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State v Rasilivi [2012] FJMC 42; Criminal Case 285 of 2011 (7 March 2012)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SIGATOKA
WESTERN DIVISION
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 285 of 2011

State

-v-

Sakeasi Rasilivi

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution : PC Chetty
Accused : Present.
Date of Hearing : 7th March 2012

JUDGMENT

Introduction

The accused is charged with: "Criminal Intimidation, Contrary to Section 375 (2) (a) of Crimes Decree 2009".

The particulars of the offence reads: "Sakeasi Rasilivi on the 12th day of September 20111 at Togobula, Sigatoka in the Western Division without lawful excuse threatened Jay Singh with intent to cause alarm to the said Jay Singh with a Cane Knife."

The Law

Section 375 (2) (a) of the Crimes Decree provides that "If the threat is to cause death or grievous hurt, the offender commits an indictable offence (which is triable summarily). Penalty — Imprisonment for 10 years."

Burden and Standard of proof

The burden of proof in this case is on the Prosecution, the State. The Prosecution is required to prove all the elements of the charge the accused is charged with beyond reasonable doubt. If the defence establishes to the Court's satisfaction that there is reasonable doubt, then the prosecution fails.

Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "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 doubt. The law would fail to protect the community if it admitted 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, but nothing short of that will suffice.".

The Evidence

The Prosecution called 3 witnesses. At the close of the Prosecution case the Court ruled that the accused had a case to answer and the options were explained to the accused.

The accused gave sworn evidence and called one witness.

Analysis of the Evidence

The Court has scrutinized all the evidence of all the witnesses in this case. The Court has also noted the demeanor of all witnesses.

The accused is charged with criminal intimidation. The accused was unrepresented in this case. The Court has also noted the caution interview of the accused. The accused denied the offence but did not dispute he had a cane knife during the alleged incident. The Court noted from the evidence that the accused had returned from cutting cane and was waiting for a meeting. As a cane cutter the accused carried his knife.

There is inconsistency between the evidence of the PW-1 and PW-2 as to the manner of holding the cane knife. Pw- 1 stated the accused ran to him with the knife raised above his head, whereas as the 2nd witness (PW-2) stated he ran with the knife at waist height and sometimes it came up. This inconsistency cannot be reconciled as to what actually happened. In fact the accused's witness who was also at the scene did not see the accused raise his knife. In fact according to the prosecution witnesses a number of other people, about 10 were at the scene. The Police would have done better investigation and interviewed the other people at the scene to present to Court what happened. They have failed to do so. 2 people from one side saw one thing happened while another 2 say it did not. It is difficult for the Court to be satisfied beyond reasonable doubt as to the guilt of the accused.

The Court is not satisfied beyond reasonable doubt on the evidence tendered as to the accused's guilt.

The accused is acquitted of the charge.

28 Days to appeal.

Chaitanya Lakshman
Resident Magistrate
Sigatoka
7th March 2012