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State v Dass [2013] FJMC 215; Criminal Case 865.2012 (28 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 865/2012

STATE

-v-

USHA DASS

Police Constable Filipe Raymond for the prosecution
The accused appeared in person

JUDGMENT

1] The accused is charged with following offence namely;

CHARGE:

Statement of Offence [a]

ANNOYING ANY PERSON: Contrary to Section 213 (1) (a) the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

USHA DASS on the 19th day of May, 2012, at Nasinu Police Station Bure, Nasinu in the Central Division, with intent to insult the modesty of Mahen Chand uttered the words “Maichod meaning mother fucker, bitch, shut up”, intending that such words shall be heard by the said Mahen Chand.

2] The accused pleaded not guilty to the charge and case heard on 15th 03-2013. To prove this charge the prosecution called following witnesses.

3] PW1; Mahen Chand: He said he can recall 19th May 2012. They were in Nasinu police station bure and his neighbors have been fighting for long time. So, police arranged a meeting two parties, to settle their dispute. His neighbor is Usha Dass, the accused. Neighbor came with some of her friends and the police officer was mediating them. Whilst he was explaining his grievances Usha was mumbling something. He said “ May be she did not like it and she came out right to my face pointing ‘you shut up ‘you telling lies, you telling lies”. The victim said he had been in the police force for 12 years and it was annoyed him. The meeting was over and he went home. Later he came to know that Usha had report against him. He was charged for same offence. Then, he reported matter to the police.

4] In cross examination the witness said it was open meeting and the accused came up to him and said Shut up, shut up you telling lies.

5] PW2: Shalini Lata; She said they have been advised for a meeting at Nasinu police station. It was for resolve the issues between them. The witness said during the meeting Usha Dass interrupted her husband. She said “When my husband was talking she said shut up and don’t tell lies. She also sweared at him saying maichod, bastard and she also asked my husband to punch her”. She said she was sitting just beside Usha and her husband was sitting just beside Usha. She said there were two police officers, one was dead.

6] In the cross examination the witness said that she did not know what was the reason that Usha was charged then and there.

7] Thereafter, Caution interview and charge statement were tendered as EX-1 and 2 by consent. The prosecution closed its case. The court ruled there was case to answer. The right to cross examined was explained and the accused opted to give sworn evidence.

8] The accused; Usha Dass: The accused said she did not swear at the complainant she only shut up and don’t tell lies. Further she said she did not stand up from her seat. She further said “when he came towards me and showed me his fist then I stood up and ask him to punch”.

9] In cross examination, the accused said she was never given a chance to speak. She only interrupted him and told shut up and not to lie.

10] The accused called, Praveen Narayan: He confirmed the accused version and told that the accused only said shut up and don’t lie. She did not swear at PW1.

11] In cross examination this witness told Usha was given first opportunity to talk. When Mahen’s turn came Usha interrupted

12] It is clear the prosecution has the legal liability to their charge beyond reasonable doubt. 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 common law”. The burden of proof of the accused person’s guilt beyond reasonable doubt lies with the Prosecution.

13] In this case State v Seniloli [2004] FJHC 48; 2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors:

“The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether 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 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 about the guilt of the accused”.

14] The offence of indecently insulting or annoying any person is stated at Section 213 of the Crimes Decree, it reads:

“213. – (1) A person commits a summary offence if he or she, intending to insult the modesty of any person-

(a) Utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person; or

(b) Intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.”

15] I now evaluate the evidence. The elements of the offence of Annoying Any Person are that:

(a) The accused on the dates as per the charge (identification and date);
(b) Uttered any word, or
(c) Made any sound or gesture, or
(d) Exhibited any object
(e) Intending that such word or sound shall be heard or that such gesture or object shall be seen, by the other person (the victim).

16] In this case PW1 Mahen said that the accused said ‘you shut up ‘you telling lies, you telling lies’. PW2 , the wife of PW1, Mahen told in court that accused said “shut up and don’t tell lies. She also sweared at him saying maichod, bastard and she also asked my husband to punch her”. But Mahen did not say that the accused used vulgar words such as ‘maichod, Bastard”. This is contradictory evidence inter se. Charge indicates that accused said ““Maichod meaning mother fucker, bitch, shut up”, But the victim, Mahen did not tell that Usha uttered that vulgar words to him. The defence witness Praveen confirmed accused evidence but she said that the accused was given opportunity to tell her story, but the accused did say that she was not given. This is also contradictory evidence inter se. But the accused has no burden to prove her innocence. But the prosecution should prove its case beyond reasonable doubt.

17] Credibility of witness are measured by following tests.

Test of Spontaneity

18] The victim, PW1 reported the matter to the police after he got to know there was a complain against him. The accused caution interview was recorded on 19th June 2012 exactly after one month. The allege incident occurred at the police station in front of police officer. It is a grave charge if this really happened why she was not charged then and there? This created serious doubt. The victim was a ex-police officer; he knows the charge very well. If the police have not filed charge against the accused he could have complained against the police to higher authority which he failed to do so. Mahen lodged this complain when he got to know there was cross report. At the police station Mahen thought everything was over.

19] In R v Lillyman (1896) 2 Q.B. 171 Hawkins L.J. said that evidence of the fact that a complaint was made is admissible provided it was made as speedily after the acts complained of as could reasonably be expected. His Lordship said that it is for the trial judge who tries the case to decide whether the complaint is made as speedily as could reasonably be expected and that here is no one else who can decide it. (Emphasis is mine)
20] The victim did not have any impediment to report against the accused forthwith. He could have complained against then and there. The delay of lodging this complain is unanswered and therefore there is a chance to concoct a story. I hold this evidence did not pass test of spontaneity.

Test of consistency and inconsistency

21] It should be noted that the evidence of the prosecution witnesses are not in line with each other; there are serious omission that the victim Mahen failed to say that the accused used vulgar language. The evidence did not meet this threshold as well.

Test of probability and improbability.

22] This incident occurred in front of police officers, but no police officer was called to give evidence against the accused. If this incident really happened, this court thinks no law enforcement officer would tolerate. Thus, this complaint is not probable. It does not pass test of probability.

Test of independency (interest or disinterest)

23] When I apply this test, I must consider PW2’, the victim’s wife’s evidence. She heard what the accused was saying at the moment. But Pw1, the victim did not hear what she heard that vulgar language. However, they have previous enmity and the relationships between the witnesses are not independent as they involved in the same dispute. PW2 was the virtual complainant against the accused in CF 865/2013. On contrary the defence witness Praveen is more independent than PW2 Shalini. He has no interest to this case. Prosecution evidence did not pass this test aw well.

24] When a court decides a case, it should consider evidence in whole. In Attorney General of Hong Kong v Wong Muk Ping [1987] 2 WLR 1033 the Privy Council observed as follows:-

"...... any tribunal of fact confronted with a conflict of testimony had to evaluate the credibility of evidence in deciding whether the party who bore the burden of proof had discharged it. It was the commonplace of judicial experience that a witness who made a poor impression in the witness box might be found at the end of the day, when his evidence was considered in the light of all the other evidence, to have been both truthful and accurate. Conversely, the evidence of a witness who at first seemed impressive and reliable might at the end of the day have to be rejected. Such experience suggested that it was dangerous to assess the credibility of the evidence given by any witness in isolation from other evidence in the case capable of throwing light on its reliability." (Emphasis is mine)

25] In the light of above evidence the report against the accused is unrealizable and the prosecution failed to prove the charge beyond reasonable doubt. The accused admitted that she said shut up, stop telling lies. It cannot be treated as annoying as the report was made against the accused after one month of the incident by the PW1 to neutralize the cross report.

26] I find the accused is not guilty to the charge. Hence, the accused is acquitted and discharged.

27] 28 days to appeal

On 28th may 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu