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State v Ali [2013] FJMC 119; Criminal Case 934.2009 (25 March 2013)

IN THE MAGISTRATE'S COURT OF NASINU

Criminal Case No. 943/2009

STATE

-v-

ARIF SAUFIQ ALI
MOHAMMED ASWAD ALI

PC Ravi for the State
Both accused present and appeared in person

Judgment

[1] Both accused are charged with following offence. The charge read as follows;

CHARGE:

Statement of Offence [a]

[2] CRIMINAL TRESPASS: Contrary to Section 197 (2) of the Penal Code Act 17

Particulars of Offence [b]

[3] ARIF SAUFIQ ALI f/n SHAUKAT ALI and MOHAMMED ASWAD ALI f/n ANWAR ALI on the 2nd day of August 2009, at Nasinu in the Central Division by night entered into the compound of Reginald Anand Jeet f/n Ram Jeet without any lawful excuse.

Summary of evidence

[4] The accused pleaded not guilty to the charge. Hearing was done on 05-10-2012. At the trial, prosecution called following witnesses to prove their charges.

[5] PW 1-Reginald Arnold Jeet; In his evidence the witness said that on 02-08-2009 after 9pm he was at home. The two accused came and wanted to have illegal car race. He had a sport car. They had called him week before. He locked his gate but the accused were his compound. Their vehicle was parking inside his drive way. When he saw them he locked the gate. The accused wanted to escape. They tried to run away. One of them climbing the fence and jumped out. The other person climbed the gate fell down where he got injured. Their car was in his compound and they ran away; said victim, PW1. The witness said they came uninvited.

[6] In cross examination the witness said that they gave phone call the car was in his yard. The witness said the gate was always opened and closes after 10pm. The witness said he did not answer the call but he knew they are the ones who called him for car race. He said that his case was over he pleaded guilty to damaging the car, but the witness said when they tried to escaped it was damaged by the accused. The witness said he held the second accused he got injured.

[7] Then, Interview Notes and Charge Statements were marked as Ex-1, 2, 3 and Ex-4 by agreement of the accused. Then prosecution closed their case.

[8] After the close of prosecution, since there was a case to answer, the accused were explained and given their rights to call the defence. Then both accused opted to give sworn evidence.

[9] DW1- The first Accused: Mohammed Asward Ali: The accused said that on that day, they called the witness and the PW1 gave the direction to come his home. When they went to his home, he opened the gate and invited them to come in. The accused said that the witness said that they can put jumper and start his car. Then, they went inside. He then parked his vehicle and opened the car bonnet. He saw PW1 was closing the gate, Then PW1 asked his name and punched him on his face. . The accused got scared and tried to run away, he jumped over the fence.

[10] In cross examination; The Accused admitted that he called PW1 for car race. The accused said PW1 was teasing him on the road they had previous enmity. The accused said he wanted to know whether PW1 can race with him because he teased him on the road. He said when he called PW1 He came and opened the gate. The PW1 did not say that he did not want the race. He is not aware that PWs running a shop. The accused reiterated that the gate was closed when they called PW1; he came and opened the gate. PW1 damaged the car and there were 3 or 4 men assaulted the second accused, he said.

[11] DW2-The Second Accused: Arif Shufiq Ali: The accused said he was helping his brother, he asked him to accompany with him. The accused confirmed first accused's evidence. He said that they called the PW1 and he gave the right direction. When they reached PW1, they called again. He then came and opened the gate. First Accused drove the vehicle and parked inside. Before open of gate PW1 asked whether they have jumper, then he opened the gate. When they were inside they were badly beaten by PW1 and other who were in the house.

[12]In the cross examination the accused said the communication with his brother and they went to PW1's place. He did not know what is the reason for assaulting.

[13] Then the accused closed his case.

The Law

[14] The Sections 197 of the Penal Code deal with Criminal Trespass and Assault Occasioning Actual Bodily Harm; those sections are reproduced below for clarity.

"197.-(1) Any person who-

(a) enters into or upon property in the possession of another with intent to commit an offence or to intimidate or annoy any person lawfully in possession of such property:

†Provided that the ‡Minister responsible for Fijian affairs may certify that a person or persons are lawfully in possession of native land;

†Inserted by Ordinance No. 12 of 1969

‡Amended by Order 13th November, 1970.

(b) having lawfully entered into or upon such property unlawfully remains

there with intent thereby to intimidate, insult or annoy any such person or with intent to commit any offence; or

(c) unlawfully persists in coming or remaining upon such property after being warned not to come thereon or to depart therefrom:

*Provided that the †Minister responsible for Fijian affairs may give such a warning in relation to native land,

*Inserted by Ordinance No. 12 of 1969

†Amended by Order 13th November, 1970

is guilty of a misdemeanour, and is liable to imprisonment for three months.

If the property upon which the offence is committed is any building, tent or vessel used as a human dwelling, or any building used as a place of worship, or as a place for the custody of property, the offender is liable to imprisonment for one year.

(2) Any person who enters by night any dwelling-house, or any verandah or passage attached thereto, or any yard, garden or other land adjacent to or within the cartilage of such dwelling-house, without lawful excuse, is guilty of a misdemeanour, and is liable to imprisonment for one year."

[15] Elements of Criminal Trespass are (1) unlawful entry (2) property in the possession of another (3) with intent to commit an offence or to intimidate or annoy any person lawfully in possession of such property. The accused are charged with limb two (section 197(2)) that is night trespass and therefore the trespass should be in the night.
Burden of proof

[16] 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.

[17] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonablbt. This mhis means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion thay are guilty. If you have any reasonable doubt as to whethehether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt&#bout the the guilt of the accused."

Analysis of the evidence

[18] In line with the above guiding principles, I now evaluate the evidence adduced before me. The PW1 said that the accused entered their premises without any permission. Both accused admitted that they entered but they say that they got the permission by gesture as the PW1 gave direction how to come to his home and when they reached there he voluntarily open the gate. This was happened in night time. It was admitted that they had agreed to do a motor race with PW1. The PW1 had a case of damaging property and assault and he had pleaded guilty to the charges in 2009. The victims of that case were the accuseds. This is the counter case for it. The Accused had given evidence on oath and the prosecution failed to impeach these evidence. The PW1 admitted there was case against him. The accused said the PW1 invited them and ask jumper to start his vehicle. Whilst they were in the PW1's compound, PW1 closed the gate and both accused were assaulted by PW1 and others who were in the house. It was seen this was a set up trap. There is no evidence other than PW1 that the gate is always opened and the accuseds came uninvited. I therefore hold the prosecution failed to prove its charge. It is unsafe to convict the accused on available evidence. Furthermore there is no intention to commit an offence by the accuseds. Therefore charge must fail.

[19] Both Accused are acquitted and discharged.

[20] 28 days to appeal

On 25th March 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate