Magistrates Court of Fiji

This Court also takes note of R v. Jai Chand [1972] 18 FLR 101, where Justice Grant stated that:

"the decision as to whether or not ths a case to answer&swer s depend not so much onch on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence".

The Prosecution Witnesses Evidence

The Prosecution called 5 witnesses:

PW 1 – Julian Hennings.
PW 2 – Benedito Acarewa.
PW-3 – Mateo Matavuna.
PW-4 – Volai Tagi.
PW-5 – Dan Batibasaga.

Excerpts of the evidence of PW 1 – Julian Hennings- "5th June was at a funeral. On same afternoon came from Suva to the site. No one was there. It's a public park. Park not freehold, dedicated to State. Conveyed to me that they were intimidated by sticks. Conveyed to me by workers. Not my personal knowledge. Park for everyone for leisure. Open to general public. I was not present was only conveyed what took place. Construction site adjacent to park."

Excerpts of the evidence of PW 2 – Benedito Acarewa – "5th June at Jetty, Maui Bay. One Josua got hold of stick and wanted to hit me. I stopped work. Discussed case with Julian. Not a public park. Working on land."

Excerpts of the evidence of PW3 – Mateo Matavuna – "recall 5th June 2010. at the jetty. They came and abused me. kicked block, with stick. 3rd accused swore at me. I stopped work. Police came and stopped entry to park. He did not allow them to leave."

Excerpts of the evidence of PW-4 – Volai Tagi – "5th June 2010 working at Maui Bay. Saw people come to site and stop work. People at public park since 2005."

Excerpts of the evidence of PW-5 – Dan Batibasaga – "5th June at Korolevu Police Post. Received report and visited the scene. I saw the gentleman inside the compound. I told them they did not respect the law. They were under arrest. Bonito was answering. Telling me this is a public place. People under arrest stay put. Do not move. The park is fenced around. Maui Bay is the caretaker. It's a park."

The Court noted all the evidence and the documents that were tendered in this Court. In summary, the Defence submitted that the incident occurred in a public place and that there was no evidence that the accused were unlawfully in a public place. The defence further submitted that the police blocked the way and did not allow the accused to leave. None of the accused were abusive and that the elements of the charge were not made out.

In summary the submission by the prosecution is that all the accused unlawfully entered the property in question and remained there until they were arrested. The accused had annoyed PW-1 by going onto the property.

Analysis

From the evidence and the documents tendered in Court, the Court noted that the scene of the alleged incident was a public park. The Court noted from the memorial endorsed in the Certificate of Title of the property that the alleged site of the offence was dedicated as a Park in 2005. The evidence given by the prosecution witnesses, including their identification of the scene of alleged offence from the photos showed that it was a public park. All the accused persons were in a public area.

The possession of the park is vested in the State. The State has allowed the members of public to use and have full and unrestricted access to the park at all times. Entry into a public area by individuals in this country is not unlawful. No laws prohibit people from frequenting public areas. All the accused were lawfully in the public area. The complainant in this case was not in possession of the land and as such he had no control over the property where all the accused persons were present at the time of the alleged offence.

The Court also noted from the evidence that the complainant in this case was not at the scene of the incident and the charge is that the accused persons annoyed the complainant, Julian Hennings. The evidence by Julian was that he was in Suva attending a funeral. It is amazing how the police were able to ascertain that the complaint was annoyed from the actions of the accused while the complainant was in Suva more than 50km from the scene where all the accused's were.

The Court also noted from the caution interviews and the evidence several discrepancies in Police work. The first is that Police Officer, Dan Batibasaga, did not allow the accused persons to explain their position. Police officers must hear each party in such situations and then decide. In this case this police officer gave the accused persons no chance. As soon as he arrived he put them under arrest. He did not hear what they had to say. He also blocked the driveway.

The other notable concern is that despite being told by some of the accused persons that they wished to engage counsel when the right to legal counsel was put to them when they were caution interviewed, the accused were not allowed to seek legal advice. Some of the Police officers who interviewed the accused pressed on and continued with the interview and did not afford the accused the right to legal counsel. This is a serious breach of the rights of the accused to legal counsel at the time of caution interviewing.

From the evidence tendered in Court and at the end of the prosecution case the Court finds a case is not made out against the accused person sufficiently to require them to make a defence.

All the accused persons are acquitted.

28 days to appeal

Chaitanya Lakshman
RESIDENT MAGISTRATE
16th September 2011