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State v Vunibakarua [2012] FJMC 343; Criminal Case 206.2012 (11 December 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 206/12

THE STATE

V

ESALA RAI VUNIBAKARUA

Prosecution : Cpl Temesi, Police Prosecutor.
Accused : In person.

JUDGMENT

1. The prosecution led evidence during this trial to establish a charge of Criminal Intimidation against the accused Esala Rai Vunibakarua.
   
2. The charge reads that Esala Rai Vunibakarua threatened Makereta Taoi on 10th January 2012 in Samabula to injure her or to cause alarm without any lawful excuse.
   
3. Burden to prove the charge rests with the prosecution and the standard is beyond reasonable doubt.
   
4. To secure a successful conviction, the prosecution must establish the element of 'Threat' in a charge of Criminal Intimidation. It is to be noted that the interpretation section of the Crimes Decree 2009 covers a vast number of acts which assemble an act of 'Threat'. It reads as follows,
   

"Threat" includes a threat made by any conduct, whether express or implied and whether conditional or unconditional;

5. As per the above position even a threatening gesture or appearance of a person can be taken as an act of intimidation.
   
6. This trial did not last long. The prosecution called only two witnesses to establish their case. The rights of the accused person were safeguarded by the Court as he appeared unrepresented. However the prosecution informed that there were no confessions made by the accused person during his charging and interview stages. Both statements marked to fulfil the formalities by the prosecution with consent of the accused person.
   
7. Initially prosecution called the complainant Ms Makereta Taoi to the stand. She recalled the incident which took place on 10th January 2012 at her place in Samabula. Her sister in law Ms Merioni Temo has visited her in the afternoon. She stated that during their discussion the accused approached them with a knife in hand. The accused was in fact related to Makereta and was occupying the top flat of their residence.
   
8. It was not clearly elicited the reason for the accused person's sudden appearance. Witness Makereta stated that it could have been the displeasure of the accused person which occurred from the visit of Merioni. However she states the accused had threatened her in abusive language to report them to the military police. She could not recall the exact words uttered by the accused.
   
9. This witness stated that the accused pointed the knife and he waived it. When it was further clarified by the prosecution, Q: Did he hit you with the knife?, the witness stated, "He pointed the knife and he waived it".
   
10. This position of Makereta is very important to note. It is understood that a person is not expected to recall the events on a photographic memory. However the witness should at least remember the act which led to intimidate her. Therefore according to her evidence it is clear that the accused only pointed and waived the knife.
    
11. During the cross examination the accused only posed two questions to the witness. She stated that the purpose of his visit was to see Merioni. It appears that there had been an interruption for the conversation of the accused and Merioni as she answered to the question "Why did you interfere with my conversation with Merioni?" -"There was no Court order to keep Merioni away from our property".
    
12. Ms. Merioni testified as the second and final witness of the prosecution. She stated that on the day this incident happened she came to see her sister in law Makereta at their family house. During their discussion the accused had appeared with a knife. The accused had asked them not to meet each other as family members as there were rumours spreading. It is not clear as to what type of rumours the accused meant.
    
13. Later she went on to say as to how the accused threatened them. According to her the accused were armed with the knife during entire incident. However it is interesting to note the following question and answer at her examination in chief.
    

Q: What did he do with the knife?
A: He was folding and unfolding the knife and it pointed to me.

14. This is a contrary position to Makereta's testimony. She never stated that the accused did 'folding and unfolding' with his knife. In fact it is an important gesture by an accused person. Any person who is terrified from a weapon naturally follows every movement of that weapon. Because at any time he or she is in a risk of getting attacked from that weapon. Therefore it is not unfair to expect a similar answer from two persons who faced with the same degree of threat.
    
15. This Court does not expect the same level of recollection form every witness. On the same note there should be some valid reason to justify the differences among them. In this case the duration between the actual incident and the date of trial was only seven months. There were no undue delay between the date of the incident and the trial. Therefore view of this Court is that the two main witnesses testified in a contradictory manner on the main issue of threat.
    
16. This conclusion is further strengthened by another contradiction made by the witnesses. Makereta stated during her re examination that the reason of Merioni's visit was to collect taxi money. She stated that Merioni came voluntarily. But Merioni in her re examination stated that she was called by Makereta.
    
17. That was the case of the prosecution. The accused remained silent during his defence case.
    
18. The accused in his caution interview had not denied that he carried a knife to the discussion. The reason was that he engaged in peeling Dalo just before the incident happened. The particular knife was marked during the trial and it is similar to a 'Swiss knife' with a 1 ½ inch long foldable blade. It cannot be necessarily categorised as a 'dangerous knife'.
    
19. In the light of two contrary positions of the main witnesses, a reasonable doubt arises whether the accused actually used the knife to intimidate Makereta Taoi. It was stated that the accused used abusive language during the incident. But it is clear that the use of knife led them to report the matter to the police. However only Mreioni recalled the words uttered by the accused. According to her the accused had stated that the 'matter will be reported to military police'. In the absence of any specific words uttered by the accused, view of this Court is that it is far beyond to believe that even the witnesses were 'annoyed' by the words of the accused.
    
20. Therefore this Court concludes that the prosecution has not proved their case beyond reasonable doubt.
    
21. Accordingly Esala Rai Vunibakarua is acquitted from the proceedings.
    
22. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

11th December 2012