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State v Reddy [2019] FJMC 183; Criminal Case 22 of 2018 (31 October 2019)

IN THE RESIDENT MAGISTRATE’S COURT
AT NADI
CRIMINAL JURISDICTION

Criminal Case No: 22 of 2018

BETWEEN : THE STATE

AND

TARMOD REDDY

Before : NILMINI FERDINANDEZ
RESIDENT MAGISTRATE

Date of Judgment : 31^st October, 2019

Sergeant Francis for Prosecution
Accused - In person

JUDGMENT

1. The accused TARMOD REDDY, is charged for one count of Fail to Confine Animals; contrary to Section 3 (1) (c), (2) of Trespass of Animal Act Cap 166.
   
2. The statement of offence and the particulars of offence are as follows;

Statement of offence

Fail to Confine Animals; contrary to Section 3 (1) (c), (2) of Trespass of Animal Act Cap 166

Particulars of the offence

Tarmod Reddy on the 01^st day of January, 2017 at Nadi in the Western Division, being the owner of the animal namely 1 Heifer failed to confine the said 1 Heifer in a fence, stable, coral or building at all times.

3. BACK GROUND
   • 3.1 The accused appeared in court for the first time on the 22^nd March 2018. Since the learned Magistrate was attending a workshop on the said date, the charges had been read out to the accused only on the 15^th June 2018 on which date the accused opted to waive off his right to counsel and pleaded not guilty for the charge. As such, the matter has been fixed for Trial.
   • 3.2 When this matter was taken up before me for the first time on the 3rd of June 2019, for which date my predecessor has fixed it for hearing the trial commenced.
   • 3.3 Prosecution called the following witnesses.
     1. Sunil Kumar
     2. PC3827 Watisoni Matea
     3. PC2482 Patrick Nayacilagilagi
   • 3.4 On the 15^th August 2019, the prosecution closed its case without calling any further witnesses.

Thereafter, the accused was explained his rights to give evidence, to call witnesses or to remain silent. The accused opted to give evidence under Oath. After giving evidence from the witness box, the accused closed his case and the case was then fixed for judgment.

4. THE LAW

4.1 Section 3 of Trespass of Animal Act Cap 166 reads as follows:

3.—(1) Every owner of any animal shall keep such animal confined within a corral, fold, pen, stable or building at all times other than –

(a) Any time when such animal is properly and securely tethered;

(b) Any time when such animal is under the charge of some person who accompanies the animal in such manner as to have reasonable control over it;

(c) At any time when such animal is upon land completely enclosed by a fence as defined in this Act.

(2) Subject to the provisions of subsection (3) where any animal is found not confined within a corral, fold, pen, stable, or building at a time when such animal is required to be so confined by the provisions of subsection (1), the owner of such animal shall be guilty of an offence and liable upon conviction to a fine not exceeding $20.

(3) It shall be a defence to a charge under the provisions of subsection (2) for the owner to prove –

(a) that he took all reasonable steps to ensure that the animal was confined as required by subsection (1) at the time relevant to the charge; or

(b) that he took all reasonable steps to ensure that the animal was properly and securely tethered at the time relevant to the charge; or

(c) that he took all reasonable steps to ensure that the animal was in charge of and accompanied by a person competent to exercise reasonable control over the animal at the time relevant to the charge;

(d) that he took all reasonable steps to ensure that the animal was on land completely enclosed by a fence at the time relevant to the charge.

5. The burden of proof lies on the Prosecution and in this case the prosecution has to prove beyond reasonable doubt the following elements to secure a conviction
   1. The accused is the owner of the animal in question
   2. The accused has not taken steps to confine the animal as per the provisions in Section 3(1) of the Trespass of Animal Act.
      
6. The defences that are available to the accused are mentioned in Section 3(3) of the same Act.
   
7. EVALUATION OF EVIDENCE
8. As per the evidence brought in by the defense, it is very clear that the accused has never denied that heifer in question belonged to him. Therefore, there is no necessity for the prosecution to prove the ownership of the animal in question. Prosecution only has to prove beyond reasonable doubt that the accused has failed to act according to the provisions under Section 3(1) of the Trespass of Animal Act.
   
9. Prosecution’s evidence

9.1 PW1, Sunil Kumar, is a civilian witness who stated in his evidence that on the 1^st day of January 2017, the day of the offence, he had been driving his 7-seater van accompanied by his family from Nadi to Lautoka when he met with an accident at Barara Flats, because a cow had suddenly crossed the road.
9.2 Due to the collision the cow has fallen into the drain in the right side of the road and his vehicle has been damaged.
9.3 The witness has informed the police about the accident and has waited there until the police arrived. He was informed by the police that the owner of the cow was Mr. Reddy, the accused in this case.
9.4 In cross examination, this witness has admitted that the cow involved in the accident was, in fact, a big calf.
9.5 Although the witness initially stated that he cannot remember the accused taking him near the calf where it was lying in the drain, he later admitted seeing a rope around the neck of the calf.
9.6 At this point the accused wished to show the witness the pieces of rope that he used to tie the calf which he claimed to have handed over to the police, but the prosecution denied having the said pieces of rope. Accused informed court that the rope was his main evidence and that he has also mentioned in his statement about handing over the 2 pieces of rope to the investigating officer as exhibits. He proceeded to read the relevant portion of his statement where he stated that the rope was handed over to the police.
9.7 The witness further admitted that he saw two pieces of rope, one tied to the neck of the calf and the other loose, and also confirmed seeing that the two edges of the rope have been cut using a sharp object.
9.8 The witness was unable to state without seeing the pieces of the rope, whether the thickness of the said rope would allow the calf to break it by pulling.
9.9 This witness was questioned on the rules of keeping livestock in re-examination, by the prosecution, because he used to own livestock in 1990s and the witness replied, “If there are a lot of livestock then they have to be confined in a fence. And if there is only some then they can be tied”.

• 10.1 PW2, PC3827 Watisoni was the officer who has conducted the Caution Interview on Mr. Reddy, the accused on the 25^th June 2017. Whilst confirming that he interviewed the accused he stated that he has known the accused well as he used to serve at Lautoka police station with the accused.
• 10.2 When the record of the Caution Interview was shown to this witness he identified his signature on it as the Interviewing officer. Then the prosecution took steps to tender the statement of the accused to court, marked as P.Ex 1.
• 10.3 In cross examination, the witness informed court that he was only instructed to interview the accused but he received only the statement form from the accused. Although the accused has stated in the statement that he has handed over a rope to the Investigating officer, a rope was not given to him when he conducted the Caution Interview.
• 10.4 The accused questioned the witness whether he found where the rope was and whether it was necessary to show the rope and question the accused on it. Although the witness admitted that it is necessary to show the rope to the accused and ask questions, he stated that the rope was not available at that time.
• 10.5 Answering a question put to this witness by court, he stated that he was only the interviewing officer and the Investigating officer in this case was Sargent Abdul Saiban.
  
• 11.1 Prosecution’s last witness PW3. PC 2482 Patrik Nayacilagilagi stated to court that he went to attend to a report on an accident that had happened at Barara on the 1^st of January 2017. He has been told by the driver of the vehicle that the accident had happened because a cow has suddenly crossed the road. The cow that was involved in the accident has still been there when he arrived at the scene and according to him; the cow had died due to the impact.
• 11.2 The witness stated that the accused came to the scene while he was there and explained to him that the cow has been tethered outside the road and that he was not aware how the cow has come to the road. The accused has further stated to him that he had used a rope to tether the cow, but the witness could not recall whether he saw the said rope or the place to which the cow was tethered to.
• 11.3 He further stated to court that he cannot recall whether a rope was handed over to him during the course of his investigations.
  
• 11.4 When this witness was cross examined by the accused it is noteworthy that he went on to state that he could not recall;
  1. going to the place where the cow was lying, together with the accused and the driver of the vehicle, or
  2. seeing a rope around the neck of the cow, or
  100. going to the place where the calf (cow) was tied to, or
  4. the accused showing him a piece of rope tied to a post which was cut, or
  5. the accused showing him the piece of rope that was tied to the post and the piece of rope that was tied around the neck of the calf, or
  6. the accused showing him the two edges and stating that they were cut.
• 11.5 His explanation was that he was not the Investigating officer but his job was only to drive. However, when the accused questioned him, “After you have completed your investigation at the scene, do you recall that we all went to the police station?” he has answered “yes”, which means that he admits he was investigating.
• 11.6 When the witness was questioned whether the accused wrote the statement and handed to the witness two pieces of rope, he replied that he can only recall the statement but not the rope.
• 11.7 The date on the statement of the accused marked as P. Ex 1 is 1^st January 2017 meaning that the accused has made the said statement on the date of the offence itself. As per the contents of the said statement, the accused had checked both pieces of rope; the piece that was tied to the post as well as the piece that was tied around the neck of the calf, and realizing that the rope had been cut; he had handed over the two pieces to the police.
• 11.8 When the witness was questioned whether he read the statement which the accused had given to him, the witness had admitted the same. However, with reference to line 36 of the statement wherein it says that the accused has handed over the two pieces of rope to the police, the witness stated that he is unaware of the police officer to whom the rope has been handed over. [The statement of he accused was tendered to court as evidence marked as D. Ex.1]
• 11.9 Then the accused suggested to the witness that it was to the witness himself he had handed over the pieces of rope at Sabeto police station, to which the witness replied that he cannot recall.
• 11.10 The accused thereafter proceeded to question the witness about the area where he was residing and the witness admitted that the said area has been declared by the government as a flood prone area and due to the heavy rain that fell on the day of the accident the low line area was heavily flooded. He also admitted that it was safe for the accused to bring his cow to upper ground.
• 11.11 When being questioned whether the place the accused has shown to the witness as the place he tied the calf and its mother posed any danger to public access roads or anybody else, the witness has answered “No” and this answer indicates that the witness has seen the place where the calf has been tied, although he earlier stated that he could not recall going to the said place.
• 11.12 Replying to the questions put to him, the witness has further stated that when people keep one or two animals such as cows, goats or sheep for domestic purposes they keep them tied with a rope and that on the day of the accident the accused had only one milking cow and its calf. Further, he stated that the accused did the right thing by tying them with a rope.
  

12. Defense’s evidence

• 12.1 It was only Tarmod Reddy, the accused of this case that gave evidence for defence. He explained to court in length what had happened on the 1^st of January 2017.
• 12.2 According to him, the area where he resides is declared by government as a flood prone area and it had rained heavily on the day of the accident and the days prior to that. On the day of the accident the accused has brought his milking cow and the calf that was 4-5 months old to higher grounds for their safety and tied them to posts using ropes. He was vehement that his cattle were not on any public access or any public property.
• 12.3 The accused explained that he had used a thick enough rope to tether the calf, which the calf could not break by pulling and he has realized after the accident that someone has cut the rope. He stated that the pieces of rope were his main evidence which he had handed over to the police together with the statement he wrote on the date of the accident He further drew attention of court to the fact that even the prosecution’s first witness has admitted in cross examination about seeing the rope with edges that were cut with a sharp object..
• 12.4 He went on to explain that the calf that was involved in the accident was only aged 4-5 months and was still feeding on the mother’s milk. Therefore, if the calf was not in fear, it would have run to the mother instead of running to the road. It looks a reasonable explanation because if a calf that was still feeding on its mother is kept tethered away from the mother, when freed it could be expected only to run to the mother and try to feed unless it is chased off to a different direction by someone or something.
• 12.5 The accused then continued to explain that although the farmers who keep animals in large quantities and for commercial purposes are expected to have their own paddocks or pens or confined areas to keep the animals from straying away, people who have only 1-5 animals for domestic purposes can keep them tethered.
  
• 12.6 The accused has been cross examined in length by the prosecution although only a very few questions seem important and relevant to the case.
• 12.7 I draw my attention to the following question and answer which are important and self-explanatory.

“Q. If you thought that it was very important evidence to this case, why didn’t you ensure that the rope was handed over to a person who would be able to produce it during the hearing of your case?

1. The time gap between the time of the accident and my statement was not even 2 and half hours, whilst the statement was handed over to the officer who attended to the scene of accident. He was the only responsible person to whom I should hand over my statement and the ropes. And then again, any statement given to a police officer should be read by the police officer and read back to the complainant and satisfy themselves. If the police officer has not read my statement it is not my responsibility. As for the report, I have taken oath in this honoured court and stated that the ropes were handed over to PC Patrick, although he said he can’t recall. I also asked him why it took so long between my interrogation and the date of accident. There is a possibility for the rope to be lost....”
   

12.8 The prosecution has marked the statement of the accused as P.Ex1 and tendered the same as their evidence. They admit that it was made by the accused and rely upon its contents. Therefore, as pointed out by the accused in the aforementioned portion of evidence, the police officer who accepted the statement written by the accused definitely has a responsibility of reading through the statement and satisfying himself on its contents. Since the statement discloses the fact that two pieces of rope have been handed over to the police by the accused, it is the responsibility of the police officer who accepted the statement, to verify whether the said fact was true and to ensure the safety of the items if they were actually handed over to the police.

12.9 When being questioned by the prosecution as to why the accused did not take photos of the ropes before handing them over to the police, the witness replied, “Collecting evidence from scene of crime is not the complainant’s job but it is the job of the police. And at that time no photos taken by the police on the accident even. And I did not carry to the place my mobile to take photographs”. As can be seen from the statement of the accused marked as P.Ex1, the accused has come out of his house when he heard a big noise and the sound of a vehicle braking. Then he has seen a brown van parked near his drive way and when he arrived at the said van he has realized that his calf has been involved in an accident. As such, it is acceptable that the accused was not equipped nor prepared to conduct a proper investigation and to collect evidence in preparation for a possible criminal case against him in the future.

12.10 When inquired by the prosecution about the steps he had taken to ensure that the calf was securely tethered, he stated that the calf was tied with a 10mm rope that was 6m long to a post which was 3-4m above ground and 1m below ground level.

13. The accused was highly confident that it was PW3 to whom he handed over the pieces of rope that was used to tie the calf, although PW3 claimed that he could not recall receiving the same. However, PW3 has admitted in cross examination that he accepted the statement from the accused and read through the same. Therefore, it is evident that PW3 has failed in his duty to verify the truthfulness of the contents in the statement as to the handing over of the vital evidence to police.
    
14. Also, PW3 has contradicted his own evidence by stating at one time that he was not the Investigating officer but his duty on this case was only to drive and later accepting that after he completed his investigations at the scene he recalls going back to the police station with the accused. He has also admitted that he accepted the statement from the accused, which is definitely not the duty of a police officer whose job was only to drive. On the whole, I am satisfied that the evidence of this witness is not worthy enough to rely upon.
    
15. On the other hand, Section 3(1) of the Trespass of Animal Act states 3 instances when the owners of an animal need not keep the animal confined within a corral, fold, pen, stable or building; properly and securely tethering the animal being one of them. Prosecution remained silent on this specific provision right throughout the trial, while the Accused’s defence was based on the same. He maintained a stance that he kept the calf securely tethered before the time of the accident and if someone has not cut the rope that held the calf, the calf would not have entered the road.
    
16. In his statement made to the police just couple of hours after the time of accident he has stated that someone has cut the rope and that he has, after untying the pieces of rope from the post and the calf, has handed both the pieces to police. None of the police officers who gave evidence for the prosecution were able to explain whether the police at the time of accepting the statement had verified whether the rope was, in fact, handed over to the police or not as mentioned in the statement.
    
17. PW3 although denied that he was the Investigating officer, failed to mention to court the name of the Investigating officer. PW2 stated that he was only the Interviewing officer and that the Investigating officer in this case was Sgt. Abdul Saiban. However, the prosecution has failed or neglected to call the said Sgt. Abdul to give evidence, creating a doubt in favour of the accused.
    
18. PW1 has admitted in his evidence that he saw the two pieces of rope; one tied around the neck of the calf and the other loose with the accused, and has also confirmed seeing that the two edges of the rope have been cut using a sharp object.
    
19. As per all the evidence before this court, this court is not satisfied that the prosecution has managed to prove beyond reasonable doubt that the accused has breached the provisions in Section 3(1) of the Trespass of Animal Act.
    
20. Accordingly, I the accused fsed from thrgeharge against him.
    
21. 28 days to appeal.
    

At Nadi Nadi on 31^st day of October, 2019.

___________________________

Nilmini Ferdinandez

Resident Magistrate