State v Kolinitosa [2013] FJMC 290; Criminal Case 273.2012 (6 August 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA
Criminal Case : 273/2012

STATE

VS

TOMASI KOLINITOSA

For Prosecution : Cpl. Williame
For Accused : In person

Date of Hearing : 05/08/2013
Date of Judgment : 06/08/2013

Judgment

[1] The accused was charged with one count of Indecently Annoying Person contrary to section 213(1) (a) of the Crimes Decree and one count of Criminal Intimidation contrary to section 375(1) (a) (1) of the Crimes Decree. The charge reads as follows:-

Statement of Offence

INDECENT ANNOYING ANY PERSON: contrary to Section 213(1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

TOMASI KOLINITOGA on the 5th day of February 2012 at Suva in the Central Division with intent to insult the modesty of MAKELESI KOLINITOGA uttered the words, "Caiti ratou na ganemu" meaning go and have sexual intercourse with your brothers intending that such words should be heard by Makelesi Kolinitoga.

Statement of Offence

CRIMINAL INTIMIDATION: contrary to Section 375(1) (a) (i) (iv) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

TOMASI KOLINITOGA on the 5th day of February 2012 at Suva in the Central Division without lawful excuse threatened to kill MAKELESI KOLINITOGA with intention to cause alarm to Makelesi Kolinitoga.

[2] The accused pleaded not guilty for this offence and the hearing was taken 05/08/2013.

[3] During the hearing the prosecution called 05 witnesses (02 civil witnesses and 03 police officers) and for the defence the accused gave sworn evidence.

Summary of Evidence

[4] PW1 was Makelesi, the wife of the accused. She said on 05/02/2012 the accused was beating her daughter. She tried to stop her and the accused got angry and swore at her saying she was sleeping with her brother. When she said she would report that to police the accused got more angry and threatened to chop her head. She identified the accused in the Court.

[5] In cross examination she said the accused swore at her and threatened her. She also denied telling lies in the Court.

[6] PW2, Lia was the daughter of the PW1. She said on that day the accused beat her. She also heard the accused swearing at her mother.

[7] PW3 was the arresting officer. PW4, PC Seniloi conducted the interview of the accused. This was marked as Ex-01.

[8] PW4, PC Jone charged the accused. The charge statement was tendered as EX-02. The prosecution closed their case after that and being satisfied with the evidence I explained the accused about his rights as stipulated in section 179 of the Criminal Procedure Decree. The accused opted to give sworn evidence.

[9] The accused in his sworn evidence said on that day he was angry with his daughter and beat her. But he denied swearing or threatening his wife on that day. This he maintained in his cross examination.

The Law
[10] The accused was charged with one count of Indecently Annoying Person contrary to section 213(1) (a) of the Crimes Decree and one count of Criminal Intimidation contrary to section 375(1) (a) (1) of the Crimes Decree .

Section 213(1) (a) states :- "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."

Section 375(1) (a) (1) states :- "A person commits a summary offence if he or she, without lawful excuse —

(a) threatens another person or other persons (whether individually or collectively) with any injury to —

(i) their person or persons;

with intent –

(iv) to cause alarm to that person or those persons; "

[11] Viscount Sankey LC in Woolmington v DPP (1935) AC 462 stated 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".

[12] In State v LIVAI TAMANALEVU [2012] FJHC 1295; HAC 344 OF 2011S) His Lordship Justice Temo in his summing up said:-

"The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty. "

Analysis of the Evidence

[13] PW1 said in her evidence that the accused swore at her and threatened her on that day. In cross examination she maintained this position. She also lodged the complaint on the same day, making her version credible.

[14] PW1 also gave the evidence in a convincing manner. In fact sometimes she could not control herself whilst giving evidence. I am satisfied with her evidence.

[15] On the other hand the accused denied these incidents. But in re- examination he said he has reconciled with his wife and she has forgiven him. If he has not committed these offences I do not see why he has reconciled with his wife.

[16] Based on above reasons I am satisfied that the prosecution has proved both these counts beyond reasonable doubt.

[17] Therefore I find the accused guilty for this charge and convict accordingly.

[18] 28 days to appeal

06/08/2013

H.S.P.Somaratne
Resident Magistrate