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Magistrates Court of Fiji |
IN THE MAGISTRATES COURT OF FIJIAT LAUTOKA
CRIMINAL JURISDICTION
Criminal Case No: 393 of 2013
DPP
vs
SIMIONE BALE
Prosecution : State CounselMs. Uci
Accused : MrIqbal Khan
Date of Hearing: 7.11.2014-2.12.2014
Written submissions: 06.01.2015
Date of Judgment: 24.01.2015
JUDGMENT
The Accused were initially charged with 4 counts. But after ruling on No Case to Answer by this Court the accused was left charged with the following offences under the Crimes Decree 2009 No. 44 of 2009:
COUNT 1
"Statement of offence"
BRIBERY: Contrary to section 135 (1) (a) (i) and (b) (ii) of the Crimes Decree 2009.
"Particulars of offence"
Simione Bale on the 1st day of April 2011 and the 30th day of September 2011, at Lautoka in the Western Division being employed as a member of the Fiji Police Force, without lawful authority and without reasonable excuse, asked for a benefit of $300.00 from Kaliappan Reddy, with the intention of inducing in Kaliappan Reddy the belief that by giving Simione Bale the said $300.00, Simione Bale would exercise his powers as a Police Officer in Kaliappan Reddy's favour.
COUNT 2
"Statement of offence"
ABUSE OF OFFICE: Contrary to section 139 of the Crimes Decree 2009.
"Particulars of offence"
Simione Bale on the 25th day of December 2012 at Lautoka in the Western Division being employed as a member of the Fiji Police Force, in abuse of the authority of his office, directed the closure of Mammu'sFastfood Takeaway and Milkbar, a restaurant situated at 40 Namoli Avenue, Lautoka which act was prejudicial to the rights of Kaliappan Reddy, the owner of Mammu'sFastfood Takeaway and Milkbar.
THE LAW
Section 135(1)(a)(i) and (b)(ii) of the Crimes Decree is read as follows;
135. — (1) A public official commits an indictable offence (which is tribal summarily) if —
(a)the public official without lawful authority or reasonable excuse —
(i) asks for a benefit for himself, herself or another person;
(b)the public official does so with the intention —
(i) that the exercise of the official's duties as a public official will be influenced; or
(ii) of inducing, fostering or sustaining a belief that the exercise of the official's duties as a public official will be influenced.
Penalty — Imprisonment for 10 years.
Section 139 of the Crimes Decree is read as follows
139. A person commits an indictable offence which is triable summarily if, being employed in the public service, the person does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another.
Penalty—10 years imprisonment
If the act is done or directed to be done for gain – Penalty -17 years imprisonment.
Elements of the offence
As stated above then the elements that the prosecution has to prove against the accused in the first charge are;
So as to the second charge that the elements the prosecution has to prove are;
Burden of poof
According to section 57(1) of the Crimes Decree&it stit stipulates that the onus is in the prosecution to prove the aforesaid elements and the slandered of proof according to section 58 (1) is beyond reasonable doubt.
In Miller V Minister Of Pension [ 2 AER Lord Dord Denning explained the 'proof beyond reasonable 'oubt' as;
'A degree that needs not rcerta but it must carry a high degree of probab. Proof beyond read reasonable doue doubt dobt does not mean proof beyond the shaf the;doubt.e&;Thehe #160;law would fail otect&#ect the community ifdmitted fancifunciful possibilities to deflect therse of justice.he evidence isce is so strong against a man as to leave only a rema remote possibility in his favor, which can beissed the nce "ofe "of  course it is possibt not inot in the least pro", the& the c160;case is proved beyonsoreasonable doubt, but nothing short of that will suffice.
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Case for the prosecution
Evidence relating to the 1sttW1 iscomplaimplainant.nant. He had started a business named Mamm Mammu's Fast Food Vine and Dine in year 2011. He had obtained the
business license in year 2011 and particularly the liquor license was on 29.09.2011. In the year 2011 the accused had demanded $300.00
from the witness telling that he will support the witness to get the liquor licenses. That was in April 2011 and the said money was
demanded at the complainant's office. As the witness denied giving the accused money the accused had started causing problems to
the witness by coming to his business premises.
Evidence relating to the 2nd count
The method that the accused had applied to influence was coming to the restaurant and then demand money. If the witness refused to
give money the accused had then tend to chase the customers or returned back the money to the customers who had paid to the counter
whilst ordering the witness to close his business.
According to the witness particularly on 25.12.2012 the accused had demanded $500.00from the witness after coming to his office. This was around 2.00am. The witness said that when he refused to give money to the accused told the witness to close down his business and thereby he closed down the restaurant. The witness claimed that the accused used to demand money by coming in a police vehicle and that police vehicle was used to park in the front and the back door of his restaurant.
Since the accused continue to trouble the witness she said he wrote a letter complaining to the Prime Minister about the accused. But then there had been no action he said then he decided to go back to Cook Island where he came from.
At the cross examination the witness admitted that the accused once arrested one of his employees for selling liquor after hours. Thereby it was suggested that the witness made a false complaint against the accused. Further it was suggested that the witness was lying in court as he was unable to tender any evidence to substantiate any previous complaints to either to the Prime Minister or to any police station. It was further suggested that there were no customers on 25.1.2.2012 and after seeing the license the accused left the premises. Finally it was suggested that the accused never demanded money from the witness and never ordered to close the restaurant by using his powers. Then the evidence of PW1 was concluded.
After PW1 then prosecution led the evidence of PW2 Mr Ashvin Reddy, who is the brother of PW1. His evidence was only related to the second incident alleged to happen on 25.12.2012.
According to the witnesson that particular day when he was at the Restaurant around 2.00am he had heard voices and when he came out to see, the witness said he saw police was chasing customers and police was saying to close down the business. The witness said he further heard that the police saying bring the license. Then he said he saw complainant was coming out with the license and therefore he went inside the restaurant. The witness confirmed presence of 2-3 customers at the compound by that time and identified the accused as the police officer. After the accused started to talk and since the witness went in he said hewas unaware what happened after wards.
At the cross examination he denied stating to police in his statement that the accused left the restaurant after seeing the license from the complainant. Further he admitted that before he signed his statement the police did not read back the statement to him. But he admitted he signed the document to indicate it was signed after reading his statement.
After PW2 then evidence of PW3 the mother of the complainant was led. According to her evidence on 24.12.2012 around 2.30 am one police officer came and he had questioned the witness who told the witness to open the business by that time. And when the witness replied that they are open 24 hours she said the police officer then chased customers and asked for the license. According to her that was around 2.30am and by that time there were 2-3 customers in the restaurant.
Then PW1 and PW2 both came to the door and when PW1 showed the license, the accused had then told to close the door. Because of that order the witness said 3-4 customers who were eating inside were not able to eat as they had to close.
At the cross examination it was put to the witness that in her statement, she had not mentioned to the police that the accused told to close the shop. The witness admitting that she mentioned that to in her statement she stated that her statement was not read over back to the witness before she signed it at the police.
After PW3 the evidence of PW4 was led. According to her evidence the witness had worked as a waitress in that Restaurant during the time of the incident. On that particular day she was at work and whilst serving two customers she had heard that the accused was shouting. Accordingly when the PW3 and PW1 went to that direction asking why he was shouting the witness saidthen the accused told PW3 and PW1to show license.
Accordingly when the license was shown she said then accused left place by telling that he will look after them. And before he left the witness said the accused told them to close the business by chasing the customers who were inside the restaurant.
At the cross examination the witness admitted mentioning in her statement to the police that the accused told to close the business. And denied that the license was brought from outside. But she admitted that PW1 was not at the premises and PW3 Panjalii went to wake up PW1. She further stated that before the accused left the premises he told that he was keeping eye on the staff.
After the aforesaid evidence PW5 was led. Since her evidence is irrelevant to the aforesaid two counts court will not evaluate that evidence.
After PW5 the prosecution finally called the evidence of PW6 PC3334 Dharmen Kumar. He stated that on 24.12.2012 he joined the accused to conduct operational duties. According to the witness the operational duties had been conducted to observe drinking spots, night clubs and liquor shops and the restaurants which were open for other businesses.
Thereby the witness confirmed checking complainant's restaurant on 25.12.2012 around 1.30am as a part of their mobile duty. Accordingly after they reached the restaurant in question the witness said that he stopped their police vehicle 5 feet away from the restaurant whilst the accused went in. he said then he heard the accused inquiring about the liquor license. The witness was in the vehicle by that time and he said and then he heard a person was telling the accused that they were having business license but not the liquor license at the premises. Then a lady and a man also came out and had been seen confirming the accused that they have license.
Then witness said he saw a person was sent to bring the license. After few minutes once the license was brought covered in envelope the witness said he heard the accused uttering them to keep the business but not to sell liquor after viewing the license.
At the cross examination the witness admitted that he was 5 feet away from the incident when he witnessed as to what was happening. He said it was taken 10-15 minutes to bring the license form outside. He said Indian boys came with a carrier drive had shown the license to the accused.
With that evidence the prosecution by marking following documents as,
PE1 - Accused's Record of interview dated 16th January, 2013.
PE2 - Accused's Record of interview dated 17th January, 2013.
PE3 - Accused's Charge Statement dated 27th June, 2013 (handwritten and typed statement) closed the case for the prosecution.
After a ruling on No Case to Answer submission by the accused the defense was called against the aforesaid two charges. The accused elected to give evidence and called witnesses.
Case for the defense
The witness admitting that he was on petrol duty with PC Dharmen who is PW6, on that particular night he stated that he visited the said restaurant in question to check liquor license and after seeing license he left the place. According to him when he went there he had noticed that the door was closed and one lady told the accused that the license was with her boss and after shespoke to another man license was brought and was shown to the accused.
The accused giving back ground stated that during that time he had been entrusted to be alert on all out lets who sell liquor contravene to their permits and the accused being then Deputy Police Commander Western he said that as all sales happen during night time he also went to check outlets and arrest suspects if they commit offences.
Finally the accused denying all allegations against him urged to consider evidence of PC Dharmen.
DW2 and DW3 were then called by the accused to give evidence. Both witness admitting that they were unaware anything about the issue in question but stated evidence in regards to the good character of the accused.
The last defense witness also giving evidence to the effect that he was personally unaware about as to what happened on that particular day but confirmed indulged in operation with the accused in search of out lets who sell liquor contrary to their conditions.
In such instances the witness stated that the accused had gone with him in one vehicle and sometimes they both have travelled in separate vehicles.
Analysis of evidence
As mentioned above now the issue before this court to arrive at a conclusion is whether the prosecution has been able to prove the two charges against the accused beyond reasonable doubt.
As mentioned above the onus is in the prosecution and the degree of proof is beyond reasonable doubt. Thereby in regards to the two charges, the precise elements that the prosecution is burden to prove against the accused are as follows;
1st count
2nd count
In regards to the first count the contention of the prosecution was that the accused having reached the complainant had demanded said money promising him that he will support complainant to get the liquor license using powers of his office. In regards to the first count the prosecution has relied only on the evidence of complainant and the reason for them to relied only on complainant was money was demanded at his office when the accused and the complainant was alone.
As oppose to the aforesaid contention the defense by the accused was total denial and the accused in his evidence vehemently denied demanding money from the complainant. Therefore now the duty before this court to evaluate the credibility of evidence and come to a conclusion whether the evidence by the prosecution witnesses, this court can convict the accused based on their evidence or whether the accused from his defense by attacking the prosecution evidence was able to create a reasonable doubt against the case for the prosecution.
In the case of State v Kamal reported in 2014 FJHC 8HAC 221.2011 dated 24.01.2014 It was decided that credibility of witness should be evaluated under following grounds;
Test of means of opportunity: That is whether the witness had opportunity to see, hear or feel what he/she is talking of in his/her evidence. Or whether the witness is talking of something out of pace mechanically crated just out of a case against the other party.
Probability and Improbability: That is whether what the witness was talking about in his or her evidence is probable in the circumstances of the case. Or, whether what the witness talked about in his/her evidence is improbable given the circumstances of the case.
Belatedness: That is whether there is delay in making a prompt complaint to someone or to an authority or to police on the first available opportunity about the incident that was alleged to have occurred. If there is a delay that may give room to make-up a story, which in turn could affect reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation to sucay.
Spontaneity: This is another important factor that you should consider. That is whether a witness has behaved in a natural or rational way in the circumstancat he/she is talking of, whf, whether he/she has shown spontaneous response as a sensible human being and acted accordingly as demanded by the occasion.
Consistency: That is whether a witness telling a story on the same lines without variations and contradictions.
Therefore in this case also it is vital that the court be mindful of aforesaid tests in evaluating the case for the prosecution and the defense case.
During cross examination it revealed from the complainant that he lodged the compliant in regards to the issue pertains to this file was on 13.01.2012. The prosecution no time elicited any evidence in regards to the first complaint as it is important to this case. The allegation by the complainant right throughout was, he came demanding money and when refused giving money the accused caused problems to his business. The complainant was precise on demanding money on following two dates those were a date in April and then 25.12.2012.
But when looking at the first element about the period mentioned in the charge sheet a doubt arises to court then as to why the prosecution mentioned a time period alleging that the accused demand money in order to favoring the complainant to get the liquor license. According to the charge the time period is between days are of April 1st of 2011 to 30th September 2011. The witness confirmed taking license on 29.09.2011. Therefore if complainant was so influenced by the accused during the time mentioned in the charge it is questionable why then the complainant was silent about the period of May to Septemberas mentioned in the 1st charge. If it is for some reason if the witness has forgotten the exact dates of that period but the problem arise whythen the witness silent on giving evidence about the period relating to May to September 2011 about demanding money by the accused.
On the other hand there is no reasonable explanation by the complainant about delay in complaining to the police about demanding bribe by the accused. According to him demanding bribe supposed to have started at the beginning of the year precisely in the month of April 2011 but at the cross examination it revealed that the compliant to police was on 13.01.2012. It is incumbent that the belated complaint can be disregarded if there had been a reasonable explanation by the complainant. In this case although the complainant claimed about writing a letter to the Prime Minister and lodging a complaint at the Lautoka police in 2011 it was observed by the court that the prosecution was unable to bring any relevant admissible evidence to that effect. Therefore in relates to the belatedness this court has to conclude that the belatedness was not plausibly explained.
Furthermore in regards to the consistency it is observed by this court that the complainant had taken different view about certain facts at the cross examination. When he was questioned about having a pending case of selling liquor after hours against his restaurant the complainant first denied that suggestion and then admitted having a case when his attention was brought to the notice of line 13 of his statement to the police.
That admission is also contravened. As admitted by the witness in his police statement pending case was against one Munesh Kumar who was one of his staffs. But in evidence before court he stated that Minush Kumar was a not an employee of his staff but was somebody who came to renovate his premises. But neither in his cross examination nor in his reexamination the witness explained the aforesaid discrepancy which resulted affecting the consistency of his evidence.
With those finding a reasonable doubt arise in the mind of court whether the complaint by the complainant about demanding bribe was an implication as a result of the accused arresting one of the employees of the compliant for selling liquor after hours or as then the accused was watchful about the complainant's business by keep eyeing on his restaurant about selling liquor by visiting the restaurant as suggested by the accused.
With the aforesaid findings this court is of the view that the defense was able to create a reasonable doubt in the first charge against the accused.
In regards to the second count same tests will apply in evaluating the evidence of prosecution as opposed to the evidence of defense as the accused's defense was a total denial.
In order to prove the elements in the second count prosecution called five witnesses including the complainant and mainly the purpose of calling additional four witnesses by the prosecution to corroborate the evidence of complainant who is the key witness of the prosecution.
In regards to second count the precise evidence of the complainant about the elements was;
'On 25.12.2012 I was at the shop. He asked for the money...and told me to give money so I can operate the shop or if I don't give money he will close down the shop.'
According to his evidence all-time money was demanded at the complainant's office and that was also when both were alone and when both were abandoned from other staff at the restaurant.
But nowhere in the other witnesses who were PW2 to PW6 have mentioned that accused went first meet the complainant and then ordered to close the shop. Evidence of all other witnesses except PW6 was that the accused first talk to other witnesses and secondly the complainant came to the scene to show the accused license. There is no evidence from prosecution then at what point of time the accused first went and met the complainant and demanded money on that day.
This discrepancy goes to the root cause of the prosecution case.
But however there is no dispute that the accused is a police officer, and he is a public officer, the incident was in the early morning and the accused was present at the scene on 25.12.2012. The accused admitted visiting the restaurant in question on the day in question. And the issue before this court to decide whether the accused
But when closely observed the sequence of events alleged to have been seen by the prosecution it is evident that 5 prosecution witnesses
had seen that incident with material discrepancies in their evidence.
Although it is accepted fact that any incident can be seen by the witnesses subjected to their observation power it should not be
disregarded if there is material contradictions among the evidence of witnesses and the reasons for the contradiction is not properly
explained that contradictions cannot be disregarded when concludes veracity of the witnesses.
Therefore in regards to the aforesaid event as stated by the complainant there is no evidence in his testimony about chasing customers out by the accused before he ordered to close the restaurant on that particular day.
But contrary that, the by position witness PW2, PW3 and PW4 they specifically mentioned that the accused chased customers who were at the restaurant at the time of the incident before he ordered to close the restaurant.
According to PW3 the accused supposed to have chased the customers and closed the doors. According to PW4 customers were eating inside the shop and the accused told them to go out. According to PW2 only 2-3 customers were seen at the compound when the accused chased them. Therefore it is evident that the four witnesses claimed four different situations in regards to one incident.
All in above the vital issue in regards to the aforesaid version is the denial by PW2 and PW3 about their contradictory contents in their respective police statements.
According to the PW2's evidence the accused had acted violent by chasing and ordering to close the business. But when the accused brought to the notice of witness that in his statement he has mentioned that the accused after seeing license just departed the premises, the witness by denying making such a statement to the police stated that his statement was written by the police.
Q: in your statement line 9 you have stated that after seeing the license the accused went.
A: no
Q: so you are saying police wrote that
A: statement was written by the police
Similarly when PW3 was cross examined about her statement and in regards to the contrary view about chasing customers her explanation was the given statement was not read out before she signed that statement.
Q: after the license was shown the accused went away
A: the accused told us he will see us later and went away.
Q: on 12.01.2013 did you give a statement
A: yes
Q: did you tell that the accused told you to close the shop
A: yes
Q: I put it to you it is not recorded in your statement
A: I told police
Q: In line 14 of your statement 'after seeing the license the accused went out'
A: Accused told me to close the door
Q:before you signed the statement is read beck
A: after they taking my statement they told me to sign.
This controversies were never been explained by the prosecution in their evidence, whether witnesses did mention police about the closure of the restaurant or police officer who recorded statements deliberately implicated the accused to the crime.
In regards to the evidence of PW4 is also court can be observed vital contradiction with the evidence of other four prosecution witness. The contention of the complainant was the accused first demanded money and then when he refused he ordered to close the restaurant. PW2 and PW3's evidence is firstly the accused chased away the customers and then inquired the license and then the complainant who was at the restaurant showed the license to the accused. Neither the PW2 nor PW3 stated to court that the complainant was elsewhere when accused demanded to see the license.
But the version of the PW4 is contradicting in total. According to PW4, PW3 had gone bringing the complainant to the restaurant to show the accused the license. According to her evidence the complainant was not at the restaurant.
Q: one of the aunts went Reddy and brought the license
A: she just went to wake up Reddy that was Panjali
Q: why Panjali went to wake up
A: because of the incident.
Q: When police came Mr. Reddy was not there
A: yes.
This is totally inconsistent to the evidence of the complainant because as he claimed if the accused demanded money at his office then how come the complainant has been sleeping elsewhere when the accused already chasing the customers.
Secondly PW3 Panjali nowhere in her evidence stated to court that she went to wake the complainant up and her exact evidence was;
'I came to the door I told the officer we operate for 24 hours. Then he chased customers away and asks for the business license. He shouted out and my son came. Then both of my sons come to the door (the complainant and PW2). Then my son came with the license. It was show.'
In the case of Chand v State [2013] FJHC 63; HAA022.2012 (22 February 2013) His Lordship Gounder J held that the previous inconsistent statement may be used to consider whether the witness is believable. In examining the suggested inconsistencies, the court must first determine whether there is one, and whether it is material and relevant or, on the other hand insignificant or irrelevant. If there is an inconsistency, it may lead the court to conclude that the witness is generally not to be relied upon; alternatively, that a part of the witness's evidence is inaccurate; or the court may accept the reason the witness has provided for the inconsistency and consider the witness to be reliable.
But in this case none of aforesaid inconsistencies by the prosecution witnesses have been explained.
In regards to the evidence of the last witness who is PW6 it is evident that his evidence is total contradictory to the other prosecution witness. According to that witness there is no evidence that the accused chasing any of customers and ordering people at the restaurant to close restaurant. Simply his evidence was after the accused gone inside the restaurant he had questioned about the license and then after checking the availability of the license the accused departed the place with the witness.
This was the exact contention of the version of the accused. His evidence was being the entrusted officer for the Western Division to raid the outlets who sell liquor contravene to the give license he had kept patrolling the targeted shops. As a result of that the accused claimed reporting to the complainant's restaurant and checking his liquor license on the date in questioned. The accused denied demanding any money or ordering the complainant to close the restaurant by abusing his powers of office.
The version of the accused corroborated with the PW6's evidence. In the summing up in case of State v Nalave [2013] FJHC 496 dated 24.09.2013 His Lordship Justice De Silva stated following test in evaluating the evidence by the accused.
"You will generally find that an accused gives an innocent explanation and one of the three situations then arises:
Therefore with the aforesaid findings it is incumbent that even the accused unable to discredit the prosecution case still the prosecution is burden to prove their case beyond reasonable doubt and right throughout presumption of innocence of the accused will operates. As stated in the same judgment in paragraph 81 his Lordship held that;
"If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so you are not sure of each each accused's guilt, you must find her not guilty as charged. Your possible opinions are as follows: that the prosecution was unable ove the charges against the accused beyond reasonable doubtdoubt"(State v Nalave [2013] FJHC 496 dated 24.09.2013)
There with the aforesaid findings this court is satisfied that the prosecution was unable to prove the aforesaid two charges against
the accused beyond reasonable doubt. Even without evaluating the case for the defense it is incumbent that the evidence by the prosecution
is inconsistent, uncorroborated and unworthy of credit. His Lordship justice Gounder in the case of State v Murti [2010] FJHC 498; HAC195.2010 (10 November 2010) it is held that
'Corroboration means some independent testimony which affects the accused by connecting him with the crime. In other words, it must
be evidence which implicates him, that is, which confirms in some material particular not only that the crime has been committed,
but also the accused committed it'
But in this case neither of prosecution witnesses' evidence was corroborated. Therefore there is no evidence that the accused is connected to the two offences against the accused.
This court held that the accused was able to createa reasonable doubt in the case for the prosecution. Thus I acquitted the accused from the two charges filed against the accused contrary to section135 (1) (a) (i) and (b) (ii) of the Crimes Decree 2009 and contrary to section 139 of the Crimes Decree of 2009.
28 days to appeal
LakminiGirihagama
Resident Magistrate
24th January 2015.
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