IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 1215/2012

STATE

-v-

LEONE LAUTABUI

PC J.F. Raymond for the prosecution
The Accused appeared in person

JUDGMENT

1] The accused is charge with following offence;

CHARGE

Statement of Offence [a]
ANNOYIG ANY PERSON: Contrary to Section 213 (1) (a) of the Crimes Decree No. 44 of 2009.
Particulars of Offences [b]

LEONE LAUTABUI on the 1st day of September 2012 at Nasinu in the Central Division with intend to insult the modesty of Koini Yabaki uttering word "Magai Tinamudou" meaning "Your mother's cunt" intending that such word shall be heared by the said Koini Yabaki.

2] The accused pleaded not guilty to the charge and case was heard on 13-02-2013 and oral submission was given on 27th February 2013. Today is for judgment. I now consider evidence which the parties placed before me. 

3] The Prosecution called PW1 – Koini Yabaki first. She said that on 01st September 2012 between 10 and 11pm she heard a stone hitting the roof. The lights were on outside and she saw the accused Leone was standing outside. He was 5 metres away from the house. She said no one else standing there except Leone. Then, he came towards her house and kicked the door. The door hinges were loosen by his kicks. Then he said "Covicai" meaning "you fuck each other" and "Maganitinamu" meaning mother's vagina. He was swearing at them, all people: she said. The PW1 said that the accused was drunk at that time. The witness said that he threw stones against her house.

4] The witness was cross examined at length. In cross examination she told she is telling the truth. Answering the questions she said that she did not see Virisila Tinai outside at that time and there were not many people outside, only the accused was there. She mentioned that they were not asleep and she was breast feeding her small child. They came after a birth day celebration. She said when the first stone landed she got up and looked through the window. Then she saw that the accused was throwing stones and kicked the door. PW1 said that the accused swore at them and it was intentional. The accused suggested there were no lights outside and therefore the witness could not identify him. But the witness said there were lights out side and she identified him positively. The witness said Virisila Tinai is her sister and on that time she was sleeping at her father's place. She said that she does not have any bad relationship with her family. She said that the sister came with her and she gave food thereafter sister went to the father's place while the accused was still in town. Sister did not accompany with the accused at that time. It transpired in the evidence the accused is uncle and married (de facto) to PW1's sister. The witness said the accused threw more than 4 stones; one is still lying on her roof. 

5] Pw 2 is PC 2016, Arvin Lal. He said he took the caution interview of the accused. In question 13 the witness said the accused has denied the abuse and throwing stone but they have alleged that his father in law was doing witch crafts. The Caution interview tendered as Ex-1 and charge statement tendered as Ex-2 

 6] The prosecution closed the case thereafter. Since there is a case the accused rights were explained. He opted to give sworn evidence. In his evidence he said that the PW1's husband and he were drinking together at a party and he came back to home. His wife, in laws and kids were at home. He said that "when I came back home that night I saw some boys from that place, Cunningham Stage 4 that they drinking outside their just at their neighborhood. Some of them were fighting, swearing just because they were drinking alcohol swearing at each other" . As the defence he said that "So I went and then check if her husband was with them. And that's where the accusation came from that I was throwing stones at their house and swearing at her, but the swearing was from those crowds swearing at each other at the time of drinking. At the time of that happening" 

7] In cross examination the accused admitted that he was drunk, but not too drunk. When he heard about the allege rumors that his father in law practice witch craft, he felt bad. He said he was so upset about that. The accused admitted that he swore only at her husband not at the complainant. He said he uttered "Vutusona" (Fuck ass). The accused denied swearing at complainant and throwing stones in the cross examination. 

8] In re examination the accused affirmed and said "It's just because of that rumors my father in law is practicing witch craft and just because of her husband threatening her daughter who was staying with us that's why I swear at her husband. Because I was drunk at that time I just swear, I do not know he was there or not. So the allegation by this witness is just accusing me"

9] On behalf of the accused Virisila Tinai gave evidence. She said on that date only she, her father and Leone were there. There was issue between Leone and her sister's husband. The witness said that the accused came home and went to sister's place. Then, she followed him. She said the accused did not swear at her sister he swore at her husband because sister's husband was saying her father was practicing witch craft. She said there were lots of people standing nearby. 

10] In cross examination the witness said her husband was drunk at that time. Her husband just wanted to go to her sister's husband about the rumors he has been spreading around. His swore was broad not to a particular person. 

11] Thereafter the accused closed his case. He made oral closing submission to this court. I am mindful of that. In that the accused said the swearing was not directed to the Pw1, victim and charge cannot be sustained. 
 
12] I now evaluate the evidence. The elements of the offence of Annoying Any Person are that:

(a)	The accused on the dates as per the charge (identification and date);

(b)	 Uttered any word, or

(c)	 Made any sound or gesture, or

(d)	 Exhibited any object

(e)	 Intending that such word or sound shall be heard or that such gesture or object shall be seen, by the other person (the victim).

13] The onus rests with the Prosecution to prove Beyond Reasonable Doubt each and every element of the alleged offence and that the onus never shifts to the Defence.

14] 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."

15] In State v Tuiloa [2008] FJHC 251; HAC003.2007 (24 June 2008) Justice Jocelynne A. Scutt in Her Ladyship's summing up said;

"The question then is what the standard of proof is. That is, when the onus rests on the State as it does here and generally in criminal trials, what is the standard the State must meet? The State must prove all the necessary ingredients of the charge.... beyond reasonable doubt. Proof beyond reasonable doubt means what it says. You must be sure; you must be satisfied of guilt, before you can express an opinion about it. Only if you are sure, if you are satisfied beyond reasonable doublet of guilt, then it is your duty to say so. If you are not sure, not satisfied beyond a reasonable doubt, then you must give your opinion that the accused is not guilty. This assessment, this determination, rests with you – with each of you – upon your individual assessment of the evidence." (Emphasises is mine) 

16] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen 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.

17] 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. 

13] In this case date of offence is not disputed. The accused admit that he went to the Pw1's house and swore at her husband. This swearing was not directed and intended to the victim. The victim in her evidence said first the accused threw stones against her house. He then kicked the door and finally swore at them. The meaning of swearing words were plural and she got annoyed. The accused and accused's witness also admit that the accused swore at her husband. But the accused says that he has no intention to annoy the victim. The sole defence of the accused was this. The accused said that he was upset the victim's husband was spreading rumors against his father in law. It is admitted that the accused was drunk at that time. The uttered words are plural. In this case not only the accused uttered words but also by his gesture he threw stones and kicked the door. The Pw1 called the police immediately and there was no time to concoct a story. It is proved by this gesture and uttered words the victim was annoyed. The accused evidence is also helpful to prove the prosecution as he admitted swearing to the PW1's husband. The evidence of the accused and his wife has half truth and they hid the vital part that the accused swore at both of them. I therefore reject them. I hold the prosecution has proved the charge beyond reasonable doubt. 

14] The accused is convicted as charged. I now call mitigation before sentencing him. 

15] 28 days to appeal

On 15th April 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu