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State v Turagadamudamu [2017] FJMC 28; Criminal Case 1514.2016 (28 February 2017)

IN THE MAGISTRATE’S COURT of FIJI
AT SUVA

Criminal Case No. 1514/16

STATE

-v-

SEFANAIA TURAGADAMUDAMU

JUDGMENT

1. The accused in this case is charged with one count of Drunk and Disorderly Contrary to Section 4 of the Minor Offences Act, one count of Resisting Arrest Contrary to Section 277(a) of the Crimes Decree, one count of Damaging Property Contrary to Section 369(1) of the Crimes Decree and one count of Disorderly Conduct in the Police Station Contrary to Section 47 of the Police Act. The charges are as follows:
   

Count 1

DRUNK AND DISORDERLY: Contrary to Section 4 of the Minor Offences Act, Cap 18.

Particulars of Offence (b)

SEFANAIA TURAGADAMUDAMU on the 7^th day of September 2016 at Tamavua in the Central Division was drunk and disorderly in a public place namely Tamavua i Wai.

Count 2

RESISTING ARREST: Contrary to Section 277(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence (b)

SEFANAIA TURAGADAMUDAMU on the 7^th day of September 2016 at Samabula in the Central Division resisted the lawful arrest of himself by DC 3413 Sunia Maniela.

Count 3

DAMAGING PROPERTY: Contrary to Section 369(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence (b)

SEFANAIA TURAGADAMUDAMU on the 7^th day of September 2016 at Tamavua in the Central Division wilfully and unlawfully damaged the shirt valued at $25.00 the property of Detective Constable 3413 Sunia.

Count 4

DISORDERLY CONDUCT IN POLICE STATION: Contrary to Section 47 of the Police Act, Cap 85.

Particulars of Offence (b)

SEFANAIA TURAGADAMUDAMU on the 7^th day of September 2016 at Tamavua in the Central Division behaved in a disorderly manner in the charge room at Samabula Police Station where members of the public have access.

2. Prosecution called two police officers (Corporal 3870 Priya – PW1 and Constable Benito PW2) who arrested the accused on 7/9/2016. In addition to these officers PC Sunia has participated in the arrest. These officers were in patrol duty when they received information that a fight was in progress at Tamavua i Wai. When they were approaching Tamavua i Wai they observed 4 men were fighting, swearing and shouting. The people had gathered to that place. By the time they approached in vehicle near these 4 men, 3 men had fled. They manage to arrest only the accused in this case.
   
3. When officers were trying to arrest the accused he resisted arrest. He swore at people and the officers. One officer got hold of the accused and brought him to Samabula Police Station. The accused continued to swear at female officers at the Police Station also. Constable Benito giving evidence corroborated the evidence of Corporal Priya.
   
4. Following elements are required to be proved by the Prosecution beyond reasonable doubt to find the accused guilty to Count one.
   
   1. The accused was drunk
   2. He was in a public place
   100. Disorderly behaviour of the accused
        
5. Two officers who gave evidence for the Prosecution confirmed that accused smelt liquor. Accused denied that he was drunk. However he said that he joined two persons who were consuming liquor beside his house.
   

In cross examination of the prosecution witnesses the accused put up a defence that he was not taken to a medical officer. His contention is that the Prosecution cannot prove that he was drunk without medical evidence. This is an untenable contention to an offence under Section 4 of the Minor Offences Act. Whether the accused was drunk is a simple question of fact in each case. (Neale v R.M.S.E. (1984) 89 Cr. App. R.20). The accused was swearing at the officers and the people gathered there. He smelt of liquor when he was arrested. These evidence confirms that he was drunk. In Neale v F.M.J.E (supra) it was observed that the word drunk, in ordinary common speech....refers to someone who has taken intoxicating liquor to an extent which affects his steady self control. In this instance the Prosecution evidence has proved his drunkenness beyond reasonable doubt.

Since people gathered at the place where the accused was arrested it’s clear that the place is a public place.

“Disorderly Behaviour” should be given an ordinary and natural meaning. What is required is proof that objectively viewed the accused was guilty of disorderly behaviour. There is no mens rea requirement (Caroll v DPP [2009] EWHC 554; (2009) 173 JP 285). The accused was swearing at the people who gathered at the scene and the police officers. According to Cpl Priya he targeted the women officers. This conduct satisfies this element in this offence. Accordingly count 1 has been proved beyond reasonable doubt.

6. In respect of the 2^nd count the prosecution is required to prove that the arrest was lawful and the accused resisted the arrest. The officers attended the scene on information. When they approached they observed the accused behaving disorderly in a drunken state. On that apprehension the officers tried to arrest the accused. The accused at this point had resisted. He swore at the officers. The officers had to take efforts to get the accused into the vehicle. Cpl Priya said in evidence that the accused confronted Constable Sunia when he tried to get the accused in the vehicle. Simple action of avoiding arrest would be sufficient to find an accused guilty to this offence. The purpose of this offence is penalizing persons who disobey the lawful execution of law by police officers. The above conduct of the accused is obviously a resist of arrest.
   
7. The 3^rd count is that the accused has damaged the shirt of Constable 3413 Sunia. This officer was not called as a witness to the Prosecution case. The evidence of two other officers were not sufficiently lead to prove the damage. Accordingly this court is of the view that 3^rd count has not been proved beyond reasonable doubt.
   
8. Cpl Priya in her evidence said that when the accused was taken to Samabula Police Station after arrest the accused continued to swear at police officers. This conduct should be examined objectively.
   

Once he was taken to Police Station the legal process has to be started. Therefore the accused is required to assist this process. The manner in which the accused behaved swearing at the police officers, specially female police officers would amount to an disorderly conduct.

9. The accused giving evidence for the defence denied the allegations in all 4 counts. He said that he was laughing with 2 other boys who were consuming liquor beside his house. They were fighting with each other. The accused said that he was not drunk. He further said that when the officers arrived at the scene he told Constable Sunia that “it’s not a problem”. It appears that the accused position is that he was arrested because of this argument with the officers. However it is obvious that this is not mere questioning of an officer. His evidence that he did not consume alcohol with other two persons cannot be accepted when his conduct at the time of his arrest is considered. The accused has questioned that if he was drunk how can the officers take his statement and how can he remember the incident. As I said earlier the consumption of alcohol which led him to behave disorderly is sufficient in this incident. Prosecution is not supposed to prove that his drunkenness made him incapacitated in every aspect. Accordingly the accused’s defence cannot create any doubt in the Prosecution case.
   

10 For the reasons adduced above, this Court concludes that the Prosecution has proved count one, count two and count four beyond reasonable doubt. It has failed to prove count 3 above. Accordingly I find the accused guilty to the 1^st, 2^nd and 4^th counts mentioned in paragraph 1 above and I acquit the accused from 3^rd count.

28 Days to Appeal

PRIYANTHA LIYANAGE
RESIDENT MAGISTRATE, SUVA

On 28^th day of February 2017