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State v Damuni [2014] FJMC 36; Criminal Case 970.2013 (5 March 2014)

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

Criminal Case No: 970/13

State

v

Taito Damuni

Prosecution: PC Raymond (Police Prosecution)
Accused: Present – Mr Gavin O'Driscoll

Judgment

Introduction
Taito Damuni was charged with assault causing actual bodily harm, contrary to Section 275 of the Crimes Decree 2009.

The Particulars of Alleged Offence is that:

"Taito Damuni on the 20th day of March 2012 at Suva in the Central Division assaulted Rajnesh Chand thereby occasioning him actual bodily harm."

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 3 witnesses. The accused gave sworn evidence. The Defence called one other witness. The Court has noted all the evidence that was given in Court 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: (a). the identity of the accused, (b). that the accused committed the assault on the complainant, and (c). the assault occasioned actual bodily harm to the complainant/victim.

The crucial issue in this case revolves around whether the accused person assaulted the complainant or not. There is no dispute as to the identification of the accused. The other relevant issue in this case is whether the complainant acted in self-defence.

The complainant stated in examination in chief that "... officer wore Customs Uniform. He tried to grab me and lift me up. I used my hand to remove his hand. I then went to my truck, he came behind me and grabbed me and then he punched me. Punch landed on my mouth. He punched me once. I went away." In cross-examination the complainant told the Court "... pushed his arm away. I did not expect a punch. He tried to lift me up. As soon as I pushed hand away. He punched me..." Pw-2 – Rajesh Chand told the Court that he "saw the Customs officer punch [his] boss. Customs Officer hanged my boss – held his collar and help him up...."

The accused's evidence in Court was as follows ".. was talking to driver when a gentleman and driver spoke in hindi. Gentleman is his boss. He told me to move. I did not want to intervene... he was moving closer to me, told him did not know him. I pushed the accused as I talked to the driver. He was aggressive and used abusive words.... I pushed complainant away cannot recall which part of complainant I came into contact with." In cross-examination the accused told this Court "... tried to fend complainant away. Came into contact with complainant. Cause injury to complainant."

The 2nd Defence witness told this Court "saw accused push owner of truck. Grabbed and pushed complainant back." In cross-examination he said he did not see accused punch the complainant.

Having noted all the evidence This Court notes from the evidence before it that the accused came into physical contact with the complainant. The Court is satisfied from the evidence of the complainant, PW-2 and DW-2 that the accused grabbed and pushed the complainant back. DW-2 told the Court he did not see the accused punch the complainant. The accused himself agrees that he fended of the complainant. He agreed that he came into contact with the complainant and this caused injury to the complainant.

From the evidence before it this Court finds that the accused had no reason to fend off the complainant who according to him was arguing with him. It was not a situation which required him to grab and push the complainant back. He might have been in an awkward situation and managing a difficult situation, nevertheless such situations required him to be calm and not let his emotions overtake him. This Court further finds from the evidence before it that the accused did not act in self defence as the situation as such was not in any way threatening, however argumentative it may have been. This Court believes the version of events as related by the complainant and other prosecution witness (PW-2). This Court also finds that the injuries sustained by the complainant are supported by medical evidence.

For the above-mentioned reasons this court finds that the charges against the accused is proven beyond reasonable doubt. The accused is found guilty of the charge. This Court will now hear the accused's mitigation.

Chaitanya Lakshman
Resident Magistrate

5th March 2014