State v S N M [2011] FJHC 26; HAD001.2010 (28 January 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
DOMESTIC VIOLENCE JURISDICTION

Criminal Domestic Violence No: HAD001 of 2010

BETWEEN:

THE STATE
Applicant

AND:

S N M
Respondent

Hearing : 19 January 2011
Decision : 28 January 2011

Counsel: Mr. F. Lacanivalu for State
Mr. S. Sharma for Respondent

DECISION

Background

[1] The respondent was convicted on his guilty plea of unlawfully wounding his de facto partner under the Crimes Decree 2009 and sentenced to 18 months imprisonment in the Magistrates' Court.

[2] On appeal to the High Court, I reduced the sentence to 17 months imprisonment and directed a hearing under the Domestic Violence Decree (the DVD) with the view of issuing a restraining order against the respondent.

[3] Upon recommendation, the Director, Legal Aid Commission appeared and assisted the respondent at the hearing. Both the Director and the State Counsel filed helpful submissions. The Director raised a preliminary issue regarding jurisdiction which I deal with briefly.

Jurisdiction

[4] The jurisdiction of the courts under the DVD is provided by section 8:

(1) The following Courts have jurisdiction to make orders under this Decree –

• (a) the Magistrates' Court when constituted by a resident magistrate;
• (b) the Family Division of the Magistrates' Court;
• (c) the Family Division of the High Court;
• (d) a Juvenile Court; and
• (e) the High Court.
  

(2) An application under this Decree may be commenced in any of the Courts specified in subsection (1) and in addition those Courts may make an order under this Decree when exercising jurisdiction in other proceedings before the Court, including proceedings relating to a criminal charge.

[5] It is clear that orders under the DVD can be made by the High Court in its original civil and criminal jurisdiction. In addition, orders under the DVD can be made by the High Court in its appellate criminal jurisdiction. The phrase "when exercising jurisdiction on other proceeding before the court" in subsection (2) is in my judgment broad enough to include the appellate criminal jurisdiction of the High Court.

[6] Since the issue of restraining order against the respondent arose from an appeal from the Magistrates' Court to the High Court in its appellate jurisdiction, I conclude that this Court has both original and appellate criminal jurisdiction under the DVD to hear the application for restraining order of its own motion.

Evidence

[7] At the hearing, evidence was led from the victim, AD, heads of two NGOs involved with women's welfare in Fiji and the respondent.

[8] The victim gave evidence of her relationship with the respondent. She is 22 years old and had been in a de facto relationship with the respondent for more than one year. She attained up to Form 3 education and was not able to further her studies when her mother fell ill. When she moved in to live with the respondent she left her employment as a canteen worker. She became financially dependent on the respondent.

[9] She gave evidence of two incidents of assaults on her by the respondent. When she was first assaulted by the respondent she reported the matter to the police. The respondent was charged with assault and that case is currently pending in the Magistrates' Court. The second assault occurred while the respondent was on bail. The second assault was very serious. The victim was struck on the head with an iron rod. She received stitches for the injury on the head.

[10] When the respondent was charged for the second assault, the victim said she came to the Magistrates' Court to get the key from him to take out her personal belongings from the house they were renting. While she was in court, the clerk asked her whether she wanted to reconcile. The victim said she agreed to reconcile so that she could take her personal belongings from their house. The victim said the respondent did not release the house key to her but later on, their landlord called her to take all their belongings and vacate the house. She has taken their belongings and said she took the respondent's belongings with her for safe keeping until he is released from prison. The victim said that she visited the respondent in prison on a number of occasions. On her last visit the respondent threatened her that he would do something to her upon his release from prison. She said she does not feel safe with the respondent and she does not want to continue her relationship with him. She has moved in with her parents who are very supportive of her.

[11] Ms Shamima Ali, Coordinator of Fiji Women's Crisis Centre and Ms Penelope Moore, Director of Fiji Women's Action for Change were permitted to stay inside the courtroom and to listen to the evidence of the victim for the purpose of identifying the options that were available to her.

[12] Counsel for the State has provided a summary of those options in his written submission which I adopt in this ruling.

The Fiji Women's Crisis Centre

[13] The Fiji Women's Crisis Centre (the FWCC) is a multi-racial, non-government organization that is committed to the betterment of women's lives through collective efforts against violence. Established in 1984, the FWCC offers counselling, legal, medical and support to women and children who are victims of violence.

[14] The FWCC's core service is counselling and support. In doing so, the FWCC offers free and confidential, non-judgmental crisis counselling for victims or survivors of domestic violence, sexual assault, child abuse and sexual harassment.

[15] In addition, the FWCC offers information regarding the law so the clients make informed choices. Furthermore, it can refer or accompany clients to court, police stations and other agencies upon request and also provides emotional support and work with clients on their options they have in life and support them through the choices they make for themselves.

[16] In offering counselling services, the FWCC offers a one-to-one counselling where victims share in an open, comfortable and fear-free environment. This would depend on the victim's preference on when he or she would be available thus a schedule can be agreed between the counsellor and the victim on suitable days for counselling.

[17] If language is a barrier to good communication, a translator may be present with the counsellor so that there is better understanding by all parties.

[18] Ultimately, any counselling would depend upon the victim and his or her availability and preference thus if he or she decides to terminate counselling, he or she can do so at anytime. Nevertheless, these services aims to better understand a domestic problem and help identify practical solutions that parties to a domestic violence can undertake in order to avoid further violence.

The Fiji Women's Action for Change

[19] The Fiji Women's Action for Change (the FWAC) is also a non-government organization that helps create space where individuals and groups, particularly marginalized people can gain strength and confidence to build a just society.

[20] Founded in 1994 by Ms Penelope Moore, it is established upon principle that all persons, especially women, should be treated equally and should be treated as such. The FWAC works with a variety of groups that experience heightened violence, discrimination and violations of human right including women, children, prisoners, ex-prisoners and their families. This also includes people with diverse gender, sexuality, sex workers and young people in State care institution and the homeless.

[21] Ms Moore in her capacity serves as, not only the founder, but also the creative director, spokeswoman and more importantly a mediator for the FWAC as she attained a Certificate of Accreditation on Restorative Justice Mediation. She was formally certified as a Restorative Mediator in 2005 although she had been practicing since 2002.

[22] Restorative justice is a process where it involves identifying, if possible, those who have a stake in an offence and collectively identify and address harms, needs and obligations, in order to heal and put things right as possible.

[23] Its aim is to provide a "safe place" and process where parties in conflict can come together, and discuss the problem with the intention of coming to an agreement that is acceptable by all parties.

[24] The role of the mediator is to act as a guide through that process and ensures that all parties are listened to, respected and understood equally in an impartial manner so that parties are safe and be more open about the conflict. The mediator is not there to assist conflicting parties to reach an agreement nor is there to counsel or provide solutions.

[25] Before any mediation meeting, the mediator will need to visit all people involved in the conflict and hear their sides of their story and ensure that each person is listened to fairly. Once all parties agree, a meeting will be conducted with the intention of coming to a solution that will benefit everybody and a party to mediation can stop the process if they wish to do so.

[26] If parties are happy with conditions then the mediation can continue where parties identify the root of the problem and possible solutions by parties. After the mediator speaks with a party, she will have to speak with other parties involved and every conversation is handled in confidence. Each and every party's views and opinion involved is considered and heard. If a party is in prison, the mediator can always visit that party.

[27] In essence, it involves the following:

(i) Visit first party and hear their story and what they want to happen;

(ii) Visit other party (Parties usually involved offenders, victims and the community as a whole);

(iii) If all parties are ready, they proceed to mediation;

(iv) If parties are not ready, each party is re-visited again until such a time as all are ready and willing to attend a mediation;

(v) Holding of a mediation circle with all parties present; and

(vi) Come up with strategies involving timeline and who will be responsible for ensuring these strategies are upheld.

Counselling

[28] In the present case, both Ms Ali and Ms Moore agree that the victim shows signs of trauma and the best practical option available to her is counselling. The victim consents to an order for counselling.

[29] The respondent accepts responsibility for his conduct but says he is only willing to undergo faith based counselling offered by Sanatan Dharm Pratinidhi Sabha Fiji. A letter (D1) from the National Secretary of Sabha, Mr. Vijendra Prakash outlining a counselling programme for the respondent is tendered in evidence.

Domestic Violence Restraining Order

[30] The parties in the present case have taken two different stances. The victim does not want to continue her relationship with the respondent because she fears for her safety. The respondent says he had learnt his lesson by going to prison. He says he is willing to undergo counselling and to continue his relationship with the victim. In these circumstances, it is important to look at the objectives and principles of the DVD.

[31] The objectives of the DVD are contained in section 6:

The objects of this Decree are –

(a) to eliminate, reduce and prevent domestic violence;

(b) to ensure the protection, safety and wellbeing of victims of domestic violence;

(c) to implement the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and related conventions; and

(d) to provide a legally workable framework for the achievement of (a), (b) and (c) above.

[32] The principles of the DVD are outlined in section 7(1):

(1) The following principles must be applied by a Court when exercising jurisdiction under this Decree and by any person who exercises a power, or performs a function, pursuant to this Decree–

• (a) the need to promote the objects of this Decree;
  
• (b) the need to ensure that proceedings under this Decree are as speedy, inexpensive and simple as possible;
  
• (c) the need to ensure the safety and wellbeing of victims of domestic violence;
  
• (d) the need to ensure that children are not exposed to domestic violence and to ensure the safety and wellbeing of children who have been, or are at risk of becoming, a direct or indirect victim of domestic violence;
  
• (e) the need to ensure that victims of domestic violence can go about their life and usual routines free from the risk of domestic violence;
  
• (f) the need to ensure as far as possible that victims of domestic violence are able to remain in their usual homes, and even if this does not or cannot occur, that their accommodation needs have highest priority;
  
• (g) the need to address the adverse consequences of domestic violence for the victims and to rehabilitate the victims;
  
• (h) the need to ensure that victims of domestic violence are not further victimized by the perpetrator or others, in the course of the proceedings or otherwise, because the victim sought protection or other redress in relation to the violence; and
  
• (i) the need to ensure that the perpetrator –
  

(i) is aware of the terms and effect of an order made under this Decree which imposes obligations upon them;

(ii) is aware of services that may be able to assist them to address their violence;

(iii) is encouraged to accept responsibility for their violence; and

(iv) contributes, where possible, to the rehabilitation of the victim.

[33] The long title of the DVD contains an additional objective in regard to the perpetrators, that is, to promote rehabilitation of perpetrators of domestic violence.

[34] Bearing in mind the objectives and principles of the DVD, I am of the view that the primary purpose of the DVD is to promote the safety and wellbeing of victims of domestic violence. It therefore follows that if the victim no longer wants to continue her relationship with the perpetrator as is the case here, her interest takes precedence over the respondent's interest. The primary objective is to protect the victim. Of course, if the victim wishes to continue her relationship, the court will accede to her wish and make appropriate orders under the DVD to ensure the relationship is free of violence.

[35] The DVD gives the court jurisdiction to make a domestic violence restraining order for the safety and wellbeing of the victim. Two types of a domestic violence restraining order can be made. The orders can be interim or final.

[36] An interim order continues until confirmed by a court as a final order or earlier varied, suspended or discharged by a court (s.22(b)).

[37] A final order continues unless varied, suspended or discharged by a court (s.22(c)).

[38] Section 23 outlines the prerequisites for a domestic violence restraining order. The prerequisites must be satisfied on balance of probabilities (s.26).

[39] Firstly, the court must be satisfied that the victim was in a family or domestic relationship with the respondent. De facto relationship is covered by the DVD (s.2).

[40] Secondly, the court must be satisfied that the respondent has committed, is committing, or is likely to commit domestic violence against the victim. Section 3 broadly defines domestic violence. The definition includes a single act of violence.

[41] Thirdly, the court must be satisfied that the making of the order is necessary for the safety and wellbeing of the victim. In determining the safety and wellbeing of the victim, the court must have regard to factors contained in subsection (2) of section 23:

(a) whether there is reason for concern that the respondent's behavior or other behavior that would be domestic violence may be repeated by the respondent;

(b) the perception of the applicant and of a person who would be protected by the order, about the nature and seriousness of the respondent's behavior in respect of which the application is made; and

(c) the effect of the respondent's behavior on each person who would be protected by the order including the effect of the respondent's behavior on their ability to go about their normal life and normal routines.

[42] Any order made under section 23 is discretionary after considering the factors outlined above.

[43] The DVD also provides for circumstances where orders are mandatory. Section 24(1) provides:

Subject to subsection (3) but notwithstanding any other provision in this Decree –

(a) where a person stands charged before a Court with an offence which is a domestic violence offence, the Court must –

(i) make an interim domestic violence restraining order under this Decree against the defendant for the safety and wellbeing of the person against whom the offence appears to have been committed; and

(ii) make an order directing the defendant to appear at the further hearing of the matter on a date and at a location fixed by the Court;

(b) where a person –

(i) pleads guilty to, or is found guilty of, an offence which is a domestic violence offence; or

(ii) the Court intends to stay or terminate the proceedings,

the Court must make a domestic violence restraining order under this Decree for the safety and wellbeing of the person against whom the offence or alleged offence was committed;

[44] Subsection (3) provides:

Where subsection (1) applies the Court need not make an order under this section if satisfied that, having regard to the safety and wellbeing of the person for whose protection the order would be made, the order is not required.

[45] The primary difference between section 23 and section 24 is that under the latter the respondent has to be charged with a domestic violence offence or has been found guilty of a domestic violence offence. A list of domestic violence offences is contained in Schedule 1A of the DVD. The offences listed are under the repealed Penal Code. The DVD makes no reference to offences under the new Crimes Decree which came into effect on 1 February 2010. However, since unlawful wounding is listed as a domestic violence offence, albeit contrary to the Penal Code, and given the clear objective of the DVD, I read the Crimes Decree offences into the DVD.

[46] Clearly, this case falls within the parameters of section 24(1)(b)(i). The respondent has pleaded guilty to a domestic violence offence of unlawful wounding contrary to the Crimes Decree and therefore there is no discretion but to issue a domestic violence restraining order unless the court is satisfied having regard to the safety and wellbeing of the victim, there is no need for the order.

[47] Thus the only discretion given to the court in a case of a defendant convicted of a domestic violence offence is when the safety and wellbeing of the victim is no longer an issue. The DVD has left it open to the court to interpret when the safety and wellbeing of the victim is a non issue.

[48] In the present case the safety and wellbeing of the victim is an issue. In her evidence which I accept, she said she feels threatened by the respondent and that she fears for her safety. When giving evidence, the victim displayed signs of trauma and both Ms Ali and Ms Moore agree that the victim needs counselling.

[49] In my mind counselling will no doubt empower her to overcome the trauma so that she can live a quality life without violence which is her basic human right.

[50] To give meaning to the right to quality life without violence for the victim, I issue a final domestic violence restraining order against the respondent with the standard non-molestation and non-contact conditions contained in sections 27(2) and 29(2).

[51] In my view a final domestic violence restraining order will empower the victim to take control of her own destiny and not to feel pressed to mend the wrong done to her by the respondent who still harbours hope to continue his relationship with her.

[52] Relationships are built with love, affection, care, trust and understanding. There could not be a relationship without these attributes. The conduct of the respondent has created distrust in the victim's mind. Her fear for her safety is quite legitimate given the history of violence on her by the respondent and the continuing threat made to her by the respondent while in prison.

[53] For the reasons given, I order the respondent to restrain from:

1. Assaulting AD;
   
2. Threatening to assault AD;
   
3. Damaging or threatening to damage any property of AD;
   
4. Threatening, intimidating or harassing AD;
   
5. Engaging in an abusive, provocative or offensive manner towards AD;
   
6. Encouraging any person to engage in offensive behavior against AD;
   
7. Watching, loitering near or preventing or hindering access to or from AD's place of residence, employment, educational institution, or any other place that AD visits often;
   
8. Following AD in any place;
   
9. Entering or remaining on any land or building occupied by AD;
   
10. Entering any land or building or remaining there when AD is also on the land or in the building;
    
11. Making any other contact with AD whether by telephone, correspondence or otherwise.
    

[54] The victim, AD is referred to the FWCC for counselling.

[55] Finally, if the respondent wants to undergo faith based counselling, he is at liberty to do so by making appropriate arrangement with the prison authority. I make no order in that regard.

[56] An appeal against this Order may be filed to the Court of Appeal within 28 days.

Daniel Goundar
JUDGE

At Suva
28 January 2011

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Director Legal Aid Commission for Respondent