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State v Bali [2012] FJMC 272; Criminal Case 183.2012 (2 November 2012)

IN THE RESIDENT MAGISTRATE'S COURT
WESTERN DIVISON AT NADI

Nadi Criminal Case No. 183 Of 2012

BETWEEN :

STATE

AND:

SWASTICA ARCHANA BALI

RULING [ON CASE TO ANSWER]

The Application

[1] This is an application by the defence counsel under Section 178 of the Crimes Procedure Decree No.44 of 2009. At the close of the prosecution case, the defence counsel submitted that there was no case to answer sufficient enough to put the accused to his defence and as a result the accused should be acquitted. The application is made on the basis that the evidence led by the prosecution has been discredited by cross examination and also is so manifestly unreliable that no reasonable tribunal could safely convict on it.

Prosecution's Response

[2] It was orally submitted by the prosecution that:

1. That the prosecution has adduced sufficient evidence to prove each element of the charge.
   
2. That the prosecution has adduced evidence through PW1 and PW2 to establish each essential element of the charges.
   

100. That this application be dismissed and the court finds that there is a case to answer.
     

The Governing Section

[3] The provisions for a no case to answer submissions in the Magistrates Court is found in section 178 of the Criminal Procedure Decree which reads:

If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused.

The Charge

CHARGE

First Count

Statement Of Offence

[4] INDECENTLY INSULTING ANY PERSON: Contrary to Section 213 (1) (a) of the Crimes Decree No. 44 of 2009

Particulars Of Offence

SWARTIKA ARCHANA BALI on the 13th day of January 2012 at Nadi in the Western Division with intent to insult the modesty of RASIKA KAUR, uttered the word, 'you bitch, one who has returned having sex' intending that such words be heard by the said RASIKA KAUR.

THE CHARGING SECTION

[6] Section 213 (1) (a) of the Crimes Decree- a person who commits a summary offence if he or she intending to insult the modesty of any person;

(a) utters any word, makes any sound or gesture, or exhibit any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person.

[7] The elements of the offence are:

(i) The accused
(i) uttered the words, you bitch, one who has returned from having sex'
(iii) Intended to insult the modesty of the complainant
(iv) Such words were heard by the complainant.

EVIDENCE OF THE PROSECUTION

[8] The prosecution called two witnesses, namely Rasika Kaur, complainant (PW1) and Anjali Devi Prasad (PW2). The Prosecution also marked and tendered by consent the caution interview and the charge statement wherein the accused has denied the allegations respectively as Exh-1 & Exh-2

[09] PW1 stated in evidence that around 4.30pm on 13 January 2012 while she was passing the accused house, she started swearing at and said 'you bitch you have returned having sex'. She said it in Hindi 'tum bajaru keravai kei igaya'. She was (The accused) was at the door at that time (... later inside the door).

[10] Under Cross Examination PW1 stated that it was rainy day but rain had stopped. She could not tell to court the actual place of incident. She admitted that there is existing dispute between her and the accused. Previously she lodged police complaints that were never eventuated for her to come to court.

[11] PW2 stated in evidence that the accused was saying in Hindi 'tum bajaru qav marai ke ayae he' meaning 'you bitch fucking around'. That day it was sunny weather and even few hours earlier it was same weather.

THE LAW

[12] The general principles governing a no case to answer application in the Magistrates Court was set out in the long standing case of R v Jai Chand (1972) 18 FLR 101. In upholding a submission that there was no case to answer in the Magistrates Court Grant CJ stated at p.103.

"It seems clear that the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecutions case the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. However, the question does depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla or evidence can never be enough nor can any amount of worthless discredited evidence."

[13] In Moidean v Reginam Criminal Appeal no. 41 of 1976, the Court of Appeal also set out the incidences when a submission of no case to answer may be properly made and clarified to a greater extent what the learned Magistrate is to focus on.

[14] Moidean (supra) pointed out the following instances in which a no case to answer application may be upheld:

1. When there is no evidence to prove an essential element in the alleged offence;
   
2. When the evidence adduced by the prosecution has been so discredited as a result of cross examination or;
   

100. The evidence is so manifestly unreliable that no reasonable tribunal could safely convict on it.
     

ANALYSIS

[15] The accused was charge one count of annoying any person. As stated earlier the prosecution must prove four elements to establish the charge.

[16] The defence did not dispute the identity of the accused as she has been identified by recognition. The accused and the complainant are neighbours. However, the defence seriously disputed other elements of the charge.

[17] PW1 in evidence stated that the accused swore at her by saying 'you bitch you have returned having sex'. She said it in Hindi 'tum bajaru keravai kei igaya'. She told this happened when she was passing by the accused home. She also told that it was a rainy day. The accused was at home-at the door. In her police statement she (PW1) stated that the accused said the words from inside the house.

[18] PW2 in evidence stated that the accused was saying in Hindi 'tum bajaru qav marai ke ayae he' meaning 'you bitch fucking around'. That day it was sunny weather and even few hours earlier it was same weather.

[19] Both PW1 and PW2 gave evidence contradicting each other. As stated above both of them gave two different uttering words that are alleged to have been spoken by the accused. The witnesses are differing even weather condition of the day on which this alleged incident occurred. PW1 said it was rainy day but PW2 it was a sunny day.

[20] PW1 told to court that the accused was at the door when she swore at her. Whereas in the police statement she stated that the accused swore at from inside the house.

[21] Under cross examination PW1 admitted that there is existing dispute between her and the accused. Previously she lodged police complaints that were never eventuated for her to come to court.

[22] Both prosecution witnesses gave inconsistent and unreliable evidence. The prosecution witnesses have been discredited as result of cross examination.

[23] In my judgment no reasonable tribunal properly directing its mind to the law and evidence so far adduced would convict based on that evidence.

[24] I therefore find a no case to answer. I dismiss the charge and acquit her accordingly pursuant to section 187 of the Criminal Procedure Decree.

M H Mohamed Ajmeer
Resident Magistrate