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State v Turagacuva [2013] FJMC 100; Criminal Case 204.2012 (5 March 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT NAVUA

Criminal Case : 204 /2012

STATE

VS

PENI TURAGACUVA

For Prosecution : Sgt. Lenaitasi
For Accused : Mr. Tawake from the Legal Aid .

Judgment

[1] The accused was charged with the offence of Annoying Person contrary to section 213 (1)(a) of the Crimes Decree No. 44 of 2009.

[2] It is alleged that the accused on the 13th day of July 2012 at Vunaniu Village, Serua, Namosi with intent to insult the modesty of Asivina Erenasau and Seruwaia Marama uttered the words 'mutu qai la mai kwe, matu wawa tu utu tabu' meaning 'you just came now, we were waiting and you never came' intending that the words be heard by them.

[3] The accused on 13/08/2012 pleaded not guilty for the charge and this was set down for hearing.

[4] During the hearing the prosecution called 04 witnesses (02 complainants and 02 police officers) and the defense called the accused and 02 other civil witnesses. After the hearing the defense also filed their closing submission which I have considered before coming to my decision.

Summary of Evidence

[5] PW1 was Asivina Evenasau one of the complainant in this case. She said on 13 July 2012 she went with 02 other members to Vunaniu Village for voter registration. They went to the village hall and then one Fijian man came there and told her in Serua language 'What they come and do today as they were supposed to come on Thursday'. His voice was strong and aggressive and PW1 felt bad about that and they left the place and came back. In cross examination PW 1 admitted that the accused did not chase them away from the village.

[6] PW2 was Marama, other complainant in this case. She also said that day the accused was talking in Serua dialect and his voice was strong and PW2 was also afraid. In cross examination PW2 said she did not understand a single word of the accused at that time.

[7] PW3 and PW4 were charging officer and interview officer respectively. The charge statement was marked as exhibit 01 and the defense did not object to marking the caution interview as exhibit 02.

[8] Thereafter the prosecution closed their case and the defense submitted that there was no case against the accused under section 178 of the Criminal Procedure Decree. This court on 30/11/2012 delivered the ruling finding that there was a case against the accused and gave his rights as per section 179 of the Decree.

[9] The defense started their case on 31/01/2013 and finished it on 05/02/2013. For the defense the first witness was the accused himself. He said on that day he was near the village hall and saw some people coming to that place. At that time chief of the village and headmen were not there. The accused said to them that they were ready on Thursday and clerks did not come and why they were coming on Friday. He also said he spoke in loud voice.

[10] In cross examination the accused said the village was ready for them on Thursday but they did not come. He also admitted he may have been angry at that time and spoke louder to them.

[11] The defense also called DW2 and DW3 who stated that they were ready for the registration clerks on Thursday and they prepared food and lunch for them. The defense closed their case and filed their closing submission on 19/02/2013.

The Law

[12] The accused was charged with Annoying Person contrary to section 21(3)(1)(c) of the Crimes Decree. Section 213 (1)(a) reads as follows:-

(1) A person commits a summary offence if he or she, intending to insult the modesty of any person —

(a) utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person;

[13] Section 57(1) of the Crimes Decree imposed the prosecution with legal burden of proving every elements of the offence.

[14] In view of the section 213(1) (a) the elements of this offence are:-

a) the accused

b) Intends to insult the modest of PW1 and PW2

c) utters any word, modesty any sword or gestures, or exhibits any object

d) Intends such word or sword shall be heard, or that such gestures or object shall be seen by PW1 and PW2

[15] Section 58(2) of the Decree states that this burden must be proved beyond reasonable doubt by the prosecution.

[16] In Miller v Minister of Pension [1947] 2 AER Lord Denning explained the 'proof Beyond reasonable doubt as follows. 'That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the 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 favor, 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.'

Analysis of the Evidence

[17] Both parties in this case did not dispute about the following elements in this case.

a) the accused

b) utter any words

c) intends the said word or words shall be heard by the PW1 and PW2

[18] Only defence taken by the learned counsel from the legal aid is that the accused did not intend to insult the modesty of PW1 and PW2 by these words.

[19] It is admitted by both parties that the village was ready for the registration on Thursday and the clerks did not turn up on that day. Therefore they came to village on Friday and they met the accused near village hall who said in Serua language 'what were they doing there today. They were supposed to come on Thursday'.

[20] PW2 said she did not understand what the accused said. There were no other gestures on the part of the accused. Therefore I do not believe that the PW2 was annoyed by the accused's words.

[21] As I mentioned above throughout this case and even in the closing submission learned consul's defense was that accused did not intend to insult the accused by these words.

[22] In view of the above defense I think it is better to consider the definition given for the intention in the Crimes Decree. Section 19 states intentions as follows:-

(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

[23] On that day the accused spoke to PW1 in loud voice and according to her evidence, she got bad because of that.

[24] PW1 was a stranger to that village and the accused as an ordinary person should have known that when he spoke in that manner she would have got annoyed. Therefore it is hard to accept the learned counsel's defense in this case.

[25] Even if the accused did not intend to annoy PW1, I believe he should have known that by talking in a loud voice to a stranger who came to the village first time that she would have got annoyed.

[26] Therefore I conclude that the prosecution has proved that elements too through the evidence. Accordingly I hold that the Prosecution has proved beyond reasonable doubt that the accused committed to this offence on 13/07/2012.

[27] Therefore I find that the accused committed the offense of Annoying person contrary to section 213(1)(a) of the Crimes Decree and convict him for that.

[28] 28 days to appeal

05 March 2013

H.S.P.Somaratne
Resident Magistrate, Navua