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State v Dean [2005] FJMC 18; Criminal Case No 547 of 2004 (9 December 2005)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 547 of 2004

STATE

V

AHMED RIAZ DEAN

Prosecution: L. Lagilevu
Defence: In person.

JUDGMENT

The accused has been charged with assault occasioning actual bodily harm.

The complainant was the defecto wife of the accused.

On 20th January 2001 she was at home. There was an argument about food not available at home. The complainant said he bashed me and I fell. He pushed me out of the house." She said he kept the youngest son and she tried to snatch him off the accused. The accused closed the door on her hand. She had bruises on hands, face and leg was injured. She went and reported to police. She went for medical and was attended to by Dr Mohan Lal at Nausori Hospital. He prepared a report stating "bruise on forehead right elbow and right forearm." Injury was consistent as per his diagnosis as caused by blunt object as per his report.

A day later the accused went to the complainant and she went again to live with him. They lived together until 2004. The accused stopped cohabiting and he went to live with his legally married wife in 2004. The complainant pressed for charges to be laid.

The accused is a medical practitioner in Nausori. He represents himself. He has received the disclosures today. He questioned the qualifications of the doctor and the medical report.

The prosecution called another doctor from the Hospital and wished to proceed to trial. The accused also asked no adjournment to consider disclosure but chose to proceed.

I have considered the totality of facts and evidence before court. This case has some short falls which brings in my mind reasonable doubts on the burden cast on prosecution of beyond reasonable doubt. They are as follows:-

1. The parties after argument on 20 January 2001 lived together till 2004. The complainant says she didn’t reconcile but went for the sake of her children. I cannot accept how a wife would live with her defecto from 2001 to 2004 without reconciling in a de facto relationship. The complainant says she didn’t reconcile but I find it difficult to accept it.

2. The accused questioned the qualification of the author of the medical report. Dr John was called by the prosecution who said he worked with Dr. Mangal and knew him to be a fully fledged doctor practicing as a medical officer at Nausori Hospital without supervision. He took him to be a full doctor who worked independently under the SDMO Nausori. However, he didn’t know about his qualifications or whether he had passed both part 1 and 2 of the exams at the time.

The medical report in qualification states.

"GP. HC CPHP" This was not explained by witness or by prosecution.

Since the qualification and the report was in question, the onus is on prosecution to prove the qualifications and of the authenticity of the medical report.

The prosecution doctor did not know of the actual qualification of Doctor Mohan Lal. He had no knowledge of both part 1 and 2 of the exams were passed or what qualification he had. It’s also a 2001 report and a photocopy – not original.

The prosecution should have called doctor or proper evidence and some form of certificates etc to prove qualification. The doctors experience has been shown, anyone can practice or work without full qualifications. Once questioned, onus is on prosecution to prove. I can’t say beyond reasonable doubt they have done so.

3. The injury also could well have been caused during struggle by the complainant to enter the house whilst she was pushed away by the accused and door closed. The complainant has told court she had bruises she described as been bashed and kicked and pushed out of house. Door closed on her. Certainly, the description would have slightly extensive injury than simple bruise. The accused admits pushing her out of house but not assaulting. I cannot say beyond reasonable doubt that there was direct intentional injury and bashing by the accused which caused the injury described by the complainant.

On totality of evidence this appears to be a case of revenge. The complainant reconciled and lived together with accused from 2001 till 2004. She only pressed charges when the accused left her to live with another. It was after a delay of 3 years. The prosecution says the accused could not be located according to the investigating police. The accused stated he was a doctor at the hospital and later in private practice at Nausori near the police station."

It’s most incredible to accept the police couldn’t find the accused. The police officer said in evidence the complainant withdrew complaint in 2002. He said he couldn’t find accused earlier than 2004. He also didn’t know of Dr Mohan’s qualifications.

The prosecution has failed to prove the charge beyond reasonable doubt and I acquit t he accused.

Dated this 9th day of December 2005.

Ajmal G Khan
RESIDENT MAGISTRATE