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State v Bi [2015] FJMC 55; Criminal Case 1553.2012 (13 March 2015)

IN THE MAGISTRATE'S COURT AT NASINU

Criminal Case No. 1553/2012

STATE

-v-

SABNAAZ BI

PC Yasin for the Police Prosecution
Miss. Kean T.(Legal Aid Commission) for the accused

JUDGMENT

The Facts

1. The accused name SABNAAZ BI, was charged for the offence of ANNOYING ANY PERSON Contrary to Section 213 (a) of the Crimes Decree No. 44 of 2009.

2. SABNAAZ BI on the 17th day september 2012 at Nasinu in the Central Division with intent to insult the modesty of Rasheeda Katoon, uttered the words "mother fucker " "bitch" "kutiya" intending that such act is likely to offend the modesty of the said Rasheeda Katoon. The trial commenced since the accused plead not guilty on the 1st count. The matter was fixed for hearing on 11/12/2013. 2 witness summonsed to give evidence on behalf of prosecution namely one Rasheeda Katoon of Maqbul Road, Nadera (the complainant), 40 years, female unemployed and Ashiya Halima Bi of Nadera, 16 years old an unemployed. The accused defended by the legal aid counsel and the Accused and one Shafina Bi 15 years old of Tacirua East, student gave evidence for the defence.

The Law

3. The Section 213 of the Crimes Decree defines the offence as;

"213. — (1) A person commits a summary offence if he or she, intending to insult the modesty of any person —

(a) 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; or

(b) intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.

Penalty — Imprisonment for one year."

4. Therefore the elements of the offence of Annoying Any Person could be listed as follows. That;

(a)The accused (any person) on the dates as per the charge (identification and date); Uttered any word, or Made any sound or gesture, or Exhibited any object

(b) Intending that such word or sound shall be heard or that such gesture or object shall be seen, by the other person (the victim) which is likely to offend the modesty of the victim.

5. In the case of State v Raikavuka Summing Up [2014] FJHC 673; HAC122.2013S (16 September 2014) Salesi Temo J stated;

"The key to the offence is the act of insulting someone. In other words, it must be shown by the prosecution that, the accused intended to insult the complainant. It is commonly accepted that the easiest way to insult someone, is to swear at them, and intending such swear words to be heard by them, so as to insult them. In other words, if you swear at someone, intending such swear words to be heard by him, and you intended to insult him, you are guilty of the offence."

6. The "mens rea" or the mental element of this offence is accuses intent to insulting the modesty of the victim. hence merely uttering word dose not sufficient to raise criminal liability but the act of the accused must expressed and come along with the intention or expectation of insulting the modesty of the of the victim. If the word used is filthy indeed there is no much difficulty on adjudication. Even this is not a conclusive rule. As per P.K. Madigan J. insulting of the modesty must be read with the context such as status of person who was aggrieved by act of suspect; time and place (Wise v State [2015] FJHC 75; HAA31.2014 (4 February 2015)). But even some other word/act may be sufficient to charge person for annoying when read with the context of the matter even though the words/conduct are not abusive/filthy in nature but used with the intention of insulting the modesty of victim. The "actus rea" of this offence is very wide and not limited to uttering word. It may be any conduct of the accused which may be uttering any word, or making any sound or gesture, or exhibiting any object etc. therefore the most crucial fact to be proven before court for this offence is the intention.

7. Wise v State [2015] FJHC 75; HAA31.2014 (4 February 2015) P.K. Madigan stated

"A difficulty with this case is that the charge was the annoyance to another by saying "fuck you" and not the nakedness of the accused. The Magistrate appears to have confused this point and relied on his nudity as the offensive behaviour rather than the words used as set out in the charge. The accused has not appealed his conviction but if he had he would have probably succeeded. In any event it is difficult to imagine that the words "fuck you" would have insulted the modesty of a typical police officer. The phrase must be said and heard many times per day in any police station in this land and probably even said by the officer himself to others".

8. In the matter of State v Ketewai [2009] FJMC 26; Criminal Case 150.2009 (9 December 2009); the accused convicted on the count of annoying. Even though there was no filthy word used by the accused convicted for indecent exposure since that was somewhat similar to the offence. Further in the matter of Kumar v The State [1995] FJHC 2; Haa0003j.1995b (7 February 1995); the accused was charged with annoying as with intent to insult the modesty of victim (a woman) by forcefully kissing her on the mouth and convicted.

9. The main issue before this court is to find out what really happened between parties? Or whether this court should accept the prosecution or to accept accused version as it is word against word. 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.

10. In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means 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. If you have any reasonable doubt as to whether the accused 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 counsels 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 reasonable doubt about the guilt of the accused."

The Evidence

11. The Prosecution relayed on 2 witnesses including the complainant.
PW-1- Rasheeda Katoon of Maqbul Road, Nadera (the complainant), 40 years, female unemployed stated the accused was residing in a flat in front of her house. On the 17/09/2012 the accused swore at her using words "mother fucker", Bitch; "Kutiya". The witness has seen the accused at the time of the alleged offence. She added PW-2 Asiyana was with her at the same time helping her cocking. The witness identified the accused at open court.

12. The accused given the right of cross examination and she cross examined the witness by her legal aid counsel. It was suggested that the incident took place on 10 am not in the evening and the witness admitted the fact. The witness said the word used were "maichod"; bitch only. She added the accused used to swore at her more frequently but only this time she reports it. The witness confirmed that the accused has gone to collect some rent from the witness and since she had no moneys she (PW-1) has sworn at the accused and this fact denied.

13. PW-2- Ashiya Halima Bi of Nadera, 16 years old an unemployed stated in her evidence that on the 16/09/2012 the accused has sworn at her mother using word "bitch" and "prostitute" when their neighbour came to their home the accused has visit their home asking some questions . Then the accused shouted and said "I don't want any neighbour or any bitch at my compound". Witness said the accused referred "bitch" to the neighbour. Then the accused went to her house and broke the windows of accuses house and again started swearing. When the witness asked about what word the accused used she failed give but just stated what happened afterward such as the accused went to police station to report and after returning came out with knife and challenge her mother (PW-1) for fight. PW-1 has taken by police. The witness was cross examined by the accused counsel. When the witness questioned why she did not mentioned of breaking windows and challenging with knife to police the witness said "I can't recall because mum has done so many complaint against her (the accused)".

14. As it is evident the elements of the offence of annoying established this court ruled that there is a case to answer for the defence. For the defence the Accused (DW-1) and Shafina Bi 15 years old of Tacirua East, student (DW-2) called to give evidence.

15. DW-1 (the accused) stated she was at her house on 16/09/2012. As the landlord of the complainant she had to meet the complainant. When she meet complainant the accused was annoyed by complainant uttering "bajaru I don't want to talk to you .i only know your husband". But in contrary she said "...only my dealings was with the husband because the husband was paying the rent not Rashida".

16. At the cross examination DW-1 denied the allegation and said since the complainant was not in good terms as they did not pay rent at time she had to ask for the rent. Due to this reasons PW-1 made up the allegation for trapping her. She said only once she went ask for rent and in contrary said "every month I have to go end of month on 30th they have to pay rent". She added that they had some matter and she reports it to police. She said even though she went to see her for some reason and had argument but she did not swear at the complainant. At the cross examination DW-1 admits that she went to complainant's house.

17. DW-2 Shafina Bi 15 years old of Tacirua East, student gave evidence for the defence. She said that her mother the accused did not swear at the pw-1 but they used to swear at them. She confirmed the parties were not in good terms. On the alleged date of incident her mother did not swear. She added "yes argument happened but she didn't even swear. she was just explaining. My mum actually didn't swear .they was telling false allegation is that my mum used to swear".

Determination

18. This is word against word matter. It is evident to this court the parties were not in friendly relationship due to some reasons. The accused had to see the complainant husband to collect rent. Evidence of the PW-2 is corroborating with PW-1 except the date and time of incident. As per charge and PW-1 it was 17/09/2012. But PW-2 says its 16/09/2012. The accused has gone to collect bill or rent and if everything happened so nicely it is impossible PW-1 to report the matter. But was the report for swearing or is it fabricated to avoid the rent or for victimizing? This court cannot accept that the accused just started swearing at her unless something happened prior to the swearing. But the PW-1 states it was evening but as per the police statement it's at around 10 am. This court thinks one may be confused with the date but not with time such as evening and morning as it is visible to eyes but not the date. If the incident really happened on 17th September 2012 it is impossible for PW-2 to confuse the date within short time. The prosecution failed to explain this. Pw-2 said one of their neighbours came to her place and accused started swearing at the neighbour since she didn't like it. But PW-1 never mentioned anything about this fact. PW-2 said breaking of windows and challenging with knife (which is more serious offence of criminal intimidation) but PW-1 never mentioned this fact and report it. It is difficult to accept that a reasonable person would hide more serious offence and report the minor offence if he/she really suffered unless fabricating. There is huge deference between PW-1 and PW-2 on the alleged word use by the accused. This makes sense on the mind of this court as it is very impotent the abusive word used to convict the accused for annoying.

19. Above mentioned reasons obviously sufficient to create reasonable doubt and the benefit of the doubt is given to the accused. Therefore this court acquits the accused and discharge the accused from 1st count on the offence of annoying.
20.28 days to appeal.

On this 13th day of March 2015
Neil Rupasinghe

RESIDENT MAGISTRATE