ms. Nisha) were granted in the interim. When questioned if there a permanent DVRO was made after, Ms. Nisha answered, no.
    
15. The DVRO was then marked for identification as ‘MFI 1’.
    
16. The next witness for Prosecution was Archana Karta Lingam (‘Ms. Lingam’) whose evidence was that on 28 February 2022, she was residing in Clopcott, Ba with her niece, Nilufa Nisha and Iqbal Mohammed. She stated that at about 11am, she was at home and her niece had had a headache and asthma attack when Sahil Mohammed came inside the house and said to take her to the Hospital and that his wife, Sheetal Lal came running into the house. Ms. Lingam then testified that Sheetal stated in Hinsi “Hum tumke sabe khatam kar dega” meaning that “I will finish all of you guys”. Ms Lingam stated that she then said to Sheetal that when there is a DVRO against you why have you come inside the house.
    
17. When asked what Sheetal’s tone was, Ms. Lingam stated that it was loud and rough. When questioned what she understood of the words said by Sheetal, she stated it maybe she would do some evil thing against us. When questioned what she had meant that there was a DVRO, Ms. Lingam stated that her brother-in-law had applied for one when she came inside the house and hit her niece.
    
18. Prosecution’s last witness was WPC 6999 Mere Marama (‘WPC Mere’) who stated that on 21 December 2022, she was the DVRO Officer who served a DVRO to Mohammed Sahil and Sheetal Lata at Clopcott, Ba. WPC Mere stated that she had showed them section 27 and explained them and that they understood same. When shown ‘MFI 1’ WPC Mere confirmed that it was the Interim DVRO where Iqbal Mohammed was the Applicant, Mohammed Sahil and Sheetal Lata were the Respondents with the DVRO being sealed on 3 February 2022. MFI 1 was then tendered as ‘PEX1’.
    
19. As the Accused was not present, there was no cross-examination on her behalf by her Learned counsel. The Court will consider the evidence of the witnesses separately and collectively and ensure that all due consideration will be provided to ensure that the Accused is afforded a fair trial in her absence.
    

Evaluation of Evidence

20. 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))
    
21. For a proper analysis of the evidence, it is imperative for the Court to turn its mind to the elements for Breach of Domestic Violence Restraining Order, the elements for this offence is:
    
    1. the accused
    2. having notice of a DVRO by which he/she is bound
    3. without reasonable excuse
    4. contravened the DVRO protecting the protected person.
       
22. The evidence presented by Prosecution is that a Sheetal Lata entered the home of Mr. Mohammed on 28 February 2022 at about 11am and threatened him and his daughter – Ms. Nisha with Ms. Lingam also present at the time.
    
23. The threat made by this Sheetal Lata as stated by Mr. Mohammed was that she was going to kill them all. This was also confirmed by Ms. Nisha and Ms. Lingam, who both stated that Sheetal Lata uttered these hindi words, ““Hum tumoole sabke khatam kar dega” or “Hum tumke sabe khatam kar dega” respectively meaning that “I will finish or kill all of you guys”.
    
24. Whilst Mr. Mohammed could only confirm that he had taken out a DVRO against the Sheetal Lata, it was Ms. Nisha, who gave evidence that an interim DVRO with section 27 orders was obtained on 3 February 2022 with Sheetal Lata and Sahil Mohammed being the Respondents and that Ms. Nisha, her father, mother and grandmother were the protected parties.
    
25. Thus, Mr. Mohammed’s, Ms. Nisha’s and Ms Lingam’s evidence regarding there being a threat made on 28 February 2022 whilst Mr. Mohammed and Ms. Nisha were protected parties under an interim Domestic Violence Restraining Order is credible and reliable.
    
26. The issue that the Court has to consider is that of identity. As the Accused was absent, there was no dock identification. It is apparent from the evidence of Mr. Mohammed, Ms. Nisha and Ms. Lingam that their evidence regarding the identity of the perpetrator, Sheetal Shayal Lata is based on recognition given that she was Mr. Mohammed’s sister-in-law, Ms. Nisha’s aunty and Ms. Lingam’s cousin’s brother-in-law’s wife.
    
27. However. the evidence of WPC Mere who stated that she had served a DVRO on Sheetal Lata needs to be considered in conjunction with the evidence of Mr. Mohammed, Ms. Nisha and Ms. Lingam.
    
28. It is apparent from the above evidence that the observation by WPC Mere was one of identification and not recognition. As the observation is one of identification, the guidelines from R v Turnbull [1977] QB 224, most commonly known as the Turnbull Guidelines, are relevant in this instance. The following questions would have better assisted the Court when dealing with identification in such a manner as in this case:
    
    1. The length of time the accused was observed by the witness;
    2. The distance the witness was from the accused;
    3. The state of the light at the time of the observation;
    4. Was the observation impeded in any way?
    5. Had the witness seen the accused before? If so, how often? If only occasionally, had the witness any special reason for remembering the accused?
    6. The length of time that elapsed between the original observation and the subsequent identification to the police;
    7. Was there any material discrepancy between the description given by the witness and the actual appearance of the accused?
       
29. There was no relevant evidence before the Court regarding the length of time WPC Mere had observed the Accused or from what distance or the nature of lighting the observation (if any) was made by this witness. Prosecution failed to elicit from WPC Mere whether her observation of the Accused had been hindered in anyway.
    
30. Further, no questions were asked to confirm whether WPC Mere had seen the Accused previously and the length of time that had elapsed from observation at the time of the assault to the time to the time the matter was reported and the Accused arrested.
    
31. Moreover, no evidence was led through Mr. Mohammed, Ms. Nisha, Ms. Lingam or WPC Mere regarding the description of Sheetal Shayal Lata to allow the Court to determine whether the Sheetal Shayal Lata that Mr. Mohammed, Ms. Nisha and Ms. Lingam gave evidence about was the same person WPC Mere had served and explained the interim DVRO to. Prosecution even failed to rely on photographic evidence of the Accused to confirm that the Sheetal Shayal Lata that Mr. Mohammed, Ms. Nisha and Ms. Lingam gave evidence about was the same person WPC Mere had served and explained the interim DVRO to.
    
32. In assessing Mr. Mohammed, Ms. Nisha and Ms. Lingam’s evidence in conjunction with the evidence of WPC Mere, Prosecution failed to elicit the necessary and required evidence to allow the Court to consider whether their evidence pertained to the same person or not.
    
33. Thus, there is insufficient evidence that the same person who had threatened Mr. Mohammed and Ms. Nisha was the same person that WPC Mere had served the interim DVRO to.
    

Determination

34. I find that Prosecution has not discharged its burden in proving all the elements for both counts of Breach of Domestic Violence Restraining Order beyond reasonable doubt.
    
35. I, therefore, find the Accused, Sheetal Shayal Lata, not guilty as charged for both counts of Breach of Domestic Violence Restraining Order and hereby acquit her forthwith.
    
36. Any party aggrieved with the Court’s decision has 28 days to appeal.
    

N. Mishra

Resident Magistrate