State v Prasad [2024] FJMC 30; Criminal Case 190 of 2021 (30 August 2024)

IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 190/2021

BETWEEN: STATE

PROSECUTION

AND: NAVIN NITESH PRASAD

ACCUSED

Counsel: WCPL 4897 Venu Singh for Police Prosecution
Ms. A. Nisha for the Accused.

Date of Hearing - Prosecution’s Case: 25 October 2023
Date of NCTA Ruling: 14 February 2024
Date of Hearing – Defence’s Case: 5 April 2024
Date of Judgment: 30 August 2024

JUDGMENT

Introduction

1. Mr. Navin Nitesh Prasad (“the Accused”) was charged with 1 count of Criminal Intimidation contrary to section 375(1)(a)(i) (2)(a) of the Crimes Act 2009 and 1 count of Breach of Domestic Violence Restraining Order contrary to section 77(1) of the Domestic Violence Act 2009. The particulars of the offence are:
   

Count 1

Statement of Offence

Criminal Intimidation: Contrary to Section 375(1)(a)(i) (2)(a) of the Crimes Act 2009.

Particulars of Offence

Navin Nitesh Prasad on 17^th day of April 2021 at Bilolo, Ba in the Western Division, without lawful excuse threatened Prabhashni Lata with words “I will rape and chop you”.

Count 2

Statement of Offence

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

Particulars of Offence

Navin Nitesh Prasad on 17^th day of April 2021 at Bilolo, Ba in the Western Division, having notice of the domestic violence restraining order no. 311/20 by which he is bound without reasonable excuse, contravened section 27(d) of the order by threatening Prabhashni Lata the protected person.

2. The Accused pleaded Not Guilty to the above charge on 20 July 2022 and the matter proceeded to Trial on 25 October 2023. Before Trial proceeded, as Count 1 was a indictable offence triable summarily, the Court gave the Accused his right to elect which court he would prefer to have the matter heard. The Accused elected the Magistrates’ Court. Prosecution then called 2 witnesses and thereafter closed its case. The Learned Counsel for the Accused, then made an application pursuant to section 178 of the Criminal Procedure Act stating that a case was not sufficiently made out against the Accused to require him to make a defence.
   
3. On 14 February 2023, this Court’s first predecessor found that there was a case to answer for Count 1 but that there was no case to answer for Count 2 as such the Accused was acquitted for Breach of Domestic Violence Restraining Order. Thereafter, the Learned Counsel for the Accused informed that the Accused would give evidence and call 2 witnesses to give evidence on his behalf. The matter was then adjourned to 5 April 2024 for Continuation of Trial – Defence’s case.
   
4. It is imperative to highlight that as Prosecution’s case was heard by this Court’s first predecessor when the matter was called before this Court for Continuation of Trial, on 5 April 2024, this Court informed the Accused of his right under section 139(2) of the Criminal Procedure Act 2009, which allowed the Accused to demand that the witnesses or any of them in this matter be re-summoned and re-heard.
   
5. After liaising with her client, the Learned Counsel for the Accused informed the Court that the Accused informed did not wish to exercise the said right. In turn, considering section 139(1) of the Criminal Procedure Act, the Court decided to act on the evidence recorded by its predecessor for Prosecution’s case.
   
6. The Accused then gave evidence and thereafter the Learned Counsel for the Accused closed Defence’s case. On 12 June 2024, the Record of Hearing was provided to both Prosecution and the Learned Counsel for the Accused, after perusing the same, they informed that they had no issues with the Record. The matter was then subsequently adjourned for Judgment.
   

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. It is expected that to arrive at a proper conclusion, the matter ought to be considered in its logical progression with formulated reasons for the ultimate conclusion with the general rule being that a judgment should set out the relevant events and the material evidence in the correct sequence in narrative form with the identifying number of each pertinent witness being incorporated at the appropriate places – vide Pal v R [1974] 20 FLR 1 (17 January 1974) as referred to in Wang v State Criminal Petition No. CAV 0013 of 2021 (26 October 2023) and State v Wang Criminal Appeal No. HAA 30 of 2019 (19 February 2021).
   
10. On 17 April 2021 at 6am, the Complainant was inside her home attending to her chores. At around 6:30am, she went into her bedroom when the Accused appeared in front of her bedroom window, naked, holding his private part and stated that he would rape and cut her. The Complainant was scared when this happened. The Accused is the Complainant’s brother-in-law.
    
11. The Accused categorically denies that he threatened the Complainant on 17 April 2021. Rather, he states that he dropped his wife on the road at 6am and waited until she left then he returned home at 6:10am. The Complainant and her husband were sitting on the porch when he returned home. The Accused then went to sleep again and woke up at 8am, washed his face, had his tea and then left for a friend’s place at 8:30am. When the Accused left home, he saw a padlock on the Complainant’s door. The Accused was at his friend’s home until 1:30pm. He returned home at 2pm when he saw the Complainant and her husband sitting on the porch. It was after some time that the Police came to his house regarding this matter.
    

Evaluation of Evidence

12. 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))
    
13. For a proper analysis of the evidence, it is imperative for the Court to turn its mind to the elements for Criminal Intimidation, which are:
    
    1. the accused
    2. without lawful excuse
    3. threatened another person
    4. to cause death or grievous harm
       
14. From the outset, there is no dispute as to the identification of the Accused. The Accused denies that he had threatened the Complainant by uttering words to the effect to cause her death or grievous harm.
    
15. The Court will need to determine whether the Accused had without lawful excuse threatened the Complainant by saying that he would rape and chop her.
    
16. During the Complainant’s evidence, she stated that at 6:30am she had gone inside her bedroom when the Accused appeared naked in front of her window, holding his penis and stated that he would rape her, cut her and leave. Even during cross examination of the Complainant, she maintained that she had seen the Accused and that he said the things he had said and then ran away.
    
17. The Accused’s version of events differs, he states that after dropping his wife at the road at 6am, he returned home at 6:10am saw the Complainant and her husband sitting on their porch, he went into his house, slept then woke up and left his home at 8:30am to go to his friend’s house. The Accused testified that at the time of him leaving, the Complainant and her husband were not at home because there was a padlock on their door. He returned home at 2pm and it was thereafter whilst he was eating that the Police came and took him away.
    
18. In State v Prasad Criminal Case No. HAC 72 of 2021 (20 June 2024) His Lordship Justice Rajasinghe referred to the Liberato principle as expounded in Liberato and Others v The Queen [1985] HCA 66; 159 CLR 507 at 515 where Brennan J held that:
    

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question; who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question ( which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issue which it bears the onus of proving. The jury must be told that; even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is “a gross simplification.”

19. Prasad [supra] also made reference to the case of Naidu v State [2022] FJCA 166; AAU0158.2016 (24 November 2022) where His Lordship Prematilaka highlighted the importance of modifying the Liberato principle and held:
    

[29] On the other hand Liberato has not uttered the final word on this issue. In Johnson v Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 at 535 [14]- [15] Wheeler JA identified one possible shortcoming in using Brennan J's statement in Liberato as a template for the direction: a jury may completely reject the accused's evidence and thus find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a ‘reasonable doubt’ on that issue.

[30] For that reason, it was usefully held in Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116 at 121 [26] that it is preferable that a Liberato direction be framed along the following lines (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?

20. His Lordship Justice Rajasinghe in Prasad [supra] further stated “if the Court believes the evidence given by the Accused is true or may be true, then the Court must find the Accused not guilty of the offences. Even if the Court rejects the Accused version, that does not automatically imply that the Prosecution has established that the Accused is guilty of the crime. The Prosecution must satisfy that it has established, on the evidence accepted by the Court, beyond a reasonable doubt, that the Accused committed these offences as charged in the information”.
    
21. Thus, the Court will need to evaluate the evidence by Prosecution whilst keeping in mind the evidence presented by the Accused insofar as they relate to the issue it is considering. The evidence presented by the parties will be evaluated to determine the testimonial trustworthiness of the evidence which will be done by evaluating the credibility – the correctness or veracity of the evidence and the reliability of evidence – the accuracy of the evidence - vide State v Prasad Criminal Case No. HAC 72 of 2021 (20 June 2024).
    
22. When considering the Accused’s evidence, the Accused in his evidence maintained that there had been an on-going dispute between him and the Complainant regarding the land owned by his mother and brother as the lease is under their names. He stated that he had been working in Suva and his brother had been looking after the land and that there was no work being done as such he had returned home to provide assistance.
    
23. The Accused further stated that because of this dispute he and his mother have left the land and since moving there has been no dispute. This evidence highlights that the root cause in this matter is the land, that parties are fighting over the land, that because of the fights, the Accused and his mother have had to leave the land and only on leaving the land, there have been no disputes.
    
24. The Complainant, however, denies there being any dispute at all and that she did not make up these allegations because of the land dispute. However, she had stated in her evidence that there was a DVRO order sealed on 15 February 2021 and that the Accused was not allowed to do or say anything to her.
    
25. The Accused also stated in his evidence that a DVRO had also been taken out against his wife. Thus, it is evident that familial relations between the parties and their families have broken down.
    
26. Thus, due to the above reasons, the Accused’s evidence has created a reasonable doubt with respect to whether the Accused had without lawful excuse threatened the Complainant by saying that he would rape and chop her.
    

Determination

27. I find that Prosecution has failed to discharge its burden in proving all the elements of the offence of Criminal Intimidation beyond a reasonable doubt.
    
28. I, therefore, find the Accused, Navin Nitesh Prasad, not guilty as charged and hereby acquit him forthwith.
    
29. Any party aggrieved with this decision has 28 days to appeal to the High Court.
    

N. Mishra
Resident Magistrate