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State v Chand [2013] FJMC 377; Criminal Case 223.2011 (17 October 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 223/11

State

V

Arjun Chand

Prosecution: PC Pauliasi and Sgt Jiten (Police Prosecution)
Accused: Present – Counsel -Ms Narayan

Judgment

Introduction

Arjun Chand is charged with assault causing actual bodily harm and criminal intimidation respectively, contrary to Section 275 and 375 (1) (a) of the Crimes Decree 2009.

The Particulars of Alleged Offences are as follows:

"Arjun Chand on the 29th day of September 2010 at Lami in the Central Division unlawfully assaulted Anita Dutt thereby occasioning actual bodily harm." (Assault – Count One)

"Arjun Chandon the 29th day of September 2010 at Lami in the Central Division without lawful excuse, threatened Anita Dutt with injury to her person with intent to cause alarm to the said Anita Dutt." (Criminal Intimidation – Count Two)

The Standard and Burden of Proof

The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. 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 2 witnesses. The accused gave sworn evidence. The caution Interview of the accused was tendered by consent. The medical report and the knife were tendered as exhibits. This Court has noted all the evidence that was given and all the documents that were tendered.

Analysis of Evidence in Relation to the Law

This Court has analysed all the evidence by all the witnesses in this case. The onus was on the prosecution to prove all the elements of the offences committed by the accused. The issues of identification, date and time of the offence are not disputed and as such not an issue in this case. The main issues are whether the accused assaulted the complainant and threatened her with injury with intent to cause alarm to her. In this case it's the complainant's evidence against what the accused is saying. This case basically boils down to whom the Court believes.

In summary the complainant's evidence in examination in chief is as follows: "29th September 2010 recall. I was at his place at Lami. Nobody else. We were sleeping at his place. He poured water on me. I sat up. He tried to wake me up. He punched me in my nose. Was with Arjun Chand.... I was asleep, he was seeing movies and playing tape. He drank beer. He punched me on my nose and picked up a knife. I thought me was scaring me. He gave me one punch. He punched me on my nose. I was sitting on my bed.... He picked up the knife, he hit knife on floor, than on mattress and then on my neck."

In cross-examination she stated "only been to kindergarten. Signed statement at police station. Signed number of papers. Cannot recall how many.... Was punched once on the face was correct statement. I told police he hit me once, not twice. Not correct in statement. I told court I sat up when water splashed on me. I kept quiet and slept. When I sat up he punched me, once. 14 years de facto relationship. Know 2 cane knives at home. ... Lami Police tried to suppress the report. ... accused hit floor, mattress, on my neck with the knife. Cut on neck. He had hit with other side, not the sharp side."

The accused's evidence is as follows ".. that evening saw wrestling CD. Started to watch at 9pm. Prior to 9pm we saw TV programme. Had no argument.... Went to bed at 12.30. we went to bed together. Nothing else happened.... She is lying did not splash water on her face. I did not punch her. I never assaulted her during relationship. Never slapped her. She is lying I lifted a cane knife... police arrested me after 4 months. Police told us to sort out. I bought her a house for her in Tamavua. She withdrew the complaint. 4 months later police arrested me."

In cross-examination the accused stated "complainant went to hospital next date after alleged incident. (When medical report shown to accused) I cannot explain. She did not receive injuries. I did not see injuries on her. Only 2 of us in the house. When I took her. She had no injuries. I do not know how she sustained injuries."

The accused completely denied the allegations that he assaulted the complainant and that he threatened her. The medical report tendered in Court confirmed what the complainant told the court in her evidence. The medical report confirmed that the complainant had "tender bridge of the nose" due to injuries to her nose. The complainant's version is supported by the medical findings. The complainant who was vigorously cross-examined was neither discredited nor shown to have concocted her version. This Court is mindful that the onus is on the prosecution to prove its case and the accused was under no obligation on his part. However for his part when given a chance to explain his version the accused when giving sworn evidence could not explain how injuries were sustained by his partner of 14 year when she spent the night with him and no one else was with them. He offered no explanation how she might have sustained injuries or if she concocted the injuries, how she might have concocted the injuries to her nose. The accused has no plausible explanation for the injuries to his partner. The Doctor confirmed injuries to the complainant's nose and the complainant told the Court this injury was caused by the accused who punched her nose. This Court believes the complainants version of events.

This Court finds that the prosecution has proven both the charges laid against the accused, beyond reasonable doubt. The accused is found guilty of both the counts. The accused is convicted of both the counts. This Court will now hear the accused's mitigation.

Chaitanya Lakshman
Resident Magistrate

17th October 2013