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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 174 of 2019
STATE
V
MEREONI MARAMA
Counsel : Ms. Kimberly Semisi for the State
Ms. Lice Manulevu for the Accused
Dates of Trial : 23-26 and 29-30 June 2020
Summing Up : 3 July 2020
SUMMING UP
Madam Assessor and Gentlemen Assessors,
[1] It is now my duty to sum up the case to you. We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear any more evidence. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the State and the Accused have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.
[2] As the Presiding Judge, it is my duty to ensure that the trial is conducted fairly and according to law. As part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give to you on matters of law.
[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful, credible and reliable. You will then apply relevant law, to the facts as revealed by such evidence. In that way you arrive at your opinions.
[4] Please remember that I will not be reproducing the entire evidence in this summing up. During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent reasoning.
[5] In forming your opinions, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinions. You must take all evidence into consideration, before you proceed to form your opinions. There are no items of evidence which could safely be ignored by you.
[6] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate among yourselves so as to arrive at your opinions on the charge against the accused. Upon your return to Court, when you are ready, each one of you will be required to state his or her individual opinion orally on the charge against the accused, which opinion will be recorded. Your opinions could preferably be a unanimous one, but could also be a divided one. You will not be asked for reasons for your opinions. I am not bound to conform to your opinions. However, in arriving at my judgement, I assure you, that I shall place much reliance upon your opinions.
[7] I have already told you that you must reach your opinions on evidence, and only on evidence. I will tell you what evidence is and what is not.
[8] In this case, the evidence is what the witnesses said from the witness box, the documents tendered as prosecution and defence exhibits and any admissions made by the parties by way of admitted facts.
[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony and the exhibits put before you since this trial began. Ensure that no external influence plays any part in your deliberations.
[10] A few things you have heard in this Courtroom are also not evidence. This summing-up is not evidence. Statements, arguments, questions and comments by the Counsel are not evidence either. A thing suggested by a Counsel during a witness’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening submission made by the State Counsel and closing submissions made by both Defence Counsel and State Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.
[11] As I already indicated to you, a matter which will be of primary concern to you is the determination of the credibility of witnesses, basically the truthfulness and reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.
[12] Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you.
[13] You have seen how the witnesses’ demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence in a Court of law and may sometimes find Court environment stressful and distracting.
[14] You may also have to consider the likelihood or probability of the witness's account. That is whether the evidence of a particular witness seems reliable when compared with other evidence you accept? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to perceive (or know) the things that the witness testified about. These are only examples. You may well think that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony.
[15] In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his or her evidence. This includes omissions as well. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. This could be in relation to the testimony of the witness given in Court or in comparison to any previous statement made by that witness.
[16] A statement made to the Police by a witness can only be used during cross-examination to highlight inconsistencies or omissions. That is, to show that the relevant witness on a previous occasion had said something different to what he or she said in Court (which would be an inconsistency) or to show that what the witness said in Court was not stated previously in the statement made to the Police (which would be an omission). You have to bear in mind that a statement made by a witness out of Court is not evidence. However, if a witness admits that a certain portion in the statement made to the Police is true, then that portion of the statement becomes part of the evidence.
[17] This is how you should deal with inconsistencies and omissions. You should first decide whether that inconsistency or omission is significant. That is, whether that inconsistency or omission is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible or fragile and you might not expect every detail to be the same from one account to the next. If there is an acceptable explanation for the inconsistency or omission, you may conclude that the underlying reliability of the account is unaffected.
[18] However, if there is no acceptable explanation for the inconsistency or omission which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies and omissions in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide. Therefore, if there is an inconsistency or omission that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of his or her evidence is inaccurate. In the alternative, you may accept the reason he or she provided for the inconsistency or omission and consider him or her to be reliable as a witness.
[19] Madam Assessor and Gentlemen Assessors, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.
[20] Having placed considerations that could be used in assessing credibility and reliability of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.
[21] When you have decided the truthfulness and reliability of evidence, then you can use that credible and reliable evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the accused is guilty or not of the charge. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as Assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.
[22] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offence charged.
[23] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts.
[24] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. This is also referred to as circumstantial evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.
[25] In order to illustrate this direction, I will give you a very simple example. Imagine that when you walked into this Court room this afternoon, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that example you will understand the relationship between primary fact and the inferences that could be drawn from them.
[26] I must emphasize, it does not matter whether that evidence was called for the prosecution or for the defense. You must apply the same standards, in evaluating them.
[27] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove the case. That burden rests entirely on the prosecution to prove the guilt of the accused.
[28] This is because the accused is presumed to be innocent. She may be convicted only if the prosecution establishes that she is guilty of the offence charged. It is not her task to prove her innocence.
[29] I have said that it is the prosecution who must prove the allegation. Then what is the standard of proof or degree of proof, as expected by law?
[30] For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove it beyond any reasonable doubt. This means that in order to convict the accused, you must be sure that the prosecution has satisfied beyond any reasonable doubt every element that goes to make up the offence charged. A reasonable doubt is not any doubt or a mere imaginary doubt but a doubt based on reason. The doubt must only be based on the evidence presented before this Court.
[31] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such reasonable doubt, then your duty is to find the accused guilty.
[32] You must not let any external factor influence your judgment. You should disregard all feelings of sympathy or prejudice, whether it is sympathy for victim or anger or prejudice against the accused or anyone else. No such emotion should have any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must also not speculate about what evidence there might have been. You must adopt a fair, careful and reasoned approach in forming your opinions.
[33] Let us now look at the charge contained in the Information.
[34] There is one charge preferred by the Director of Public Prosecutions (DPP), against the accused:
COUNT 1
Statement of Offence
ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to Section 255 (a) of the Crimes Act 2009.
Particulars of Offence
MEREONI MARAMA, on the 29th day of April 2019, at Nasinu, in the Central Division, with intent to cause grievous harm to RACHAEL BOSEIWAQA, unlawfully wounded the said RACHAEL BOSEIWAQA.
[35] Section 255 (a) of the Crimes Act No 44 of 2009 (“Crimes Act”) reads as follows:
A person commits an indictable offence if he or she, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person—
(a) unlawfully wounds or does any grievous harm to any person by any means; or
(b) .......
[Emphasis is mine].
[36] As you would observe, in this case the prosecution has charged that the accused intended to cause grievous harm to the complainant; and with that intention unlawfully wounded the complainant.
[37] Therefore, in order for the prosecution to prove the charge of Act with Intent to Cause Grievous Harm, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) On the specified day (in this case the 29 April 2019);
(iii) At Nasinu, in the Central Division;
(iv) Intended to cause grievous harm to Rachael Boseiwaqa; and
(v) Unlawfully wounded the said Rachael Boseiwaqa.
[38] Let me now elaborate on these elements in respect of the charge.
[39] The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.
[40] The second element relates to the specific day on which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.
[41] The fourth element is that the accused intended to cause grievous harm to Rachael Boseiwaqa. The law provides that a person is said to have intention with respect to conduct if he or she means to engage in that conduct. Therefore, to prove the fourth element, the prosecution should prove beyond reasonable doubt that the accused intended to cause grievous harm to the said Rachael Boseiwaqa.
[42] The fifth and final element the prosecution must prove is that the accused unlawfully wounded, Rachael Boseiwaqa (in this instance by striking her on her forehead with a glass bottle). The word “unlawfully” simply means without lawful excuse or without just cause. The term “wound” has been defined at Section 4(1) of the Crimes Act to mean any incision or puncture which divides or pierces any exterior membrane of the body, and any membrane is "exterior" for the purpose of this definition which can be touched without dividing or piercing any other membrane. Therefore, to establish this element, the prosecution should prove beyond reasonable doubt that the accused unlawfully wounded the complainant as defined herein.
[43] I must also direct you that it is not necessary for the prosecution to establish that grievous harm was in fact caused to the complainant or that the injuries caused to her were actually grievous in nature. What the prosecution must prove is that the accused had the intention to do or cause some grievous harm to the complainant.
[44] Grievous harm has been defined at Section 4(1) of the Crimes Act as follows:
"grievous harm" means any harm which—
(a) amounts taim or dangerous hous harm; or
(b) seriously or pently injuresjures health or which is likely so to injure health; or
(c) extends tmanent disfient, nt, any permanent ornt or serious injury to any external or internal organ, member or sense.
[45] The te "dangerous harm" has been defined to meao mean as n as “harm endangering life”.
[46] The term ‘harm’ has been defined to mean: “any bodily hurt, disease or disorder (including harm to a person’s mental health) whether permanent or temporary, and includes unconsciousness, pain, disfigurement, infection with a disease and physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time).”
[47] If you are satisfied beyond any reasonable doubt that the accused, on 29 April 2019, at Nasinu, intended to cause grievous harm to Rachael Boseiwaqa, and thereby unlawfully wounded the said Rachael Boseiwaqa, then you must find her guilty of the charge of Act with Intent to Cause Grievous Harm.
[48] If you find that the prosecution has failed to establish any of these elements in relation to the charge, then you must find the accused not guilty of the charge.
[49] However, if you find that the prosecution has proved all elements of the offence beyond any reasonable doubt, except the fourth element, that the accused intended to cause grievous harm to the said Rachael Boseiwaqa; as an alternative, you are then allowed to look at the lesser offence of Assault Causing Actual Bodily Harm, in terms of Section 275 of the Crimes Act, though the accused is not formally charged in the Information for that offence.
[50] In terms of Section 275 of the Crimes Act “A person commits a summary offence if he or she commits an assault occasioning actual bodily harm.”
[51] In order for the prosecution to prove the offence of Assault Causing Actual Bodily Harm, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) On the specified day (in this case the 29 April 2019);
(iii) At Nasinu, in the Central Division;
(iv) Assaulted the complainant, Rachael Boseiwaqa; and
(v) Thereby caused actual bodily harm to the said complainant, Rachael Boseiwaqa.
[52] The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.
[53] The second element relates to the specific day on which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.
[54] The fourth element relates to the actual assault. The prosecution should prove beyond any reasonable doubt that the accused assaulted Rachael Boseiwaqa.
[55] With regard to the final element, the prosecution should prove beyond any reasonable doubt that actual bodily harm was caused to Rachael Boseiwaqa, as a result of the assault.
[56] As I informed you a few moments ago, the term ‘harm’ has been defined at Section 4(1) of the Crimes Act to mean: “any bodily hurt, disease or disorder (including harm to a person’s mental health) whether permanent or temporary, and includes unconsciousness, pain, disfigurement, infection with a disease and physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time).”
[57] However, I wish to emphasize that you need to go in this direction ONLY if you find that the prosecution has failed to establish the fourth element of the offence of Act with Intent to Cause Grievous Harm, namely that the accused intended to cause grievous harm to Rachael Boseiwaqa beyond reasonable doubt. If you are satisfied that the prosecution has established all the elements constituting the offences of Act with Intent to Cause Grievous Harm beyond reasonable doubt, then you must find the accused guilty as charged.
[58] In this case, the accused takes up the position that she acted in self-defence. Section 42(1) of the Crimes Act sets out: “A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence.”
[59] In terms of Section 42(2) of the Crimes Act:
“A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary:
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
(c) to protect property from unlawful appropriation, destruction, damage or interference; or
(d) to prevent criminal trespass to any land or premises; or
(e) to remove from any land or premises a person who is committing criminal trespass —
and the conduct is a reasonable response in the circumstances as he or she perceives them.”
[60] The law provides that an accused who wishes to deny criminal responsibility by relying on self defence bears what is known as an evidential burden in relation to that matter. An "evidential burden", in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
[61] I have already directed you that the burden of proof rests entirely on the prosecution to prove the guilt of the accused. This does not change in any way what so ever merely because the accused has taken up self defence. The overall burden of proof still rests entirely on the prosecution to prove the guilt of the accused beyond reasonable doubt. Furthermore, the law provides that when self defence is taken up by the accused, the prosecution also bears the burden of disproving any matter in relation to which the accused has discharged an evidential burden of proof. And this burden must also be discharged beyond reasonable doubt.
[62] The complainant Rachael Boseiwaqa testified as to how the injury was caused to her. You have heard her testimony and also the testimony of other prosecution witnesses and also the testimony of the accused. I have summarised their evidence later in the summing up. It is for you decide based on all the evidence whether the accused acted in self-defence.
[63] This is matter for you to decide based on all the facts and circumstances of the case. It is for you to decide whether the conduct of the accused, in the given circumstances was necessary and a reasonable response in the circumstances as perceived by her.
[64] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.
[65] In terms of the provisions of Section 135 of the Criminal Procedure Act No. 43 of 2009 (“Criminal Procedure Act”), the prosecution and the defence have consented to treat the following facts as “Admitted Facts” without placing necessary evidence to prove them:
[66] Since the prosecution and the defence have consented to treat the above facts as “Admitted Facts” without placing necessary evidence to prove them you must therefore, treat the above facts as proved beyond reasonable doubt.
Case for the Prosecution
[67] The prosecution, in support of their case, called the complainant, Rachael Boseiwaqa, her mother Kalesi Vasu, her cousin’s wife Taraivina Rika, her brother Lenaitasi Boseiwaqa and Dr. Salome Daunivalu. The Medical Examination Report of Rachael Boseiwaqa was tendered to Court as Prosecution Exhibit PE1.
[68] Evidence of Rachael Boseiwaqa
(i) The witness testified that she is residing at Kuruva Road, in Caubati. She is now 20 years of age.
(ii) It is an admitted fact that the complainant resides at Lot 15, Kuruva Road, in Caubati, and that she and the accused, Mereoni Marama, are related. The complainant is the sister-in-law of the accused. The accused is married to the complainant’s brother.
(iii) The complainant testified that she was schooling last year in the Matua Programme at Nabua Secondary School. She had been following this programme for one year from March 2019 to November 2019. Currently she is staying at home.
(iv) The witness said that she is not married, but has two children. Her elder son, Jordan, is 3 years old and her daughter, Bernice, is 3 months old.
(v) The complainant testified that on 29 April 2019, she was staying at Lot 15, Kuruva Road, in Caubati. That day in addition to her, her mother, Kalesi Vasu, her grandmother, Raijasa, her brother, Lenaitasi, her sister-in-law, Mereoni (the accused), her 3 year old son, Jordan and Lenaitasi and Mereoni’s daughter, Abigail, were staying in the house.
(vi) The witness said that the house in Caubati is their family home. It is her parent’s home. She has been residing at this address since 2014. Lenaitasi and Mereoni have been staying with them for about 4 years – from some time in 2015. The witness said that her father had passed away in 2017.
(vii) The complainant described the layout of the house. The house has 2 bedrooms. The sitting room and kitchen are close to each other – she said it was one room. The bathroom and toilet is outside of the main house. When you enter through the front door, you find the sitting room and beside the sitting room is the kitchen. On the left of the sitting room are the bedrooms. The bedrooms are right opposite the sitting room. When you go out the back door, you’ll find an open space like a back verandah, where there is a washing sink and a washing machine. As you go through the back door, on the left is the door to the bathroom and toilet.
(viii) On 29 April 2019, the first room was occupied by herself, her mum and her son. The second room was occupied by Lenaitasi, Mereoni and their daughter.
(ix) It is an admitted fact that on 29 April 2019, at approximately 10.00 in the night, the complainant was at home with her family, including the accused.
(x) The complainant testified that in the evening of the 29 April 2019, she was sitting in the living room with her grandmother and her son. Her mother was cooking in the kitchen. Her brother Lenaitasi and sister-in-law Mereoni and their daughter were in their bedroom.
(xi) The witness said that her brother and sister-in-law started fighting in the room. She said that she heard them arguing. Although their bedroom door was closed, she could hear them arguing in a loud tone.
(xii) Thereafter, her brother came out of their bedroom and closed the door in a harsh way/strong way. When asked to explain she said he slammed the door closed. Then he went out through the back of the house, to the washing sink at the back. Thereafter, he came back to the front and went out through the front door. She doesn’t know where her brother went to at the time. The witness said that at the time it was after 9.00 p.m.
(xiii) At this point in time, the witness said that her mother had opened her brother and sister-in-law’s bedroom door. Her mother had asked the accused as to “What’s the problem?” At the time her mother asked the accused this, the witness said that she was standing close to her mother (besides the sink in the kitchen). The accused had responded to her mother, but the witness had not heard what the accused had said.
(xiv) Thereafter, the witness heard the accused swear at her mother. She had said “magaitinamu” (meaning your mother’s vagina). Her mother had then told the accused to pack her things and go.
(xv) Then the witness went and stood beside her mother, in front of the bedroom door, and told the accused not to swear at her mother. At the time the accused was seated on the bed and her daughter was lying down on the bed. At this point the accused had sworn at both the complainant and her mother. She said “dou veicai” (meaning you all fuck each other).
(xvi) The complainant said that her mother had then told the accused for the second time to pack her clothes and go. The witness said that the accused then started packing her laundry basket which was inside their bedroom. Her mother had then gone and sat on the couch, while the complainant was still standing in the kitchen.
(xvii) The accused then took her laundry basket and left it at the front porch. The witness said: “Then she came back inside. She was looking at me and I was looking at her.” The witness continued: “Then she spoke to me and said as to what I was looking at.” The accused had said “cava varaica tu mai?” (meaning what are you looking at?). The complainant had told her to just take her clothes and leave. The accused had then retorted “sejiseji cici sui” (meaning whatever, bony arse).
(xviii) The complainant said that at the time the accused said this she spoke in an angry way. The witness said she felt a bit upset.
(xix) Thereafter, the accused was standing in front of the front door. The witness was standing at the kitchen.
(xx) The complainant was then asked the following questions and she answered as follows:
Then she bashed the bottle on my right forehead. I tried to dodge onto my left side. I could feel the bottle cracked on my head – my right forehead.
(xxi) The complainant then explained as to how she took a piece of white cloth and put it on her forehead – to apply pressure on the injury. She had then gone outside the house. Her cousin’s wife Taraivina was outside the front porch. At the time the witness was feeling dizzy and uneasy – like trying to fall down.
(xxii) Then Taraivina had come and held her and taken her into her brother Lenaitasi’s car. Taraivina and her husband (Junior) had taken her to the Valelevu Health Centre.
(xxiii) The complainant explained as to how she was medically examined and treated at the Valelevu Health Centre. She had remained at the Valelevu Health Centre for 2 to 3 hours and had returned home only the next morning.
(xxiv) The complainant said that she had gone for an x-ray the following day (30 April 2019).
(xxv) The complainant then testified as to how she had gone to the Valelevu Police Station and reported the matter.
(xxvi) The witness described to Court the bottle that the accused had used to hit her right forehead. She said it was a big bottle – a crystal clear bottle. She described the size of the bottle to be about 1 foot in length. It was heavy and it still had liquor inside. She knew there was liquor inside the bottle because when the bottle broke, they could smell the liquor. The complainant said she didn’t know from where Mereoni had got hold of the bottle.
(xxvii) The complainant said that on 29 April 2019 she was the same size as she is today. When asked about the appearance of the accused at the time, the witness said that she was fat and tall at the time. She was taller than her and also bigger in size than her.
(xxviii) The witness came down from the witness box and showed the injury that she had sustained on the right forehead.
(xxix) The witness identified Mereoni Marama as the accused in the dock.
(xxx) The complainant was cross-examined at length by the defence. The defence also put several suggestions to the complainant – suggestions as to the defence version of the events.
(xxxi) The defence highlighted the following inconsistencies in the testimony given in Court by the witness vis a vis her statement made to the Police:
However, in her statement made to the Police, it is recorded as follows:
“At that moment she was also in the sitting room in the house, myself then moved towards her and threw her 2 punches where one was miss and the other land on her face.”
However, in her statement made to the Police, it is recorded as follows:
“I have no idea that she was holding a whiskey bottle with her which still (was) not opened yet.”
(xxxii) The complainant agreed that after the incident of 29 April 2019, she too has been charged by the Police in the Magistrate’s Court, for assaulting Mereoni.
(xxxiii) In re-examination, the State Counsel clarified from the witness the answers given by her in cross examination, in particular reference to the suggestions put to her by the defence.
[69] Evidence of Kalesi Vasu
(i) She is the mother of the complainant and the mother-in-law of the accused.
(ii) She is a retired civil servant. Prior to retiring she worked as the Secretary to the Director of Immigration.
(iii) The witness said that she is residing at Lot 15, Kuruva Road, Caubati Housing. She has 3 children. The eldest is Cama Boseiwaqa, who is 31 years old; the next is Lenaitasi Boseiwaqa, who is 29 years old; and the youngest is Rachael Boseiwaqa, who is 20 years of age.
(iv) The witness testified to the events which took place on the night on 29 April 2019. That evening in addition to her, her mother, Raijasa, her daughter Rachael, her son, Lenaitasi, and his wife Mereoni, Rachael’s 3 year old son, Jordan and Lenaitasi and Mereoni’s daughter, Abigail, were staying in the house.
(v) The witness said that around 9.30 that night, she was in the kitchen cooking dinner. After dinner was ready she had called out to her children to have dinner. During that time she heard Lenaitasi and Mereoni arguing in their room. The argument heated up and they were speaking very loudly. She couldn’t clearly hear what they were arguing about.
(vi) Lenaitasi then opened the door of their bedroom and banged it closed and walked out to the back of the house where the shed is. The witness had stood up and opened the door to Lenaitasi and Mereoni’s bedroom. She asked Mereoni what happened. Mereoni had murmured something which she didn’t hear. Mereoni had spoken in a lower voice angrily. She had been sitting on top of her bed at the time and Mereoni’s daughter was with her on the bed.
(vii) Then the witness had told Mereoni that every time when she comes home, she’s arguing with Lenaitasi. Mereoni had then sworn at her saying “magaitinamu” (meaning your mother’s vagina). Mereoni had said this very loudly. The witness said she felt pity for herself as it was very disrespectful to swear in this manner to one’s mother-in-law. She had told Mereoni not to swear. Mereoni had looked angrily at her. She heard Rachael standing beside her and telling Mereoni not to swear at her mother. At this point the accused had sworn again at them by saying “dou veicai” (meaning you all fuck each other).
(viii) At this point the witness had told the accused to pack her stuff and leave the house. She had seen the accused standing up from the bed and started to pack her stuff. The witness had gone and sat in the living room. Mereoni had started to carry her stuff to the porch outside – to the front of the house.
(ix) The witness said: “Then Mereoni started to pack her stuff and take it outside. When she went past me, I saw her holding on to a clear crystal bottle. She went back inside the room. That’s when Lenaitasi went towards the front door – towards the road. He spoke to me before leaving the house. He said: “Don’t do anything, just let her go”. So he went outside to the road where the car was parked.”
(x) Then Mereoni had come again (to the bedroom), taken some more stuff from the room and taken it outside. When she entered again from the front door, she spoke to Rachael who was in the kitchen. The accused had then angrily told Rachel: “Cava varaica tu mai” (meaning what are you looking at). Then Rachael had spoken to her telling her just go out of the house.
(xi) Mereoni and Rachael were talking back at each other. She didn’t hear exactly what they were saying. Then she heard Mereoni swear at Rachael and say: “Cici sui” (meaning bony arse). She had then seen Rachael walk towards the accused whilst touching the utensils rack. She was fiddling with the utensils rack. It was making a loud noise. However Rachael did not get anything from the rack.
(xii) The witness then testified that: “Then Rachael walked up to Mereoni. I was sitting on the couch. On the right side Mereoni was standing, onto her left was Rachael. This was at the front door and they were facing each other.” She had seen Rachael swinging her hand towards Mereoni to punch her. This is when the witness had stood up. She stood up and tried to block her hands not to reach her – not to punch her. She didn’t see Rachael punch Mereoni. When Rachael swung her hand, the witness had blocked her hands.
(xiii) At this time she had turned away from Rachael and the accused so as to look into her mother. Whilst speaking to her mother, she had heard the breaking of glass. She saw the broken pieces of glass scattered in the living room. She had turned again towards Rachael and the accused and told Rachael to stop fighting. She had turned and grabbed Rachael’s arm to face her. That’s when she saw heavy bleeding from Rachael’s forehead. The witness said that she had panicked when she saw the blood dripping from Rachael’s forehead onto her face. She said: “That was a horrible scene, very frightful.”
(xiv) She had then told Rachael to get a piece of cloth and to put it on her forehead. Rachael had done so.
(xv) Then she saw Lenaitasi enter through the front door. Lenaitasi wrapped his arms around Mereoni and said: “Sa rauta” (meaning that is enough). He came in front of her and wrapped his arms around Mereoni. He embraced her – her arms. She had seen Mereoni struggling. She was swaying her arms left and right trying to free herself from Lenaitasi when he was embracing her.
(xvi) The witness had told Rachael to go to the hospital immediately since she was losing a lot of blood. She had taken Rachael outside. When they went outside Taraivina and her husband Malakai and her eldest son Cama were outside. She had told Taraivina to get the car keys from Lenaitasi and to take Rachael to the hospital.
(xvii) Taraivina had gone into the house to get the keys from Lenaitasi. Taraivina and Malakai had then taken Rachael to hospital.
(xviii) The witness had then gone inside the house. She said they were all seated in the kitchen. Mereoni and Lenaitasi were on the floor. By that time Mereoni had been calmed down by Lenaitasi.
(xix) Thereafter, the witness explained as to how the Police had arrived home and the matter was reported to the Police. The matter had been reported to the Police by Rachael and Taraivina. The witness said that her statement had been given to the Police after almost one year (On 19 February 2020).
(xx) The witness described the bottle that had been used by the accused at the time of the incident. It was a clear crystal bottle. She had seen this bottle 2-3 times before when she was cleaning up the house. The bottle was placed on top of the drawer in Lenaitasi and Mereoni’s bedroom.
(xxi) This witness was also cross-examined at length by the defence. The defence put several suggestions to the complainant – suggestions as to the defence version of the events.
(xxii) The defence highlighted the following inconsistencies and omissions in the testimony given in Court by the witness vis a vis her statement made to the Police:
However, in her statement made to the Police, it is recorded as follows:
“I asked my daughter-in-law what is the problem and she starts swearing at me saying “magaitinamu” which means mother’s vagina”.
[70] Evidence of Taraivina Rika
(i) The witness said that she is residing Lot 86, Vesivesi Road, Kinoya.
(ii) She is a house wife by occupation. She is married to Malakai Sosiceni. They have 2 children from their marriage.
(iii) She recalls the events which took place on 29 April 2019. In the evening of that day she was at home with her husband and 2 children, her mother-in-law, her father-in-law and Cama, who is Lenaitasi’s older brother. Lenaitasi and Cama are cousins of her husband. Their mother and her husband’s father are sister and brother.
(iv) Cama had asked if she and her husband can go with him to Caubati. They had agreed. Cama had said that Lenaitasi and Mereoni were having some kind of an argument. Accordingly, she, her husband, their 3 year old son and Cama had gone to Kalesi’s residence in Caubati in Kalesi’s second vehicle, which they were using. They had reached there around 9.00 p.m.
(v) As soon as they reached Caubati Housing, they had parked the vehicle on the road. The witness said at the first barrack, near Lenaitasi’s neighbour’s house. Just as they parked, they saw Lenaitasi coming outside with a suitcase and bags. Lenaitasi had walked towards the vehicle. Cama, Lenaitasi and her husband were smoking and having a chat, just outside the vehicle.
(vi) Just at the time she was getting off the vehicle, the witness said: “Then I heard a loud screaming with something broken like a glass. Then I ran just behind Lenaitasi inside the house.” The witness said that she heard the sound from inside Kalesi’s house.
(vii) When she went inside the house, she saw Rachael bleeding from the head. Lenaitasi was holding Mereoni. Lenaitasi was in front holding Mereoni’s hands with his hands. They were face to face. Witness demonstrated how Lenaitasi was holding Mereoni. The witness said that Lenaitasi went into the house just before she did. She said: “I was a bit late because I slipped outside. So Lenaitasi went in first and then me.” The witness said that she could see broken crystal clear glass all scattered on the floor.
(viii) She had been worried when she saw Rachael bleeding. So she went to Rachael to check on her wound. Right after that Kalesi asked her if she can take Rachael to the hospital together with her husband. The witness had then walked towards Lenaitasi to ask for the car keys. Lenaitasi was still holding Mereoni. When asked in which part of the house the witness said right next to the sink in the kitchen, she couldn’t recall whether they were sitting or standing.
(ix) She had asked Lenaitasi for the car keys. Lenaitasi had reached out to his pocket and gave the keys to her. Mereoni was struggling because Lenaitasi was holding her. When asked to explain the witness said: “She was like fighting with Lenaitasi. She was screaming. She was like trying to break Lenaitasi’s grip.”
(x) The witness had taken the car keys, walked to Rachael, held her hand and walked outside to the vehicle. They had then taken Rachael to the Valelevu Health Centre – Emergency Room. She had remained with Rachael at the Valelevu Health Centre, while Rachael was being examined. Kalesi and Cama had come later to the Health Centre. They had all left the Health Centre together around 3.00 in the morning.
(xi) In cross-examination it was suggested to the witness that she never entered the house after Lenaitasi. It was further suggested that she had remained outside the house with her husband and Cama, and that Rachael and her mum Kalesi came outside, and then Kalesi had asked her to go and get the keys from Lenaitasi. It was suggested that only after Kalesi had asked her to get the keys from Lenaitasi that she entered the house. The witness denied all these suggestions.
(xii) The defence highlighted the following inconsistency in the testimony given in Court by the witness vis a vis her statement made to the Police:
In her testimony in Court, the witness said that she had reached Kalesi’s place around 9.00 p.m.
However, in her statement made to the Police, it is recorded as follows:
“I can clearly recall that on Monday 29/04/19 at around 10.00 p.m.”
[71] Evidence of Lenaitasi Boseiwaqa
(i) The witness said that he is residing Lot 15, Kuruva Road, Caubati. He is a farmer by profession.
(ii) He is married to Mereoni Marama. They are married for 3 years. He said they got married in 2016 but can’t recall the exact date. They have 1 daughter Abigail, who is 4 years of age.
(iii) The witness said that Mereoni and he are no longer living together. They are separated. Currently Mereoni and his daughter are living in Vunaniu Village in Serua.
(iv) The witness testified to the events which took place on the evening of 29 April 2019. His wife Mereoni had come back from work around 6.30 p.m. He had gone with his daughter to pick her up from town – next to the Flea Market. Mereoni was working at the Pearl Resort in Pacific Harbour.
(v) After picking her up they had returned home. He and his daughter were watching a movie in their bedroom. He said that he and his wife were sitting down and yarning in the bedroom. Then she went to have a bath. After she finished her shower, she had come back and asked him why he didn’t wash the clothes – her clothes and his daughter’s clothes. The clothes were in the back porch under the sink. He had told his wife to leave the clothes and that he will wash it.
(vi) The witness said: “Then she started to say bad things about me. She started to get mad at me for not washing the clothes. She then told me you were supposed to wash the clothes today. She started swearing at me. She told me “Caiti Tamamu” (meaning fuck your father) you are supposed to wash the clothes.” The witness said that he had told her not to worry about the clothes and that he will wash it.
(vii) The witness said that at that time dinner was cooked and his mother had called them for dinner. He had then told Mereoni to give Abigail for them to go and have dinner. He said that the accused was holding on to their daughter and refused to give her to him. The accused had asked what was for dinner. He had said they were having eggplant. The accused had then said “fuck that food, I don’t want to eat it.”
(viii) The witness said that at that point he started to get angry. He said that he had asked the accused nicely to go and have dinner. He had asked the accused the second time for her to give Abigail to him so that they can go and have dinner. The accused had told him to fuck off from there.
(ix) So the witness had stood up, opened the bedroom door and slammed it shut. He had gone to the back porch. He had then heard his mother open the door and asking his wife what the problem was. Then the accused had sworn at his mother saying “Magaitinamu”. Then his sister Rachael walked towards his mother and told the accused (who was in the bedroom) not to swear at her mother. Then the accused had sworn back at both of them saying “Dou veicai” (meaning you fuck each other).
(x) The witness said that he had walked into the house from the back porch, picked up his toilet bag and went to the front porch. His mother and sister Rachael were standing in the living room talking to Mereoni. The witness said that that night he was planning to go to Nadi to pick up a friend who was coming back from Australia.
(xi) While standing at the front porch, the witness had told his mother for them not to do anything, to just let his wife and daughter leave. He had then called his brother Cama and asked him to come and stay with the family just in case the accused might do something, because at that time she was angry.
(xii) The witness then testified as to how Cama had arrived along with his cousin brother Malakai Sosiceni and his wife Taraivina. While they were talking on the roadside, they had heard a sound – like a crack sound from inside the house. He had then run back inside the house. Taraivina had followed him.
(xiii) The witness said: “When I got inside the house the only thing I could see was glasses scattered on the floor. I saw my wife Mereoni and Rachael were pulling each other. I walked towards my wife Mereoni and I held her and I was trying to put her down.” [The witness demonstrated as to how he did so]. He said that the accused was like struggling.
(xiv) The witness said Mereoni was facing Rachael so he had walked in front of Mereoni trying to put her down. [The witness again demonstrated how he did so]. He said he was doing this because Mereoni was out of control and she was angry. The witness said: “While I was doing that, she was trying to head butt me and I try my best to put her down – because she’s taller than me and I’m short, and she is strong. So I managed to put her down on the floor but she didn’t want to sit on the floor....... While she and I were on the floor, she tried to stand up 2 times. She is big and strong. I was holding on to her. I was trying to hold on to her because others were in the living room.”
(xv) The witness said that whilst he was holding on to the accused, he heard Taraivina asking him for the car keys. So he reached out to his back pocket and gave the car keys to Taraivina. Taraivina and her husband took Rachael to hospital.
(xvi) Then he had told his mother to tell his brother to go to the next door neighbour to call the Police. When asked why the Police the witness said because Mereoni was out of control.
(xvii) He had then held on to Mereoni waiting for the Police to come. When he was holding on to Mereoni, she was trying to get up. She was out of control and very angry. After a few minutes the Police had arrived.
(xviii) His mother had left with his brother to the hospital to go and see Rachael. As soon as they left he had left Mereoni and gone outside. He said Mereoni had calmed down by then. He had gone to the shop to get cigarattes.
(xix) The witness said that when he was walking back home a taxi stopped and he had seen his wife and daughter inside. The accused had asked him “you coming or what we are going?” The witness had told them to go and that he was not joining them.
(xx) The witness testified that he did not assault the accused at all that night.
(xxi) This witness was also cross-examined at length by the defence. The defence put several suggestions to the complainant – suggestions as to the defence version of events.
(xxii) The defence highlighted the following inconsistencies and omissions in the testimony given in Court by the witness vis a vis his statement made to the Police:
However, in his statement made to the Police, it is recorded as follows:
“We were at our room with my wife and we start arguing about dinner. She has to prepare dinner for our daughter and our argument started to heat up”.
[72] Evidence of Dr. Salome Daunivalu
(i) The doctor testified that she is currently serving as the Acting Medical Officer in charge at the Valelevu Health Centre. She is working at the Valelevu Health Centre since April 2020.
(ii) She has been practising as a Medical Officer since 2011, after having graduated from the Fiji School of Medicine, with a MBBS Degree, in 2010.
(iii) The doctor said that the complainant, Rachael Boseiwaqa, had been medically examined by Dr. Mere Tauluva Bitu, on 29 April 2019 at 10.35 p.m., at the Valelevu Health Centre. She is the Medical Officer who had prepared the Medical Examination Report, which is tendered to Court as Prosecution Exhibit PE1.
(iv) The witness testified that she is aware that Dr. Mere Tauluva Bitu worked at the Valelevu Health Centre. Dr. Bitu is currently working at CWM Hospital. The witness has been informed that Dr. Bitu is unable to attend Court as she has just delivered a baby this Tuesday (23 June 2020) and is at home with her newborn. Therefore Dr. Salome has come to give evidence as a substitute doctor in place of Dr. Bitu.
(v) As per the initial impression of the person examined, as found in Column D11 of the Medical Report, it is stated that the patient had a head wound bleeding or an active would bleeding of the head.
(vi) Doctor Daunivalu explained in detail as to the specific medical findings as found in column D12 of Prosecution Exhibit PE1.
(a) There was a moderately deep laceration on the right facial measuring about 8cm x 4cm x 2cm. The laceration appeared deep which could account for the active bleeding at the time of examination. The doctor also referred to Appendix 1 of the Medical Report where the exact location of the injury is indicated in a body diagram. The doctor said in medical terms ‘moderately’ means it is not mild nor is it severe.
(b) Bleeding stopped. Sutures in situ (sutures have been in place). There was also a 1 cm x 1 cm superficial laceration on the right hand. The doctor explained that the bleeding had been stopped by suturing the wound on the forehead.
(c) There was a 1 cm x 1 cm superficial laceration on the left hand. Further there was a 0.5 cm superficial laceration on the back of the neck.
(d) The pupils of the eye bilaterally equivalent reactive to light. The doctor explained that an examination of the pupils is done to examine general conscious state or to indicate possibility of severe head injury. As per the examination, the patient appeared normal, which means that there is unlikely to be internal bleeding on the patient.
(vii) The doctor explained the summary and conclusions as found in column D16 of the Medical Report. It states 19 year old female, who had sustained multiple injuries secondary to assault. The wound must have arisen from a physical injury sustained to the person involved or examined. The doctor further explained that the injury would have been caused from a sharp object – from a glass or sharp pointed object.
(viii) The witness described the injury over the right side of the face (right forehead) as a serious injury and explained the reasons for same. The doctor also explained that with this kind of injury, there could be certain after effects.
[73] That was the case for the prosecution. At the end of the prosecution case Court decided to call for the defence. You then heard me explain several options to the accused. I explained to her that she could address Court by herself or through her counsel. She could also give sworn evidence from the witness box and/or call witnesses on her behalf. She could even remain silent. She was given these options as those were her legal rights. She need not prove anything. The burden of proving her guilt rests entirely on the prosecution at all times.
[74] In this case, the accused opted to offer evidence under oath. She also called a witness, Dr. James Danford, in support of her case. The Medical Examination Report of the accused was tendered to Court as Defence Exhibit DE1.
[75] Evidence of the Accused – Mereoni Marama
(i) The accused testified that she is currently residing in Vunaniu Village, Serua, with her parents, her 2 other sisters and their children. She is working as a Room Attendant at The Pearl Resort in Pacific Harbour.
(ii) The accused said that she is married to Lenaitasi Saukuru. They have one daughter who is 3 years old. She will be turning 4 on 16 August 2020. Her name is Abigail Boseiwaqa.
(iii) The witness said that she is not working at present. She is staying at home due to these court proceedings. She has stopped working since the beginning of month of June.
(iv) She said that currently she is separated from her husband. They had separated after this incident on 29 April 2019.
(v) The witness testified to the events which took place on 29 April 2019. At the time she was staying at Kuruva Road, Caubati at her husband’s place – at her husband’s family house. On the said day she was at work at The Pearl Resort. After finishing work at 4.30 p.m she came to Suva. She had arrived in Suva at around 6.00 in the evening. Thereafter, she had caught the Caubati Bus from the Suva Bus Stand and went to Caubati. She reached Caubati at 6.30 in the evening.
(vi) She had gotten off at Kuruva Road in Caubati. When she had entered the Wainivula junction to go to Caubati, it was raining. So she had called her husband to pick her up from the Kuruva junction. Her husband and daughter had picked her up from the Kuruva junction.
(vii) After reaching home they had gone straight to the bedroom. She had changed her clothes and gone to have a shower. Her husband and daughter had remained inside the room. Before having her shower she had noticed her daughter’s clothes which she had soaked on the previous Friday. The clothes were in a bucket besides the washing sink at the back of the house. She had asked her husband to wash the clothes since she was getting late to work on Friday morning.
(viii) After her shower she had gone back to their bedroom and enquired from her husband as to why he didn’t wash the clothes. Her husband had just mumbled something which she couldn’t hear. The witness testified that when she had called her husband on Sunday and asked him about the clothes she had soaked in the bucket, his reply had been that he had already washed and dried the clothes, folded and put them in my daughter’s clothes basket. So the witness said that she felt a bit angry because her husband had lied to her.
(ix) Thereafter, her husband had left the room. She had lied down beside her daughter on the bed. They were watching a movie on the small screen inside the room. Then her husband had come back inside and asked her if he can take her daughter to the supermarket for them to go and buy something. She had told her husband to go himself. Then she said that her husband had gone with her mother-in-law, sister-in-law and her son to the supermarket.
(x) After about half an hour they had come back home. Her husband had come to the bedroom and asked for them to go and have dinner. She had told him that they don’t want to eat as they were not feeling hungry and for him to go and eat by himself. Her husband had gone out of the bedroom. When he went outside he had slammed the bedroom door closed.
(xi) The witness said, after a few minutes she could hear the sound of a pot falling on the floor. Then she hear her mother-in-law saying to her husband that the thing he threw nearly landed on his grandmother.
(xii) Thereafter, her husband came back inside the room, just looked around and went out of the bedroom again. Then her mother-in-law opened the bedroom door and she was standing at the door. Her mother-in-law asked her what was the problem. The witness had replied saying “just ask him”.
(xiii) At this point her mother-in-law had sworn at her in an angry tone. She had said “magaitinamu” (meaning your mother’s vagina) and added “Every time you come home you cause a fight”. The witness said that she felt angry because her mother-in-law swore at her. Then she swore back at her mother-in-law “magaitinamu talega yani” (your mother’s vagina as well).
(xiv) Then her mother-in-law had told her: “Pack your stuff and fuck off from here”. Thereafter, the witness stood up and told the mother-in-law that she would leave. So she started packing her stuff and her daughter’s stuff as well.
(xv) When she was packing their stuff, she heard her sister-in-law Rachael ask her why she swore at her mother. The witness said she had told her “Why did your mother swear at me”? At the time both her mother-in-law and sister-in-law were standing beside the front door to the bedroom.
(xvi) Thereafter, Rachael had sworn at her saying “luve ni caiti tamamu” (meaning fuck your father). The witness said she felt angry on hearing this. So she had retorted “luve ni caiti Tamamu” back at you.
(xvii) At this point her husband had come into the bedroom and told them to talk in low voices or in a lower tone and gone away. Her mother-in-law and Rachael were still standing at the door.
(xviii) After that the witness had finished packing her stuff. She had brought the bucket where her daughter’s clothes had been soaked outside to the front porch. After that she went back into the room. She brought her daughter and a suitcase outside to the front porch.
(xix) Thereafter, the witness went back into the bedroom. She got the bottle which she had bought from Rups. She said she used to mix drinks (the leftover drinks) which she gets from the hotel in that bottle. She said it is a glass bottle/crystal bottle. When asked what type of drinks she said it was the left over white wine, champagne and vodka.
(xx) After taking the bottle from the bedroom, the witness came into the living room. At this point she heard Rachael speaking to her. When the witness turned around to see Rachael she was standing at the door leading to the bathroom and toilet (the back door). Rachael had said “fuck off from home, useless (macawa)”. She had then told Rachael “Who are you saying useless to; it is you who is useless, cici sui” (meaning bony arse).
(xxi) At the time the witness said she was still standing in front of the bedroom door. Rachael was at the back door. Thereafter, the witness was just turning to go to the front door. She then heard a sound in the utensils’ rack where the knife is in. When she heard the sound from the utensils’ rack, the witness thought that Rachael was going to take a knife.
(xxii) Then the witness turned towards Rachael. At the time the witness was one step from where Rachael’s mother was seated. After she heard the sound and turned towards Rachael, she saw Rachael throw her hand at her. The witness demonstrated how this happened. When Rachael threw her hand at her, it had landed on the right side of her nose closer to the right eye. She could feel blood from her nose. The witness had then turned towards Rachael and punched her using her right hand. That punch had landed on Rachael’s head. Then Rachael had punched the witness again and at that time, her mother-in-law stood up to try and stop the fight. Her mother-in-law had stood up and came and stood between the witness and Rachael [the witness demonstrated how this happened].
(xxiii) Even though her mother-in-law had tried to stop them fighting, she could not do so. The witness said “When we were punching each other, because I was tall and Rachael was short, Rachael’s punches couldn’t reach me and her mother turned towards me to stop me.”
(xxiv) When her mother-in-law was trying to stop her, she felt that someone grabbed her from behind. She realized it was Lenaitasi. Lenaitasi had said that’s enough. Rachael was still throwing punches at her. The witness said “Lenaitasi was holding me and Rachael was throwing punches. After that I tried to free myself from him because Rachael was punching my face. When I was struggling I felt that he (Lenaitasi) had punched the left side of my rib. At that time my left hand was free where I was holding the bottle – the bottle that had the mixed drinks inside.
(xxv) The witness said: “I then swung my hand to stop Rachael’s punches [witness shows how], because she was still punching me at that time and to stop her right hand which she threw at me.”..... “When I swung my hand to stop her I felt that the bottle broke and I through it broke at her elbow. I thought it struck her right elbow because I was trying to stop her right hand.”
(xxvi) At this stage Lenaitasi had grabbed the witness again by both of his hands. He had been standing behind her. The witness said: “At that time Rachael was throwing punches at me and I was angry, and I was struggling to try and save myself.”
(xxvii) The witness said: “I was struggling and trying to free myself because Rachael had been continuously throwing punches at me, and I was angry because I didn’t have the chance to stop Rachael.”
- (xxviii) While she was struggling she heard her mother-in-law saying that Rachael had been injured. Lenaitasi was still grabbing the witness trying to pull her down. Only then had she realised that Rachael had been injured.
- (xxix) At the time her mother-in-law had said Rachael was injured, Rachael was still punching the witness and her mother-in-law was standing between them – one hand to Rachael and the other hand to me [the witness demonstrated how this happened].
- (xxx) The witness said: “When Rachael was injured and she was still trying to punch me, I managed to free my right hand from Lenaitasi’s grip. I then reached out to grab Rachael’s vest. When I reached to grab her vest, I pulled her towards me and the vest she was wearing tore. When I grabbed the vest and it tore, Lenaitasi pulled me from behind and he pushed me forward, and I knelt on the broken glasses.”
- (xxxi) The witness said she then crawled beside the kitchen sink and sat there on the floor. When she was sitting there she heard them say to call the Police.
- (xxxii) The witness then explained as to how Cama, Malakai and Taraivina had arrived there. Cama had growled at her and she had retorted. Lenaitasi had then asked her to shut up and not to say anything.
- (xxxiii) The witness then explained as to how Lenaitasi came to where she was sitting from behind and put his left hand around her, and stepped on her knee. Lenaitasi was choking her using his thumb and pointing finger. [The witness demonstrated as to how this had happened].
- (xxxiv) The witness said that Lenaitasi had released his chokehold when he saw the Police coming. After he saw the Police, Lenaitasi had come and sat beside her.
- (xxxv) The Police had asked them what happened. Her mother-in-law had told the Police “to put this one inside”. The witness said she tried to explain to the Police what happened but one of the Police Officers asked her to shut up.
- (xxxvi) Thereafter, the witness explained as to how she left the house that night with her daughter by taxi.
- (xxxvii) The witness also explained as to how she later went for a medical examination at the Nausori Health Centre. She had been examined by Dr. Danford on 2 May 2019. She also explained to Court the injuries she sustained that night.
- (xxxviii) The witness said she had lodged her report at the Valelevu Police Station. Based on the report her sister-in-law Rachael has been charged in the Magistrate’s Court.
- (xxxix) The witness said that when she swung her left hand and the bottle had hit Rachael on the 29 April 2019, she was only trying to stop Rachael from punching her.
- (xl) The accused was cross-examined at length by the prosecution. The prosecution put several suggestions to the accused – suggestions as to the prosecution version of events.
[76] Evidence of Dr. James Danford
(i) The doctor testified that he is now retired. He retired just 2 weeks ago.
(ii) He has been practising as a Medical Officer since 1980. He has a Certificate in Primary Health Care from the Fiji School of Medicine.
(iii) The doctor said that on 2 May 2019 he was working at the Nausori Health Centre. He was working at the Nausori Health Centre for over 2 years.
(iv) The doctor said that that he had conducted a medical examination on Mereoni Marama, on 2 May 2019 at 12.22 p.m., at the Nausori Health Centre. Thereafter, he had prepared the Medical Examination Report, which is tendered to Court as Defence Exhibit DE1.
(v) Doctor Danford explained in detail as to the specific medical findings as found in column D12 of Defence Exhibit DE1.
(a) There was a tender swelling over the patient’s right cheek and jaw angle. This means that there were swellings which caused pain to her when we press it or even when we touch it.
When asked for the likely causes for this kind of injury the doctor said these injuries would usually be caused by blunt objects applied with force. For example it could have been caused by punches or any other blunt object applied with force.
The doctor also referred to Appendix 1 of the Medical Report where the exact location of the injury is indicated in a body diagram.
(b) Three areas of tender bruises and abrasions on the anterior neck area. The doctor explained that a bruise is evidence of bleeding into the tissue under the skin without the skin being damaged. An abrasion is damaged skin usually caused by rubbing force – that part of the skin rubbing on something hard or sharp.
The doctor said the likely causes for this sort of injury could be from being grabbed roughly around the area. Like somebody trying to grab your neck in this manner (The Doctor demonstrated) and pressing against your neck and throat. These injuries could have been worse by movements of the patient. She would not be standing or sitting still when this was being done on her.
(c) Tender swollen forehead – which simply means there were swelling on the forehead which was tender to the touch and pressure. The likely causes for this injury would be a blunt object applied with much force onto her forehead. For example a clenched fist.
The doctor also said that there were also small lacerations and bruising on inner right cheek. A laceration is an irregularly shaped cut in this instance which was over the inner right cheek of the patient. The likely causes for this wound is a blunt object applied with force from the outside. The doctor explained a blunt object for example could be from a punch or any other blunt object applied with force on the outer cheek.
The doctor said that the soft tissue of the cheek will get caught between the teeth and the force coming from outside – getting caught between 2 hard objects. In other words it gets crushed between the two.
(d) An abrasion on the anterior left knee. The skin was damaged on front part of the left knee. This is mostly likely caused by rubbing against something hard or rough.
(vi) The doctor explained that the injuries seemed a few days old and are consistent with the history related by the patient. The doctor explained the injuries were a few days old because he saw signs of puss on the open injuries, which wouldn’t be present if the injury was fresh.
Analysis
[77] The above is a summary of the evidence led at this trial. The prosecution relied on the evidence of the complainant, Rachael Boseiwaqa, her mother Kalesi Vasu, her cousin’s wife Taraivina Rika, her brother Lenaitasi Boseiwaqa and Dr. Salome Daunivalu, in support of their case. The Medical Examination Report of Rachael Boseiwaqa was tendered to Court as Prosecution Exhibit PE1. The defence relied on the evidence of the accused herself and Dr. James Danford. The Medical Examination Report of the accused was tendered to Court as Defence Exhibit DE1.
[78] In this case, the complainant had been medically examined by Dr. Mere Tauluva Bitu. She is the Medical Officer who had examined and prepared the Medical Examination Report of Rachael Boseiwaqa, which is tendered to Court as Prosecution Exhibit PE1. However, the said Medical Officer has just given birth and as such was not in a fit position to attend Court. In such situations the law permits for the contents of any report which the prosecution intends to give as evidence and about which notice has been given to the defence, to be referred to and commented upon by any other expert called as a witness in any criminal trial. This is the basis on which the prosecution is relying upon the evidence of Medical Officer Dr. Salome Daunivalu.
[79] The defence is relying on the evidence of Dr. James Danford, as he was the Medical Officer who had conducted the medical examination of the accused and prepared the Medical Examination Report, which is tendered to Court as Defence Exhibit DE1.
[80] This kind of evidence is given to help you with scientific matters by a witness who has expertise. As you may have heard, experts carry out examinations which are relevant to the issues you have to consider. They are permitted to interpret results of the examinations for our benefit, and to express opinions about them, because they are used to doing that within their particular field of expertise.
[81] You will need to evaluate expert evidence for its strengths and weaknesses, (if any) just as you would with the evidence of any other witness. Remember, that while experts deal with particular parts of the case, you receive all the evidence and it is on all the evidence that you must make your final decision.
[82] As I have informed you earlier, the burden of proving each ingredient of the charge rests entirely and exclusively on the prosecution and the burden of proof is beyond any reasonable doubt.
[83] In assessing the evidence, the totality of the evidence should be taken into account as a whole to determine where the truth lies.
[84] As I have stated before, in this case it has been agreed by the prosecution and the defence to treat certain facts as agreed facts without placing necessary evidence to prove them. Therefore, you must treat those facts as proved beyond reasonable doubt. Based on the said agreed facts the identity of the accused, the date of incident and the place of incident are not in dispute. However, the prosecution must establish beyond reasonable doubt that the accused intended to cause grievous harm to Rachael Boseiwaqa and with that intention unlawfully wounded Rachael Boseiwaqa, by striking her on her forehead with a glass bottle.
[85] I have already explained to you how you should deal with inconsistences and omissions. You should first decide whether that inconsistency or omission is significant. That is, whether that inconsistency or omission is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation given by the witness for it. If there is an acceptable explanation for the inconsistency or omission, you may conclude that the underlying reliability of the account is unaffected.
[86] However, if there is no acceptable explanation given by the witness for the inconsistency or omission which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies and omission in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide. Therefore, if there is an inconsistency or omission that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of his or her evidence is inaccurate. In the alternative, you may accept the reason he or she provided for the inconsistency or omission and consider him or her to be reliable as a witness.
[87] In this case, the accused takes up the position that she acted in self-defence and also that the glass bottle struck the complainant by accident.
[88] If you believe that the accused acted in self-defence then she cannot be found guilty for Act with Intent to Cause Grievous Harm, or even for the lesser charge of Assault Causing Actual Bodily Harm. This is matter for you to decide based on all the facts and circumstances of the case. It is for you to decide whether the conduct of the accused, in the given circumstances was necessary and a reasonable response in the circumstances as perceived by her.
[89] If you believe the accused’s version that the glass bottle struck the complainant by accident, then obviously it means that there was no intention on the part of the accused to attack the complainant. Therefore, she cannot be found guilty for Act with Intent to Cause Grievous Harm, but only for the lesser charge of Assault Causing Actual Bodily Harm. This is also a matter for you to decide based on all the facts and circumstances of the case.
[90] The prosecution denies that the accused acted in self-defence or that the injury to the complainant was caused by accident. The prosecution version is that the accused intended to cause grievous harm to Rachael Boseiwaqa and thereby unlawfully wounded her by striking her on her forehead with a glass bottle. The prosecution also state that the accused’s actions in the given circumstances were unreasonable and disproportionate.
[91] You must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by the complainant, Rachael Boseiwaqa, and other prosecution witnesses are truthful and in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty of the charge, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution had proved the elements of the offence of Act with Intent to Cause Grievous Harm, beyond reasonable doubt.
[92] It is important that you must employ the same considerations which you employed in assessing truthfulness and reliability on the prosecution evidence, also when you are assessing the evidence of the defence. You must consider the defence evidence also for its consistency and also the probability of its version. If you find the evidence of the defence is truthful and reliable, then you must find the accused not guilty of the charge, since the prosecution has failed to prove its case.
[93] If you neither believe the evidence adduced by the defence nor disbelieve such evidence, in that instance as well, there is a reasonable doubt with regard to the prosecution case. The benefit of such doubt should then accrue in favour of the accused and she should be found not guilty of the charge.
[94] However, I must caution you that even if you reject the evidence of the defence as not truthful and also unreliable that does not mean the prosecution case is automatically proved. The prosecution have to prove their case independently of the defence and that too on the evidence they presented before you.
[95] In summary and before I conclude my summing up let me repeat some important points in following form:
[96] Any re directions the parties may request?
[97] Madam Assessor and Gentlemen Assessors, this concludes my summing up of the law and evidence. Now you may retire and deliberate together and may form your individual opinions on the charge separately against the accused. When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinions.
[98] Your possible opinions should be as follows:
Act With Intent To Cause Grievous Harm - Guilty or Not Guilty.
If not guilty,
In the alternative,
Assault Causing Actual Bodily Harm - Guilty or Not Guilty.
[99] I thank you for your patient hearing.
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT SUVA
Dated this 3rd Day of July 2020
Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused : Office of the Legal Aid Commission, Suva.
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