State v Wati [2011] FJMC 26; Criminal Case 1060 of 2008 (9 March 2011)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 1060/08

STATE

-v-

DAYA WATI

Police Sergeant Volavola for the state
Ms. Marie Chan for the accused

Judgment

[1] The accused is charged with the offence of Criminal intimidation. The charge read as follows;

CHARGE:

Statement of Offence [a]

CRIMINAL INTIMIDATION – Contrary to Section 330 (a) of the Penal Code Act 17

Particulars of Offence [b]

[2] DAYA WATI d/o RAM PHAL on the 9th day of August, 2008 at Nasinu in the Central Division without lawful excuse and with intent to cause alarm threatened Om Prakash s/o Gaya Prasad with a cane knife.

Summary of evidence

[3] At the trial, prosecution called following witnesses.

PW 1- Om Prakash: The complainant said that he is married to Ms. Daya Wati, the accused. They have three children from this marriage and separated at the time of incident, but living in the same house together. They do not talk to each other. On 09-08-2008 after 9.30pm he went to the home after works. His wife was not present and she has gone to the live music show at Nausori. There was an assault incident before this case so he thought it is better to move the house. So, he called his brother for assistance. Complainant arranged a carrier and meantime his brother Navindra Prakash came with one Kunal to assist him loading the stuff. He said that he only wanted to get his bed and wardrobe out. They managed to dismantle the bed and put it to the carrier. The PW1 said then accused came in a Taxi and got off in the driveway. She entered into the house. He said that the accused started swear at him in filthy manner. While she was swearing at him he remained silence. The mattress was inside the room so the complainant tried to get it out of the house. It was 5 feet width and heavy mattress. He almost pushed it near to the front door. Then the accused took the cane knife and threaten to kill him. Further complainant said “I saw the knife, I was afraid. Then she walked straight towards me with the knife. She tried to cut the mattress first. Then she threatened she would kill me...It is a cane knife that we used to cut chickens, It is very sharp. I was really terrified when she threatened me with the knife. Then she attacked me so I pushed the mattress towards her to save my life. I was near the door, I moved out quickly. I ran out then I reported this incident to the Tuirara Police post.”

[4] The complainant was cross examined at length by the defence. The complainant said that they had marital differences that the accused stopped talking with him in 2007. He cooked himself and the accused looks after the children. Complainant said that his neighbor is not willing to give evidence on behalf of him. They both own the house. Complainant further said that the accused did not sleep on the mattress or her son but he left bigger mattress for them. He categorically said his son or Daya Wati did not use the mattress to sleep. Witness admitted that the accused Daya Wati did some contribution (Deposit) from her provident fund to get the house. He said both contributed. Complainant denied that the accused bought tables, chairs and clothes for the house. Complainant said that he was moving out of the house and he did not tell to his son that mattress has been sold to his brother. Defence suggested that the accused never threaten to the PW1 and she used a pair of scissors to rip the mattress. This suggestion was denied by the complainant. He said the mattress was a matrimonial property and it does not belong to the accused or her son. It was used by his son before one year and he could sleep another bigger bed. Victim said he did not punch the accused he just pushed the accused away. The complainant further adduced that Kunal; a one of his witness moved to the West and changed his mobile number and cannot be located and called as a witness. He denied because of his wrong that neighbor is not giving evidence on his behalf. PW1 said he did not burn accused clothes on that day but he burnt one of his torn sweater. Victim said they were bailed out and he thought it is good to move away and he lived 20 years in that house before he thought to move.

[5] In re examination he said because of previous assault they were not in good terms. He said he knows the difference between knife and scissors and he was attacked by a cane knife by the accused.

[6] PW 2-Navindra Prakash: This witness said that victim is his elder brother who lives in Tuirara. He said that victim lives with his wife and three children. On 09-08-2008 after 9 pm he said that he received a call from this brother and was informed that brother wants to shift the house as the accused and victim was not in good terms. He said he hired a van and went to his brother’s place with Kunal. When they were loading belongings the accused Daya Wati arrived. He identified the accused. He said Daya Wati swore at them. They were at driveway and Daya Wati threatened them not to enter the house. He said that he heard that Daya Wati threatened if he removes any belongings the she would cut his brother Om Prakash. He said while PW1 was carrying the mattress PW1 asked him to help to carry the mattress and he moved to the verandah, near the front door. He adduced “While Om Prakash was taking out the mattress from inside the house, he asked me to come and help him to carry the mattress, and then I went to the verandah. It was a king size mattress. I was standing near the doorway to help my brother. Then Daya Wati arrived with the cane knife and tried to strike my brother Om Prakash, my brother use the mattress defend him. Om Prasksh pushed Daya Wati with the mattress...when Daya Wati struck with the cane knife; I was standing 2 metres away from them” This witness identified the cane knife which was shown to him in the open court as the weapon used by the accused at the time of incident. He said that property which was loaded they took it to the police and showed to them; those were not sold to him and it is lying at his place now.

[7] Defence cross examined this witness also at length. He said his brother phoned and said that he wants to move the house. He said his house is big enough to stay with his brother. He said while the accused arrived, the wardrobe was in the verandah and bed was in the carrier. He said that he did not go inside of the house but whole incident happened in front of him. Defence suggested the witness did not see the incident, which PW2 denied. Defence asked about the identity of the knife. Witness admitted that was no green tape on the top of the handle of the knife. Answering to the Defence’s questions this witness reiterated that Daya Wati stuck on his brother with a cane knife and he managed to escape. He also told that children were sitting room at that time. Then Defence suggested it was the accused who first went to the police post, but it was denied by the witness
.
[8] In re examination the witness confirmed the accused used cane knife and not the scissors to threaten the victim.

[9] PW3- WPC 3803 Karalani Bawaqa Batiratu: She said on 09-08-2008 at 9pm she received a complaint from Om Prakash. Upon the complaint two officers went to the crime scene and PC 3672 recovered the cane knife. She further said that she recorded the Daya Wati’s statement on 12-08-2008. That interview note was marked as EX-1.

[10] In cross examination she told though they have informed Daya Wati to come to the police she did not come to the police station till 12-08-2008. Police Witness said she did not visit the site. She said in the interview the accused intended to get legal assistance when she explained accused’s rights. While her right was explained she opted to get legal assistance at the stage of court proceedings. There was a suggestion by the defence that her right to represent by a counsel was violated at the police station. But it is to be noted that her interview note was accepted without any objection by the defence, it was marked as EX-1. It appears that there was no miscarriage of justice occurred by all means her version was recorded without any duress or change and the accused accepts the context of the statement is true and correct. It is to be noted on the accused evidence, she did not deviate her version which was given to the police (EX-1).The principle of right to counsel is a fundamental principle, but recently decided judgments indicate this right is not absolute right. It was held in Eliki Mototabua v State CAV 004 of 2005S, Seremala Balelala v The State Criminal Appeal No AAU003 of 2004, Samuela Ledua v The Sate, Criminal Appeal CAV004 of 2007. The test is whether any miscarriage is occurred in the absence of a legal counsel to be considered by the court. I am of the view that there were no miscarriage of justice occurred in this case. Thus, this objection is overruled. This witness was further cross examined. She admitted that the accused was in police custody then was bailed out next morning. She said the knife was kept in exhibit room and she did not tamper or see any green tape on it.

[11] PW4- Sergeant 1471 Falemaka: This witness told that he formally charged the accused for criminal intimidation. The charge sheet was marked as EX-2.

[12] In cross examination he did tell that he did not review the evidence and he acted on the instruction of officer in charge.

Then prosecution closed their case.

[13] Since there is a case to answer the defence rights were explained, the accused opted to give sworn evidence.

[14] DW1-Daya Wati (the accused): She said on 08-09-2008 she knocked off at work 1pm then came home. She cooked dinner for children because she had intended to go for live show at Nausori. She asked her children to accompany her but since they wanted to play video games they refused to come with her. Then at about 5 pm she left to the live show with his girl friend’s family. While she was in the show at about 9 to 9.30pm she got a text message from her son stating her husband has come to the place and selling the stuff. Then she took a Taxi then came home. She saw her husband, brother in law and Kunal were in the compound. When she went inside she saw her clothes were on the ground and wardrobe had been taken to the sitting room. She said she actually cannot remember where her husband was, while she saw this incident she was upset and started swearing at her husband. She then took pair of scissor and started to rip the mattress and it bounced back. Further she said that matter was used her small son Akshay and her to sleep and the PW1 knowingly removed the mattress. All her clothes were piled up beside the wardrobe in a corner. She said when she ripped the matter the victim started laughing, she said she did not recall whether she tried to hit the victim by scissors. Later she was removed by her son Shelvin. She said she did not hold a cane knife at that time. But she said there was a cane knife in her house. She denied the offence. Further she adduced “ I spit on his face then he hit me, I said I am going to take him to the courts for hitting me...I must have said that I would kill him, but I did not kill him or tried to kill him. I was wild and I spat on his face and I came to the police post” She said though she lodged a complaint to the Tuirara police post, the police refused to register/record it. Then she went to medical examination and came after 2 am. By that time the mattress and wardrobe were taken away. Finally she told though she did something but she did not intent to harm the victim.

[15] In the cross examination the accused admitted that she uttered to kill him but she did not intent to do it. She said police did not care about her complaint.

Then defence rested.

The Law

[16] I reproduce Section 330(a) for clarity.

“330(a) threatens another person or other persons whether individually or collectively, with any injury to his or their person or persons, reputation or property, or to the person, reputation or property of anyone in whom that person is or those persons are interested, with intent to cause alarm to that person or those persons, or to cause that person or those persons to do any act which that person is or those persons are not legally bound to do, or to omit to do any act which that person is or those persons are legally entitled to do, as the means of avoiding the execution of such threat; or”

[17] As mentioned in State v Saumaisue [2008] FJMC 1; Criminal Case 015.2008 (7 November 2008), the elements that are to be established beyond any reasonable doubts are;

i. without lawful excuse,

ii. with intent to cause alarm, and

iii. threatened.

[18] To succed a charge of criminal intimidation threat must be communicated to the victim. (Mateo Rokovesa Tusega v Reginam (1966) 12 FLR 168 per Mills-Owens, CJ)

[19] As per MacDuff, CJ in Attorney-General v Asgar Ali (1965) 11 FLR 23, the threat to cause alarm can be inferred from the type of the threat itself and any other relevant facts and consequences. Therefore the threat or intimidation varied case by case and court can draw an inference considering the adduced evidence whether there was a threat.
[20] In State v Aziz [2006] FJMC 19; Criminal Case No 357 of 2006 (6 September 2006) Ajmal Gulab Khan RM convicted the accused and observed "He was frightened by the actions of the accused and his words "I will finish you off"."

[21] Therefore the actions of the accused and words uttered to the victim have to be taken into account when deciding a criminal intimidation case.

[22] Who has the burden to prove the elements of charge? This is a criminal case. It is well establish that the general rule is that the prosecution bears the legal burden of proving all the elements in the offence necessary to establish guilt of the accused – Woolmington v DPP (1935) AC 462. In the Court of Criminal Appeals his Lordship Viscount Sankey articulated "No doubt throughout the web of the English Criminal Law one golden thread is always to be seen and that is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt."

Analysis of the evidence

[23] In keeping mind above principles now I evaluate the evidence placed before me. The PW1 clearly said that he was threatened by the accused. In verbatim "Then she walked straight towards me with the knife. She tried to cut the mattress first. Then she threatened she would kill me". Because of her threat he ran away. This prosecution version was corroborated by the PW2. PW2 was the eye witness of this case. The PW1 and PW2 's evidence are consistence with though they had been cross examined at length. Defence filed lengthy written submission. On that it was suggested that the Kunal which was not called to give evidence had made a different version to the police in the disclosures. Defence enlightened the court about it. Unfortunately neither Kunal was called as witness by the defence nor it was marked through the police witness. Therefore Kunal's statement to the police cannot be utilized to contradict the other witness as it is hearsay. Therefore this court rejects this submission. Defence alleges that the Prosecution did produce inadmissible evidence. The accused interview statement as EX-1 and charge statement as EX-2 were marked and they did not mark any other statements. Therefore I hold they did not produce inadmissible evidence as stated in the written submission. But Kunal statement may be inadmissible as he was not a witness for both parties. But the officer who recovered the cane knife was not called as a witness. Cane knife was not shown to the PW1. But PW2 identified the cane knife. Since PW1 has not identified the cane knife and officer was not called to identification, I refuse to accept the cane knife as the knife which was used for threatening. But I hold refusing does not vitiate the conviction as gesture of the accused itself enough for conviction. Weapon is not mandatory to produce to prove a charge and the act itself proves the charge. Threat to cause alarm can be inferred from the type of the threat itself. The accused admitted that she swore at the victim and told that she would kill him. But she did not intent to kill him. She said she used pair of scissors to rip the mattress. This (accused) story is improbable. On the other hand credibility of a witness could be decided on following factors.

[24] Test of Spontaneity- whether complain was lodged within reasonable time?
In R v Lillyman (1896) 2 Q.B. 171 Hawkins L.J. said that evidence of the fact that a complaint was made is admissible provided it was made as speedily after the acts complained of as could reasonably be expected. His Lordship said that it is for the trial judge who tries the case to decide whether the complaint is made as speedily as could reasonably be expected and that here is no one else who can decide it.
[25] I note that when the threat occurred the victim has gone to the police and lodged the complaint. It proves his case in this test. By the time, after 3 days she went to give a statement in this regard and there was no question in cross examination put to the police witnesses whether her complaint was refused to take down on that day itself. The accused said police did not accept her complain, but the victims statement was recorded and it is dubious that she had gone to the police on that date. That means the accused has evaded the police three days.

[26] In R v Cummings (1948) All E.R. 551 Court of Criminal Appeal held that it was for the judge who tried the case to decide whether the complaint was made as speedily as could reasonably be expected. Once the trial judge holds that it was an early complaint, an appeal court could not interfere with the exercise of his discretion as to the admissibility of the evidence.

In my opinion, in the present case, PW1 and PW2 made the complaint as early as could have been reasonably expected of them.

[27] Test of Probability or improbability-Can the parties' version tenable or be accepted?

The accused said that she took pair of scissor .But victim was trying to take her and son's bed. Why did she want to rip it or damage it? She said 'if she cannot have the mattress then no one can have it'. Will prudent man believe this version? According to the PW1 there was a bailed condition and he wanted to stay away from the accused so he thought to move out. This version is fairly acceptable to this court as they had marital differences.

[28] Test of Impartiality- Are the witnesses having any interest about the case.
PW2 is the brother of the victim but it cannot be reckoned the he told untruth to court because of his brother. PW 2 is an eye witness and evidence is tenable.

[29] Test of Consistency or inconsistency- whether the evidence is contradicted or consistence with per se and inter se? There were no fatal inconsistencies of the prosecution evidence, it is court to decide whether that inconsistencies are fatal.

[30] To take in to the account of inconsistencies court should note where deliberate falsehood is involved in the evidence. The famous legal maxim" Falsus in uno,;falsus in omin omnibus (False in one thing, false in all) plays vital role. I could not find any English authority but in THE QUEEN v. V. P. JULIS and two others 65 NL Lankance bote both couh countries systems are similar (commonweaonwealth, common law) this decision is persuasive for me to reach a conclusion.

Applying the maxim falsus in uno, falsus in omnibus (He who speaks falsely on one point will speak falsely upon all), BASNAYAKE, C.J. held

"Falsus in uno, falsus in omnibus or Falsum in uno falsum in omnibus, both forms are in use, (he who speaks falsely on one point will speak falsely upon all) is a well-known maxim. In applying this maxim it must be remembered that all falsehood is not deliberate. Errors of memory, faulty observation or lack of skill in observation upon any point or points, exaggeration, or mere embroidery or embellishment, must be distinguished from deliberate falsehood. Nor does it apply to cases of conflict of testimony on the same point between different witnesses.... witnesses. In Raksh v. The Queen P. C.) (1958) A. C. 167 at 172. the Privy Council in applying this maxim to a case of co-accused in a case from British Guiana said, " Their credibility cannot be treated as divisible and accepted against one and rejected against the other."

In the same judgment WEERABOORIYA, S.P.J.-

"The maxim falsus in uno falsus in omnibus, is not an absolute rule which has to be applied without exception in every case where a witness is shown to have given false evidence on a material point. But when such evidence is given by a witness, the question whether other portions of his evidence can be accepted as true should not be resolved in his favour unless there is some compelling reason for doing so."

[31] In Attorney General of Hong Kong v Wong Muk Ping (1987) 2 W.L.R. 1033 the Privy Council observed as follows:-

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

[32] The crux of defence is honest claim of right and provocation. In their written submission defence drew this court attention to the section 8 of the Penal code and Section 38 of the crimes Decree 2009. They say it is a complete defence. I reproduce these sections for clarity.

"Section 8. A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud."

Section 38. (1) A person is not criminally responsible for an offence that has a physical element relating to property if —

(a) at the time of the conduct constituting the offence, the person is under a mistaken belief about a proprietary or possessory right; and

(b) the existence of that right would negate a fault element for any physical element of the offence.

[33] I note this charge is criminal intimidation. This charge is not relating to a property such as Theft, damaged to a property, arson, mischief ...It can be seen in this case that properties were involved and based to the intimidation incident but charge is clearly not relating to a property. Actus Reus (Physical Element) for charge of intimidation is threatening. Mens rea (Mental Element) is intent to cause alarm. No property is subjected to the offence. I therefore hold those defences have no application to this case. Hence I refused it.
Conclusion

[34] I have heard the evidence of every witness with a great degree of caution and in the light of the above guidance. I have considered every aspect of this case in great detail and very carefully.

I have watched the demeanor of witnesses (as well as the accused's) in the witness box and I find PW1 and PW2 to be more credible witnesses than the accused. There has been minor inconsistencies in evidence of prosecution .I do not consider them as creating any suspicion in the prosecution case. I am satisfied he way accused behaved at that moment caused criminal intimidation thereby charge is proved beyond reasonable doubt.

[35] I am satisfied that the prosecution has proved its case against the accused beyond reasonable doubt.

[36] I therefore convict the accused as charged.

[37] 28 days to appeal

On 09th March 2011, Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu