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State v Raj [2015] FJMC 53; Criminal Case 542.2012 (15 May 2015)

IN THE MAGISTRATE'S COURT AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 542 of 2012

STATE

V

VIJAY RAJ

Prosecution: PC Nilesh
Accused: Mr Sen. A
Judgment: 15 May 2015

NO CASE TO ANSWER

1. The Accused, Vijay Raj is charge with an offence of Breaching Domestic Violence Restraining Order contrary to section 77(1)(a) of the Domestic Violence Decree No. 33 of 2009.
   
2. According to the particulars of the offence, the Accused on the 30th day of July 2012, at Labasa breached the Domestic Violence Restraining Order (DVRO) by threatening his son Sanjeev Ajay Raj and his wife Amrits Anita Raj. The statement of offence state that the Accused was charge under section 77(1)(a) of the Domestic Violence Crime Decree No. 33 of 2009. There is no laws in Fiji under the title Domestic Violence Crime Decree No. 33 of 2009. Neither the Prosecution nor the Defence Counsel raised this as an issue. It is apparent that Decree No. 33 of 2009 is the Domestic Violence Decree and the word "Crimes" as appear in the statement of offence could be a typing error by the Charging Officer. This typing error will not affect the validity of this proceeding under section 57(3)(a) of the Criminal Procedure Decree 2009.
   

3. The Accused pleaded not guilty to the charge on 18 February 2013, and the case was set for hearing on 23 March 2015.

4. On the hearing date, the Prosecution called four witnesses which includes two Police Officers and two civilian witness. The civilian witnesses are the complainant in this case and his wife. The Police Officers are the interviewing officer and the charging officer.

5. At the end of the prosecution case, the Defence Counsel make an oral submission of No Case to Answer. The Defence Counsel submit that the Prosecution failed to established the essential elements of the offence and did not elaborate on what are the elements of the offence.

6. The Defence Counsel submit that the Accused is not aware of any DVRO issued against him by the court. The Prosecution failed to establish that the Accused is aware of the DVRO. There was no evidence tendered to prove that DVRO was served to the Accused or to prove that he is aware of the DVRO. The DVRO was not shown to the Accused during the interview and the Defence Counsel objected to the tender of the DVRO as evidence by the Prosecution as it was not disclosed to the Accused or to him as Counsel and it was not part of the disclosures for this case.

7. At the hearing, Sanjeev Ajay Raj (PW1) gave evidence that there is a Domestic Violence Restraining Order (DVRO) issued by the Court against the Accused for the Accused not to threaten them. PW1 was the applicant in that DVRO case. The second witness for the prosecution PC 4501 Esava (PW2), in his evidence state that when he received PW1 report he uplifted a copy of the DVRO from the court and he was holding a copy of the DVRO when he was interviewing the Accused with the DVRO Action No. 30 of 2011. There is no evidence lead to confirm and establish that the Accused is a party to the DVRO 30 of 2011. There still doubt on the existence of DVRO against the Accused and whether the Accused is a party to DVRO Action No. 30 of 2011.

8. The PW2 in his evidence confirms that during the interview he never asked the Accused whether he has breach the DVRO or whether he was served with the DVRO. He further confirms that he never shown to the Accused a copy of the DVRO during the investigation.

9. In this offence, the Prosecution need to prove that there is a DVRO against the Accused, the DVRO was served to the Accused and the Accused is aware of the condition of the DVRO and the protect person, and the Accused has breach the conditions of the DVRO. There was no evidence from the Prosecution to prove that there was a DVRO against the Accused, the Accused is aware of the conditions of the DVRO and he breached those conditions. The Prosecution fail to establish a case against the Accused.

10. Pursuant to Section 178 of the Criminal Procedure Decree 2009, I find the Accused has no case to answer as there is no case made against the Accused that sufficiently require the Accused to make a defence and I dismiss this case and acquit the Accused accordingly.

Cama M. Tuberi
Resident Magistrate