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Suva City Council v Khatri [2016] FJMC 95; Criminal Case 16.2015 (25 July 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case : 16/2015

SUVA CITY COUNCIL

V

SHALESH KUMAR KHATRI

For the Prosecution : Mr.Raj

For the Accused : Ms.Krishlyn Chetty

Date of Judgment : 25^thof July 2016

JUDGMENT

1. The accused was charged with one count of Failed to comply with notice from building surveyor to contrary to Regulations 12(1) and (2) ,17(7) and 18 and 137 (1) of the Towns(Building )Regulation made pursuant to Public Health Act ,Cap 111.
2. The particulars of the offence are “SHAILESH KUMAR KHATRI of 168 Rewa Street, Suva in the Central Division did on the 20^th day of January 2015 having served with a notice by the Building Surveyor of Suva City Council to pull down and remove the unauthorized structure namely illegal retaining of wall at rear and side boundary on Crown Lease No. 2054 being Lot 1, Rewa Street Extension at 168 Rewa Street, Suva without having plans and specifications approved by the Council, failed to comply with such notice .”
3. The accused pleaded not guilty wherefore this proceeded for hearing. For the prosecution a building inspector gave evidence and for the defence the accused testified. At the conclusion of the hearing only the defence filed closing submission which I have also considered for my judgment.
4. The prosecution witness Mr.Narendra Prasad said he was familiar with this case and visited the scene and found work going on for retaining wall. The witness checked from the relevant file and saw no approved plan for the wall by the Suva city council (“SCC”) and issued notice (PE1) to remove the wall to the accused. He also conducted the title search (PE2) and when there was an inspection carried out on 17/03/2015 the wall was still there. During cross-examination the witness said he has to check if the plans were approved and also agreed after PE1 was issued the accused liaised with SCC. He was not approving plans and also agreed according to the letter written on 22/01/2015 the accused wanted to comply. He also agreed the accused requested time to comply with the SCC directions. He also agreed even by 17/03/2015 the accused was in the process of complying with SCC directions. He was not sure about the comments by SCC .
5. The accused said he submitted an amended plan to SCC in late 2014 and there was an agreement with the council on 19/01/2014 about the wall but he did not have an executed copy. There was no information about the agreement status of the agreement. During cross-examination the witness said he lodged the plan on 20/06/2014 but work on wall started on November 2014. There were comments from SCC but he was not sure about builders permit about retaining wall. Even though the approval was not given he constructed the wall. During re-examination the witness said he attended to all the comments from SCC.
6. Now I would consider the applicable law in this case. In Woolmington v DPP [1935] AC 462 it was held that :

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained” (per Viscount Sankey L.C. at pp. 481-482).

7. In this case the prosecution has to prove beyond reasonable doubt the following elements :
   1. The accused;
   2. After being served with the notice to pull down the unauthorized retaining wall on 20/01/2015 ;
   100. Failed to comply with that notice.
8. From the evidence of the prosecution witness, it is clear that the accused was served with notice on 20/01/2015 to remove the wall. Even though the prosecution witness was not sure, the accused confirmed that without the approval he constructed the wall. PW1 further said even when he visited the scene a day before the hearing he saw the wall still standing.
9. Therefore I am satisfied that the prosecution has discharged their burden beyond reasonable doubt in this case.
10. The accused has burden to prove on balance of probabilities that there was no non-compliance from his part.
11. The accused in his evidence said he was trying to reach an agreement with SCC and as soon as he got the notice wrote a letter asking for extension of time to comply with the SCC direction. He also reached in to an agreement with SCC and already paid stamp fees and was waiting for approved copy.
12. The prosecution witness failed to give evidence about this agreement. But he agreed that the accused tried to comply with SCC directions and even by 20/03/2015 the accused was trying to comply with these directions.
13. There was no evidence from the prosecution witness about the status of this agreement and even the prosecution did not make an effort to call other witnesses to confirm about this. They were just relying on what happened up to the date of service of notice and not aware whether the accused was trying to comply with the directions from SCC to get the approval. This was clearly illustrated when the prosecution witness said he was not from plan approving section and was not aware about what was happening there. He answering the questions during the cross-examination was stating that he wanted to check the files, but no conclusive answers were given about the defence contentions.
14. Therefore I find the defence has discharged their burden in this case.
15. Accordingly I find the accused not guilty for this charge and acquit him accordingly.
16. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate, Suva