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State v Chand [2006] FJMC 21; Criminal Case No 920 of 2005 (29 September 2006)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 920 of 2005

STATE

V

DEEPAK CHAND s/o Navin Chand

Prosecution: Sgt. Wilson
Defendant: Mr M Raza

JUDGMENT

The accused has been charged for being drunk and disorderly contrary to S4 of the Minor Offences Act Cap 18.

Particulars are Deepak Chand on 24th day of April 2005 was drunk and disorderly in a public place namely Victoria Parade, Suva.

PROSECUTION CASE

Prosecution facts are accused after the night club had closed around 1 am was coming out when someone stole his wallet. He rang an officer on mobile and saw a patrol car outside the club at the time. He told officers of the stolen wallet and asked them to investigate. The accused was told to identify suspect while the officers were in the car. They asked him to make a report at the station before they could take action. Accused was annoyed and swore at the officers saying "you fu ken police officers are good for nothing." "you are hopeless." "fuck all"

Officer Filipe got out and arrested the accused for being drunk and disorderly. Const. Filipe did not give evidence. His statement was tendered by consent of defence.

He said an Indian man approached them at their mobile car. He explained someone had stolen his wallet inside the club. He was told by Filipe to accompany them to lodge a complaint at the C.P.S. Accused questioned the purpose of patrolling when he was to go to Central Police Station to make a complaint first.

The accused then swore at officers and was arrested and put in cell. He was later charged for drunk and disorderly and summoned to court.

DEFENCE CASE

The accused gave sworn evidence. He said he begged the security guards at the night club to help. He said he apologized for arguing with officers when they didn’t help him when needed but asked him to come and lodge a complaint at C.P.S. first. His report was not attended to. He was charged.

EVIDENCE

Both the officers said he had blood shot eyes and smelt of liquor. PW1 additionally stated he was staggering. He was kept in a cell overnight. Police didn’t interview accused as it was a cognizable offence in front of police officers. Being a minor offence they didn’t interview by way of practice.

Although the charge is minor, the burden still rests on prosecution to prove it beyond reasonable doubt.

The actions of the accused in finding his wallet stolen, calling police and requesting for help does not show any elements of behaviour of a drunk person. Upon being refused assistance by two police officers who sat in a mobile patrol vehicle and instead of assisting a complainant to catch a pick pocket on the spot, directed him to make a report first at the Central police station. Such reaction of the accused was that of a sober and reasonable man in the circumstances of the accused.

There was no physical examination conducted by police of his drunkenness. Accused denied drinking. He was argumentative for which he apologized to the officer. If he was drunk he certainly did as a reasonable sober man would do in a state of frustration.

Did the actions of the accused in the circumstances of these facts amount to disorderly behavior?

Disorderly behaviour has been described by authorities time and again as a "Conduct which while ill mannered or in bad taste to meet the disapproval of well conducted and reasonable men and women is also something more, in it must in my opinion tend to annoy and insult such persons as are faced with it – and sufficiently deeply or seriously to warrant interference of the criminal law". - Melser –v- Police (1967) NZLR CA 437.

If the police say indecent and abusive words were used by the accused which amounted to disorderly conduct. This Turner J described in Melser case "whether language is indecent _ _ _ _ _ its impossible exactly to describe the word ‘indecent’ and whether language will be indecent or not has always been recognized as suitably a matter of degree _ _ so it is with disorderly conduct."

The question is in the circumstances of the facts here if the conduct of the accused was disorderly in that it seriously offended against the values of orderly conduct recognized by right thinking people of the public.

I find the following as facts:

The accused had been pick pocketed. He was on mobile with police and approached a car at the scene of crime outside the night club. This was immediately after the incident. The policeman told him to make a report first at C.P.S. which was some kilometers away from there. The accused remonstrated and was not given assistance. The accused than abused officers by stating they were "good for nothing" "fuck all" etc which officers heard. One officer got out of the mobile car and arrested him. They said he was drunk and locked him in cell. Next morning he was charged for drunk and disorderly in public place.

ANALYSIS

I find it difficult to believe the accused was drunk as his actions and conduct were of a sober and intelligent person would act in the circumstances.

He tried to get help of security guard inside the club. Failing, he rang the police and got out and found the mobile patrol to whom he reported and expected immediate help.

If he was drunk or staggering, it would have been difficult to take such coherent action within a short time.

In view of the conflict between conduct of the accused and the conflict in evidence of the two officer’s statements, prosecution should have led more cogent evidence of accused’s state of drunkenness.

The charge is drunk and disorderly. The conduct of accused amounts to frustration by being asked to make a report miles away from the scene of crime when an immediate assistance by officers may have resulted in apprehension of suspect. The officers say he could not identify the suspect. However, statement of arresting officer Filipe states

"Accused explained to us that someone stole his wallet inside the night club. We told him to come down to CPS or come with us to lodge an official compliant."

There is no question of identification in this statement.

It appears that the conduct of the accused was due to the actions or non action of the officers. It was as a result of frustration in the circumstances well within what a reasonable and right thinking member of the public would expect. If the purpose of mobile patrol officers were to prevent and assist people subjected to crime at the scene and on the spot why would one have to go to a station first to make a report and permit the thief to escape from the scene. It is not in accordance to the thinking of right minded people in the public.

Certainly, in such a case if one calls the officers ‘good for nothing’ or ‘fuck all’ would in the ears of the public at the scene sound to be words approved and suitable in the circumstances of this case. It would not be abusive in the context it was uttered.

I therefore find the accused’s drunkenness was not established beyond reasonable doubt and his conduct not disorderly in the circumstances so as to offend the right thinking members of the public present.

The accused is therefore acquitted.

Dated this on the 29th day of September 2006.

Ajmal Gulab Khan
RESIDENT MAGISTRATE