State v Vola [2011] FJMC 180; Criminal Case 798.2010 (30 November 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 798/10

BETWEEN

THE STATE

AND

LOSANA VOLA

JUDGEMENT

1. The accused was charged with three counts. The statements of offence and particulars of offence are as follows;
   

1st count

Statement of offence

Criminal Trespass: Contrary to Section 387(1)(a) of the Crimes decree No 44 of 2009

Particulars of offence

Losana Vola on the 26th day of November 2010 at Lautoka in the Western Division entered upon the property of Tema Hue with intent to commit an offence.

2nd Count

Statement of offence

Assault causing actual bodily harm: Contrary to Section 275 of the Crimes Decree No 44 of 2009

Particulars of offence

Losana Vola on the 26th day of November 2010 at Lautoka in the Western Division assaulted Tema Hue thereby occasioning her actual bodily harm.

3rd Count

Statement of offence

Damaging Property: Contrary to Section 369(1) of the Crimes Decree No 44 of 2009

Particulars of offence

Losana Vola on the 26th day of November 2010 at Lautoka in the Western division wilfully and unlawfully damaged two plates two bowls valued at $ 21 the property of Tema Hue.

2. The alleged offences were committed on the 26th November 2010. The case was taken up for hearing on the 10th May 2011. The Prosecution called two witnesses and tendered the caution interview and the charge statement by consent. After the Prosecution case was closed the accused and another witness gave evidence.
   
3. The accused was acquitted from the third count after the Prosecution case was closed. There was no evidence provided by the Prosecution that the Accused damaged the properties, namely two plates and two bowls valued at $ 21 belong to the Complainant. Neither the Complainant nor the Prosecution witness said in evidence that the accused damaged the plates and the bowls. It was revealed that no witness has seen how the items were damaged. According to the evidence led by the Prosecution the said items had been already damaged. In the circumstances the Court acquitted the accused from the third count after the submissions for no case to answer by the defence.
   
4. There was no dispute with regard to the date, time, place and the identity of the accused.
   
5. Now I will consider whether the Prosecution proved beyond reasonable doubt that the accused committed the offence of Criminal Trespass, which is the first count.
   
6. The Complainant gave evidence that on the 26th July 2010 she gave a call to the accused to request her to return some utensils. The Complainant said that she gave the phone to her mother to talk with the accused. She further said;
   

" After that I gave the phone to my mother to talk with her. While my mother was talking to her I drove to the Pastor's home."

7. The Complainant said that when she came back with the pastor and his wife she saw some soldiers around the compound and she saw the accused and her husband had already entered into her compound without her consent. She said that she did not allow the accused to come in to her compound.
   
8. During the cross examination the Complainant said that she told the accused to take the utensils to the eye department and to give it to a Sister in the eye department. However later she said that she heard her mother telling the accused to take it to the Sister in the eye department. Although the Complainant said in examination in chief that she left home after giving the phone to her mother, she contradicted her evidence during the cross examination as follows;
   

Q: Did you tell her to keep the utensils?

A: Yes I heard my mum telling her to take the items to sister Kinny the next day.

Q: How long was your mother talking to her on the phone?

A: 5 minutes

Q: I put to you that your mother told the accused to bring the utensils to your home?

A: Not to my place. To the eye department

Q: You heard your mother telling the accused to leave the items with sister Kinny?

A: yes

Q: So you heard the entire conversation for 5 minutes that was with your mother and the accused?

A: yes

Q: Did you tell the contents of the conversation to the Police?

A: Yes I did.

9. But it was brought to the notice of the Court that she has not stated any thing to that effect in her statement to the Police. It seems that the Complainant's evidence with regard to the telephone conversation to be very vague. Later in the cross examination the Complainant answered in the following manner;
   

Q: When your mother talking to her over the phone was your mother swearing at her?

A: I cant recall

Q: How can you say you were not there?

A: I was in and out

10. Although the Complainant said that she did not invite the accused to her place, the prosecution could not produce sufficient evidence to buttress that. A doubt was created by the defence whether the Complainant's mother has invited the accused to their place. Further it was revealed that when the accused and her husband went to the Complainant's house there were other people. The Complainant admitted that her house was full of her relatives when she returned. Further the accused and her husband gave evidence that the Complainant's brother asked the accused and her husband to wait for the Complainant to come and it was not denied or challenged by the Prosecution during the cross examination.
    
11. I have carefully considered evidence given by the Prosecution witnesses. I am not satisfied that the Prosecution was able to prove the charge of criminal trespass beyond reasonable doubt.
    
12. Now I will deal with the charge of assault causing actual bodily harm. The Complainant said in evidence that;
    

"Losana spoke to me in an angry tone saying "hello" which I replied don't speak to me. With that she swung her fist on my left cheek. She attempted to throw another one. Pastor's wife pulled me away."

13. Further the Complainant tendered her medical report marked as Prosecution Exhibit 5. The history given by the patient reads as; " allegedly punched on the face by some Losana from eye department." As per the medical report the injury is described as an injury consistent with direct blunt trauma ie. Punch.
    
14. It should be noted that the Complainant was not asked a single question by the defence during the cross examination regarding the assault. I am satisfied that the evidence given by the Complainant regarding the assault remains unchallenged by the defence.
    
15. The Prosecution witness, Mariama Blake corroborated the Complainant's evidence with regard to the assault. She said after the exchange of words the accused all of a sudden punched the Complainant. She said that she separated the Complainant from the accused. During the cross examination it was suggested to the witness that the accused never punched the Complainant. However the witness confirmed that she saw the accused punching the Complainant.
    
16. It appears from the evidence, that the parties were exchanging words before the punches were thrown. The Prosecution witness admitted that the Complainant's mother also threw a punch on the accused. Although there were slight contradictions in the Prosecution witnesses' evidence, all in all the Prosecution evidence was strong enough to prove that the accused did assault the complainant, beyond reasonable doubt. It is accepted that during an unexpected brawl witnesses cannot be expected to give a hundred percent word to word similar versions. It is humanly possible for witnesses to describe a tensed situation in a slightly different manner from each other's version. In such situations all what the Court is expected to consider is whether the evidence is sufficient to prove the elements of the offence. In this case I am satisfied that the prosecution has proved the charge of assault causing actual bodily harm beyond reasonable doubt.
    
17. In the circumstances I decide to acquit the accused from the first count and to convict her for the second count of assault causing actual bodily harm.
    

28 days to appeal

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

30.11.2011