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State v Ali [2026] FJMC 20; Criminal Case 485 of 2021 (24 February 2026)

IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 485/2021

BETWEEN: STATE

PROSECUTION

AND: MOHAMMED NADEEM ALI

ACCUSED

Counsel: PC 5647 Pranil Nair for Police Prosecution
Mr. M. Yunus for the Accused.

Date of Trial: 8 December 2025
Date of Judgment: 24 February 2026.

JUDGMENT

Introduction

1. Mr. Mohammed Nadeem Ali (“the Accused”) by way of an Amended Charge was charged with 1 count of Criminal Intimidation contrary to section 375(1)(a)(i)(iv) and (2)(a) of the Crimes Act 2009 as well as 1 count of Breach of Bail Condition contrary to section 25(1)(b) and 26(1) of the Bail Act 2002 and Bail Amendment Act 2012. The particulars of the offences are:
   

Count 1

Statement of Offence

Criminal Intimidation: Contrary to Section 375(1)(a)(i)(iv) and (2)(a) of the Crimes Act 2009.

Particulars of Offence

Mohammed Nadeem Ali on 8^th day of October 2021 at Wailailai, Ba in the Western Division, without lawful excuse threatened to cause death of Meenal Singh by uttering “I will kill you” with intent to cause alarm to the said Meenal Singh.

Count 2

Statement of Offence

Breach of Bail Condition: Contrary to Section 25(1)(b) and 26(1) of the Bail Act 2002 and Bail Amendment Act 2012.

Particulars of Offence

Mohammed Nadeem Ali on 8^th day of October 2021 at Ba in the Western Division, being bailed by Ba Magistrates Court vide CF 10/20 with the condition not to re-offend, breached the said condition by re-offending.

2. As Count 1 was an indictable offence triable summarily, on 8 December 2025, you elected the Magistrates Court to hear the matter. On the same date, after the charges were read and explained to you in your preferred language of English and you confirmed that you understood the same, you pleaded Not Guilty to both counts.
   
3. The matter then proceeded to Trial and 1 witness gave evidence and thereafter Prosecution closed its case. This Court found that a case was made out against the Accused to sufficiently require him to make a defence in respect of both charges. The procedure under section 179 of the Criminal Procedure Act was explained to the Accused. It was also explained to the Accused that he had a right to remain silent. The Accused chose to give evidence and not call any witnesses. Defence then closed its case.
   
4. Thereafter, both parties filed Closing submissions. It is prudent to mention that the documents that Prosecution annexed to its Closing submissions was expunged from the Court Record on 29 January 2026 given that it pertained to a letter from the counsel of the Accused as well as a search with LTA which were never adduced into evidence.
   
5. Having read the submissions and considered the evidence presented by Prosecution and Defence, I now pronounce my Judgment.
   

Burden of Proof

6. It is imperative to highlight that as a matter of law, the onus or burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no burden on an accused to prove his or her innocence as an accused is presumed to be innocent until proven guilty.
   
7. It is for the prosecution to prove the accused’s guilt beyond a reasonable doubt. If there is doubt, so that the court is not sure of the accused’s guilt, or if there be any hesitation in the court’s mind on any of the ingredients or on the evidence led by prosecution, the accused must be found not guilty of the charges and accordingly acquitted.
   

Summary of Evidence

8. The Complainant that on 8 October 2021 before 6:30pm, Nadeem came to her tenant – Irene’s house. Then around 6:30pm, a black car came and parked behind the Accused’s car. The driver of the black car was an itaukei person with an old aged lady sitting in the vehicle. The Complainant questioned the lady whom she was looking for. The lady stated Nadeem and when the Complainant questioned who she was, the lady responded that she was Nadeem’s wife namely Sadikan Shah or Gally ‘Ms. Sadikan’.
   
9. Ms. Sadikan then had an encounter with Nadeem and Irene and due to the commotion, the Complainant informed them that she would call the Police and then told Ms. Sadikan to leave and told Irene to tell Nadeem to leave as well. It was when the Complainant mentioned the Police that Nadeem fled to his vehicle and left and thereafter Ms. Sadikan left as well.
   
10. Whilst the Complainant was speaking to Irene then Nadeem returned in his vehicle and parked his vehicle beside her. The Complainant told Irene to inform Nadeem to leave and that she would call the Police. As the Complainant was dialing the Police, Nadeem then stated to her in the Hindi language that he would kill her and as he said this he was staring at her in anger. The Complainant stated that she got scared and then reported the matter.
    
11. The Bail Undertaking Form was then tendered by consent as ‘PEX1’.
    
12. The Accused denies threatening the Complainant even though he was at her residence on 8 October 2021 and he also denied seeing the Complainant that day. He, however, admits that Ms. Sadikan had arrived at the Complainant’s home and wanted to assault Irene but as he had a case for which he was on bail, he saved his own life by getting into his vehicle and leaving. After following Ms. Sadikan’s vehicle which had left when he did, the Accused stated that he went home and slept due to tiredness.
    
13. The Accused also admitted being bailed by the Ba Magistrates’ Court but that he also had cases in Rakiraki. He further testified that his name was Saif Ali Khan whilst his nickname was Mohammed Nadeem Ali.
    

Preliminary Issue

14. Before analysing the evidence, it is imperative to address an issue raised by the counsel for the Accused during submissions with respect to the name of the Complainant. It is counsel’s contention that the Complainant when taking oath to give evidence stated that her name was ‘Meenal Deepti Singh’ whereas the charge sheet reflects her name as ‘Meenal Singh’ only.
    
15. Counsel for the Accused referred to the case of Fareed v State Criminal Appeal Case No. HAA 017 of 2021S (11 November 2022) where His Lordship Justic Temo (as he then was) stated the following after paragraph 31:
    

“In this particular case, the charge was that mentioned in paragraph 1 hereof. The complainant’s name in the charge was Luisa Fatha Savou. When giving her evidence, the complainant, on oath said her name was Luisa Faith Naikasavou (transcript of proceeding, page 13). The name contained in the charge and that given in evidence are not similar. Only the first mentioned matched, the second and third do not match. Words and spelling of names in law are crucial and important. It is a matter of identity. What should have been done was for the prosecution to seek an amendment of the complainant’s name, before they closed their case. They did not do so. So, as a matter of law, the complainant’s name in the charge does not match the complainant’s name in the evidence. The evidence does not support the charge. On this point alone, the learned magistrate should have found the appellant had no case to answer and acquit him accordingly.”

His Lordship went on to further state at paragraph 33:

“Furthermore, as explained ... hereof, the learned Magistrate erred in law and in fact in not finding that the appellant had no case to answer.”

16. It is the Accused’s counsel’s submission that as the Complainant’s name on the charge sheet does not depict her middle name namely ‘Deepti’ that the Court ought to follow the decision in Fareed [supra] and acquit the Accused.
    
17. In Fareed [supra] it is noted that the Complainant’s name in the charge sheet was reflected as ‘Luisa Fatha Savou’ whereas when giving evidence she had stated that her name was ‘Luisa Faith Naikasavou’. It is evident that the middle name and the surname reflected in the charge were completely different from that as stated when giving evidence.
    
18. The Court agrees with His Lordship’s sentiments that the words and spellings of names are crucial and important. More importantly, it would be best practice to use a person’s registered name. However, the omission of a middle name or middle names does not negate the charge. In a time when a middle name or middle names are not frequently used and the usage of only first names and surnames is a common practice, the application of the rationale in Fareed [supra] for this reason in negating a charge would be misconceived.
    
19. Notably, the case herein can also be distinguished from Fareed [supra] considering that the Complainant’s first and surname are correct as per the charge sheet, but Prosecution has chosen not to use her middle name. Thus, the Court will not apply the rationale of Fareed [supra] herein.
    
20. Further, counsel for the Accused, also relies on Fareed [supra] with respect to the name used for the Accused in the charge sheet. The Accused has been charged under the name of ‘Mohammed Nadeem Ali’. His Certificate of Birth was tendered as ‘DEX1’ which shows that his name is ‘Saif Ali Khan’. The Accused acknowledged in his evidence that the name ‘Mohammed Nadeem Ali’ is a nickname that he had acquired from birth and a name that he has continued to use up to the date of this Trial and a name that the Police Officers know him by.
    
21. Whilst the Accused states the name ‘Mohammed Nadeem Ali’ is a nickname, the correct term would be that it is an alias which as defined by the Concise Oxford English Dictionary is a false or assumed identity.
    
22. As stated at paragraph 18 herein, it would be best practice to use a person’s registered name and in the event that the person has an alias especially one that has been continuously used by the person and is a name the person is commonly known by, then the alias should also be included in the charge sheet.
    
23. Given the Accused’s acknowledgement that ‘Mohammed Nadeem Ali’ is a name that has been used since the time of his birth up until today and one that he is commonly known by, neither does the Court find the application of the rationale of Fareed [supra] ought to be applied herein nor should the Accused be acquitted on such a technicality.
    

Evaluation of Evidence

24. For a proper analysis of the evidence, it is imperative for the Court to turn its mind to the elements for Criminal Intimidation, which are:
    
    1. the accused
    2. without lawful excuse
    3. threatened to cause the death of another person
    4. with intent to cause alarm.
       
25. From the evidence it is apparent that there is no dispute to the identification of the Accused given that the Accused agrees that he had been at the Complainant’s residence at the time of the alleged offending. Further, there was no issue raised that the Complainant was mistaken in identifying the alleged perpetrator.
    
26. Thus, the Court will need to determine whether the Accused had without lawful excuse threatened to cause the death of the Complainant on 8 October 2021 by saying “I will kill you” with the intent to cause alarm to the Complainant.
    
27. The Complainant and the Accused’s version of events differ with respect to what transpired on the abovementioned date. The Complainant states that the Accused had threatened him whilst the Accused denies the same.
    
28. In State v Prasad Criminal Case No. HAC 72 of 2021 (20 June 2024) His Lordship Justice Rajasinghe referred to the Liberato principle as expounded in Liberato and Others v The Queen [1985] HCA 66; 159 CLR 507 at 515 where Brennan J held that:
    

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question; who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issue which it bears the onus of proving. The jury must be told that; even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is “a gross simplification.”

29. Prasad [supra] also made reference to the case of Naidu v State [2022] FJCA 166; AAU0158.2016 (24 November 2022) where His Lordship Prematilaka highlighted the importance of modifying the Liberato principle and held:
    

[29] On the other hand Liberato has not uttered the final word on this issue. In Johnson v Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 at 535 [14]- [15] Wheeler JA identified one possible shortcoming in using Brennan J's statement in Liberato as a template for the direction: a jury may completely reject the accused's evidence and thus find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a ‘reasonable doubt’ on that issue.

[30] For that reason, it was usefully held in Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116 at 121 [26] that it is preferable that a Liberato direction be framed along the following lines (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?

30. His Lordship Justice Rajasinghe in Prasad [supra] further stated “if the Court believes the evidence given by the Accused is true or may be true, then the Court must find the Accused not guilty of the offences. Even if the Court rejects the Accused version, that does not automatically imply that the Prosecution has established that the Accused is guilty of the crime. The Prosecution must satisfy that it has established, on the evidence accepted by the Court, beyond a reasonable doubt, that the Accused committed these offences as charged in the information”.
    
31. Thus, the Court will need to evaluate the evidence by Prosecution whilst keeping in mind the evidence presented by the Accused insofar as they relate to the issue it is considering. The evidence presented by the parties will be evaluated to determine the testimonial trustworthiness of the evidence which will be done by evaluating the credibility – the correctness or veracity of the evidence and the reliability of evidence – the accuracy of the evidence - vide State v Prasad Criminal Case No. HAC 72 of 2021 (20 June 2024). In doing this, the Court should consider the promptness/spontaneity, probability/improbability, consistency/inconsistency, contradictions/omissions, interestedness/disinterestedness/bias, the demeanour and deportment in Court and the evidence of corroboration where it is relevant. (vide State v Moroci Criminal Case No. HAC 161 of 2023 (26 April 2024)).
    
32. When considering the Accused’s evidence, the Accused testified that on 8 October 2021, he had gone to his best friend’s Irene’s home given that she had invited him. He explained that as he was sitting at Irene’s house, there had been a knock at the door with Ms. Sadikan at the door. The Accused testified that Ms. Sadikan was angry and wanted to punch Irene.
    
33. The Accused admitted that he had a case and was on bail as such to save his life, he went into the car, wound the window and then followed Ms. Sadikan’s vehicle. The Accused then went to testify that Ms. Sadikan was sick at home and that he saw itaukei men from Semo, Sigatoka driving her vehicle. He stated that he followed the vehicle and when it had parked at the Bowser opposite Ram Narayan Engineering, he went home to Yalalevu, Ba and slept. The Accused denied seeing the Complainant on that day.
    
34. However, when the Accused was cross-examined, he denied threatening the Complainant and stated that he had been trying to save Ms. Sadikan and that the Complainant had been drunk and that the Complainant was the one annoying the Accused.
    
35. The Court is mindful of the probability of the Accused’s evidence in that he had stated that he had fled when Ms. Sadikan had wanted to punch Irene. However, he then said in cross-examination that he was trying to save Ms. Sadikan whom he also said had been at home sick. Why would the Accused want to save Ms. Sadikan especially considering that she was the one who wanted to punch Irene?
    
36. Further, the Court is mindful that when the counsel for the Accused had cross-examined the Complainant, it had been suggested that Ms. Sadikan had tried to assault the Complainant and that the Accused had tried to stop Ms. Sadikan, the Complainant denied. When it was further suggested that when the Accused had been trying to stop Ms. Sadikan from assaulting the Complainant, Ms. Sadikan called the two boys to assist, the Complainant maintained that Ms. Sadikan never tried to assault her. The Accused never mentioned in his evidence that there were itaukei men being present at the Complainant’s home at the time Ms. Sadikan had come and wanted to punch Irene.
    
37. Moreover, the counsel for the Accused never cross-examined the Complainant that the Accused never returned to her residence after he had fled and that instead the Accused had gone to his home and slept as per the Accused’s evidence.
    
38. Considering the above, the Court finds that the Accused’s evidence has not created a reasonable doubt with respect to what transpired on 8 October 2021.
    
39. Now turning to Prosecution’s evidence. The Complainant testified that on 8 October 2021, the Accused had come to her tenant – Irene’s house in his car. The Complainant explained that her tenant’s house is a ‘L shaped’ house just like hers and that their houses were about 3-4 meters apart.
    
40. She then testified that at around 6:30pm, a black car came and parked behind the Accused’s car with the driver of the black car being an itaukei person and that an old, aged lady had been sitting in the vehicle. The Complainant questioned the lady whom she was looking for to which she stated Nadeem – the Accused and when the Complainant questioned who she was, the lady responded that she was Nadeem’s wife namely Sadikan Shah or ‘Gally’.
    
41. The Complainant then explained that Ms. Sadikan found out that the Accused was in the other house so she made her way to Irene’s house and was followed by the itaukei man. According to the Complainant, Ms. Sadikan then approached Irene’s porch and was standing at the front door. Upon seeing the Accused there, Ms. Sadikan started shouting and questioning the Accused. It was then that the Complainant stated that Irene and the Accused started to close the door with there being an exchange of swears.
    
42. Whilst this was happening, the Complainant stated she was standing on her porch and when she saw that there was banging on the doors, the Complainant grew afraid that they would break the house and other things. The Complainant then explained that as the whole neighbourhood was listening, she went to the porch of her tenant’s house and asked Irene what was happening and then told them that she would call the Police.
    
43. The Complainant then told Ms. Sadikan to leave and then told Irene to tell the Accused to leave her compound as well. The Complainant then went on to explain that as she had mentioned she would be calling the Police, the Accused fled out of the house, got into his vehicle and left. Thereafter, Ms. Shah left in the vehicle she had come in.
    
44. The Complainant was then speaking to Irene when the Accused returned and parked his vehicle beside the Complainant and asked Irene to come out of the house. The Complainant stated that Irene was hesitant to come out and it was then that the Complainant told Irene to tell the Accused to leave as she did not want him in her compound. The Accused did not leave but instead he and Irene started swearing about Ms. Sadikan. The Complainant then told them that she would call the Police.
    
45. Whilst standing where she was and dialing the Police Station number, the Accused then stated to the Complainant that he would kill her. The Complainant stated that when the Accused said this, he was standing with his eyes wide open and staring directly at her in anger. The Complainant stated that whilst Nadeem said all this to her, he had been sitting in his car which was very close to where she had been standing.
    
46. The Complainant testified that she got scared and that she had no other choice but to go down to the Police Station because the way the Accused looked at her and the words he had said to her really scared her especially as he might do something to her. The Complainant testified that the Accused then went on to say that the Police were in his pocket and they would not do anything to him. The Complainant stated that even after she had reported the matter, she had been scared as she would see Nadeem’s vehicle around her area.
    
47. In cross-examination, when it was suggested that the Accused never threatened her by saying that he would kill her, the Complainant maintained that he did say it and that he did so in Hindi.
    
48. Counsel for the Accused submits that as the charge sheet did not specify the exact Hindi words which had allegedly been used by the Accused and because the Complainant did not specify the same in her evidence, that the Accused ought to be acquitted.
    
49. However, when considering the Accused’s admission that he had a pending case and had been on bail at the time that Ms. Sadikan came to the Complainant property and was causing issues with the Accused and the Complainant’s tenant coupled with the Complainant’s position of calling the Police as the Accused was not leaving her property as requested, the only indisputable inference that can be drawn here is that the Accused threatened to kill the Complainant to deter her from calling the Police and complaining about him.
    
50. Further, given that the Complainant had gone to the Police Station to lodge a complaint against the Accused instead of calling the Police as she had originally intended and that after threatening her, the Accused stared at the Complainant in anger with wide open eyes, the only indisputable inference that can be drawn is that the Accused had threatened to kill the Complainant which caused her to seek out the Police and because of this threat to kill her, the Complainant genuinely believed what was said to her and was genuinely scared that something would be done to her.
    
51. Moreover, the Accused in his evidence stated that the Complainant had been annoying him but this was never suggested to the Complainant. There was no evidence to suggest that the Complainant had an ulterior motive and/or had any issues with the Accused to cause her to lodge a false report against the Accused. Rather, it is evident that because of the dispute between the Accused, the Complainant’s tenant and Ms. Sadikan, the Complainant was worried about her property being damaged as well as the fact that the neighbourhood was listening to what was happening in her property that the Complainant just wanted the Accused to leave so that no other issues would occur.
    
52. The above evidence in totality allows the Court to draw an indisputable inference from the whole situation that due to the Complainant calling the Police because the Accused was not leaving her property as requested, the Accused threatened cause the death of the Complainant by threatening to kill her whilst staring at her angrily and that he did this with the intent to cause alarm to the Complainant.
    
53. Having considered the reasons above, the Court finds that Prosecution has satisfied beyond a reasonable doubt that the Accused on 8 October 2021 without lawful excuse had threatened to cause the death of the Complainant by uttering ‘I will kill you’ with intent to cause alarm to the Complainant.
    
54. Now turning to the offence of Breach of Bail Condition. The elements for this offence are:
    
    1. the accused
    2. who has been released on bail
    3. and who fails without reasonable cause
    4. breaches any condition of bail imposed by court commits an offence.
       
55. The Bail Undertaking Form was tendered as ‘PEX1’. Counsel for the Accused submits that as per the Bail Undertaking Form it was the Rakiraki Court which had granted the Accused bail in Ba CF 09/20 and 10/10 which then required the Accused’s attendance at the Ba Magistrates’ Court.
56. Counsel for the Accused further submits that the particulars of the charge identifies the Ba Magistrates’ Court as being the Court that granted bail to the Accused on 9 January 2020 with the conditions not to re-offend.
    
57. However, the Court disagrees with counsel’s submissions. The particular Court granting bail is not an element of the offending but rather the elements are that at the time of the alleged offending, an accused had been on bail and without reasonable cause breached the condition of bail imposed by the court by re-offending.
    
58. From the Bail Undertaking Form, it is apparent that the Accused had been granted bail on 9 January 2020 in Ba CF 9/20 and 10/20 and one of his bail conditions was not to re-offend. The Accused, in his evidence, stated that he had been granted bail by the Old Ba Court and he confirmed that he had been going to Rakiraki but he wasn’t sure as to which matters.
    
59. Thus, considering the evidence in totality, it is apparent that at the time the Accused had committed the offence of Criminal Intimidation on 8 October 2021, he had been on bail in Ba CF 10/20 and that one of his conditions was not to re-offend and he breached this condition without reasonable cause.
    
60. The Court therefore finds that Prosecution has satisfied beyond a reasonable doubt that the Accused on 8 October 2021 had been on bail in Ba CF 10/20 with the condition not to re-offend and he breached this condition by committing the offence of Criminal Intimidation herein without reasonable cause.
    

Determination

61. I find that Prosecution has discharged its burden in proving all the elements for offences of Criminal Intimidation and Breach of Bail Condition beyond reasonable doubt.
    
62. I, therefore, find the Accused, Mohammed Nadeem Ali, guilty as charged for 1 count of Criminal Intimidation and 1 count of Breach of Bail Condition.
    

N. Mishra
Resident Magistrate