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Ministry of Health v Lata [2012] FJMC 334; Criminal Case 1.2012 (6 December 2012)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 1/12

MINISTRY OF HEALTH

-v-

SHERIN LATA

Mr. N. Tovoli for the prosecution
The Accused appeared in person

JUDGMENT

1] This action was brought by the Ministry of Health under the Tobacco Control Decree 63 of 2010. The Accused was issued a fixed penalty notice under sections 21 and 22 of the said Decree.

2] The Accused was charged for following offence namely;

CHARGE:

Statement of Offence [a]

SALE OF TOBACCO PRODUCT IN SMALL QUANTITIES: Contrary to Section 16 (1) (a) and 16 (2) of the Tobacco Control Decree 63/10.

Particulars of Offence [b]

SHERIN LATA on the 15th day of December 2011 at Khalsa Road, Tacirua, Nasinu in the Central Division did sell a single cigarette roll to Karalaini Vula.

3] On 13th march 2012 the accused pleaded not guilty to the charge and trial was taken up on 26th September 2012.

4] At the trial the prosecution called following witnesses;

5] PW1: Karalaini Vula: She said on 15-12-2011 at 8.10 pm she was at grog party. Then she wanted to buy pack of cigarettes so she went to the accused's canteen. She paid $3.50 for pack of cigarettes. She then bought one cigarette roll for 50 cents. The accused Sherin Lata sold it to her. The witness identified the accused the person who sold that one cigarette roll to her. She said that after purchasing she smoked the cigarette. Then officers of Ministry of Health approached her and inquire where she bought one roll of cigarette which she told the story that she bought it from Lata. The witness said she did not force her to sell it. The witness said that after the booking she was offered $50 by the Accused not to give evidence. She said that "But I did not accept it. I have no ill feeling or grudge against Ms. Lata

6] In the cross examination the accused told she did not offer $50 to the witness but she refused and said she offered $50 to keep mouth shut.

7] PW2: Naibuka Waqa: He said he is an authorized officer under Tobacco Control. On 15-12-2011 he was doing surveillance duties in Nasinu area. He was with Authorizing officer Jone and DC 3666 Josaia. At 8.10 pm he saw young Fijian lady walking with ignited cigarette in her hand from a canteen. They were driving in Khalsa Road. When he saw this he asked driver to stop the vehicle. Then the witness approached the PW1 and got the detail. The accused was booked and TIN was issued.

8] This witness was not cross examined by the witness.

9] PW3 Jone Radaniva: This officer confirmed the evidence of PW2. There were no cross examination by the accused.

10] Then the prosecution closed the case.

11] Since there is a case to answer the accused's right to give evidence and call defence is explained. The accused opted to give sworn evidence.

12] DW1- The Accused Sarina Lata Prasad: She said on that day she sold pack of cigarettes to the PW1 and she went. Then Pw1 came again and asked roll of cigarette. She said she is not selling roll of cigarette. But the PW1 insisted to give her roll of cigarettes from his husband's pack which she did. After 5 minutes she came again with the prosecution officer and booked her for the offence. Though she explained she gave it from her husband's pack, the officers did not listen. She denied that she offered $50 to PW1 to keep the mouth shut.

13] In cross examination the accused said since PW1forced her, she gave one cigarette from husband's roll. The PW1 put 50 cents and she took that money after PW1 left. The accused admitted they don't have previous enmity, but PW1 is their land owner's daughter.

14] In Woolmington v DPP (1935) AC 462 held 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". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

15] In this matter PW1 clearly says that the accused sold roll of cigarettes to her. The accused admitted but she says PW1 forced her to sell it and she gave it from her husband's cigarette roll. But this was never put to PW1 when she was giving evidence. The PW1 told to court, her evidence in chief, she did not force her to sell it. The accused is selling pack of cigarettes normal cause and therefore she possesses cigarettes. But she is prohibited to sell single cigarette under the law. The accused defence that the PW1 forced her to sell cigarette cannot be accepted and it is not probable. The subsequent conduct of the accused further proves the charge as she offered $50 to keep PW1's mouth shut. PW1 has no reason for hiding truth. They have no previous grudges as well. I have no doubts in prosecution version.

16] I hold that the prosecution has proved its charge beyond reasonable doubt. I convict the accused as charged.

17] I now call mitigation from the accused before passing sentence.

On 06th December 2012, at Nasinu, Fiji Islands

Sumudu Premachandra,
Resident Magistrate-Nasinu