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State v Swami [2024] FJMC 5; Criminal Case 381 of 2020 (12 March 2024)

IN THE MAGISTRATE’S COURT IN FIJI AT SIGATOKA
CRIMINAL DIVISION

Criminal Case No. 381/20

THE STATE -v- CHETAN ANAND SWAMI

For the Prosecution: Sgt. Nakai
For the Accused: Mr. Waqavakatoga

JUDGMENT

1. The Accused has pleaded not guilty to the following charge: -

Statement of offence

CRIMINAL INTIMIDATION: Contrary to section 375(1)(a)(i)(iv) of the Crimes Act No.44 of 2009

Particulars of offence

CHETAN ANAND SWAMI on the 4^th day of July 2020 at Sigatoka, in the Western Division without lawful excuse, threatened YOGESH KUMAR SINGH by uttering words that “I will chop you today and will burn you with your house” with intent to cause alarm to the said YOGESH KUMAR SINGH.

The Prosecution Case

2. Prosecution Witness 1 (PW1) is Yogesh Singh, Farmer of Nabitu. He recalls that one the day in question he was at his farm at Kavanagasau with his wife and 2 other neighbors when an incident happened. He states that he was in his own compound when he heard Raju, the Accused, who was about 50 – 60 meters away threaten him by saying that he will cut them up and burn them; and the he heard the Accused swear at him. As a result, he states that he did not feel good and so he reported the matter to the police.

In cross-examination, he states that it was getting dark when he was being threatened. He also states that there was land issues between him and the Accused at the time.

3. Prosecution Witness 2 is Niteshwar Singh, Domestic Duties of Nabitu. She is the wife of PW1 and was also present at the place, time and day in question. She says that she saw the Accused, Raju, point at her and PW1 and swore at them. He then threatened them saying that he will chop them up ad bur the house down and as a result, she felt scared.

In cross-examination, she states that the Accused was a bit far from her when she made the observation.

4. Prosecution then closed its case. The Court found that there was a Case to Answer and as such the Accused elected to give evidence.

The Defense Case

5. Defense Witness 1 is the Accused who is a Farmer of Kavanagasau. He states that on the day in question he was returning from work and around 6.15pm he got off the carrier at his junction to walk home. While walking he was talking to his friend Babu a Mechanic with Coastal Line. While outside the Accused’s home, he was joking with him and swore at him as is their usual banter and joking. The Mother of the Accused came out and saw them and asked what is wrong and he said to his Mother that he was swearing at him as was to repair their van. He denies threatening PW1 and further denies speaking to PW1 and PW2 at any time. If anything their compound is more than 100 meters in distance from his compound.

In cross-examination, he states he has never spoken to PW1 and PW2 and maintains not threatening PW1.

6. Defense Witness 2 is Majala Devi, Widow of Kavanagasau. She recalls that on the time, place and day in question as stated by the Accused, she was yarning with her sister in the sitting room of her house when she heard the Accused and their neighbor Kamal who works as a Mechanic, talking outside and so she went to check on them. She saw that it was only the two of them sitting outside talking. She did not see PW1 at any time outside and she states that PW1’s compound was about 150 meters from their compound.

In cross-examination, she states that the Accused did not threaten PW1 nor did she see PW1.

7. Defense Witness 3 is Usha Devi, Domestic Duties of Kavanagasau. She is the sister of Majala Devi. At the said time and place, she recalls she was conversing with the sister in the sister’s sitting room and she could hear the Accused and his friends joking and laughing at each other outside the house.

In cross-examination, she recalls her sister going outside to check on the Accused and his friend while she remained seated in the sitting room.

Analysis

8. The State bears the burden of proving the charge of Criminal Intimidation beyond reasonable doubt. The elements of the offence of Criminal Intimidation are as follows:
   1. The Accused
   2. Without lawful excuse
   3. Threatened PW1 by uttering “I will chop you today and will burn you with your house”
   4. With intent to cause alarm to PW1
9. Prosecution relied on the evidence of PW1 and PW2 to prove each element of the offence of criminal intimidation.
10. There is no doubt that there is no lawful excuse to threaten anyone in this matter nor was the PW1 not alarmed because he clearly was. The issue in this matter is whether the Accused uttered these words to PW1. Therefore elements 1 and 3 are in dispute.
11. PW1 states that the Accused was about 50 – 60 meters away when he threatened him by saying that he will cut them up and burn them. PW2 makes the similar observations. Prosecution relied on PW1’s dock identification of the Accused. Before we move to the Turnbull Guidelines, let us determine first whether this observation was one of identification or recognition. As the law goes, recognition should be more reliable than identification of a stranger (vide McMillan [2005] EWCA Crim 1774; Beckford v The Queen (1993) 97 Cr App R 409; Bowden [1993] Crim LR 6 ).
    
12. Now in this case, PW1 states that he was neighbor with the Accused at Kavanagasau. It is implied from the evidence that PW1 and is family moved into the Kavanagasau area and then moved out again that same period. He states that the Accused is Raju and is his neighbor. He does not say how he got to know Raju or the related circumstances to that. For all one knows, he knows of Raju but does not know him. He also states that he does not know Raju’s real name. He says that he has known him since they moved in. But how long was that for? In its entirety there is not enough evidence before the Court to deem the observation by PW1 of the Accused as one of recognition. It should be deemed as identification.
    
13. In regards to identification, Turnbull Guidelines from R v Turnbull [1977] QB 224 becomes relevant where the following questions must be asked and answered:
    

How long did the witness have the accused under observation? At what distance? In what light?

Was the observation impeded in any way e.g. by traffic or other people?

Had the witness ever seen the accused before? If so, how often? If only occasionally, had he any special reason for remembering the accused?

How long had elapsed between the original observation and the subsequent identification to the police?

Was there any material discrepancy between the description given by the witness and the actual appearance of the accused?

Where there is a material discrepancy the particulars should be provided to the defence and in all cases they should be supplied if requested.

14. The only relevant evidence before the Court is that the observation was made from about 50 meters away at a time when it was getting dark. There is no evidence as to description of appearance and manner of the Accused or when did the PW1 first realize that it was the Accused and when he did, how long did he have him under observation. All questions are not sufficiently addressed. At this juncture, the Court adds minimal weight to the identification evidence of PW1 and PW2. Therefore, there is insufficient evidence to prove that it was the Accused who threatened PW1.
15. I therefore find that the State has not discharged its burden of proving all the elements of the offence of criminal intimidation beyond reasonable doubt.

16. Chetan Swami, I hereby find you not guilty as charged.

17. You are hereby acquitted forthwith.

18. 28 days to appeal.

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J Daurewa
Resident Magistrate
12^th March 2024