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State v Vece [2022] FJHC 423; HAC014.2021 (1 July 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No. HAC 014 of 2021

BETWEEN : THE STATE

AND : RUCI VECE

Counsel : Ms. Ram, P. for the State
: Mr. Valenitabua, S.R. for the Accused

Date of Trial : 16 – 20 May 2022

Date of Judgment : 01 July 2022

JUDGMENT

The charge

1. The Accused is charged with one count of act with intent to cause grievous harm. The Prosecution alleges that on 1^st January 2021 at Nasinu, the Accused, with intent to cause grievous harm to Makereta Rita, unlawfully wounded the said Makereta Rita with a 4x2 piece of timber.
   

Burden and standard of proof

2. The Prosecution bears the burden of proving the Accused’s person’s guilt. They do this by proving each element of the charge beyond reasonable doubt.
   

Elements of the offence

3. To prove the offence in this case, the Prosecution must prove beyond reasonable doubt:
   1. that the Accused
   2. with intent
   3. to cause grievous harm to Makereta Rita
   4. unlawfully wounded Makereta Rita
   5. with a 4x2 piece of timber
      
4. Intent to do grievous harm is the fault element of the physical element of unlawful wounding.
   
5. A person has intention with respect to
   1. conduct if he or she means to engage in that conduct.
   2. a circumstance if he or she believes that it exists or will exist.
   3. a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events. (s. 19 Crimes Act 2009)
      
6. A bodily hurt whether permanent or injury, amounts to harm.
   
7. “Grievous harm” means any harm which–
   

(a) amounts to a maim or dangerous harm; or

(b) seriously or permanently injures health or which is likely so to injure health; or

(c) extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense (s. 4 Crimes Act)

8. An unlawful act is one which is not permitted by law.
   
9. The term wound means any incision or puncture which divides or pierces any exterior membrane of the body, and any membrane is “exterior” for the purpose of this definition which can be touched without dividing or piercing any other membrane. (s. 4 Crimes Act)
   

The Prosecution case

10. The Complainant and the Accused are the de facto partners of two brothers. In context, they are sisters in law. Makereta, the Complainant is the de facto partner of the elder brother, Tui. The Accused, Ruci is the de facto partner of the younger brother, Vakacegu. At the time of the alleged offence, they were all staying together in Cunningham in a house belonging to Vakacegu and his ex-wife. The house had become something of a family home. I refer to it as such in this Judgment.
    
11. On 31 December 2020, the Complainant and her husband and other members of their family which included neighbours, drank grog at the family home. Some alcohol was also consumed. The Accused and her husband were not present as they were at work. They returned from work on New Year’s morning and joined the party which continued throughout the day. The group included the Complainant and Tui, the Accused and Vakacegu, their mother in law, a neighbour Mereoni and her husband, and a male nurse.
    
12. The main Prosecution witness is Mereoni Taro Sauliga. She is related to the Complainant and to the brothers, Tui and Vakacegu. She drank grog at the Complainant’s place on 31 December 2020. She returned the next morning and was part of the group that drank beer and alcohol at the same place on 1 January 2021. During the drinking party on this day, the two brothers got into a fight and the Accused’s husband left the party. She ran after him and told him to come back but he kept on going. She returned and told the Accused that her husband had left and the Accused ran after him. She does not know what caused the fight between the brothers.
    
13. When the Accused returned, the party had already moved to Mereoni’s home. By then, both the Complainant and her husband had already “knocked out” at their own home from drinking too much alcohol. The Accused came looking for the Complainant. She asked for a knife or chopper and said she wanted to kill the Complainant. The Accused was really angry with the Complainant and was very aggressive. When Mereoni told her she did not have a knife, the Accused then went to an Indian neighbour’s house, took out a 4x2 piece of timber from underneath it and ran into the Complainant’s house.
    
14. Mereoni said she ran after the Accused and when she entered the room where the Complainant was sleeping, the Accused was beating the Complainant with the piece of timber. She was right behind the Accused and saw what the Accused was doing. She was beating the Complainant on her arm, fingers, stomach and head. The Complainant was unconscious while the Accused was beating her with the piece of timber.
    
15. She stopped the Accused, pulled her out from the room and threw the piece of timber outside. The Accused was still angry and broke the louvre blades before leaving, saying she was going to see her husband at the hospital.
    
16. Mereoni says after throwing out the piece of timber, she kept it and later gave it to the Police.
    
17. In cross examination, Mereoni said that Makereta and Tui did not fight during the party and that it was the Accused who was pointing at Makereta and complaining for her to move her husband.
    
18. Tui sent Makereta to go and sleep and they argued in the sitting room. She said Tui did not beat up Makereta and that they were only pushing each other and arguing. Vakacegu went to stop Tui and Tui punched him once on the nose. She said Vakacegu went first to the hospital and the Accused followed, after beating up the Complainant with the piece of timber.
    
19. The Complainant does not know how she sustained the injuries on her body when she woke up on the night of 1 January 2021. She says whilst drinking with the Accused and the others earlier on this day, she and the Accused had had an argument as the Accused kept teasing her about being older than her partner Tui and about having ten children. She said she too kept arguing back as the Accused kept trying to embarrass her in front of Tui. Tui and Vakacegu had tried to stop them from arguing and ended up arguing and fighting themselves. She knew the argument was going to get bad as they were all drunk, so she left. Vakacegu left and when she returned to the front, she saw the Accused walking down the driveway, saying things to her mother in law. After the Accused left, she went to the room and went to sleep. Tui was in the sitting room, still angry and talking.
    
20. When she woke up some time in the night, Tui was knocked out in the sitting room. She noticed blood on her face and injuries on her body. Her chest and hands were sore. There was a black mark on her back and she knew something had happened. Her husband did not know how she got injured. She was dizzy and still drunk so she went back to sleep.
    
21. The next day she wanted to find out what had happened to her. Her mother in law said to ask Mereoni. Mereoni told her what the Accused had done to her. She was scared and devastated and did not believe that the Accused would do that to her. She had nothing against the Accused and the argument should not have happened.
    
22. After the incident, she was not sure whether to go to the hospital or not as she was thinking of the Accused being a mother with a lot of children. She was in pain and needed to see a doctor, and in the end, she went on 4 January 2021 after Tui and her family told her to go.
    
23. The Accused and Vakacegu left home on the day of the incident, returning a week or two later to take all of their things.
    
24. The Complainant was examined by Dr. Dean on 4 January 2021. He found a right scalp laceration, not actively bleeding and not deep. There were also abrasions on the right shoulder and left mid-back. The patient had a laceration on the ring finger and swelling on middle finger. Bruising was noted on the right buttock and on the stomach area. He said a timber could have caused the Complainant’s injuries.
    
25. PC 7003 Ashitosh attended when the matter was reported to the Police. He and another officer took the Complainant to the Station where her statement was taken. She was asked to go for a medical examination and when that was done, they took her back to her residence and picked up the piece of timber from a iTaukei lady who said that it was the one used in the assault. He wrote the date and his initials on the piece of timber with a ball pen and showed this to the Court. He tendered this as part of his evidence.
    

The Defence case

26. The Accused chose to give evidence and call witnesses in her defence. She testified that in December 2020, she and her partner Vakacegu and their two children were living at her in law’s place with the Complainant and Tui, and her mother in law.
    
27. On 1 January 2021, she arrived home in the morning from night shift. The Complainant, Tui, her mother in law, Mereoni and Mereoni’s husband and a male nurse were drinking on the porch. Everyone was drunk as they had been drinking from the night before. She and her husband joined the group sometime thereafter.
    
28. While drinking, the Complainant and Tui had an argument as the Complainant thought Tui was making signals to Mario, the male nurse in the group. Mario had “feminine characteristics”, she said. The Complainant asked what was going on between Tui and Mario, and Tui swore at her. In the course of this argument, Tui punched the Complainant one or two times before grabbing her top and dragging her into the sitting room where he continued to assault her. The Complainant got up and exchanged punches with Tui. When she fell down, Vakacegu went to stop Tui. Tui and Vakacegu wrestled and a neighbour intervened to stop them. She saw Vakacegu go past the group and shortly afterwards, Uate came to tell her that Vakacegu had collapsed at the bus stop. This made her angry. She saw the Complainant and Tui in the living room and she swore at the Complainant telling her see what she had caused. She went down to the main road where Vakacegu was in the taxi and went with Uate to take him to the hospital.
    
29. The Accused denies going to Mereoni’s house and asking for a knife. After going down to see Vakacegu, she did not return to Mereoni or her in law’s house. They went straight to the hospital with Vakacegu and Uate at around 3pm. They waited for some time as the hospital was full. Around 4pm a nurse attended to Vakacegu. He did not have any injuries but his heart was racing. While at the hospital, they received a call that her children were at a neighbour’s house because they were scared, so they had to go back home. They were supposed to wait for Vakacegu to be x-rayed but decided to leave because of the children. They picked the children up and went straight to her mother’s place in Navuso. Uate got off in Cunningham.
    
30. Vakacegu Walesi testified to being part of the group that drank on the porch of the family home on 1 January 2021. He said while they were drinking, the Complainant shouted at Mario and Tui suspecting that Mario was flirting with Tui. When she shouted at Mario again, Tui punched her and then dragged her inside the house where they punched each other. He was sitting in the porch and when he heard a thump from inside, he went in and saw the Complainant lying down, with Tui stomping on the left side of her rib cage.
    
31. He tried to stop Tui and ended up fighting with him. Someone came up from behind and choked him, causing blood to gush from his nose. He felt breathless and went to the road as he felt weak. He fainted and a friend, Uate came. He asked Uate to stop a cab for them to go to the hospital. They stopped the cab at the driveway to their house to call the Accused. He said they went to the hospital with the Accused and Uate. He was supposed to be x-rayed but left to pick up their children after receiving a call that their children were with a neighbour. After picking up the children from Cunningham, they went to Navuso village to the Accused person’s mother.
    
32. Uate Tadulala is the 2^nd alibi witness. He said that on 1 January 2021, he had gone down to Stage 1 and saw Vakacegu knocked out on the road with blood coming out of his mouth. He was weak and shaking, as if he was not feeling well. He woke Vakacegu up and Vakacegu told him to look for a car to take him to the hospital. They stopped at a shop and he went to call the Accused to come. He found the accused arguing with Tui and the family. She came down with him to the taxi where Vakacegu was waiting and they went to the hospital. He said it was dark when they left the hospital.
    
33. The final defence witness prepared an eviction letter for her grandfather who is the landowner of the property where the alleged incident took place. She said the eviction letter was written and delivered on 3 January 2021 to the Complainant who was with Vakacegu’s mother and Mereoni’s husband.
    

Analysis

34. The Prosecution case rests mainly on Mereoni Sauliga’s evidence. Evidence of injuries were given by the Complainant and the doctor. If I accept their evidence as true, then the Accused is guilty of acting with intent to cause grievous harm to the Complainant.
    
35. If, on the other hand, the Accused person’s version of events is or may be true, then she must be held not guilty.
    
36. I bear in mind that all the elements of the offence have to be proved, but not all the facts of the story. (State v Vuetikorovatu Criminal Case No. HAC 143 of 2020, 31 January 2022, per Goundar J)
    
37. Mereoni says that there had not been a fight between the Complainant and Tui. She said it was the Accused who had “pinpointed to the Complainant and complained for her to move her husband”. Tui sent Makereta to go to sleep and they had an argument, pushing each other in the sitting room. She denies Tui had punched Makereta. Vakacegu had intervened to stop Tui and got punched on the nose. He left the group after that and would not come back even though she ran after him and asked him to come back. She told the Accused that Vakacegu had left and the Accused ran after him. She returned angry and aggressive, looking for the Complainant and asking for a knife or chopper, saying she wanted to kill the Complainant. Unable to get a knife, she got a piece of timber from under a neighbour’s house and beat the Complainant with it as the Complainant lay sleeping on the bed.
    
38. The Complainant denies having a fight with Tui or being assaulted by Tui or anyone else. Her version is consistent with Mereoni’s account that Tui did not assault the Complainant. Her account about the Accused teasing her about being older than Tui is consistent with the Mereoni’s testimony that the Accused was the one who was “pinpointing” the Complainant about Tui.
    
39. I believe the evidence of the prosecution witnesses. Mereoni and the Complainant struck me as truthful witnesses.
    
40. Mereoni’s evidence as to the Accused person assaulting the Complainant with the piece of timber tendered as evidence was subjected to vigorous cross examination. She came across as an honest and reliable witness. I accept her evidence that after the Accused had gone after Vakacegu following the scuffle with Tui, she returned to Mereoni’s house where the party had moved to, looking for the Complainant, asking for a knife or chopper and saying she wanted to kill the Complainant. I believe her evidence that the Accused had taken the piece of timber and beat the Complainant with it. The injuries sustained by the Complainant were abrasions on her right shoulder and back. The right scalp laceration and injuries to her fingers and head support Mereoni’s evidence that the Accused had struck her in those areas with the piece of timber. The Complainant noted black marks on her back. The doctor noted abrasions and bruising to the back and buttocks and said a timber could have caused the Complainant’s injuries.
    
41. I found it difficult to believe the defence account that Tui had dragged the Complainant, a tall, well-built person by her top from the porch to the sitting room.
    
42. The Accused denies the allegation saying that she had gone to the hospital with her husband and Uate. I accept that she had gone to the hospital. However, I do not accept that she had not gone back to the house and there assaulted the Complainant before going. I believe Mereoni’s evidence that after the Accused had gone after her husband, she returned, beat up the Complainant with the piece of timber, and then said she was going to the hospital.
    
43. The alibi witnesses did not come across as being wholly truthful. Vakacegu said in evidence that he had fainted and regained consciousness at the hospital, and then said he told Uate to stop a cab, call the Accused, and go to the hospital.
    
44. Uate said he was on his way to see a friend when he saw Vakacegu knocked out on the road with blood coming out of his mouth. This is contrary to Vakacegu’s evidence that it was his nose that was bleeding.
    
45. In any event, even if I accept that they had all gone to the hospital, I feel sure that the Accused had gone back to the house and assaulted the Complainant before going to the hospital.
    
46. The Accused and Vakacegu did not go back to the family home in Cunningham when they returned from the hospital that night. Instead, they went to stay with the Accused’s mother in Navuso. Two weeks later, it was Vakacegu who returned to pick up their things. The Accused did not return to the family home. This gives rise to a strong inference that it was because of what she had done to the Complainant.
    
47. Was there an intent to cause grievous harm? Intent can be inferred from words, actions and circumstances. In this case, the Accused had looked for a knife or chopper. She said she wanted to kill the Complainant. When she could not get a knife or chopper, she got hold of a piece of timber and assaulted the Complainant with it. She stopped only when Mereoni pulled her away and removed the timber from her. I feel sure that she had intended to cause grievous harm.
    
48. As a result of the beating, the Complainant sustained laceration to her scalp and fingers, abrasions and bruising. This is evidence of wounding. It is possible she would have sustained more serious injuries had she not been stopped by Mereoni.
    
49. According to Dr. Dean, a laceration is a wound, leading to an opening or a break in the skin. Abrasions, he said, are like a scrape or scratch, though not necessarily causing a continuous break. The doctor also said that a bruise is basically a wound sustained, and though not causing a break in the skin, it causes the small blood vessels underneath the skin to bleed.
    
50. The wounding was on all accounts unlawful, being prohibited by law and without any lawful excuse.
    
51. The Complainant did not report the incident until 4^th January 2021. She said she had a bad hangover the next day and was in a lot of pain. She was also thinking of the consequences to the Accused who was a mother, if she reported. She finally went because she was in pain and Tui and her family told her to go. I believe her reasons for the delay in reporting.
    
52. I do not believe it was only because of an eviction notice served on them by the landowner.
    
53. Disbelieving the defence version of events is not of itself sufficient to convict the Accused. The Prosecution must on the evidence satisfy the Court beyond reasonable doubt of her guilt.
    
54. However, on the whole of the evidence before the Court, I feel sure that the Accused had, on 1 January 2021 at Cunningham, Nasinu, unlawfully wounded the Complainant with a 4x2 piece of timber, with intent to cause grievous harm.
    
55. I find her guilty and convict her as charged.
    

Siainiu F. Bull
Acting Judge

Solicitors:
Office of the Director of Public Prosecutions for the State
Valenitabua & Associates for the Accused