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State v Khan [2012] FJMC 18; Criminal Case 841.2009 (16 February 2012)

IN THE RESIDENT MAGISTRATE'S COURT
AT NADI
CRIMINAL JURISDICTION

Criminal Case No. 841 of 2009

BETWEEN

THE REPUBLIC OF FIJI ISLANDS (STATE)
PROSECUTION

V

AND

MOHAMED SHAHID KHAN
ACCUSED

Prosecution: Sgt. Naidu
Defendant: Mr. Sailo

JUDGMENT

1. BACKGROUND
   

1.1 On 13 October 2009, the accused was formally charged with one count of assault occasioning actual bodily harm contrary to section 245 of the Penal Code, Cap 17.

1.2 Particulars of offence stated that Mohammed Shahid Khan on the 9th day of October, 2009 at Nalovo, Nadi in the Western Division assaulted one Shahiza Neeha Rauf, thereby occasioning her actual bodily harm.

2. EVIDENCE OF PROSECUTION
   

2.1 Prosecution produced five witnesses namely:

1. Shahiza Neeha Rauf (PW1)
   
2. Tazra Nazreen Nisha (PW2)
   

100. Netani Seru (PW3)
     

4. WPC 3837 Sitevi (PW4) and
   
5. Sgt 466 Rusiate (PW5)
   

2.2 The Prosecution also exhibited the following:

1. Medical Examination Report of Neeha Rauf
   
2. Record of Interview
   

100. Charge statement and
     

4. Cutter [yellow]
   

2.3 Evidence of PW1

A summary of the evidence of PW1 is as follows:

1. She is the ex-wife of the accused. He is staying in Tavua.
   
2. She can recall 09/10/2009. At about 6.00 am she was at home. She went to drop her brother at road side. When her brother went her ex-husband came.
   

100. He came from behind her and started beating her. He punched her and slapped her on her private parts.
     

4. She was on the road half way to her house when he punched her.
   
5. She received injury on her head and had inner body pain.
   
6. She went home crying. Her mom was there.
   
7. Her neighbour, Netani Seru also saw this.
   
8. She went home and her mom was working in the kitchen and he picked up a knife. Her mom stopped this after he picked up the knife. He tried to attack her mom. She reported this to police.
   
9. In cross-examination she said she did not receive injury on her private part also her face.
   

2.4 Evidence of PW2

A summary of the evidence of PW2 is as follows:

1. Neeha is her daughter. She stays at Nalovo, Nadi. She knows the accused. He is her ex-son in law.
   
2. On 09/10/2009 at about 7.00 am she was at home with her daughter and the accused.
   

100. Her daughter was coming home crying. She told her the accused hit her. The accused came after her daughter with anger.
     

4. There was a knife in the kitchen he tried to attack her daughter. She stopped.
   
5. Her daughter told her accused pulled her hand and punched her.
   
6. She saw injuries on her daughter's hand.
   
7. In cross-examination she told they were always fighting. Her daughter came running home from the road side and she was crying. When asked whether the accused picked up the knife she said "Yes, he did". She confirmed that she told truth to the Court.
   

2.5 Evidence of PW3

A summary of the evidence PW3 is as follows:

1. On 09/10/2009 at about 7.00 am he was at home. He was coming towards road to catch the bus. It is a private road.
   
2. In the morning when he came in the middle of the way he saw the guy punching a girl.
   

100. When he went there the guy stopped punching the girl. The girl ran home.
     

4. The guy is now present in the Court (witness points at the accused).
   
5. The man was punching on the face.
   
6. In cross-examination he said the girl's brother was not there. He saw the accused hitting the girl. The family told him the accused is her husband. When he came to stop by that time the accused had stopped. He also told that he is a Fijian. He said the truth on oath.
   
7. PW3 was not re-examined.
   

2.6 Evidence of PW4

A summary of the evidence PW4 is as follows:

1. He interviewed the accused in English. He and the accused signed the caution Interview. The accused did not admit the complaint of the complainant. He tendered the Caution Interview marked as exhibit 2.
   

2.7 Evidence of PW5

A summary of the evidence PW5 is as follows:

1. He is the charging officer. He formally charged the accused. He tendered the charging statement marked as exhibit 3. He also tendered the Cutter which was with the accused as exhibit 4.
   
2. In cross-examination he stated PW3 is living near the complainant's house. PW3 was not available on that day. Hence he recorded his statement the other day.
   

100. PW3 was not re-examined.
     

3. EVIDENCE OF THE DEFENCE
   

3.1 The accused gave sworn evidence. He did not call any other witnesses.

3.2 Evidence of the accused

A summary of the evidence of the accused was as follows:

1. He can recall the morning of 09/10/2009. He lodged a complain at Navai police station at about 9.00 am that he is leaving his wife's place and going to his work place.
   
2. He told the police when he goes to Tavua there shouldn't be any problem.
   

100. He complained first after that they complained.
     

4. There was no problem with his wife and him because he wanted to go back home.
   
5. On 09/10/2009 nothing happened. They (his wife and mother in law) didn't allow him to go to Tavua.
   
6. They came to Nadi police station. Nobody listened to him. There was no confrontation between his wife and himself or even with his mother in law.
   
7. The accused was neither cross-examined nor re-examined.
   

4. THE LAW ON ASSAULT OCCASIONING ACTUAL BODILY HARM
   

4.1 In so far as it applies, section 245 of the Penal Code states:

"245- Any person who commits an assault occasioning actual bodily harm is guilty of misdemeanour, and is liable to imprisonment for five years."

4.2 The prosecution must prove beyond reasonable doubt the following elements:

1. The accused
   
2. Committed an assault on the complainant PW1
   

100. Thereby occasioned actual bodily harm to PW1
     

The standard of proof

In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up):

"The standard of proof in a criminal is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against the each of them on the information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilty that you must express an opinion that they are guilty. One of the defence counsels asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt about the guilt of the accused."

5. ANALYSIS OF EVIDENCE
   

5.1 Element 4.2 (a), as outlined above, is not disputed by the accused and therefore will not be discussed in this analysis.

5.2 The accused however strongly dispute element 4.2 (b), the element of assault.

5.3 As stated in paragraph 2.3 (c) above, PW1 stated in evidence that the accused came from behind and started beating PW1. He slapped PW1. She then ran off to her mother (PW2) crying. The tried to pick up a knife which was in the kitchen. PW2 prevented it.

5.4 PW2 stated in evidence that PW1 came running to the kitchen and the accused was after PW1. PW2 further stated that her daughter (PW1) told her (PW2) that the accused is hitting. In cross examination PW2 told that her daughter and the son in law always fighting and that day PW1 came running from the road side and she was crying.

5.5 PW3 stated in evidence that he saw the accused assaulting a girl on the road side. He was told that they are husband and wife. PW3 told that the accused was punching on the face. In cross examination he confirmed that what he said in court is true.

5.6 Medical Examination report issued in respect of PW1 confirms that the victim had membrane at forearm. The doctor in Summary and Conclusion paragraph states that this membrane might have been caused by a pinching.

5.7 The accused stated in evidence that he did not assault PW1 and on that day at about 9.00 am he made a police complaint at Navai Police Station that he is leaving his wife's place. He did not relate the incident that happened in the morning at about 7.00 am.

6. CONCLUSION

6.1 Evidence of PW1 has been sufficiently corroborated by the evidence of PW2 and PW3 so as to remove all reasonable doubts. The Medical Report confirms that PW1 had membrane at the forearm.

6.2 The evidence of the accused is not plausible. He merely denied the charge.

6.3 The prosecution has succeeded in proving beyond reasonable doubt that the accused assaulted and thereby occasioned actual bodily harm to PW1.

6.4 I therefore find the accused as charged on assault occasioning actual bodily harm.

M H Mohamed Ajmeer
Resident Magistrate

At Nadi this 16th day of February 2012.