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State v Prasad [2012] FJMC 330; Criminal Case 462.2011 (4 December 2012)

THE MAGISTRATE'S COURT OF NAVUA

Criminal Case : 462/2011

STATE

v.

BIJEN PRASAD

For Prosecution : Sgt. Lenaitasi
For Accused : Mr. Nand

JUDGMENT

[1] The accused is charged for the offence of Indecently Annoying Person contrary to Sec 213(1) (a) of the Crimes Decree.

Statement of Offence [a]

INDECENTLY ANNOYING PERSON – Contrary to Section 213(1) (a) of the Crimes Decree No 44 of 2009.

Particulars of Offence [b]

BIJEN PRASAD, between the 07th day of November and 10th day of November 2011, at Calia, Navua in the Central Division, with intent to insult the modesty of CILIA KALOKALO, "by touching her shoulder down to her fingers and also making gestures by showing tongue and flicking his eyes", intending that such actions be seen by the said CILIA KALOKALO.

[2] The accused pleaded not guilty on 14/11/2011 and this was set down for hearing. The hearing was taken on 21/08/2012 and concluded on the same day. The prosecution called 04 witnesses and the accused gave sworn evidence.

SUMMARAY OF EVIDENCE

[3] The prosecution called following witnesses.

[a] PW1 - Cilia Kalokilavu - The complainant

[b] PW2 - Laisani Seni - The officer who took the drugs to Research Centre

[c] PW3 - PC 3052 Pram - The officer who conducted the interview of the accused

[d] PW4 - PC 3278 Aradana- The charging officer.

The following documents were also tendered by the prosecution.

[a] EX-1 - The caution interview

[b] EX-2 - The Charge statement

[4] The PW1, the complainant said she used to travel in the school bus and the accused was the driver of that bus. On 07th the accused through the mirror was showing his tongue at her and biting his lips. The PW1 was scared and ashamed. Also whilst giving the ticket to her he squashed her arm and touched her shoulder. Her friend, the PW2 also noticed that.

[5] In cross examination by the learned defence counsel the PW1 said on the 07th the accused was showing the tongue and as she was giving the ticket touched her hand. On 10th as she was getting down the accused touched her back. In re-examination she further said on 07th and 08th accused was doing things through the mirror and only on the 10th touched her.

[6] The PW2, the friend of the complainant in evidence said she saw the accused touching the PW1 and also showing the tongue.

[7] During her cross examination she maintained her position that the accused touched the PW1 and showed his tongue. She also said the accused did not know that others could see what he was doing to the pW1 through the mirror.

[8] The PW3 conducted the investigations and recorded the interview of the accused. He said on 07th and 08th the accused drove the school bus. On the 10th the accused drove another bus, but the PW1 got in to that. The interview was marked as EX-01.

[9] Through the PW4, the charge statement was marked as EX-02.

[10] Thereafter the prosecution closed their case. The court was satisfied that there was a case to be answered by the accused. He was explained about his rights and the learned defence counsel informed that the accused was ready to give sworn evidence.

[11] The accused said only one day he adjusted the mirror to see what was happening inside the bus and denied touching the PW1 or doing things through the mirror.

[12] In cross examination he said he did not look at them or showed tongue to the PW1. Also he said every 60 seconds he has to look in to the mirror to see if the passengers are fine.

[13] The defence did not call any other witnesses and closed their case. Both parties were given the opportunity to file closing submissions. Only the defence has filed their written submission and I have carefully studied that too. Before dealing with the evidence it would be apt to consider the relevant law in this case.

THE LAW

[14] The accused is charged with the offence of Indecently Annoying Person. The relevant section reads as follows.

1. "A person commits a summary offence if he or she, intending to insult the modesty of any person Utters any word, makes any sound or gesture, or exhibits any object,
   

Intending that such word or sound shall be heard, or that such gesture or object

shall be seen, by the other person

[15] Considering the facts in this case the prosecution has to prove the following grounds in this case.

[a] The accused intending to insult the modesty of the PW1

[b] Utters any word, makes any sound or gestures, or exhibit any object

[c] Intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person.

[16] Viscount Sankey LC in Woolmington v DPP (1935) AC 462. stated that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law".

[17] In State v LIVAI TAMANALEVU [2012] FJHC 1295; HAC 344 OF 2011S) His Lordship Justice Temo told to assessors (summing up);

The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.

[18] Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution in this case. If the evidence creates any doubt, this should be given to the accused.

ANALYSIS OF THE EVIDENCE

[19] I find that there are two versions before me in this case. The prosecution's witnesses
said the accused touched the PW1 and showed his tongue through the mirror. The defence totally rejected them.

[20] This court note that the PW1 in her evidence said the accused was showing his tongue and biting his lips. She noticed that through the mirror. Also whilst giving the ticket he also touched her hand and back.

[21] Even though the learned defense counsel cross examined her lengthily, I find that the defense failed to create a doubt about her evidence. This court is also satisfied about the manner of her evidence in the witness box.

[22] Even though the court is mindful that there is no need for any corroboration of the PW1's evidence, the PW2 further confirm the PW1's story. The PW2 who was present during that time also said that the accused was doing things through the mirror to the PW1 and also touched her. I am again satisfied with the manner of the PW2's giving evidence in the court.

[23] On the other hand the accused totally denied the allegations. He also denied driving the school bus on 10/11/2011 in his caution interview. But the accused failed to mention that vital point in his sworn evidence.

[24] The PW3 said the accused drove the bus on 07th and 08th. The PW3 further said on 10th the accused did not drive the school bus. The learned defense counsel pointed this out in his closing submission and said there may be a mistaken identity.

[25] This court has no reason to doubt the PW1's evidence with regard to the incident on the 10th. The court also notes that the IO said the accused drove another bus and the complainant got in to that bus on that day. I find it hard to believe that the PW1 or PW2 mistook someone else for the accused on the 10th.

[26] The accused also tried to give an explanation about looking in to the mirror. He said every 60 seconds as a policy he has to look in to the mirror. That has to be done to see if the passengers were fine in the bus. The defense did not call any other witnesses to substantiate that claim. Therefore this court can't accept that explanation.

[27] The court is also aware that there were some contradictions between the witnesses' evidences. But they are not significant to affect the credibility of the prosecution's version.

[28] As I noted above I am satisfied with the evidence of the PW1 and have no reason to doubt her version. Based on the above mentioned reasons I accept the prosecution's version and reject the accused's story.

CONCLUSION

[29] I conclude that the prosecution has proved beyond reasonable doubt that the accused committed this offence.

[30] Accordingly, I find the accused guilty for Indecently Annoying Person and convict for that offence.

[31] 28 days to appeal

04/12/2012

H.S.P.Somaratne
Resident Magistrate