State v Kuruvakadua [2011] FJMC 170; Criminal 273.2011 (20 December 2011)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SIGATOKA
WESTERN DIVISION
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 273 of 2011

State

-v-

Tevita Kuruvakadua

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution : Filimoni Lacanivalu - DPP's Office
Accused : Present – In Person
Date of Hearing : 16th and 20th December 2011

JUDGMENT

Introduction

The accused is charged as follows: "Idecently Annoying Any Person, contrary to Section 213 (1) (a) of Crimes Decree 2009".

The particulars of the offence reads: "Tevita Kuruvakadua between 14th and 15th April 2011 at Sigatoka in the Western Division intending to insult the modesty of a girl namely Sulueti Kavu uttered words intending that such words shall be heard by Sulueti Kavu."

The Law

Section 213 (1) of the Crimes Decree 2009 provides for Indecently insulting or annoying any person. It states that:

"(1) A person commits a summary offence if he or she, intending to insult the modesty of any person —

(a) utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person; or

(b) intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.

Penalty — Imprisonment for one year."

The Elements

The Elements of the charge of insultingnnoying any any person under Section 1 (a) are:

(i) The accused on the dates as per the charge (identification and date),

(ii) ud any word, or

(iii) made any sound or gesture, or

(iv) exhibited any object,

(v) intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person (the victim – Sulueti Kavu)

Burden and Standard of proof

The burden of proof in this case is on the Prosecution, the State. The Prosecution is required to prove all the elements of the charge the accused is charged with beyond reasonable doubt. If the defence establishes to the Court's satisfaction that there is reasonable doubt, then the prosecution fails.

Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice.".

The Evidence

Evidence of the Prosecution Witnesses

The Prosecution called 5 witnesses: Pw-1 – Sulueti Kavu, and Pw-2 – PC 3474 Aisake Raka, PW-3 – Corporal 1742 Josevata Vakatawa, PW-4 – Panai Siliwai, and PW-5 - DC 2932 Shamim,

Evidence of Pw- 1 – Sulueti Kavu (Sworn on Bible in English – Preferred Language - English)

Examination in Chief – "lived at Vunavatu since a little girl. Live with parents, brothers and sisters. Recall events of 14th April 2011 at 8.30pm was in the charge room with Shamim and Jonetani. At Stka Police Station. Was alone at Police Station. Came to write report about Varasiko. Seeking police assistance. Varasiko is boyfriend. Known for 2 months. Ran away with Varasiko. He was arrested by Tevita. In the afternoon he was released. Varasiko asked me to put report here.

Only Shamim and Jonetani there. They told me to wait for Tevita. I waited for Tevita for 2 hours. I saw him at 11pm saw him in charge room. Came with him in a white vehicle. Police vehicle. Nobody else there. Only me and Tevita. I got in vehicle. I told Tevita that my brothers will assault me. I am farid to go home. Want to go to Nadi. He, Tevita went to Kulukulu. Tevita followed up a report at Kulukulu. We then went to my boyfriends place to pick cardigan at Kulukulu.

We came to town then. He was willing to help me. in Nadi is my fathers brother. When we reached town. We reached Vilisites saw m/bus going to Nadi. Told him van was there I want to get in van. He told me change the Money at Total. After changing the money I told him to get of at Vilisites. He told me to get off at Cuvu Police Post. When we reached Nawevu. He told me to sit in front passenger seat. I was seated at back. He forced me to sit in front. He did not say anything else.

At Cuvu Community/Post I told him get off at that post. He then said to drop me at vatudradra. The reason is that police can see where I was going. He did not drop me at Cuvu. On way to Vaudradra he told me bad words about sex. He told me what varasiko did to me. he can do to me. he told me if we had sex he will give me $20. I told him I cannot. I am small. He told me I am big bottom one is small. I was afraid I told him I am pregnant. He told me "au kana Cakava Vakamalua" – meaning I will do it slowly.

He was forcing me to have sex. To get off at Natadola beach. I was frightened. I was looking for steel or stick to smack him. He was driving very slowly. No car was passing between. No traffic. I was frightened. If he stopped I would run away. At Vatudradra he did not drop me there. He dropped me at Maro Mosque. If he dropped me Police will see him drop me.

I asked him why he dropped me there. He told me police should not see me getting off police vehicle. I went towards vatudradra police post after getting of vehicle. Met policeman went into police post. I told police in-charge what happened with Tevita. He told me to sleep at vatudradra Police Post. I slept there. Morning woke up went to Nadi. Came back to village on Friday. Told my parents on Friday. Parents told me to report at Stka Police Station. Came to Stka Police Station on Saturday. Report not taken on Saturday. O/C was not there. Gave report on Monday. Thought he would rape me. Can ID – Tevita - [witness pointed to accused in accused box]"

Cross-Examination – "read statement before I came to Court this morning. Recall everything that took place that night. Recorded statement on 18th April. Did not meet accused before 14th April. His name was in papers police gave me. woman in station took my report. Police wrote statement and gave me the name Tevita Tukana. They wrote in the paper. Varasiko told me to give statement at Police Station. Did inform Shamim and Jonetani I came for assistance. Assistance for report – put report. Report about me and varasiko. Police did not inform me that accused did not handle the case. They called you to come and write my report. Father rang for me to return home.

Told accused was afraid of father and 2 brothers. Also afraid of father. I told accused that he will be responsible if anything happened to me at Vunavutu that night. Wrote things just that happened at Vatudradra. Parents told me to write only what happened in the vehicle. I told accused he will be responsible if something happens to me.

Informed accused, father and brother assaulted me once. He told me to go with him to Kulukulu for break-in report. Told accused wanted to pick up cardigan from boyfriends place. Did not see boyfriend. Told Tevita was cold. Tevita requested me to be there for 5 minutes at Kulukulu. I was going to Nadi. Varasiko told me cardigan was other side – Kulukulu to inform Tevita. Varasiko got in vehicle. We picked cardigan. Varsiko went back. I told accused I will get in van at Vilisites. Accused told me to change the money. Accused did not tell me that he will drop me at town end. He told me he will drop me at Cuvu. Side of Van- Nadi-Suva-nadi. All true. He said big words. Told father. Father told me to report. Mentioned Shell service Station went to 1st Service Station. Not Total Service Station. Accused was at Service Station. Called by Trevor (policeman).

Accused had conversation with Trevor. Trevor told Tevita about big trucks. Was seated at back heard what they talk about. Accused willing to drop me at Cuvu. Nothing else. Accused told me to sit in front seat. Before Cuvu I requested to be dropped at Nadi. Not in statement. Accused did not tell me that my father told him about the relationship with Varasiko. Not lying in Court. Accused asked me what varasiko did during sex. Yes accused questioned me about Varasiko chasing my father and brother with knife. Did not laugh and joke about accused. Not lying. Accused questioned me and he said bad words to me. Accused told me when I get to Nadi to call him. I did call him I did not have mobile phone. All true.

At Maro accused gave me his phone #. I did not seek assistance at Vatudradra. Accused in front of police at Maro Mosque gave me his phone #. A police was there. Officer heard accused give me phone #. Not mentioned in statement that accused warned me not to roam around in Nadi. Went to look for transport at Vatudradra Police Post. Officer called me then I went in. I did not want to lodge on 14th when I came to Stka I lodged it. Father did not force me."

Re-Examination – "statement to police on 18th April. Cannot recall officer. Shown statement. By Kelera. My father was there and Mereseini. Nobody forced me to give the statement. Parents requested me to give statement. Statement is true. Tevita dropped me at Maro Mosque. Vatudradra Police Post is near [from witness box to stadium]. Do not know time I waited for transport. Police called me to go and see him."

Evidence of Pw- 2 – PC 3474 Aisake Raka

Examination in Chief – "Police officer. 10 years as police officer 7 months in uniform branch. 14th April 2011 on duty. Report in at 2245hrs, night shift. Knock off 0700hrs next day. At 0020 hrs at Vatudradra Police Post. On duty. Heard a vehicle go to a shop. I came outside and saw police vehicle beside temple roadside. Saw police vehicle. After 5 minutes saw a fijian girl standing opposite police post. Stopping vehicles towards Nadi. I approached the girl and asked her to come to Post. She agreed.

Asked her for her safety. She agreed to come. I asked her questions how she came there. Where she is going. First she said she came by Taxi going to Nadi (Legalega). Later she said she came in police van and she informed she was influenced by police officer to give $20 to go to natadola. Accused was giving her $20 to go to Natadola. I informed Cpl Josevata (Stka Police Station) she refused to go. She did not say anything else. No idea which police she referred to. Could be officer who dropped her. Who tried to influence her. Cpl Josevata spoke to girl. She slept at Police Post. At 6am she left. Complainant was normal."

Cross-Examination – "on duty on 14th April 2011. Heard vehicle go to Sharma's shop. Distance from Vatudradra to shop- opposite. Vehicle turned a bit far. Saw vehicle from here to pavilion (stadium). Cannot hear conversation from police vehicle. Could not hear people talk at the vehicle. Did not hear accused and victim converse. Victim arrived after 0200hrs 15/4/11. Complainant was on the road. She said she came by taxi. After sometime she told me. a police influenced her to go to Natadola for $20. Complainant did not lodge a report to me. Complainant was normal. I could take report. She did not lodge complaint. "

Re-Examination – "no formal report. Informed Cpl Josevata of her incident. Victim talked to Josevata."

Evidence of Pw- 3 – Corporal 1742 Josevata Vakatawa (Sworn on Bible in English)

Examination in Chief – "22 years as police officer. 3 years in Stka. 14th April 2011 on duty was supposed to do night shift reported at 2100hrs at Stka. Noticed a girl that night was in charge room in civilian. PC Shamim told me she eloped with a boy. Shamim told me Jonetani will take her home. When he knocks off duty. I was in-charge room. Tevita came in. he checked books. I asked Tevita to drop girl at Vatudradra. Tevita – accused. Tevita took vehicle keys. Girl boarded they went. Knowledge for girl to be dropped of at girls place.

After they left father of girl rang. He asked for her. I told him she left in police vehicle. He said girl never reached home – at about 1am 15/4/11. Cannot recall if after called again. He called 3-4 times. 2300hrs took over shift from Shamim. 0200hrs call from Vatudradra and Raka told me Fijian girl at police post. I asked girl what happened. I spoke to girl. I asked she was to be dropped at Vunavutu. She said she told Tevita she is frightened of father and wanted to go to father's brother in Nadi.

Tevita dropped her at vatudradra. Girl said they did not have sex. Tevita asked her to go to Natadola. Girl refused. Tevita dropped her there. Gave her fare to Nadi. Spoke to Raka to keep girl at Police Post until morning. Know girl by face. Can recognize her in Court (pointed to complainant in Court). Complainant talked as if nothing happened. She was ok. "

Cross-Examination – "11-7am shift was present when accused got into charge room. Purpose to check Kulukulu Report. I requested girl be dropped at Vunavutu. Was in charge room at 9am. Did not go through police investigation. Was informed girl eloped. Donot know purpose of visit to charge room. Cannot recall report by accused about Varasiko. Complaiant was afraid to go home of father. Noted on phone conversation. Received call by PC Raka. Shop is opposite police post. If vehicle turned in front of shop – turned in front of police post. Complainant said she was dropped by police. Tone was ok. Not depressed. She did not make formal report to me. Complainants father called 2-3 times at night. Do not recall fathers report. Complainant was frightened of father wanted to go to Nadi. "

Re-Examination – "Received call – PC Raka. Enquired with girl what happened."

Evidence of Pw- 4 – Panai Siliwai (Sworn on Bible in Fijian)

Examination in Chief – "Complaint is daughter. 14th April daughter told me what happened. Complainant said that Tevita past Cuvu Police Post – Before Vatudradra Police Post. Tevita was saying to her to go to Natadola. She said no. he dropped her at roadside. Near police post. Daughter walked to police post. "

Cross-Examination – "14th April lodged report that Sulu was abducted at knife point. Police came to attend report. Accused called me that Varasiko was arrested. Accused told me that Varasiko was released without charge. Cannot recall called accused to chase varasiko from Kulukulu. Complainant told me accused harrased her in police vehicle. Accused said he wanted complainant – giving her $20 to go to natadola. Accused would do what Varasiko did. Accused asked for sex- she refused. Tevita told her he will do it slowly."

Re-Examination – "had night shift before. I did give statement. Statement is true."

Evidence of Pw- 5 – DC 2932 Shamim (Sworn on Koran in English)

Examination in Chief – "Called accused. He met complainant as another report came. It was to be attended by Tevita. "

Cross-Examination – "purpose of complaints visit she came to look for assistance. Report of elopement. Complainant was afraid of father"

Re-Examination – Nil

At the close of the Prosecution case the Court ruled that the accused had a case to answer and the options were explained to the accused.

The Material Evidence of Accused – (Sworn on Bible in English)

Examination in Chief – "on 14th April 2011 I was arranged as Crime man standby. After 0925 hrs received a complaint from Pana Siniwai that his daughter Suluweti was abducted by a Fijian boy that morning. I went with others to attend report at Kulukulu. Late I made courtesy call to Panai he was not satisfied with police action that day. He questioned me on police inaction on varasiko. I was not having good relation with the father.

I came to charge room to check report took full particulars on way when 2 officers requested complainant be dropped at Vunavutu. We went in Police vehicle to Vunavutu when complainant requested to be dropped somewhere else. She told she was assaulted twice by father and brothers after having found having conversation with x-boyfriend. I insisted taking her to Vunavutu. She told me I would be liable if something happened to her. I told her I had to attend report and look at alternative ways to assist her. After attending report complainant asked to pick up cardigan from boyfriend.

I told her I was not in position to assist her. Went to Varasiko's home they talked for sometime. I saw 2 hug and kiss. I warned them. Complainant was going to Nadi. I drove to Stka to drop complainant. Whilst in twon end. I intended to stop and drop complainant. Complainant to hitch a truck to Nadi. I intended to give her $10 fare. She refused. I had to look for other alternatives. I was coming to Vilisites when Constable Trevor called for assistance at BP's Service station. I stopped and approached Trevor and went to him.

Trevor informed me if I could chase a truck which had left for Cuvu. On our way to Vilisites Sulueti intended to a vehicle. White van there not going to Nadi. We went towards Cuvu Police Post on way to Cuvu only conversation I record – I enquired from her what happened in the morning. Because no statement recorded from her. I knew I was bound for non-action for Varasiko. Complainant informed me that she was not abducted that father had put false report in station. She informed me that she had sexual relationship with varasiko.

At Cuvu Police post I saw that bus shelter was far from Police Post- no light. Complainant requested to be dropped to Nadi. I told her I will drop her at vatudradra Police Post. There was nothing else but I questioned her. I told her I was responsible for her. For transporting her from her father. On way to vatudradra complainant repeated Varasiko's name. she wanted to go with Varasiko. Before we reached Vatudradra complainant requested if she be given $20. I told her that I will only give fare from vatudradra to Legalega. I advised complainant not to roam in nadi. I also told complainant if she could seek assistance from vatudradra police post for them to assist her. [DE-1 Police Report, DE-2 Entry 69, DE-3- Entry 91, DE-4 Station Diary – 18/4/11} complainant was coached. [DE-5 Saturday Station Diary no entry to see Station Officer.]

Was caution interviewed and charged. In interview gave name of 2 officers as alibi. No statement of them recorded."

Cross-Examination – "Am currently suspended. 20 years as police officer. Was in crime section. 6 years in crime. Familiar how investigations are carried out. Cannot recall how many sexual cases I have investigated. Familiar with giving evidence in Court. Was arresting officer for Varasiko arrested Varasiko on 14th April 2011. arrested at Kulukulu. On 14/4/11 was told about case of complainant and varasiko. Not aware of relationship before 14/4. arrested Varasiko on complaint after complainants allegation. Not aware of relationship. Did not want to get involved in the case. Was not the I/O.

Complainants statement to be recorded by Mereseini. Had sent message to complainant. Do not know if complainant waited for 2 hours. On way to Kulukulu when officers reported to me to take complainant. She did not want to get off in the village. I questioned her why she did not want to go to village. She was afraid of father and brothers. Attended to report before picked complainants cardigan. Knew father on the day time. He called me on my mobile. Complainant and Varasiko talked for some time. They hugged and kissed. Was interviewed by police. Interview on 22/4/11. hugging and kissing not mentioned in statement. I am not lying, was not questioned on that line. Interview was brief. Complainant wanted to take Varasiko with her. Did not want to assist Varasiko.

Was worried about father then complainant about that time. Mentioned in question 50 about the ride to Nadi. No intention to make sexual advances. No question to me where I intended to drop complainant in Town. PC Trevor told me trucks were carting sand illegally. He was involved with 2 other trucks that were there. So he did not come with me. I did not refuse to drop complainant at Cuvu. No van there for Nadi at Vilisites. No question about van at Vilisites. No question on that line. Interview was generalized. $10 can be used for cuvu to Legalega.

Not lying. No mention to make sexual advances. Complainant if dropped off at vilisites would be picked by boyfriend. She picked cardigan. One truck towards Cuvu. Met private car driver about truck. Complainant requested to be dropped to nadi. Q54 and 55 of interview. Complainant wanted to be dropped at Cuvu Police Post. Before reaching Cuvu she asked to be dropped at Nadi. I intended for her to be dropped at Cuvu, but did not. Did not ask her to sit in front. Did not make advances. Victim is lying. No proper light at Cuvu Police Post. Bus shelter 40-50metres from police Post. Police Post was dark and was the bus shelter. Did not ask complainant about sex. Did not ask her about sex with Varasiko. Complainant is lying. Did not say I will do it slowly. She made up the statement. Did not offer $20 to go to Natadola. She lied to Police. I was not lying . she is lying. She requested for $20 before Natadola.

Retail shop at Vatudradra Police Post. Stopped towards the mosque. I turned in front of police post. Mosque few metres from police post. Not lying. Carried out duty, under duress. I helped the complainant enough. I assisted her enough. I also advised her what to do. No lights at Cuvu. Was Senior most officer that night. Had entrusted the use of vehicle. Complainant is lying. Complainant has lied. Complainant has lied in court. Complainant has lied about being dropped off. She lied being dropped by taxi. She lied she came by taxi. Was from Semo. Complainant warned me if anything happened to her I would be liable. Q.37 generalised. Complainant was victim of domestic violence. Not questioned about my liability to complainant."

Re-Examination – "during interview the Interviewing officer could have suspended interview and checked my witness, revisited the scene and where complainant was dropped off. Lot of assumption in this case.

The 2nd witness for the accused was: PC Trevor

Examination in Chief – "6 years in Stka. Traffic section. 14th April this year 24 hour traffic stand-by. 14-15th April shift. 14th April visited police station. 1t 10pm. At charge room. 3 officers on duty. Civilian in charge room, a girl. I walked towards town after that. Coming along BP service station. Stopped vehicles. Stopped 2 trucks that carted sand. Tried to stop 3rd vehicle did not stop. Kept going towards Nadi. Sought assistance from accused. Was beside BP when I sought assistance. Police parked at BP. I called officer asked him to give chase. Saw someone else in vehicle, a girl. Seen girl before. Same girl in charge room.

I did not come near vehicle was 10-20 metres away from vehicle. I brought 2 drivers to station. Did not see van from Nadi. When I went past Vilisites. Saw only one white van at Vilisites – owners van. Did not note registration No. accused gave chase to Cuvu.

Cross-Examination – "24hrs shift. At Stka Town. Met accused at town. He was in police vehicle. Accused was with complainant. Girl at back. Girl is sulueti Kavu. After I met accused. They left. I remained there. Did not meet them again. No van at Vilisites. Accused and complainant left before I left. . the time after they left – I went after 10minutes. No idea what happened at Vilisites.

No Re-examination.

Analysis of the Evidence

The Court has scrutinized all the evidence of all the witnesses in this case. The Court has also noted the demeanor of all witnesses.

In this case apart from the elements of offence. The other issue is the credibility of witnesses. The evidence of the prosecution witnesses and the defence is opposed and the Court needed to scrutinise the credibility of the witnessess in addition to the elements of the offence.

The Court has noted some inconsistencies in the evidence of some of the prosecution witness's evidence. For instance the complainant in her examination in chief stated "I went towards vatudradra police post after getting of vehicle. Met policeman went into police post. I told police in-charge what happened with Tevita." Later in cross-examination she stated "I did not seek assistance at Vatudradra. Accused in front of police at Maro Mosque gave me his phone #. A police was there. Officer heard accused give me phone #."

The 2nd Prosecution witness gave as evidence in examination in chief that "At 0020 hrs at Vatudradra Police Post. On duty. Heard a vehicle go to a shop. I came outside and saw police vehicle beside temple roadside. Saw police vehicle. After 5 minutes saw a fijian girl standing opposite police post. Stopping vehicles towards Nadi. I approached the girl and asked her to come to Post. She agreed."

The inconsistency the Court notes is in the version by the complainant that she went towards the Police post, whereas PW-2 states that "I approached the girl and asked her to come to Post". These are two diametrical evidences.

The other evidence by the complainant is that the "Accused in front of police at Maro Mosque gave me his phone #. A police was there. Officer heard accused give me phone #.". The evidence by the officer who was there is "Cannot hear conversation from police vehicle. Could not hear people talk at the vehicle. Did not hear accused and victim converse." This again is inconsistent evidence of the complainant and another prosecution witness.

The other notable issue is that those who came across the complainant described her to be normal following the incident. Whereas she said she was frightened and if she had the chance she would hit the accused with stick or steel. The Court finds that if something as serious and is alleged by the complainant, she surely would have been distressed and have her demeanour would not have been normal as was noted by the other witnesses.

The Court also noted that there was no evidence by the complainant that she talked to Officer Josevata while she was at the Vatudradra Police Post. The other important consideration by this Court is the lies by the victim when she met the officer at the Vatudradra Police post that she came by taxi and that she was from Semo. These evidences by the complainant go to her credibility. The Court does not believe her for her lies and the inconsistencies with other prosecution witnesses.

The Court has noted and analysed all the evidence and finds the accused is to be believed. He was credible even in tough cross-examination by the Prosecution Counsel.

The Court notes that such cases will not arise if the Police Force adopts proper practices when female complainants/accuseds are dealt with. There clearly is a need to have female officers providing company during interviews, any travel to and from the Police Station in police vehicle. Similarly The Police must quickly be able to realise deviant behaviour of persons and be able to get parents involved and guide and counsel the person and the parents and follow up until the police is satisfied that things are under control.

The Court is not satisfied beyond reasonable doubt on the evidence tendered as to the accused's guilt.

The accused is acquitted of the charge.

28 Days to appeal.

Chaitanya Lakshman
Resident Magistrate
Sigatoka
13th January 2012