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State v Lata [2016] FJMC 166; Criminal Case 316.2014 (4 July 2016)

IN THE MAGISTRATE'S COURT

AT NAUSORI

IN THE REPUBLIC OF FIJI ISLANDS


Criminal Case No: 316/14

State

V

Geeta Shoran Lata

Prosecution : Sgt M Rao (Police Prosecutor)

Accused : Present – In Person

Judgment

Introduction

Geeta Shoran Lata is charged with Breaching Domestic Violence Restraining Order, contrary to Section 77 (1) (a) of the Domestic Violence Decree 2009.

The Particulars of Alleged Offence is as follows:

“Geeta Shoran Lata on the 23^rd day of March 2014 at Muaniweni, Naitasiri in the central division being a person notified of a domestic violence restraining order case number 392/12 by which you were bounded without reasonable excuse behaved in an abusive, offensive manner towards the protected person namely, Umesh Chand.”

The Law

Section 77 (1) (a) of the Domestic Violence Decree states that “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 and is liable on conviction -

(a) subject to paragraph (b), to a fine of $1,000 and a term of imprisonment of 12 months;”

The Standard and Burden of Proof

The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice."

The Evidence

The prosecution and the defence had prior to hearing of the matter agreed between themselves as to the identity of the accused person and the complainant. The caution interview and the charge sheet were tendered by consent. The Prosecution and the accused also agreed that there was a domestic violence decree in favour of the complainant and the accused had notification and had received a copy of the domestic violence restraining order.

The prosecution called 2 witnesses. At the end of the prosecution case this Court ruled that the accused had a case to answer. The options were explained to the accused. The accused gave sworn evidence. This Court has noted all the evidence that was given and all the documents that were tendered.

Analysis of Evidence in Relation to the Law

This Court has analysed all the evidence given by all the witnesses in this case. The onus is on the prosecution to prove all the elements of the offences committed by the accused. Certain issues which were the elements of the offence were agreed to between the parties and as such were not in dispute in this case. The main issue for the court to determine was whether the accused breached the DVRO by behaving in an abusive and or offensive manner towards the complainant.

The evidence of the complainant, Umesh Chand (PW-1) was that he was home watching rugby when the accused came and swore at him. The accused was complaining to the complainant why they were yelling and making noise. She said “mai chod” to the complainant. There were other persons in the house where the complainant was.

The second witness for prosecution was Saimoni Ratu, he was an independent witness. He was inside PW-1’s house watching TV when the accused came and swore at the complainant. He normally watched TV at another location. This was his first time at Umesh Chand’s house. This witness also told the Court that he heard the accused say “Maichod” to the complainant. Saimoni was an independent witness. He was credible and withstood vigorous cross-examination by the accused person. He clearly told the Court what he heard and what he saw. The Court believed this witness.

The accused in her evidence was inconsistent. She firstly told the Court she spoke to Krishneel who was the only one in the house. Next moment she said the Umesh put glass down and punched her. In her caution interview she had told the police that “I don’t know who all were there but plenty were sitting inside watching TV.”

From the evidence before the Court and the Court noting the evidence of an independent witness who had no animosity and was not obliged to do the complainant any favour, which is the evidence of Saimoni the Court finds that the accused swore at the complainant. By swearing she breached the domestic violence restraining order that was in place. For the foregoing reason the accused is found guilty of the charge. She is convicted as charged.

Chaitanya Lakshman

Resident Magistrate

4^th July 2016

IN THE MAGISTRATE'S COURT

AT NAUSORI

IN THE REPUBLIC OF FIJI ISLANDS


Criminal Case No: 316/14

State

V

Geeta Shoran Lata

Prosecution : Sgt M Rao (Police Prosecutor)

Accused : Present – In Person

Sentence

Introduction

Geeta Shoran Lata was charged with Breaching Domestic Violence Restraining Order, contrary to Section 77 (1) (a) of the Domestic Violence Decree 2009.

The Particulars of Alleged Offence is as follows:

“Geeta Shoran Lata on the 23^rd day of March 2014 at Muaniweni, Naitasiri in the central division being a person notified of a domestic violence restraining order case number 392/12 by which you were bounded without reasonable excuse behaved in an abusive, offensive manner towards the protected person namely, Umesh Chand.”

Following a hearing she was found guilty.

The Law

Section 77 (1) (a) of the Domestic Violence Decree states that “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 and is liable on conviction -

(a) subject to paragraph (b), to a fine of $1,000 and a term of imprisonment of 12 months;
(b) if the person has previously been convicted of an offence of breach of a domestic violence restraining order, to a fine of $2,000 and a term of imprisonment of 12 months.”

As a first offence the Court notes that the maximum sentence for the offence is a fine of $1000 and a term of imprisonment of 12 months. This Court further notes that no set tariff has been outlined for this offence. This Court takes the Tariff from suspended sentence to 6 months imprisonment.

This Court takes a starting point of 4 months imprisonment in this case, having noted the circumstances of offending. For the mitigation which is that you are: 34 years old, involved in domestic duties, living with 2 children. No other expression of remorse or apology was offered for this the Court gives 1 month discount. The term stand at 3 months imprisonment.

The Court notes that you are first offender and you can rehabilitate for this reason the court will suspend your sentence and warn you not to reoffend. The sentence is suspended for 18 months. The meaning of suspended sentence will be explained to you.

If any party is aggrieved with this sentence you have the right to appeal this sentence within 28 days.

Chaitanya Lakshman

Resident Magistrate

4^th July 2016