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State v Prasad [2013] FJMC 90; Criminal Case 24.2013 (20 February 2013)

IN THE MAGISTRATE'S COURT AT NAVUA
Criminal Case : 24/2013

STATE

VS

MAHESH PRASAD

For Prosecution : Sgt. Lenaitasi
For Accused : In person

Date of Hearing : 14 Feb 2013
Date of Judgment : 20 Feb 2013

JUDGMENT

[1] The accused is charged with the offence of Breach of Domestic Violence Restraining order contrary to section 77(1) (a) of the Domestic Violence Decree of 2009.

[2] The accused appeared in this Court 16/01 /2013, waived right to counsel and pleaded not guilty for the charge. Therefore the hearing was fixed for 14/02/2013.

[3] On the hearing date the prosecution amended the charge under section 182(2) of the Criminal Procedure Decree inserting new words. Therefore the amended charge was explained to the accused and he again pleaded not guilty.

[4] The amended charge reads as follows:-

Statement of Offence (a)

BREACH OF DOMESTIC VIOLENCE RESTRAINING ORDER:- Contrary to Section 77[1][a] of the Domestic Violence Decree of 2009.

Particulars of Offence (b)

MAHESH PRASAD, on the 15th day of January 2013, at Waidradra, Navua in the Central Division, having notice of the Domestic Violence Restraining Order by which he is bound by non-molestation condition without reasonable excuse contravened such order vide Domestic Violence Restraining Order Number: 47/12 by behaving in an abusive manner towards the protected person namely Kamini Lata by uttering swear words such as 'maichod' meaning 'Mother Fucker'.

[5] During the hearing the prosecution called 03 witnesses and tendered 2 documents as exhibits. The accused was given his rights and he opted to remain silent.

Summary Of Evidence

Prosecution Case

[6] PW 1 (Kamini Lata) - She is the complainant in this case. She said the accused is her husband and she got a Domestic Violence Restraining Order against him from the Court. On 15/01/2013 the accused started to fight with her and then assaulted her. He also swore at her saying 'Maichod".

The accused was given the right to cross examine the PW1 but he did not exercise that right.

[7] PW 2 (Tulia) - She is working as a clerk in the Family Court at Navua. She said on 24/12/2012 she served the accused with copy of the non molestation order and also explained it to him. The DVRO made on DVRO application 47/2012 was tendered and marked as exhibit – 01.

[8] PW 3 (WPC Litia) - She conducted the interview of the accused and it was tendered as exhibit – 02. Also charge statement was marked as exhibit – 03.

[9] The prosecution closed their case after they had called PW3 and this Court after considering the evidences was of the view that there was a case against the accused. Therefore the Court followed the steps under section 179(1) of the Criminal Procedure Decree and the accused was explained about his rights. The accused informed that he wanted to remain silent and also did not want to call any other witnesses for the defense.

The Law

[10] The accused is charged with the Offence of Breach of Domestic Violence Restraining Order contrary to section 77(1) of the Domestic Violence Decree.
Section 77(1) of the Decree states:-

"Any person who, having notice of a domestic violence restraining order by which they were bound, without reasonable excuse contravenes the order or part of the order, is guilty of a criminal offence"

[11] In view of the above section the prosecution needs to prove the following grounds:-

(a) The accused breached a domestic violence restraining order

(b) The accused had no reasonable excuse to breach that order.

[12] Since this is a criminal offence the standard of proof is beyond reasonable doubt and the prosecution has to discharge that burden.

Analysis of the Evidence

[13] From the document tendered as exhibit – 01, I noted that this Court in DVRO application 47/2012 has issued a Domestic Violence Restraining Order against the accused on 24/12/2012 in favor of PW – 01.

[14] When that Order was issued this Court as per section 18(1) of the Decree explained it to both parties. The PW – 02 also stated she gave a copy and explained it to the accused. Therefore the accused was aware about the restraining order.

[15] Now I will consider that order against the accused. According to the order the respondent was ordered not to commit the following actions against PW – 01.

(a) physically assault or sexually abuse the protected person;

(b) threaten to physically assault or sexually abuse the protected person;

(c) damage or threaten to damage any property of the protected person;

(d) threaten, intimidate or harass the protected person;

(e) behave in an abusive, provocative or offensive manner towards the protected person;

(f) encourage any person to engage in behaviour against a protected person, where the behaviour if engaged in by the respondent would be prohibited by the order.

[16] Therefore following issues need to be determined by this Court.

(a) On 15/01/2013 did the accused commit any of the actions mentioned in paragraph 15?

(b) Did the accused have any reasonable excuse for committing that action?

[17] The PW – 01, whilst giving evidence said that on 15/01/2013 the accused assaulted her and also swore at her saying 'Maichod". The accused did not challenge this piece of evidence.

[18] In fact the accused admitted this also in his caution interview.

Q20:- What did you do then?

A:- I got angry and swear at her

[19] The accused also in his interview tried to explain the reasons that led to this incident. According to the accused in his interview PW – 01 started beating his child on that day and the accused got angry and swore at her.

[20] But strangely the accused did not take this defence in the Court. He did not cross examine the PW – 01 regarding this incident or give evidence when given his chance. He also failed to call any other witnesses to substantiate this claim.

[21] Also this Court is satisfied with PW – 01. She was confident and clear whilst giving evidence and this Court has no reason to doubt her evidence.

[22] For the above mentioned reasons I find that the prosecution has proved beyond reasonable doubt that the accused committed this offence on 15/01/201.

[23] Accordingly I find the accused guilty for the offence of Breach of Domestic Violence Restraining Order contrary to section 77 (1) of the Decree and convict him for that offence.

[24] 28 days to appeal.

20/02/2013

H.S.P.Somaratne
Resident Magistrate