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State v Khan [2016] FJMC 174; Criminal Case 148.2016 (12 August 2016)

IN THE MAGISTRATES’ COURT

AT NAUSORI

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Criminal Case # 148 of 2016

State

v.

Faiyum Faran Khan

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Criminal Case No. 192/2p>

State

v.

Faiyum Faran Khan

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Criminal Case No. 458/201

State

v.

Faiyum Faran Khan

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Appearances and Representation

State: PC Abinash (Police Prosecutor)
Accused: Present – Represented by Mr P. Kumar

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Judgment

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Introduction

The charges that were laid against the accused were as follows:

In CF 148/16

Breach of Domestic Violence Restraining Order: Contrary to Section 77 of the Domestic Violence Decree 2009

Particulars of Offence:

Faiyum Faaran Khan on the 16^th day of February 2016 being a person notified by a Domestic Violence Restraining Order No. 304/12 by which he was bound, without reasonable excuse, contravened part of the Order by harassing and breaching the conditions of the said order.

In CF 192/16
Breach of Domestic Violence Restraining Order: Contrary to Section 77 of the Domestic Violence Decree 2009

Particulars of Offence:

Faiyum Faaran Khan on the 13^th day of January 2016, at Nausori Town in the Central Division being a person notified by a Domestic Violence Restraining Order No. 304/12, by Nausori Magistrates’ Court by which he was bound, without reasonable excuse, contravened part of the Order by harassing the protected person namely J N.

In CF 458/16

Count I
Breach of Domestic Violence Restraining Order: Contrary to Section 77 of the Domestic Violence Decree 2009

Particulars of Offence:

Faiyum Faaran Khan on the 3^rd day of July 2016, at Nausori Town in the Central Division being a person notified by a Domestic Violence Restraining Order by Nausori Magistrates’ Court, without reasonable excuse, contravened part of the Order by swearing at the applicant namely J N.

Count 2
Resisting Arrest, Contrary to Section 277 (b) of the Crimes Decree

Particulars of Offence:

Faiyum Faaran Khan on the 3^rd day of July 2016, at Nausori Town in the Central Division resisted the lawful arrest of Sgt no. 2237 Raj Gopal Chetty in the due execution of his duty.

The Law

Section 77 of the Domestic Violence Decree 2009 is as follows: “(1) 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.

(2) It is no defence to a charge under subsection (1) that when the contravention occurred -

(a) the person charged, or a person protected by the domestic violence restraining order, was in another country; or

(b) both were in another country or other countries.

(3) Subsection (1) does not apply to -

(a) a condition of a domestic violence restraining order made under section 34 or section 37;

(b) an order that a person pay compensation made under section 39; or

(c) a condition of a domestic violence restraining order directed to a person protected by an order made under paragraph (b) of section 32(2);

(4) For the purposes of subsection (1) a person will be taken to have had notice of a domestic violence restraining order if the person -

(a) was present before the Court at the time the order was made, or

(b) was present when the order was made by telephone and the presiding judicial officer spoke to the person by telephone and explained the terms of the order, or

(c) was told of the existence of the order and the terms of the order orally, or in writing, by a police officer, or

(d) was personally served with the order, or

(e) was served with a copy of the order in such other manner as the Court directed, or

(f) was aware of the terms of the order.

(5) In proceedings under this section the Court must inquire whether the person charged was subject to an order under section 37 requiring the person to attend a counselling, education, rehabilitation or support program.

(6) Where the Court becomes aware during proceedings under this section that the person charged has not complied with an order made under section 37 requiring the person to attend a counselling, education, rehabilitation or support program, the Court must proceed in relation to that matter in accordance with section 37(7).”

Agreed Facts

Before the matter was heard the prosecution and the defence agreed to the following:

a. The identification of the accused person (for all the charges and counts)
b. The date and time (for all the charges and the counts)
c. That there was in place a Domestic Violence Restraining order protecting the victim, J N against the accused, Faiyum Faran Khan.
d. That the accused had notification of the Domestic Violence Restraining order protecting the victim, J N against the accused, Faiyum Faran Khan.

The issues in the cases

In CF 192/16 and 148/16 the issues in the charges relating to breach of DVRO was whether the accused breached or contravened the order without reasonable excuse.

In CF 458/16 for Count 1 the issue relating to breach of DVRO was whether the accused breached or contravened the order without reasonable excuse. For Count 2 the prosecution had to prove that the accused resisted lawful arrest of Sgt Chetty in the due execution of his duty.

The Prosecution Case

Pw-1 was J N, Pw-2 was Y N, PC Francis and PW-4 was Sgt Chetty.

The Caution Interview and Charge sheet of the accused were tendered by consent.

The Defence Case

The accused gave sworn evidence. The other witnesses for the accused were Atrul Nisha (DW-2) and Mohammed Muniff (DW-4).

The Evidence in relation to the Charges

The evidence of the victim in this case, J N was that on 13^th January 2016 she was shopping with her mother at Nausori Town. While she was shopping at Shanton’s the accused came and tapped her. She informed her mother of this. She did not want to talk to the accused. Later they walked to the police station. When they were going to the police station the accused was seeking forgiveness. The accused also swore at her.

On 16^th February 2016 the victim was in the Family Court lobby with her mother. The accused came and sat near her and passed comments. He said “bitch” to the victim and also to her mother. The victim complained to the court clerk.

On 3^rd July 2016 the victim went to the police station for child exchange. Following the handing over of her child to the accused, according to the victim, the accused followed her upto the bus-stop. He wanted to talk to her. She did not want to talk to her. He then according to the victim swore at her and her family.

The evidence of PW-2, Y N who was with the victim, J N was that she was with her daughter in Nausori town on 13^th January 2016 when the accused swore at her and her daughter. She also gave evidence that the accused came up to her daughter in the Nausori Family Court Lobby and sat beside her. According to PW-2 the accused harassed her daughter and said “your daughter got plenty husbands” and also said to Pw-2 that “you are not good that’s why your daughter is like that”.

The evidence of PW-3, PC Francis was that the accused was aggressive when he searched him upon being instructed to do so. He also told the Court that the accused was violent and did not listen to anybody. PW-4 was Sgt Chetty, he told the Court that the accused was evading search and not co-operating with the police. When the accused was being taken from the charge room to the cell he tried to escape.

The accused told the Court that he was not in town on 13^th January 2016 as he drove a taxi the previous day and slept in the day time of 13^th January 2016. He denied the allegations of 13^th January 2016. For the events of 16^th February 2016 he told the Court he was with his lawyer and at no time he spoke to anyone in the Court lobby. One of his unlces. Mohammed Muniff was in Court lobby.

As to the events of 3^rd July 2016, the accused told the Court that after he received the child from PW-1, J N he took the child to his mother who was in their vehicle. He also told the Court that he was with the child the entire time until he was searched. He also told the Court that that he only went outside upto the Police Car Park and was with his mother and daughter and did not go anywhere else. The accused also told the court that two police dragged him to the cell and in the cell Sgt Chetty kicked him.

The 2^nd defence witness, Atrul Nisha told the Court that the accused received the child, they were in the car. They gave the child food to eat and went to the park. The accused the returned to the station with the child. I went to the cell saw police hit him. 3 police hit him.

The evidence of DW- Mohammed Muniff was that he was at Family Court lobby and that he did not see the accused sat with him and did not say anything to the victim and/or her mother.

The evidence of the Victim and her mother were consistent. They related to Court clearly what happened and in detail. The evidence of the accused and his mother who ws DW-2 did not match. The accused had told the Court he did not go out of the police compound after the child exchange. On the otherhand his mother told the Court that the accused, the child and she went to the park after the child exchange. One of them is clearly lying. If the mother of the accused is correct then surely the accused was outside the police station with the child as is alleged by the victim when she said he accosted her near the bus stand and swore at her.

The other grave difference in evidence of the accused is that one where he mentioned that Sgt Chetty assaulted him and that where his mother mentioned that 3 officers assaulted the accused. The Court has noted all the evidence of all the witnesses and believes the Victim, her mother and the police officers who gave evidence in court. The accused was slick in his testimony and this showed when his evidence contradicted that of his mother.

The Court noted the demeanour of all witnesses and believes the prosecution witnesses. They were consistent and truthful in Court. They withstood cross-examination.

For the reasons given here-in this Court finds that the accused in each three occasions breached the DVRO which he was bound to obey. He had no lawful reason to breach the DVRO. The Court also from the evidence before it finds that the accused resisted arrest and that the Police Officers acted reasonably with him.

The accused is convicted as charged for all the 3 matters.

Chaitanya Lakshman
Resident Magistrate
12^th August 2016