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State v Tikoivalenibula [2013] FJMC 252; Criminal Case 1025.2012 (26 June 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 1025/2012

STATE

-v-

MIKAELE TIKOIVALENIBULA

Police Constable Filipe Raymond for the prosecution
Ms. Samanunu Vaniqi for the accused appeared.

JUDGMENT

1] The accused is charged with following offence namely;

CHARGE:

Statement of Offence [a]

ANNOYING ANY PERSON: Contrary to Section 213 (1) (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

MIKAELE TIKOIVALENIBULA on the 30th day of November 2011 at Nasinu in the Central Division with intent to insult the modesty of Ilisapeci Kaitani touched by rubbing her thighs and knees, such actions did insult the modesty of Ilisapeci Kaitani.

2] The accused pleaded not guilty to the charge and case heard on 18th 02-2013. To prove this charge the prosecution called following witnesses.

3] PW1; Ilisapeci Keitale: The witness said that s he can recall 30th day of November 2011, she was renting in Narere . She went down her sister Edwina’s place. She was watching movie and both of her child they fell asleep, so they slept there. They stayed at her place That night. In the next morning the incident happened. Mikaele , the husband of her elder sister was touching her knees and he was telling us two to go inside the room. When he was touching her knee she said she was frightened. She didn’t like what he was doing. The victim said “I knew I respected him and I knew that he was my elder sister’s husband.” . The accused asked her to massage him and while in side the sitting room he asked her to go to their bed room. She said “He was, he kept on insisting us to go inside the room....He was telling me for us to go inside the room. The Witness pointed the accused and identified.

4] The witness was cross examined at length. In cross examination the witness said that she did not know when the time this incident happened Mikaele and her sister Edwina were having marriage problems. She admitted that she gave statement to the police on 17th December 2011 because she went to Beqa after the incident. She also admitted she complained after 17 days of the incident. Incident has happened at 7 o’clock in the morning, round about early morning 30th November. The victim said that though she had time to go to the police she wanted to relay this story to her elder sister. She chose to inform Edwina first and she chose to travel to Beqa before going file this to Police. The PW1 admitted in the statement she mentioned that the accused asked her to go to the room he looked at her at a sexual manner, she got scared and she left. She said she did not give second statement in January. In the cross examination the witness admitted that Mika was approaching her in a sexual manner while his mother and his niece was also present in the house. But she went home when she told Mele what happened, but she did not complain to the police. The victim admitted that Mele and Mosese were trying get married in December, round about the time of the incident.But she denied that the place her family were planning to get married at the accused’s house. The defence suggested when the accused told them they cannot get married at his house, this cause some tension in the family and this bogus complain level against him, but the victim denied. .

5] PW2: Mele Sainivalu: She said that on the 30th November 2011? 30th November 2011, she was staying in Narer.,Lot 5 Saku Place. Then she met her sister in law, the victim. She said “I asked her what wrong and then she told me the story that he tried to do something with her and I ask her like what and she said he was touching his legs and asking her to go to the room ...While at first I thought she was joking I tried to tease her but she kept crying, so I knew she was serious. And then I told her that the best thing to do is to let his wife know. That’s all”

6] In the cross examination the witness said that She gave statement to the Police on 10th of January 2012 after 2 months of the incident. The reason being for delay was that the victim reported first. But she admitted that all she knows is what Ilisapeci told her. She admitted that Edwina and Ilisapeci’s family wanted you to marry her brother at Mika’s house.

7] Thereafter, Caution interview and charge statement were tendered as Exhibit 2 and Exhibit 3 by consent. The prosecution closed its case. The court ruled there was case to answer. The right to cross examined was explained and the accused opted to remain silence, but he called one witness on behalf of him.

8] The DW1; Meleafu: the witness said that the accused is uncle. The complainant, Ilisapeci is her uncle’s sister in law. on 30th of November 2011 , she was at home. She said “My aunty and other sisters they were planning to, they were planning for their brothers wedding. Mosese. To be held at home, but they haven’t asked my uncle. When my uncle said no to them, my uncle got furious so they went to Rampurwa for the meeting. Less than 1 week the incident happened. That they claim my uncle annoyed Ilisapeci.” .She said that she was present when the families were making these plans for wedding.

9] In cross examination, the witness said the wedding plan was done at their dinner table. Edwina, Mele and Ilisapeci were making wedding plans at that night. The accused was not at home but her grandmother; Edwina, Mele and Ilisapeci were at home.

10] Thereafter defence closed the case

11] The defence filed closing submissions, I am mindful of that.

12] It is clear the prosecution has the legal liability to their charge beyond reasonable doubt. 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 common law”. The burden of proof of the accused person’s guilt beyond reasonable doubt lies with the Prosecution.

13] In this case State v Seniloli [2004] FJHC 48; 2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors:

“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 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”.

14] The offence of indecently insulting or annoying any person is stated at Section 213 of the Crimes Decree, it reads:

“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.”

15] 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).

16] In this case PW1 said the accused touched her knees and he was telling them to go inside the room. The PW1 admitted that the accused asked her to go to the room he looked at her at a sexual manner. She said that “He was, he kept on insisting us to go inside the room....He was telling me for us to go inside the room”. The accused totally denied the incident. In the caution interview also he denied the incident. This is word against word. Thus, the court should look the credibility of PW1, whether she is reliable, truthful witness. The accused has no burden to prove his innocence, but the prosecution should prove the charge beyond reasonable doubt.

17] Credibility of witness is measured by following tests.

Test of Spontaneity

18] The victim, PW1 reported the matter to the police after 17 days the incident took place at day time and there were two people were inside the house. When the incident occurred she did not inform any of them but she informed PW2. Pw2 gave her statement after two months. The reason for delay is unacceptable as she went to Beqa.

19] In R v Lillyman (1896) 2 Q.B. 171 Hawkins L.J. said that evidence of the fact that a complaint was made is admissible provided it was made as speedily after the acts complained of as could reasonably be expected. His Lordship said that it is for the trial judge who tries the case to decide whether the complaint is made as speedily as could reasonably be expected and that here is no one else who can decide it. (Emphasis is mine)

20] The victim did not have any impediment to report against the accused forthwith. She could have complained against the accused then and there. The delay of lodging this complain is unanswered and therefore there is a chance to concoct a story. I hold this evidence did not pass test of spontaneity.

Test of consistency and inconsistency.

21] It should be noted that the evidence of the prosecution witnesses are not in line with each other; there is doubt that she made two statements to the police. .

Test of probability and improbability.

22] This incident occurred in the day time and she agreed to massage the accused. If she was annoyed why she not reported the matter to the police? Therefore, as prudent man it is dubious behavior of the victim.

Test of independency (interest or disinterest)

23] When I apply this test, I must consider Pw2. She merely says the same thing and this is repetition. Repetition is not corroboration and has no value of PW2’s evidence. The accused’s defence was family dispute. The Defence witness proved that there was discussion to hold the wedding at the accused place, but he was unaware of the plans of victim and PW2. The victim denied this version but this witness relates to both has no reason for tell lies against the PW1. Thus, defence witness proves the accused version.

24] When a court decides a case, it should consider evidence in whole. In Attorney General of Hong Kong v Wong Muk Ping [1987] 2 WLR 1033 the Privy Council observed as follows:-

"...... any tribunal of fact confronted with a conflict of testimony had to evaluate the credibility of evidence in deciding whether the party who bore the burden of proof had discharged it. It was the commonplace of judicial experience that a witness who made a poor impression in the witness box might be found at the end of the day, when his evidence was considered in the light of all the other evidence, to have been both truthful and accurate. Conversely, the evidence of a witness who at first seemed impressive and reliable might at the end of the day have to be rejected. Such experience suggested that it was dangerous to assess the credibility of the evidence given by any witness in isolation from other evidence in the case capable of throwing light on its reliability." (Emphasis is mine)

25] In the light of above evidence the report against the accused is unreliable and the prosecution failed to prove the charge beyond reasonable doubt. The unreasonable delay vitiates the validity of the PW1's complaint.

26] I find the accused is not guilty to the charge. Hence, the accused is acquitted and discharged.

27] 28 days to appeal

On 26th June 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu