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State v Lal [2013] FJMC 245; Criminal Case 128.2013 (19 June 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT NAVUA

Criminal Case : 128/2013

STATE

VS

AJESWAR LAL

For Prosecution : Sgt. Lenitasi
For Accused : In person

Date of Hearing : 19 June 2013
Date of Judgment : 21 June 2013

Judgment

[1] The accused was charged with two counts of Criminal Trespass. The charge read as follows:

Count 1

Statement of Offence (c)

CRIMINAL TRESPASS:- Contrary to Section 387 (1) (a) of the Crimes Decree 2009.

Particulars of offence (d)

ATESHWAR LAL, on the 14th day of November, 2012, at Nasasa, Navua in the Central Division, entered into the compound of ANNUSHAL CHAND with intent to annoy the said ANNUSHAL CHAND.

Count 2

Statement of Offence (c)

CRIMINAL TRESPASS:- Contrary to Section 387 (4)(a) of the Crimes Decree 2009.

Particulars of Offence (d)

ATESHWAR LAL, on the 18th day of March, 2013, at Nasasa, Navua in the Central Division, by night entered into the compound of ANNUSHAL CHAND without lawful excuse.

[2] The accused pleaded not guilty to the charge and this matter proceeded for hearing on 19 June 2013.

[3] The prosecution called 06 witnesses (03 civil witnesses and 03police officers) and for the defence the accused opted to remain silent.

Summary of Evidence

[4] PW1, Annushal Chand was the complainant in this case. He said on 14 Nov 2012 around 05.30pm he was sitting with his friends (PW2 and PW3) drinking when the accused started to shout from his house. Then the accused came to PW1's compound. PW1 did not invite him there. The accused came to PW1's poach and started swearing at them using words like "maichod". At that time the accused was drunk and left after they called police. On 18 March 2013 around 9pm PW1 heard someone knocking to door. The accused was outside and again he was there without any invitation.

[5] In cross examination PW1 said on the first day there was one child of the accused with them and second day he came with a photograph. Also PW1 rejected that the accused asked medicine on that night. These positions he confirmed in re- examination too.

[6] PW2 was Amith Singh, a friend of PW1. He was also drinking on 14 Nov 2012 with PW1 and said the accused came to place and started shouting with words like "maichod". Second time also the accused came to PW1's house in the night. In cross examination Pw2 said the accused came asking for his child and later started swearing.

[7] PW3, Salveen Chnad was also with PW1 on first occasion and also said the accused came drunk and started swearing at them.

[8] PW 4, PC 2039 Iowane was the charging officer of the first incident. Through him the first caution interview and the charge statement were tendered.

[9] PW5, PC 4658 Ilimo was the interviewing officer for the second count and this statement was tendered.

[10] Last witness for the prosecution was PC 3465 Timoci, the charging officer for the second count. Thereafter prosecution closed their case and being satisfied with evidence I gave the accused his rights as per section 179 of the Criminal Procedure Decree. The accused opted to remain silent. He also did not want to call any other witnesses on his behalf.

The Law

[11] The accused was charged with two counts of Criminal Trespass. First count is contrary to section 387(1) (a) and that provision read as follows:

"— (1) A person commits a summary offence if he or she—

(a) enters into or upon property in the possession of another with intent to commit an offence or to intimidate or annoy any person lawfully in possession of such property: "

[12] Based on the facts in this case the elements the prosecution needs to prove are:-

[a] the accused

[b] enters in to property in the possession of another to annoy any person lawfully in possession of such person.

[13] Second count is contrary to section 387(4) (a) the Crimes Decree. The section states:

"A person commits a summary offence if he or she enters by night, and without lawful excuse —

(a) any dwelling-house;"

[14] For the second count the prosecution has to prove that the accused without any lawful excuse entered in to any dwelling house in the night.

[15] The prosecution has to prove every elements of the offence. Section 58 (2) of the Crimes Decree states that this burden must be proved beyond reasonable doubt by the prosecution.

[16] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) her Ladyship
Justice Shameem in her summing up said :

"The standard of proof in a criminal case is one of proof beyond reasonable doubt This meansmeans 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.ou have any reasonable doubt as to whether the accused pers persons committed the offence charged against 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 guilt that you must express an opinion that they are guilty. One of the defence counsel 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 reasonaoubt about the the guilt of the accused."