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State v Moci [2013] FJMC 23; Criminal Action 1636.2008 (22 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Action No: 1636/08

THE STATE

V

SEKONAIA MOCI

Prosecuition : P.C Yasin, Police Prosecutor.
Accused : Mr. Tabuya.

JUDGMENT

1. Sekonaia Moci stood trial before this court on a count of 'Obstructing a Police Officer in Due Execution of His Duty' and 'Resisting Arrest'. The charges were brought under section 247(b) of the Penal Code Act 17.
   
2. The prosecution called before Resident Magistrate Ms Irani Archchi on 02.02.2010 and was concluded the case for the prosecution. The learned Magistrate ruled out the application by the defence to dismiss the charge at the stage of 'No Case to Answer'. Thereafter the matter prolonged for several adjournments to call the defence case.
   
3. When I took over the matter in November 2011 both prosecution and the defence agreed to adopt the evidence that was led before the court and to proceed with the defence case. The same recorded in the journal entry dated 29.11.2011. The case of the accused proceeded thereafter.
   
4. Prosecution called three witnesses including the complainant during their case. All three witnesses are police officers. During the defence case, accused and his wife testified before the Court.
   

Prosecution Evidence

5. Inspector Saini Tale called as the sole witness to speak on the factual circumstances which occurred on 24.08.2008. He states that on the 23rd night he and SSP Tabakau were on mobile patrol duty. It involved checking places and persons to ensure safety of people since it was the Hibiscus week. There were prior orders restricting selling of liquor and it should have been stopped at 11 pm.
   
6. At around 1.00 am on the 24th the witness has seen a security guard at a motel in Toorak admitting people to the motel. It was clear that there were activities carried inside the motel as the ground was jammed with taxies. The witness has then entered in to the motel. He has seen that the motel is still operating and the bar is opened. After explaining the violations of rules, a lady representing the owner has taken steps to close the music, lights and the bar. Then the witness has asked the crowed to disperse.
   
7. Then a man who was seated on one of the high chairs and having drinks, spoken in Fijian language to the witness state 'what wrong have we done'. Witness identified this person as the accused person and later the incident led to arrest him. Therefore there is no doubt on the identification of the accused person.
   
8. He states that the accused objected to follow the orders and continued to raise voice. Witness states that people who followed the orders to walkout come to a standstill by the behaviour of the accused. The accused has then asked the crowd to continue drinking and to continue whatever they were doing.
   
9. This was the time the witness called for backup as the things were about to go out of his hand. He has moved towards the accused and held from his hand to escort him out. At this moment SSP Tabakau entered in to the place. Then the SSP had asked the accused to stop his drink and leave. He then turned back to the SSP and said that he will not leave without finishing his drink. There had been an exchange of words between the two and the accused took up a strict stance for not to move. Based on the retaliation SSP Tabakau ordered the witness to arrest the accused. He held from the wrist of the accused and informed that he is under arrest. He states that the accused was informed the reason for his arrest.
   
10. Then the witness moved the accused out from the motel. However the accused repeatedly asked for his rights and inquired the wrong he did. At one stage the accused has made an attempt to escape by pleading to the witness. When they tried to take the accused to a police vehicle, he had struggled to get himself free from the arrest. The accused had shouted and laid him on the ground to resist the arrest.
    
11. Witness states that it was not an easy task to lead the accused in to the police vehicle. It took them half an hour to take him to the vehicle. This was done after he got exhausted himself. Thereafter he was taken to the Central police station.
    
12. During cross examination the witness stated that the SSP assisted him to re arrest the accused near the police vehicle but he himself arrested the accused inside the motel. The answer was sequel to a question posed by the defence counsel on an inconsistency of the statements which were made by the witness and SSP during the investigation. It appears that the SSP in his police statement has stated that he arrested the accused.
    
13. However the witness explained more in the cross examination on the obstruction of the accused person. He stated that the accused seated right at the entrance preventing the police from entering the motel bar area. Accused raised his hands and said to the crowd not to leave and not to close the bar.
    
14. At the conclusion of this witness, prosecution called two other witnesses namely PC 3596 Niumaia and WPC 4160 Laite Banuve who conducted the interview and recording of the charging statement. There were no confessions made by the accused in either statement.
    

Defence Evidence

15. The accused and his wife testified before the Court for the defence case. The accused admitted most of the circumstances prevailed before the incident. He did not deny that he consumed liquor on that day during the early hours. When the police ordered to stop operations and to close down the accused states that he refused to adhere and wanted to continue until he finishes his drinks. He further added that the officers only picked him and escorted outside. Then they have forced him to get in to the police vehicle. He states that at this stage his wallet was picked by someone and he fell on the road. Thereafter he was assaulted by the officers and later taken to the police station. He then challenged the officers to a fight as his emotions were covered with anger.
    
16. The wife of the accused echoed a similar narration in court. She stated that his husband only requested the officer who came first to allow him to finish his drink.
    

The Law

17. Section 247 (b) states 'Any person who assaults, resists or wilfully obstructs any police officer in due execution of his duty, or any person acting in aid of such officer is guilty of a misdemeanour, and is liable to imprisonment for five years'.
    
18. Burden to prove the charge rests with the prosecution and the standard is beyond reasonable doubt.
    
19. Any member of the police force covers within the interpretation of 'Police Officer'. Due to the broad interpretation, it is clear that the section covers 'any person' who is acting in aid of a police officer to execute duties.
    
20. The powers, duties and responsibilities of police officers are generally governed by the Police Act. Under the Common Law it is part of obligations and duties of a police officer to take all necessary steps which appear to him for keeping peace, preventing crime and protecting property from criminal injury. Constant observation on the public places such as motels, discotheques, and public bars are essential to keep peace of the community as these places are very much sensitive to problems. Thus police implement regulatory measures for the places from time to time.
    
21. Section 17(3) of the Police Act (Cap 85) recognises the powers of the police officers. It states,
    

s.17 (3) It shall be the duty of every police or pcemptly to obey andy and execute all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affectingpublice, to prevent the commission of offences and pubd public nlic nuisances, to detect and bring offenders to justice, and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient ground exists.

22. One of the main issues for the Court to decide is whether the accused person 'wilfully obstruct' the officer on duty. In Hinchcliffe v Sheldon [1955] 1 WLR 1207 it was held that if a person makes a police officer more difficult to carry out his duty amounts to an obstruction. 'Resisting' implies some physical action, but no physical act is necessary to constitute obstruction.
    
23. Simple refusal to answer questions does not constitute an obstruction (Rice v Connolly [1966] 2 QB 414). However answering questions incorrectly may amount to obstruction; although the distinction between the two is not always clear (Ledger v DPP [1991] Crim LR 439).
    
24. It is also necessary to prove that the obstruction has been wilful. It was held in Wilmott v Atack [1977] QB 498 that an offender does not commit wilful obstruction if he tries to help the police, even if he actually makes their job more difficult. Nor can he be guilty if he is unaware that he is obstructing police officer at all. But a person deliberately obstructs the police, it will be no defence that he was merely trying to prevent the arrest of a person he believed to be innocent (Lewis v Cox [1985] QB 509).
    

Analysis and Conclusion

25. The Court has to conclude whether the prosecution proved following elements without leaving any reasonable doubt.
    

Count – 1

1. Whether Inspector Saini Tale was in due execution of duty;
2. The identity of the accused person;

100. Whether the accused Sekonaia Moci wilfully obstructed inspector Saini.
     

Count- 2

1. Whether Inspector Saini Tale was in due execution of duty;
2. The identity of the accused person;

100. Whether the accused Sekonaia Moci resisted the arrest by inspector Saini.
     

26. In both counts, identification of the accused person was not in question. This was not challenged at any of the stages in trial. The witness identified the accused at the scene and later they managed to apprehend him to charge before the Court.
    
27. Inspector Saini covers within the interpretation of a 'Police Officer'. Witness stated that after he explained that the opening hours of the bar are lapsed, the motel inmates started to close the businesses for the day. In fact he stated that one of the inmates announced the closure to the crowd in loud and requesting the people to leave.
    
28. It is clear that at the time in question the regulations were to close the bars at 11 pm. Thereafter operations were carried out to check on the offenders. According to the Police Act prevent commission of offences and public nuisances are one of the general duties of a police officer. It is reasonable to believe that opening of a bar during early hours of the day could easily lead to a public nuisance or it could be a possible reason for committing offences by or among drunkard people.
    
29. It appears that Inspector Saini did not act outside his powers. He did not suggest anything illegal or unauthorised. The position on this issue, whether the orders given to closure is legal? was never subjected to challenge by the defence. Therefore this Court concludes that the prosecution has established that Inspector Saini acted in due execution of his duties.
    
30. Questioning of the accused person to verify 'what wrong he did', does not amount to a wilful obstruction. But the witness stated that after the accused was informed on the illegality of the act, he continued to drink. The behaviour and the reaction of the accused person were unacceptable. Witness stated that the accused asked the moving crowd to stop and they come to a standstill. During the cross examination of Inspector Saini it was stated that the accused raised his hand to stop and he was seated at the entrance to prevent the police from entering.
    
31. The defence failed to create any doubt on this position which was elicited from Saini's evidence.
    
32. However in his evidence the accused did not deny on his call to stop others from moving out from the motel. He partly admitted on the issue of resisting to move out. Following questions and answers which were recorded during his cross examination outline on his stance.
    

Q; did you say we won't leave without finishing beer?

A; Yes

Q; you did not adhere to the officers?

A; Yes

..........................................................................................

Q; You wanted to remain inside the bar?

A; Yes

Q; Police officers came to execute their duty to close the bar. Are you aware of that?

A; I was aware that was the closing time of the bar.

Q; if the bar were to close you have to move. But you decided to wait?

A; I agree.

33. The Court does not consider this position as strengthening material of the prosecution. However this position of the accused person will not create a doubt on the evidence of Inspector Saini. Further the accused disagreed to the proposition suggested by the prosecution that he was drunk and not aware of his acts. This shows that the accused acted intentionally.
    
34. Thus view of this Court is refusal to move out from the bar, and stopping of others amounts to an obstruction made by the accused person. Court convicts Sekonaia Moci on the first count.
    
35. The contention of the defence is that there is no proper arrest carried out as there is a discrepancy on the exact person who arrested the accused. The police statement of SSP Tabakau was put to the witness Saini and he explained satisfactorily. He said that he made the arrest on the assistance of SSP Tabakau. The accused was touched and arrested. Further he has informed the grounds of his arrest. This clearly concludes that the arrest made on the accused was proper and according to the law.
    
36. A thin line exists between the acts of Obstruction and Resistance. But it is not difficult to understand the request of physical contribution which needs to constitute a charge of Resistance.
    
37. Prosecution witness states that the accused resisted arrest by lying on the main road. The witness called extra men to get him on board. Lying on a main road fulfils the physical contribution to constitute a charge on resisting arrest.
    
38. The accused Sekonaia Moci stated in his evidence that he reacted in such manner because someone picked his wallet. His wife who called as a witness also testified on this. However the Court notes that this suggestion was never put to the prosecution witness nor it was stated in his police statement which was made subsequent to his arrest. In light of the said observations the Court notes it as a deliberate attempt to form an excuse and does not rely on the reasoning given by the accused person and his wife nor does it create a doubt on the prosecution.
    
39. The evidence of Ms Merewailita Moci was given before the Court on 22.10.2012. The Court notes that the evidence was led after 4 years from the actual incident. She claims that she witnessed the incident and went after several officers to get information on her husband's arrest. She stated that she was a school teacher for 30 years and held number of positions in few organisations. But she did not mention that she made a statement subsequent to the incident. Her evidence directs to a conclusion that the husband was arrested without a reason and thus it is illegal. But she did not report on this illegality to a higher authority during the aggrieved period. Therefore the Court is reluctant to act on a statement given in support by a spouse after 4 years of the incident. Hence I reject her testimony.
    
40. For the aforementioned reasons the court notes that the prosecution has proved the second count beyond reasonable doubt. The accused is therefore convicted for the second count.
    
41. Now I invite both parties to make submissions on sentencing.
    
42. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

22nd January 2013