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State v Qionimacawa [2012] FJMC 172; Criminal Case 226.2010 (24 July 2012)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 226/2010

STATE

-v-

MACIU QIONIMACAWA

For the Prosecution: PC Raymond
The Accused in person

Judgment

1] The accused is charged with following offences;

CHARGE:

FIRST COUNT

Statement of Offence [a]

ASSAULTING POLICE OFFICER IN DUE EXECUTION OF HIS DUTY: Contrary to Section 247 (b) of the Penal Code Act 17.

Particulars of Offence [b]

MACIU QIONIMACAWA with another on the 27th day of January, 2010 at Nasinu in the Central Division assaulted DETECTIVE CONSTABLE 3754 KAMAL SINGH and DETECTIVE CONSTABLE 3712 NAVNIT CHANDRA in the due execution of their duties.

SECOND COUNT

Statement of Offence [a]

RESISTING ARREST: Contrary to Section 247 (b) of the Penal Code Act 17.

Particulars of Offence [b]

MACIU QIONIMACAWA with another on the 27th day of January, 2010 at Nasinu in the Central Division assaulted DETECTIVE CONSTABLE 3754 KAMAL SINGH and DETECTIVE CONSTABLE 3712 NAVNIT CHANDRA whilst effecting arrest in the due execution of their duties.

2] The accused pleaded not guilty to the charges and hearing was done on 10th July 2012. At the trial prosecution called following witness to prove their charges. The accused was unrepresented therefore all right were explained and given.

3] Summary of evidence is as follows;

PW1: Kamal Singh: he said that he can recall the date 27th January 2010. He was on duty. He was detailed to investigate a robbery case. So, he went with DC Navneeth and PC Mahen. PC Mahen was the driver and they were mobile patrolling. They were searching three people for robbery case. They were Tomasi, Maciu and one lady Suluveti Waqa. While they were in Qarase Road, one taxi was parked and inside that taxi these wanted people were there. He said "We got hold of Tomai, Tomasi was in the front., Maciu and Suluveti Waga sitting were at the back . We tried to arrest Tomas i, Maciu got off the taxi and ran towards Nasilivata Road. We got hold Tomasi. Maciu came back with small knife and he threatened us. He came back again to assist Tomasi. Tomasi was already arrested by me and Navneeth. When Maciu came, he pushed me into the drain. My leg was injured. I told Tomasi he was arrested for robbery. After the both of them ran away". He said they manage to arrest only Suluveti Waqa. Medical tendered as EX-1.

4] In the cross examination the witness said the accused got off from the taxi and ran away, then brought a knife with him. He said the accused was drunk at that time. Answering to the question the witness said he asked the accused to wait but he ran away. He said the accused pushed him to the drain and that is the assault.

5] PW2: Navneet Chandra DC 3712: This witness corroborated the PW1's evidence. He said "One of the accomplice we managed to arrest him. Then Maciu came back with a knife. ... maciu assaulted DC Kamal, Maciu pushe him into a drain. When Kamal fell, both of them escaped. After that DC Kamal was limping and was injured. We did not arrest Maciu on that date"

6] In cross examination the witness said the accused was holding a small knife but he cannot remember which hand.

7] By agreement caution interview tendered AS EX-2 and Charge Statement EX-3.

8] Then the prosecution closed the case. Since there is a case to answer, the accused was put to call the defence. His rights were explained and given. He opted to remain silence.

9] I now amylase the Law. The Section 247 of the Penal Code says:

"247. Any person who-

(a) assaults any person with intent to commit a felony or to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence; or

(b) assaults, resists or willfully obstructs any police officer in the due execution of his duty, or any person acting in aid of such officer; or

(c) assaults any person in pursuance of any unlawful combination or conspiracy to raise the rate of wages, or respecting any trade, business or manufacture or respecting any person concerned or employed therein; or

(d) assaults, resists or obstructs any person engaged in lawful execution of process, or in making a lawful distress with intent to rescue any property lawfully taken under such process or distress; or

(e) assaults any person on account of any act done by him in the execution of any duty imposed on him by law,

is guilty of a misdemeanour, and is liable to imprisonment for five years."

10] The pertinent section is "b". The elements of charge can be divided into followings;

1. A person
2. Assaults, resists, willfully obstructs,

100. Any police officer

4. In due execution of his duty
5. Any person acting in aid of such officer.
   

11] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

12] The standard of proof is in a criminal case beyond reasonable doubt. In Miller v Minister of Pensions [1947] 2 All ER 372 Lord Denning went on saying:

"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "Of course it is possible but not in the least probable", the case is proved beyond reasonable doubt; nothing short will suffice."

13] I now consider the evidence against the accused. The accused's defence is total denial of the incident. The accused suggested that the witnesses were lying which they denied it. In contrary the PW1 said while he arrested Tomasi, the accused came and pointed out the knife and threatened. Thereafter he was pushed into a drain then both accused ran away. This was corroborated by PW2's evidence. He was an eye witness to this incident. The prosecution tendered the Medical and it shows the few injuries to the PW1. Pw1 gave the history to the doctor and it confirmed the incident. This was recent statement to the doctor within a day. The caution interview was tendered as Ex-2. In that the accused said that:

Q50: What you and others were doing there at Nasiuvata Road? We came to buy beer

Q51: What did you and others do when you saw police officers coming towards you? I was standing inside the shop when these police men came. Both of them tried to arrest Tomasi and take him out from the taxi. He resisted arrest and took out a knife from his pocket (ward unclear) the police officers; I ran towards Tomasi and help him to run away from police officers.

Q52: what part you played to help Tomasi? I grabbed one of the police officer and pulled him away from Tomasi and after that we both ran away.

Q53: What happned to Suluveti Waqa? She was arrested" [Emphasis added]

14] This statement was not challenged by the accused and he admitted it. The accused had not told that he took the knife, but he admitted that he grabbed a police officer. The police officers were on duty and the accused knew he was resisting arrest. Thereby the elements of charges had been proved by the prosecution beyond reasonable doubt. The accused has right to silence but when the prosecution create a strong case against him he should explained why he should not be convicted.

15] In line with the Lord Ellenborough's presumption when an accused fails and omits to explain away incriminating evidence adduced by prosecution witnesses, the courts have cited with approval the famous Lord Ellenborough's dictum to drive home the conviction of the accused. The off quoted principles laid down by Lord Ellenborough in Rex Vs. Cochrane in Gurney's Report at page 479 go as follows;

"No person accused of a crime is bound to offer any explanation of his conduct or of circumstances of suspicion which attaches to him, but nevertheless if he refuses to do so where a strong prima facie case has been made out when it is 'in his own power to offer evidence if such exists in explanation of such suspicious circumstances, which would show them to be fallacious and explicable consistently with his innocence, it is a reasonable and justifiable conclusion that he refrain form doing so only from the conviction that the evidence so suppressed or not adduced, would operate adversely to his interest."

16] The prosecution made strong case against the accused. He remained silence. As I noted in this judgment, the prosecution version was supported by the accused caution interview. The accused admitted that he pulled, but witness said he was pushed into a drain. There is nothing difference in this version and action. I hold all elements of charges have been proved. I have no reason to disbelieve the prosecution's evidence. The story is probable. I hold that the prosecution proved its case.

17] For above reasons, I find the accused guilty and convict him as charged.

18] 28 days to appeal

On 24th July 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate