State v Vakasukawaqa [2011] FJMC 96; Criminal Case 1115.2010 (30 August 2011)

IN THE MAGISTRATE’S COURT OF NASINU

CRIMINAL CASE NO.1115/2010

STATE

VS

AKISI VAKASUKAWAQA

Sergeant Volavola for the State
The accused present and appeared in person

Judgment

[1] The accused is charged with the offence of Assault Occasioning Actual Bodily Harm and damaging property. The charges read as follows;

CHARGE:

Statement of Offence [a]

First Count

[2] ASSAULT OCCASIONING ACTUAL BODILY HARM – Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

[3] AKISI VAKASUKAWAQA on the 17th of October, 2010 at Nasinu in the Central Division assaulted one ASHBEEN KOUR thereby occasioning her actual bodily harm.

Statement of Offence [a]

Second Count

[4] DAMAGING PROPERTY – Contrary to Section 369 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

[5] AKISI VAKASUKAWAQA on the 17th of October, 2010 at Nasinu in the Central Division wilfully and unlawfully damaged the tables valued $200.00, jewelleries valued $750.00, ladies handbag contains $650.00, false teeth valued $200.00 all to the total value of $3,130.00 the property of ASHBEEN KOUR.

Summary of evidence

[6] The accused pleaded not guilty to the charge. Hearing was done on 20-05-2011,. At the trial, prosecution called following witnesses to prove their charge.

[7] PW 1- ASHBEEN KOUR; the witness said the she is self employed. When a carnival comes she puts her sale items on a stall and sells. She lives with her fiancé Shiek Imran Ali at Nabua. She knows him for three years and living in a de facto relationship with him. His fiancé’s wife is AKISI VAKASUKAWAQA, the accused. On 17th October 2010, at about 9.45-10.00pm she was at Valalevu ground with her sale partner Ms. Kumar. She said that they put a stall and toys and other items were sold. While she was in the stall, she saw the Aliti, the accused. Then she went inside the stall because she knew when Aliti saw her she always swears her. Then the accused punched her mouth causing her false teeth came out. The accused was pulling her down and she was chocking. The accused kicked the table. She ransacked the toys, tent and jewelleries. They were damaged. The witness said her false tooth was $200 and it damaged. Her hand bag was also missing. Then, the accused new fiancé came and hold her back and took her away. Then, she reported this matter to the police and she was sent to medical examination. The Medical was tendered as Ex-1.

[8] In cross examination she said that the accused’s son was there and he was crying. She did not hit him but she prevented him to go out because it was raining. The witness said that it happened inside the stall not outside the stall. The accused suggested that the witness punch the accused first and she was outside. But the witness denied this suggestion. The accused suggested that police was there, nothing happened. The witness said if police was there, this could have not been happened. The witness said because of this commotion the people came and lifted her property. Even her hand bag was missing. Then, the accused suggested how she can be charged to damaging property. Then, witness said the accused pulled down the tent and she was more concern about the accused because she pulled up her top. The accused said nothing happened. She said she did not know what happened. The accused suggested to the witness that simple sales girl how become a business lady? That is because of her husband. In replying the witness said everybody has plans for their future. The accused suggested by knowingly the witness destroyed her marriage life. The witness said the accused destroyed her marriage by filing divorce case in family court Nausori.

[9] In re examination the witness said she was sitting inside the 10 x 10 stall. There was no police and she went to the police. The accused son’s name is Esan and his custody was given on Fridays to his father her fiancé. Boy is 7 years old little bit stubborn, but she never touched him. But, later in this case, according D Ex-1, it proved this victim has assaulted the accused’s son and she deliberately lied to the court that she never touched him. Value of her evidence is diminished by this deliberate lying.

[10] PW 2-Constable 4169 Raibala; this witness said that he was on duty on 17-10-2009. She received a complaint from PW1. The witness said that PW1 claimed that she was assaulted and her property was damaged by the accused but she cleaned up. The witness recorded the statement and victim was sent to the hospital. At about 1am, few hours later, she went to the place. The stall was normal, one Indian lady was there. Then, she informed the accused and her statement was recorded. By agreement of the accused, it was tendered as Ex-2 and charge statement was tendered as Ex-3. There were no cross examination by the accused. Then, the prosecution closed their case.

[11] After that prosecution closed their case, since there was a case to answer, the accused was explained and given her rights to call the defence. Then the accused did give any evidence, and called another witness.

[12] DW1- The Accused: AKISI VAKASUKAWAQA: The accused said on that particular day the accused went to the carnival with her de facto husband and another friend. She said at the carnival they saw that her son was sitting on the ground. They brought a piece of cake and juice bottle for him. Then, her friend gave those snacks to the child. While child was having the snack, the PW1 came and grab the juice bottle. Thereafter, Pw1 assaulted the child in front of the accused. The accused was 2 metres away from the scene and saw the incident clearly. Then, she said in her evidence; “I could not hold myself, I went in front of the stall. I asked her (PW1) why did she hit my child? But she never gave answer to that. Then, I asked her where is my legal husband, but he was not there at that moment. Then she (PW1) pulled my top, she scratched my chest, I tried to free myself, I defended myself, I hit her, she hit me, we both got injured. Then I went straight to the police station same day. My son came running behind me; I wanted to do my son’s medical, since I got the custody of my child. At that time my legal husband came to the police station he objected to child being sent to medical examination, because he is small, but I manage to record child’s statement” . This Statement was tendered as D-EX-1. The accused said she got medical and it was handed to the police, but she did not have a copy of that. But it seems that police did not file charge against the PW1.

[13] In cross examination; the witness said that she is not happy about that her legal husband involvement with the victim. She said she got the custody of the child with access to his father. When they saw the child at the carnival, they bought snack for him. The accused further said that she was not angry at that moment. The accused said that she did not want to create a problem, but she saw that the victim hit her child. When she inquired why she hit the child then, Pw1 pulled her top and started to fight. Then, police prosecutor asked why did not you go to the police when you saw your child being hit? The accused said that she wanted to know the reason. But the victim never gave the answer; instead she grabbed her top and assaulted her. The accused said that she can’t see her child was crying. She further adduced that this is not first time that she lodged complaints against the victim, but police said this is a family matter. But no steps were taken. She said she was angry, but she did not start the fight. She admitted the fight could have been avoided if she went to the police, but she said though she complained to the police against the PW1 several times, the police never took action against the PW1. She said there was no damage to the property she did not damage any property of the PW’s.

[14] Then Defence called DW 2-Ronesh Prasad: He said that he is in de facto relationship with the accused. While they saw the boy they gave the juice and snack to the de facto’s son. Firstly son refused to take it when he saw the mother he took it. Thereafter, they watched that son was eating the stuff. Suddenly the lady was hitting the son. Then the accused went and asked what was the reason for hitting. Then the witness said they quarrelled. The PW1 tried to grab the accused inside and the accused tried to came out side. Some Fijian boys were there and tried to separate them. Then they went to the police station. The legal father of the child came to the police and refused to take the child to a doctor. But they manage to record child’s statement. There were no damages.

[15] In cross examination the witness said that the accused is in de facto relationship with him. The witness confirmed the accused’s evidence. The witness was questioned why did not he ask the permission of the PW1 to give snacks? He said he never expected this type of problem would arise. The accused was 20 metres away from the stall and they both saw that PW1 was hitting the child. The witness said when problem started the accused was outside the stall. The victim grabbed her inside.

[16] Then the accused closed her case.

The Law

[17] The Section 275 of the Crime Decree 2009 provides definition for ASSAULT OCCASIONING ACTUAL BODILY HARM that is;

275. A person commits a summary offence if he or she commits an assault occasioning actual bodily harm.

Penalty — Imprisonment for 5 years

[18] The Section 369(1) of the Crime Decree 2009 provides definition for DAMAGING PROPERTY that is;

369. — (1) A person commits a summary offence if he or she wilfully and unlawfully destroys or damages any property.

Penalty — Imprisonment for 2 years, if no other punishment is provided under any other provision of this section.

[19] Elements of the charge of assault occasioning actual bodily harm are (1) assault (2) occasioning actual bodily harm

[20] Elements of the charge of damaging property are (1) any person (2) wilfully and unlawfully (3) destroys or damages (4) any property.( State v Koya [2011] FJMC 58; Criminal Case 376.2009 (12 April 2011) . To prove charges, the prosecution should prove all the elements were present of the commission of the act.

[21] State v Tugalala [2008] FJHC 387; HAC0025.2008 (28 April 2008) Her Ladyship Justice Nazhat Shameem observed “Section 245 of the Penal Code creates the offence of assault occasioning actual bodily harm. I consider that it is a lesser offence in relation to section 224 of the Penal Code. It has two elements, one is committing an assault, and the second is occasioning actual bodily harm.”

Burden of proof

[22] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[23] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

“The standard of proof in a criminal case is one of proof beyond rease doubt. This mhis means that you must be satisfied so that you feel sure of the guilt of the accused persefore you express an opinion that they are guilty. If you have any reasonable doubt as to w to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused’s guilt. That is not the correct test. The correct test is whether you have any reasonaoubt about the the guilt of the accused.”

[24] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen ( 1970 AC 618) reported inew Laorts 313 (Sri Lani Lanka),

“A facA fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[25] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and “one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim “Ex qui affirmat non ei qui negat incumbit probatio”. On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim “In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur” have to be noted.

Analysis of the evidence

[26] In line with the above guiding principles, I now evaluate the evidence adduced before me. The PW1 said she was hit by the accused and her property was damaged by the accused. The Medical Report was marked as Ex-1 and in that there are seven injuries. Natures of injuries are swellings, tenderness and scratch marks. I reckon as minor injuries and she was treated as out ward patient. It is to be noted that elements of charge are patent for the charge of assault occasioning actual bodily harm according to the victim’s evidence. But the accused claims the injuries were caused when acting self defence. The accused said that the victim grabbed her top and assaulted her.

[27] In section 17 of the Penal Code said “Subject to any express provisions in this Code or any other law in operation in Fiji, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law.”

[28] It is to be noted that Self-defence is part of private defence, the doctrine in English law that one can act to prevent injury to oneself or others or to prevent crime more generally – one has the same right to act to protect others as to protect oneself. This defence arises both from common law and the Criminal Law Act 1967. Self defence in English law is using reasonable force against an unjust threat. Self-defence is a justification rather than an excuse that is the defence is asserting that the actions were not a crime at all.

[29] The general common law principle for self defence is stated in Beckford v R [1987] UKPC 1; (1988) 1 AC 130:

"A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable."

[30] In R v Owino [2002] UKHL 5; (1996) 2 Cr. App. R. 128 at 134:

"A person may use such force as is [objectively] reasonable in the circumstances as he [subjectively] believes them to be."

[31] To gain an acquittal, the defendant must fulfill a number of conditions. The defendant must believe, rightly or wrongly, that the attack is imminent. Lord Griffith said in Beckford v R: (Supra)

"A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike."

[32] Lord Morris in Palmer v. R. [1970] UKPC 2; [1971] AC 814, a case from Jamaica articulated;

""The defense of self-defense is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. ...Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. ...It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defense... If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

[33] In R. G. W. APPUHAMY v THE REPUBLIC OF SRI LANKA, 78 New Law Reports 25, Sirimane, J. Held;

"It must be remembered that the 1st accused in this case admitted the shooting and pleaded self-defence. The version given by the 1st accused was placed before the Jury and it was for the 1st accused to satisfy the Jury on a balance of probability that his version was the more probable."

[34] In the light above legal principles for self defence, I now deal with this matter. The accused accepted that she hit her and she was attacked by the victim. The defence witness proved that accused was hit by the victim. The injuries sustained to the victim are minimal according to the Medical Report and cannot be taken as excessive right of private defence. The accused statement was marked as EX-2 by the prosecution and in that also the accused claimed self defence and it was made soon after the incident and there were no time to concoct a story of self defence at that time. In answering Question number 24 she (accused) said to the police "Then myself stepped forwards to their stall with Mr Ronesh and I ask this same Indian lady having affair with my husband why my son crying? Then she replied that I am not suppose to be here, then she this Indian lady having affair with my husband grabbed me inside the stall, but I forcefully pulled myself out. But she still holding my vest that she was grabbing then I turned around so that she can release her hand from my vest. But she same time punch my head at the back then I punch her eye to defend myself to release me"

[35] The accused's story also was proved by the prosecution EX-2. The burden is lying on the accused to prove self defence and it should be on balance of probabilities and not on beyond reasonable doubt. On evidence, I hold that the accused has proved her plea of self defence on balance of probabilities. The D Ex-1 is child statement and on the very same date that child had given a statement to the police that he had been assaulted by step mother. Although, the Defence witness's statement was taken by the police, but the accused in her statement to the police has said that this witness was present at the time of incident. He gave evidence before this court confirming the accused statement.

[36] With regard to the damaging property there was no clear evidence that the accused damaged any property of the victim. The police witness said that when she visited the place after few hours, the place and vicinity was normal. There are injuries to the victim but the accused claimed she acted under self defence. This was proved by the defence evidence clearly.

[37] In above English common law principle for self defence is meant "Nothing is an offence which is done in the exercise of the right of private defence." I therefore hold that the accused has not committed any offence and she has the shelter of self (Private) defence.

[38] Therefore, the accused is acquitted and discharged.

[39] 28 days to appeal

On 30th August 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate