State v Khan [2024] FJMC 39; Criminal Case 1148 of 2020 (29 November 2024)

IN THE MAGISTRATES’ COURT OF FIJI
AT NADI
[CRIMINAL JURISDICTION]

Criminal Case no: CF 1148/2020

STATE

v.

ABRAR KHAN

For Prosecution: Sgnt Ratulevu/Crpl Vishal
For Accused: Ms Devi (LAC)
Trial – Prosecution Case: 18^th September, 2024
Ruling on No Case to Answer: 18^th October, 2024
Defence Case: 15^th November, 2024

Judgment: 29^th November, 2024

JUDGMENT

1. ABRAR KHAN [hereinafter referred to as ‘the accused’] you were charged with one count of Criminal Intimidation and one count of Common Assault. The particulars as per chargers are:

COUNT 1

Statement of Offence

CRIMINAL INTIMIDATION: contrary to section 375 (1) (a) (i) (iv) of the Crimes Act 2009.

Particulars of Offence

ABRAR KHAN on the 22^nd day of June 2020 at Nadi in the Western Division, without lawful excuse threatened to kill Aminiasi Nadriwa with intent to cause alarm to the said Aminisitai Nadriwa.

COUNT 2

Statement of Offence

COMMON ASSAULT: contrary to section 274 of the Crimes Act 2009.

Particulars of Offence

ABRAR KHAN on the 22^nd day of June 2020 at Nadi in the Western unlawfully assaulted Aminisitai Nadriwa.

2. The accused pleaded not guilty to the chargers. The accused has engaged the services of the Legal Aid Commission. The matter proceeded to trial.
   
3. On the day of the trial (prosecution case), the accused and his counsel were present. The complainant- Aminisitai Nadriwa gave evidence for the prosecution case. The state thereafter closed its case.
   
4. On 18/10/2024, the court pronounced the No Case to answer ruling that the court found the accused had a case to answer and he was put to his defence as per section 179 of the CPA.
   
5. On 15/11/2024 the accused choose to give evidence and also call one witness before closing its case.
   
6. Today is for Judgment.

Innocent until proven guilty

7. The right of an accused person to be presumed innocent until proven guilty according to law is a right guaranteed under Section 14(2) (a) of the Constitution. (Qio v State [2015] FJCA 68; AAU140.2014 (28 May 2015))

Burden and Standard of Proof

8. The burden of proof lies with the prosecution as stipulated in section 57 of the Crimes Act 2009 which states as follows:

’57 (1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.’

(2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.’

9. The standard of proof lies with the prosecution as stipulated in section 58 of the Crimes Act 2009 which states as follows:

‘58 (1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.

10. The burden of proof of a case against an accused rests fairly and squarely always on the prosecution, that is the State-the complainant. The prosecution is never relieved of that responsibility and it does not shift to the accused at all. If the evidence creates any doubt, should be given to the accused.
    
11. Each and every element of the offence should be proved beyond reasonable doubt by the prosecution.
    

ANALYSIS

12. The prosecution must prove the following elements of Criminal Intimidation under Section 375-(1) (a), (i) (iv) :

(i) the accused

(ii) without lawful excuse

(iii) threatened to kill the complainant

(iv) with intent to cause alarm to the complainant.

18. The prosecution must prove the following elements of Common Assault under section 274:

(i) the accused

(ii) unlawfully assaults

(iii) the complainant

13. 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 demeanor 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))
    
14. The complainant said that he had just met Abrar on the said date of incident. The accused on the other hand said that they were from the same neighborhood he knew the complainant. The complainant also positively identified the accused in court after being questioned. The prosecution has proved beyond reasonable doubt the identity of the accused.
    
15. The complainant testified that on 22/6/2020, he was collecting firewood with Nitesh. He then climbed a coconut tree, and the knife was at the mango tree. Before he could climb the coconut tree, Abrar took the knife and wanted to attack him. He tried to chop him but didn’t. He then ran away from the accused. Abrar also punched him twice on the stomach and intimidated him with a knife. Abrar was drunk and under the influence of alcohol at the time. He then went with his father to the report the matter and be examined by the Doctor. There was a document given to him from the doctor. There were issues raised as to who signed the medical report because the complainant said he signed it, but later it came out in evidence it was his father Tomasi that signed the document. The Medical report was marked for identification. The complainant later said that Abrar didn’t say any words to him. He positively identified the accused.
    
16. In cross examination he admitted he was a special needs student. He was not in the right state of mind when his statement was given to the police. He agreed that he was gardening with a fork and the accused came to buy suki. When it was suggested to him that he bent down to lift the fork and hit the accused, the complainant said no. It was suggested that the accused didn’t attack him with a knife but the complainant said “he really did it to me”. It was suggested that the accused was not drunk but the complainant said “he was drunk”. He didn’t know why the accused would do that to him. He was intimidated with the knife and ran away.
    
17. The accused (DW1) in his evidence couldn’t recall if he went to get suki on 22/6/2020. He knows the complainant as they are staying in the same village. He has known him for 8-10 years. They would come onto his property to take things. He knew Nitesh as Kaval Singh’s son. He denied taking a knife to hit the complainant. He denied threatening the complainant. He denied being drunk. On 22/6/2020 he went to Kaval Singhs place to buy suki. The complainant was digging in the garden in front of Kaval’s house. He asked the complainant whose fork he was using to dig the garden and it was the complainant who struck him with the fork on his hand. The complainant then ran away. He wasn’t able to find the complainant. He got injured as a result and sought medical attention from Nadi Hospital. He was examined for his hand injury and prescribed with tablets. He applied other medicine himself. He was later charged. He had also come to lodge a complainant. He has one witness.
    
18. In cross examination he didn’t know the difference between a settlement and village. The complainant also resides at Korovuto, it was the complainant house first then his. He knew the disability/condition of the complainant and he was mentally impaired and that he went to a special school. He didn’t know that the complainant was mentally impairment to that extent where he would hurt him with a fork. His main witness was outside court. Nitesh father. He doesn’t know the complainants real name but that they call him Sini.
    
19. In re-examination he states he was hit with a fork and the person who hit him with the fork was the person who complained.
    
20. Basically the complainant maintains his version of events and states that the accused threatened him with a knife and also punched his stomach. The accused however denies all these allegations.
    
21. 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.”

22. 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:
    

[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?

23. 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”.
    

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).

24. DW2 was Kabul Singh. His son was Nitesh Singh. On 22/6/2020 he was sitting under a tree at around 4-5pm. One Fijian boy was digging the garden and he was watching him. His name was Sitai. He has known this boy for 10-12 years. They reside in the same area. On 22/6/2020 Abrar came to see him for Suki. The boy was using a fork to dig the garden. He had given the fork to Abrar for weeding. Abrar then asked as to who brought the fork from his place. He said he didn’t know. Abrar went and took the fork from the boy to see and the boy hit Abrar with the fork. He saw the boy hit Abrar hand and then run away crying. After that Abrar went to his place and so did the boy. He stated that they have trapped Abrar for this case because of old problems that had with each other regarding coconuts. He didn’t see Abrar threaten the complainant with a knife. He also didn’t see Abrar swear on the day.
    
25. The complainant had just met the accused for the first time on the date of the incident and had no reason as to why the accused would do anything to him. He has no reason to hate or be resentful with the accused or share any enmity. The accused on the other hand said he knew the complainant very well and felt that the fork the accused was using was his. He knew that the complainant was a special needs child. He said that “they were coming into my compound and were taking my things from the compound.” DW2 also stated that the complainant “trapped Akbar because of old problems they had with each other regarding the coconuts.” I don’t see why a child and one who is mentally impaired would lie about the actions of an adult or fathom what he would gain from lying about such an incident. I accept the evidence that both the complainant and accused crossed paths that day 22/6/2020. I also believe that accused had threatened the complainant. The particulars of the charge don’t specifically mention anything about a knife being used but from the facts of the case, it still satisfies the elements of the charge in terms of a threat with intent to cause alarm. In the words of the complainant “he tried to intimidate me with a knife, I ran away.” The threat to cause alarm may be inferred from the type of threat itself and all the other evidence taken into totality. The entire evidence cannot be discredited or disregarded. There is clearly motive on the part of the accused as adduced by himself and his own witness. Both defence and his witness and the complainant all agree that he ran away after the incident. The accused didn’t even remember when he had his medical done whereas the complainant remembered that his was done on the same day in the presence of his father on the same date of the incident.
    
26. Additionally, for the second count, the complainant said he was punched in the stomach twice by the accused, his medical report was marked for identification but not exhibited. There was no contradictory evidence regarding this count. DW2 was not asked about this evidence either.
    
27. The defence also did not put DW1 version of events to the complainant in terms of the injury to his hand which was brought up in DW1 and DW2 evidence. All that was suggested was: “My client bend down to lift the fork and you hit him?” Ans: “No”. In the accused evidence he said “I asked him whose fork he is using to dig the garden and he striked me with the fork on my hand.” The complainant has not been given chance or asked about this information specifically and this in my view is a breach of the Browne and Dunn rule.^[1] DW2 on the other hand said that “Abrar asked me who brought the fork from my place?” “I said I don’t know” “Abrar went and took the fork from the boy to see....”. Had the complainant hit the accused with the fork, I don’t think the Doctor would have only given the accused tablets. The credibility of the accused comes into question.
    

At common law counsel had a duty to "put the case" of his or her client to the witnesses called by opposing counsel. Whenever it was proposed to ask the tribunal of fact to disbelieve the evidence-in-chief of the witness presently in the box, that contradictory material, or at least the essence of it, normally had to be put to the witness so that he or she might have an opportunity of explaining the contradiction. Failure to do so might be held to imply acceptance of the evidence-in-chief.

To comply with the rule counsel had to put to each of the opponent's witnesses, in turn, so much of counsel's own case as concerned that particular witness, or in which that witness had had any share.

28. From all the evidence and facts in totality, I find that the prosecution has proved beyond reasonable doubt the chargers against the accused for both counts.
    
29. Therefore, the accused is guilty as charged for one count of Criminal Intimidation pursuant to section 375 (1) (a) (i) (iv) of the Crimes Act 2009 and one count of Common Assault pursuant to section 274 of the Crimes Act and I hereby convict him accordingly.
    
30. Defence – to submit mitigation
    

28 days to appeal

Talei Kean
[Resident Magistrate]

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^[1] Browne v Dunn (1893) 6 R 67 (HL), 76-77 . “The principle of the rule is simple. It is elementary and standard practice to put to each opposing witness so much of one’s own case (or defence) as concerns that witness, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is both unfair and improper to let a witness’ evidence go unchallenged in cross examination and later argue that he should not be believed. The rule finds its clearest exposition in Browne v Dunn [1893] 6 R 67 in the speech of Lord Halsbury..................”.