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State v Kean [2010] FJMC 79; Criminal Case 138 of 2007 (3 September 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 138/07

BETWEEN

THE STATE

AND

GUSTON FREDERICK KEAN

JUDGEMENT

1. The accused is charged with one count of resisting arrest. The statement of offence and particulars of offence are as follows;
   

Statement of offence

Resisting arrest contrary to section 247(b) of the Penal Code

Particulars of offence

Guston Frederick Kean on the 20th day of February 2007 at Lautoka in the Western Division resisted Police Support Officer Number 1825 Autiko Kuricuva whilst effecting arrest in the due execution of his duty.

(i) BACKGROUND

2. The accused was charged on the 23rd February 2007. It appears that at the initial stages the accused had been represented by the Legal Aid, pending their decision to appear for the accused. However later he appeared on his own and never informed the court that he needs legal advice. The case was taken up for hearing on the 22nd June 2010. The accused was unrepresented and the prosecution was conducted by a Police prosecutor. The prosecution called two police officers to give evidence and after the prosecution case, the court held that the prosecution made out a case for the accused to reply. The accused gave evidence and no witnesses were called for the defence.
   

(ii) THE LAW

3. The Section 247(b) of the Penal Code reads as follows;
   

"Any person assaults, resists or willfully obstructs any police officer in the due execution of his duty, or any person acting in aid of such officer is guilty of a misdemeanor, and is liable to imprisonment for five years."

4. The prosecution has to prove the following elements beyond reasonable doubt to prove the guilt of the accused;
   
   1. The date, time and place of the alleged incident
      
   2. The identity of the accused
      
   3. That the police officer was going to arrest him in due execution of his duty
      
   4. That the accused resisted arrest
      

(iii) ANALYSIS

5. The police officer who tried to arrest the accused and another officer who came to the scene later to assist the arrest the accused were called to give evidence. According to the prosecution evidence Autiko Kurcuva had been working as a special constable form 2005 to 2009. He was on duty on the 20th February 2007 and was posted in a Police caravan stationed at the Vitogo Parade near Anupam Theatre. He had been briefed that Gustan Fredrick Kean was required for some bench warrants in pending cases against him. The police officer said that he knew Gustan Fredrick Kean before this date. He said at about 3 pm Gustan Kean got off from a van and entered in to a shop. The police officer had been alone and he had approached Gustan Kean. He said that he got hold of back of his trousers and informed him that he is wanted for some cases. The police officer said that first he was corporative and later he resisted arrest. According to the prosecution evidence, Gustan Kean had got in to his van saying that he will go to the police on his own and the Police officer had to drag him out.
   

(iii) (a) Date, Time And Place

6. The alleged incident had taken place according to the prosecution evidence, on the 20th February 2007 at about 3 pm at the Vitogo Parade, Lautoka. The accused did not dispute the date, time and the place of the alleged incident. I am satisfied that the prosecution proved those elements beyond reasonable doubt.
   

(iii)(b) Identity

7. The two witnesses called by the prosecution identified the accused as Gustan Fredrick Kean. The first witness said that he knew him before this incident and has seen him during his duties as a police officer. He said he worked for the crime branch of the Lautoka Police station and had seen him at the Police station and at his residence. The second witness of the prosecution too identified the accused and said that he knew Gustan Fredrick Kean prior to this incident. The identity of the accused was not disputed in this case. I am convinced that the prosecution discharged its burden of proving the identity of the accused.
   

(iii)(c) Due Execution Of Duty

8. The next issue, the court has to ascertain is whether the police officer was acting in the due execution of his duty. The prosecution witness, Autiko Kurcuva said that he is no more in service but he was on duty on the 20th February 2007. He said he was a special constable and on the day of the incident he was posted at a mobile police post at Vitogo Parade. He aid he was briefed to take note of well known criminals. He said one such person was Gustan Fredrick Kean. The witness said the accused was wanted for bench warrants in some pending cases. He further said that he got hold of the back of his trouser and informed him that he is wanted for some cases. It appears that the police officer has touched the accused and informed him of the reason for arrest. The accused cross examined the witness extensively. Following are the excerpts of cross examination pertaining to due execution of duty;
   

Q: You said you were briefed by the superior officer?

A: Yes

Q: Did he give you a list of names?

A: Yes

Q: Who wanted by the police?

A: I can't recall

Q: You can only say that I was on the list?

A: Yes

Q: Are you making this up?

A: No

Q: What were the reasons that I was wanted?

A: His name was in the suspects list

Q: I put to you that I was regularly signing the police station daily?

A: No

Q: I put to you that I was not on bench warrant

A: He was on suspects list

9. The second witness, Police Constable Harif said that on that particular day when he was at the Police Station and received a call for assistance from Constable Autiko. He said he was informed that it is a suspect they were looking for and it was Gustan Kean. The witness said that when he went to the scene Constable Autiko was struggling with Gustan Kean. He said that the accused was required for a number of cases and Police was trying to arrest him for months by then. Further he said that after his arrest he was charged in number of cases. Although the accused cross examined this witness at length, he did not ask any question about these things.
   
10. The accused gave evidence regarding this issue in the following manner;
    

"I recall the 20th February 2007. I was on my way from home to buy some grass cutting material. I came to buy these items from Reddy's Shop. When I entered the shop I met one Police Constable. He said he is going to arrest me. I asked what for? He said he is going to arrest me for some bench warrants pending against me. I informed the Constable that I was a regular visitor of the Police where I sign the bail conditions of the High Court. I asked him whether he has any docket to prove I am on a bench warrant. Then I told him I will take my self to the Police Station. He refused. I told him that he has no right to arrest me without proper documents. I walked towards the vehicle that was hired. I opened the door and sat inside the vehicle."

11. The accused denied that he was wanted even during the cross examination. However the fact that he was wanted for bench warrants is confirmed further by what is recorded by the court on the day, the accused was produced to court. According to the journal entry the court has sighted 5 cases of the accused where bench warrants were pending. I am convinced that the accused was wanted by the Police when he was arrested. Therefore I disregard the suggestions made by the accused saying that there were no bench warrants against him and he was regularly reporting to Police. Further it should be noted that the accused answered to the questions by the prosecution in the following manner during the cross examination;
    

Q: Police had every right to arrest you?

A: I asked them on what condition they arrest me.

Q: Do you know that the Police can arrest without warrant?

A: I do not know. I do not have a law degree.

Q: Do you agree that after you were arrested you were charged by Lautoka Police for several cases?

A: No I can't remember it was 3 years ago.

12. It appears that the Police officer has explained the accused, the reason for arrest. This was even confirmed by the accused. But his position was that there was no reason for him to be arrested and the police officer did not have any document to confirm any reason. It should be noted that the journal entry of the court on the first day itself shows that the accused had 5 bench warrants. Further the accused could not deny that after he was arrested he was charged in more cases. A police officer has rights to arrest a person if he has reasons to believe that a bench warrant is pending against such person, although he may not have a copy of the bench warrant. Further it appears that the Police officer was going to arrest the accused in the proper way by touching him and explaining the reasons for arrest. This was even confirmed by the accused. In the circumstances I am satisfied that the prosecution proved beyond reasonable doubt that the Police officer was in due execution of his duties.
    

(iii)(d) Resisting Arrest

13. The next crucial issue the court has to look in to is, whether the accused resisted the arrest. The first witness of the prosecution gave evidence in the following manner;
    

"I got hold of his back of the trousers. Informed him that he is wanted for some cases. First he was corporative. He told me to come out side the shop and that's where he started resisting arrest. I told him that I arrest for investigation purposes. He disagreed. He resisted arrest. He tried to drag me in to the same van he got off. I told him to wait until the back up team coming. He kept on trying to get in to the same van. I pushed him outside. He managed to sit on the front passenger's seat of the van and asked the driver to start the van. I managed to pull him out of the van again before the van started moving. In the process of pulling him out he hit his left arm on the lamp post. After few minutes the back up team came"

14. Following are the excerpts of the cross examination done by the accused;
    

Q: I put to you on that particular day I did not resist arrest?

A: He was resisting arrest.

Q: I put to you that when I said that I will take my self to Police you disagreed with that?

A: Yes

Q: Why did you pull me out of the van?

A: It was my duty to escort him to the Police Station

Q: Was your duty to wait in the caravan Police Post or to take me to the Police?

A: I was detailed to man the Police Post

Q: I put to you that when I got in to the van to go to the Police you assaulted me?

A: No

Q: I put it to you, you pulled me and put against the lamp post?

A: no

Q: Do you agree I was injured?

A: yes

Q: I put it to you that I was corporative that day?

A: At the beginning he was. Later he started resisting

Q: You were not assaulted?

A: no.

15. The second witness of the prosecution, Police Constable Mohammed Harif said;
    

"I saw Constable Autiko struggling with the Guston Kean. I got off my vehicle and assisted Constable Autiko. He refused to go inside the Police vehicle. We managed to pull him in to the rear seat of the Police vehicle."

16. The accused cross examined the witness in the following way;
    

Q: Why do you say that I sustained injuries due to resist of arrest?

A: Due to reasonable force applied.

Q: How does reasonable force applied?

A: Reasonable force is used to arrest a person

Q: I put to you that I was corporative on that day and was not resisting arrest?

A: When I reached the scene you refused me also to get inside the vehicle.

Q: The reason why I refused was I asked you to take me to hospital?

A: You were not seriously injured. Normal procedure is we have to bring the accused to the Police and to the hospital.

17. The accused gave the following evidence;
    

"I recall the 20th February 2007. I was on my way from home to buy some grass cutting material. I came to buy these items from Reddy's Shop. When I entered the shop I met one Police Constable. He said he is going to arrest me. I asked what for? He said he is going to arrest me for some bench warrants pending against me. I informed the Constable that I was a regular visitor of the Police where I sign the bail conditions of the High Court. I asked him whether he has any docket to prove I am on a bench warrant. Then I told him I will take my self to the Police Station. He refused. I told him that he has no right to arrest me without proper documents. I walked towards the vehicle that was hired. I opened the door and sat inside the vehicle. That was when the Police Constable became aggressive. He pulled me out of the van. As I got down he held me by the collar of the shirt and forcefully pushed me against a light post where by the ear was split open. The blood was coming out and I could not hear much due to the impact. I asked him why he acted in an inhumanly manner. He said he has authority to apply reasonable force in that sort of nature. I did not assault him nor did I use vulgar language nor did I insult him in any manner. When I was injured and I agree that I will go to the Station with him."

18. It appears that the evidence given by the prosecution witnesses falls in line with the evidence of the accused to a great extent. The accused clearly admitted that he refused to go to the Police Station with the Officer. Instead he said that the officer refused to allow him to go to the Police Station on his own. Further the accused admitted that he got in to the van disregarding the attempt to arrest him. It is very evident that no duty bound Police Officer can release a wanted criminal once caught, to surrender to the Police at a later time by on his own. The contention of the accused is frivolous and I am convinced that the behavior of the accused amounts to nothing less than resisting arrest.
    

(iv) CONCLUSION

19. However the accused constantly alleged that the Police officers assaulted him after he agreed to get in to the Police vehicle. A Police Officer has a right to use reasonable and minimum force when arresting an accused. But it should be noted that an accused person cannot be subject to violence in the Police Custody. The accused said while giving evidence that he was given a Legal Aid Counsel at the Police Station on his request. But it does not appear that the accused has taken proper remedies with the assistance of the Legal Aid Counsel if he was assaulted as he claims. At least the accused had not said at the interview that he was assaulted by the Police Officers. He has refused to answer at the caution interview.
    
20. The evidence led by the prosecution was cogent, consistent and corroborative. Except for few issues even the accused's evidence fell in line with the evidence of the prosecution. The accused was not able to create any doubt with regard to resist of arrest. The accused admitted that the police officer explained the reasons for arrest. In the circumstances I do not see that the Police officer acted in an unlawful or irregular manner in trying to arrest the accused. The offence of resisting arrest is constituted the moment the accused refused to surrender himself to the Police officer. All the allegations of assault come after the offence is constituted. Besides, even if the court believes that the accused was assaulted by the police I do not see it has any bearing on this case. Such an incident has to be adjudicated in a separate matter and it does not appear that the accused has taken any steps to complain against any mishandling by the police although the incident took place more than 3 years ago. In any event I am of the view that the offence, the accused is charged with is constituted irrespective of any alleged violence by the police subsequently.
    
21. I am satisfied that the prosecution proved all the elements of the offence against the accused beyond reasonable doubt. I find the accused guilty and convict him for the offence he is charged with.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
03.09.2010