IN THE MAGISTRATE'S COURT OF NASINU

Criminal Case No. 949/2010

STATE

-v-

VIKA LUWA VEIQARAVI

Sergeant Volavola for the State 
Mr. Aseri Vakaloloma for the accused

Judgement

[1] The accused is charged with the offence of Indecently Annoying Modesty of Female. The charge read as follows;

CHARGE:

Statement of Offence [a]

INDECENTLY INSULTING A PERSON: Contrary to Section 213 (1) (a) of the Crime Decree No. 44 of 2009.

Particulars of Offence [b]

VIKA LUWA VEIQARAVI on the 22nd day of August 2010 at Nasinu in the Central Division with intent to insult the modesty of OLIVIA FINAU uttered words "Your mother's vagina, Big Ass" intending that such words shall be heard by the said OLIVIA FINAU.

Summary of evidence

[4] The accused pleaded not guilty to the charge. The accused was ready to reconcile but the victim refused to reconcile this case. Under Section 154 of the Criminal Procedure Decree 2009, this is not a reconcilable offence. Thus, hearing was done on 11th January 2012 and 30th January 2012. Closing submission was filed by the defence on 04th April 2012 and prosecution moved date to file reply, but they did not file any submissions. At the trial, prosecution called following witnesses to prove their charge.

[5] PW 1-Olivia Finau; in her evidence, she said that she is 70 years old stays in Kalabu for 33 years. She lives with her husband, son, son's wife and two grand children. On 22nd August 2010 at 2pm this incident happened. She was at home then she noticed the accused chased her two grand children. They went to eat guava. She was reading a bible. Then she heard that the accused had uttered the words to the grand children "Luveni Magaitinamu drau-Caiti tamamudra-Fuck your father, son of your mother's cunt". When she heard that she felt shame, she then asked the accused why she swore at her grand children. The witness said "Then she again started swearing at me. She uttered "Maga levu, Cici levu-Big Vagina, big ass". By this she was annoyed and reported matter to the police. 

[6] In cross examination the witness admitted that the accused related to her, cousins by relation. The accused lives 30 metres away from them. She can see and hear the accused. It was a Sunday about 2pm. The witness told the children came home and inform that the accused swore at them, then she called the accused. The accused then told the witness to teach the children. The accused suggested that the accused did not annoy the witness but she denied that suggestion. The witness said "She had sworn me after I called her; I called her because she had started swearing". The witness said because of her swearing she got angry. She admitted that if she had not called her she (The accused) would not have sworn at her. She further admitted the accused swore at her after she was called by the witness. 

[7] PW2: Mere Vakacequ; The witness said she reside with in laws, that is Olivia and Sailosi. She can recall 22-08-2010 at about 2pm. She was at neighbour's house. It was closed 10 metres away from the accused's house. The children were chased by the accused. The mother in law asked why she swore at the children. Then they confronted argument. She heard that Vika (the accused) was abusing her mother in law. She heard "Maga levu, - big vagina, Magaitinamu - mother's ass" when she heard it she felt bad. 

[8] On cross examination, the witness admitted that she heard her mothering law exchanging words with somebody. The witness told that the mother in law did not tell the history for exchanging words. She told because of her (Witness) children she exchanged words. The accused told that children to be taught not to be climbing guava trees on Sundays. When two parties argued, she was at home, did not come out. The PW1 was not angry and asked not to swear to the children. She further said this is not first time. But she admitted if PW1 had not talked to the accused this incident would not have happened.

[9] PW3: DC 3627 Kibau: the witness said he recorded the accused's statement and all constitutional rights were explained and given. At the end of the statement the accused refused to sign it. The statement tendered as EX-1.

[10] In cross examination the Question 11 of the caution interview was referred to the witness. The witness said he read out the allegation but the accused refused the allegation. The witness further said that he did not go for scene visit and he does not know how far of the houses of victim and the accused. Therefore the witness said that he cannot say that witnesses can each other. The accused suggested that it was not the accused annoyed the victim the victim annoyed the accused. The witness said no comments for that. The question 22 referred to the witness and witness admitted in that the grand children told to the accused "Kete-Levu – Big Stomach" and she was annoyed by the children. 

[11] PW4: PC 3389 Liia Selabuce: he said he formally charged the accused on 22-08-2010. Charge statement tendered as EX-2. 

[12] In cross examination the defence referred question % of the charge statement. The witness said that the accused had admitted that she uttered those words. The witness admitted the words uttered to the children, but he denied that charges are wrong and charge is correct. 

[13] The prosecution then closed their case. 

[14] After that prosecution closed their case. Since there was a case to answer, the accused was explained and given her rights to call the defence. Then the accused opted to give sworn evidence. 

[15] DW1- The accused: Vika Luwa Veriqaravi: The accused said that it was a Sunday, she was sweeping the house. The children were on the guava tree and she chased them out. Then children passed remarks " Kete Levu-Big Stomach" . She further said "After that kid's grandmother intervened. She started talking to me, but I did not see her. She was angry. Because I had said some bad words to her grandchildren. When the grandmother talked to me, what I did tell to the grandmother, I have forgotten. I told how to teach her grand children". She further said they are neighbours for 57 years and they are cousins. 

[16] In cross examination the accused said that the children have been warned not to climb guava tree earlier but they repeatedly done this. She chased the grandchildren because of that they said "Kete Levu". Thereafter the victim, children's grandmother intervened, if not she would not have talked to the PW1 and this incident would not happened. The prosecution sharply cross examined the accused like this;

"Q: You uttered those words? The PW1 intervened, otherwise I wouldn't have talked to her, I can't remember that nasty words.

Q: You uttered nasty words as mentioned in the charge sheet? Yes"

[17] In re examination she said "when I chased her, I was angry with the children. I had told them to go, they passed comment on me. Then grand mother intervened and we exchanged the nasty words"

[18] DW2-Waisea Venqaravi; this witness said he is the husband of the accused. When incident took place he was watching TV. There was a commotion; his wife was talking to someone at the kitchen door. So, he asked her stop talking. Then she stopped talking, he did not know to whom she was talking. At the police station he realised the charge. He further said he did not hear what they talked. But said it was and argument between both sides. 

[19] In cross examination the witness said that he did not hear the words, but he knew something wrong so he asked his wife to come inside. He was concentration on TV. 

[20] In re examination this witness said he did not understand what was going on at that time.

[21] Then the accused closed her case and written submission was filed. I have considered that submission.

The Law

[22] The charge is INDECENTLY ANNOYING ANY PERSON: Contrary to Section 213 (1) (a) of the Crimes Decree No. 44 of 2009. I reproduce the section for clarity.

213. — (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; or 

(b) intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty. 

Penalty — Imprisonment for one year"

[23] Elements of the charge of INDECENTLY ANNOYING ANY PERSON: are (1) intending to insult the modesty of any person (2) utters any word, makes any sound or gesture, or exhibits any object (3) intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such person, (4) intrudes upon the privacy of another person by doing an act of a nature likely to offend her modesty.

Burden of proof

[24] Section 57 of the Crimes Decree says "The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged".

[25] The Standard of proof under section 58 of the Crimes Decree lies on the prosecution as mentioned "A legal burden of proof on the prosecution must be discharged beyond reasonable doubt".

[26] Common law principles reiterate this burden. In Woolmington v DPP [1935] AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[27] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt about the guilt of the accused."

[28] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen [1970] AC 618 reported in 72 New Law Reports 313 (Sri Lanka), 

"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[29] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted. 

Analysis of the evidence

[30] In line with the above guiding principles, now I evaluate the evidence adduced before me. PW1 on her evidence clearly said that the accused uttered the words to the grand children "Luveni Magaitinamu drau-Caiti tamamudra-Fuck your father, son of your mother's cunt". When she heard that she felt shame, she then asked the accused why she swore her grand children. The witness said "Then she again started swearing at me. She uttered "Maga levu, Cici levu-Big Vagina, big ass". The accused admitted in her cross examination she uttered words as mentioned in charge sheets. The accused's husband's evidence did not support any party as he was concentrating on TV. He did not know how and what happened. 

[31] The accused gave sworn evidence. She admitted that she uttered those words. But she said that she did not intent to insult her. But the PW1 said she felt bad. The PW2 also heard those words she too felt bad. According to the PW1 the accused uttered nasty words to children first, when PW1 heard it, she went and asked why. The accused said then there was a commotion between them. The accused also told to the court if the victim did not intervene, she wouldn't have told those words. Because of confrontation she told this. 

[32] In the accused's written submission it is said that PW1 did like to reconcile but the prosecutor did object to it. But in open court the PW1 did not consent to any reconciliation. Further the accused's submission says this is reconcilable offence (paragraph 6.3) and the court should allow them to reconcile. 

[33] It is to be noted that section 154 of the Criminal Procedure Decree 2009 stipulates 4 reconcilable offences namely common assault or assault occasioning actual bodily harm or criminal trespass or damaging property. It is therefore crystal clear that this court has no jurisdiction to reconcile this case. As case record indicates it is to be noted that there are several inconsistencies in the written submission of the accused which do not tally with the evidence.

[34] To prove this charge the prosecution must discharge the legal burden which is stated in section 14 of the Crimes Decree 2009. That is; 

"In order for a person to be found guilty of committing an offence the following must be proved –

(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;

(b) in respect of each such physical element  is required, one of the fault 5] The physical element (Actus Reus) in this case is uttering bad, offensive words. The fault element (Mens rea) in this case is intention to insult her modesty. 

[35] The accused admitted that there was a commotion and she uttered those words. Thus the physical element is proved by the accused's admission and PW1 and 2's evidence. 

[36] Did this accused have intention to commit this offence? Intention is described in section 19 of the Crimes Decree as follows;

"19. — (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."

[37] Therefore, it is evident that the accused means to bring it about or is aware by using those words that (the accused intended or was aware) it will insult the modesty of PW1. The accused suggested provocation or commotion as a defence. Provocation is not a complete defence for this offence and the accused did not suggest what words the victim uttered to the accused at the commotion to provoke the accused. The accused further did not directly suggest that the victim provoked the accused. The accused did accept that she said those words. She said she cannot remember those wards. But later admitted "Q: You uttered those words? The PW1 intervened, otherwise I wouldn't have talked to her, I can't remember that nasty words. Q: You uttered nasty words as mentioned in the charge sheet? Yes"

[38] It seems to me this is a prestige battle between the parties. The court accepts such words would offend the modesty of PW1. The accused also accept she uttered those word but reluctant to accept the charge. Though the PW1 was toughly cross examined by the accused her evidence was intact at material points. Considering all these facts, I have no reasons to disbelieve the prosecution's evidence. The prosecution's evidence has been further strengthened and corroborated by the accused's evidence. I therefore hold that the prosecution has proved its charge beyond reasonable doubt.

[39] I therefore convict the accused as charged.

[40] 28 days to appeal

On 27th June 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate