State v Nacagibalavu [2013] FJMC 292; Criminal Case 316.2012 (7 August 2013)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 316/12

BETWEEN:

STATE

AND:

JOPE NACAGIBALAVU

Prosecution: Cpl Samy
Accused: Mr Titoko

JUDGMENT

Background

1. The accused person was charged for the offence of Criminal Intimidation contrary to section 375(1)(a)(iv) of the Crimes Decree No. 44 of 2009.
   
2. The particulars of the offence are as follows:
   

JOPE NACAGIBALAVU on the 15th day of June 2011 at Nakorovou Nalawa Ra in the Western Division without lawful excuse threatened ELENOA TINAI with intent to cause alarm to ELENOA TINAI.

3. The accused pleaded not guilty to the allegation and matter proceeded for hearing. Prosecution called three (3) witnesses to prove its case and accused person exercised his right to remain silent and called two witnesses in support of his defence.
   

Issue

4. The question that needs to be resolved is whether prosecution have proved beyond a reasonable doubt that accused person had without lawful excuse threatened the complainant with the intention to cause her alarm?
   

Evidence

5. I now briefly consider the salient features of the evidence adduced before the court.
   

Prosecution Evidence

6. PW1 - Elenoa Tinai

She stays at Nakorovou Nalawa Ra and lived there for 6yrs. She’s married to Ilisoni Waqa who is a farmer. She recalls that sometimes in June 2011 she was inside the house with her husband’s brother’s wife when they heard Jope swearing. They came out and saw Jope the accused coming towards them with a knife swearing at them. They were afraid and ran. Accused was saying mother fucker and was holding cane knife. They ran because they were afraid. They both ran in different directions.

In cross examination she agreed that people living in the settlement are farmers and most of the time they carry their cane knife around and it’s a normal thing. She said she heard swearing and also heard knife being struck on the side of the house. She ran away from accused because she was afraid of the knife and not of the stolen rope. She only came to know of the stolen rope when told by her husband after the incident. She states that she and her husband are not making up the allegation.

In re-examination she mentioned that accused was carrying a cane knife and not going to his farm. Accused swore at them and was coming at them and appeared angry.

7. PW2 – Ilisoni Waqa
   

He’s the husband of PW1 and accused is his uncle. He stated that in 2011 accused threatened him with cane knife. He was planting yaqona that day when he heard knife being struck on corner of house. He then ran down to his house and met his aunty and asked about his wife and continued to run to his house. He met accused on the way and accused chased him with knife. He ran and told accused that his doing an unlawful thing. Accused also swore at him. Whilst running he asked accused if anything was wrong. He looked for PW1 and found her in the bushes.

In cross examination he stated that when he met accused, he was sworn at and doesn’t know why accused swore at him. He heard swearing. Accused also punched him. He’s not lying to court about the allegation.

In re-examination he told the court that the incident occurred in day time and he also told police that accused assaulted him and he also heard accused swearing.

8. PW3 – Valeria Disoro
   

She confirms that on the alleged date and time, she was in the house with PW1 when they heard shouting from outside. PW1 came out first and she didn’t know it was her uncle the accused. She heard cane knife being slammed on the side of the house. She came out and saw the accused. Accused was carrying cane knife and about 50 meters from her and coming towards the house. PW1 ran and she ran too. Accused followed PW1. She hid herself and was scared of accused. She then saw accused talking to PW1’s husband (PW2).

In cross examination she agreed that farmers that live in the settlement usually carry cane knives. She heard shouting when PW1 and her were inside the house. She also heard slamming of knife on side of house. They ran away from accused before he reached the house. She ran as she was scared of accused. She states that what she and PW1 told the court is not a lie.

9. That was the case for prosecution and the court found a case to answer against accused and gave him his right. Accused opted to remain silent and called his wife and his uncle to give evidence. The defence case is briefly outlined below.
   

Defence Evidence

10. DW1 – Kinisimere Nakorovou
    

She is the wife of accused and they live at Nakorovou. Reason for argument is rope for cow. It was a rainy day and her husband could identify the footsteps of person who untied rope from cow. Accused had followed the footprints and it ended up in complainants place. They were going together to check the cow and saw footprints and rope missing. The footprints led to complainant’s house. They went to complainant’s house and saw one lady (Valeria) standing at the door of the house and other two missing. When they came to the house Valeria was walking away fast. Nothing happened when they reached the house. When they arrived at the house, accused just chopped the “vudi” tree and they left. Jope than left the knife there and went to the hill towards Waqa (PW2). She heard PW2 swearing at accused saying “magaitinamu” and “cava iko vinakata”. Jope left the knife with her when he went towards PW2. PW2 was holding a stone and accused challenged him. Accused told PW2 to drop the stone but he didn’t. Accused confronted PW2 about rope and he denied knowing anything about the rope. Accused returned and they went home. There was no running around and at no time did she see accused running after anyone with the knife. She was present all the time and PW2 didn’t approach or say anything to her. PW2 actually came to apologize to her after the incident but she told PW2 to apologize to accused as he had problems with him not her. The allegation is not true. It was just verbal dispute between accused and PW2. No cane knife was used by accused.

In cross examination she stated that accused chopped the vudi tree as he was angry. They didn’t see the person that stole the rope but only followed the footprint which led to PW2’s house and suspected him.

In re-examination she confirmed that they didn’t see anyone run from the house and only saw Valeria being there and walking away.

11. DW2 – Maciu Nacaucaulevu

He is the uncle of accused and was not present on the day of the incident.

Law & Analysis of Evidence

12. Before analyzing the evidence I bear in mind that prosecution has the burden of proving the accused guilt beyond a reasonable doubt. This burden never shifts to the accused and remains with prosecution throughout the trial (see: Woolmington v DPP (1935) AC 462).
    
13. Further it is well established law that an accused is always presumed innocent until proven guilty. The onus of proving the guilt of the accused rests with prosecution and never shifts to the accused person at any time. Prosecution must prove all the elements of the offence beyond a reasonable doubt before an accused is found guilty for any criminal offence.
    

14. The essentials elements for the offence of Criminal Intimidation as charged pursuant to section 375(1)(a)(iv) of the Crimes Decree No. 44 of 2009 are:

a.) The accused (Jope Nacagibalavu);

b.) Without lawful excuse;

c.) Threatened to injure;

d.) Complainant (Elenoa Tinai);

e.) With Intent to Cause Alarm to Elenoa Tinai.

15. I note from the evidence adduced that PW1 and PW3 confirm each other’s story. They stated that on the day in question they were at their home when they heard accused swearing. They heard cane knife being slammed on the side of the house. When they looked out of the house they saw accused coming towards their house with a cane knife and swearing at them. They were afraid of accused and ran away in different directions. Accused appeared to be angry.

16. In addition PW2 stated that he was at the plantation when he heard cane knife being slammed on corner of house. He ran down to his house and met his aunty and enquired about his wife. He continued to run to the house. On the way he met accused who was holding a knife. Accused came after him and swore at him. He asked accused about the problem and ran away to look for his wife.

17. Assessing prosecution evidence, all three witnesses confirm the following:

• They heard cane knife being slammed on the side of a house.
• Accused was seen with a cane knife coming towards them and swearing at them.
• Accused was angry and or had some problems.
  

18. Further I have noted that all three witnesses for prosecution were cross examined at length and none of them waived from what they were alleging. They remained firm and in my view they were not discredited.

19. DW1 (accused wife) testified and totally denied the allegation. Her evidence shows that accused never threatened anyone with the cane knife neither swore at anyone and accused never ran after any of the three prosecution witnesses. According to her they went looking for the person who untied and took the rope off their animal. They were following a footprint which led them to PW1 and PW2’s home. Accused was angry. According to her it was PW2 who swore at accused.

20. From what has been stated by DW1 the following is established:

• Accused and her went to check there cattle and noticed that the rope was untied and taken.
• It was a rainy day and they noticed a footprint and followed the same which led to PW1 and PW2’s house.
• Accused was holding a cane knife at all times.
• Accused was angry.
  

21. Its undisputed that accused was holding a cane knife and went looking for the person who allegedly untied and took the rope of his animal. He was following the footprints of a person they suspected which led them to PW1 and PW2’s home.

22. It was established that accused eventually confronted PW2 about the missing rope and that is how prosecution witnesses came to know as to why accused came to their place.

23. Hence the disputed portion of the evidence is whether accused had without lawful excuse threatened to injure PW1 and whether she was actually threatened.

24. DW1 has denied that the said incident occurred whilst the evidence of the three witnesses for prosecution suggest otherwise.

That being the position it is to be noted that accused went looking for the person whom he suspected to have stolen the rope for his animal. The suspected person was PW2 as the footprints led accused and his wife to his house. The situation would have undoubtedly caused the accused to be angry and the evidence seems to establish that fact. Moreover upon confronting PW1 and PW2 heated words would have been hurled including swear and insulting words. This is understandable and was the most likely scenario in a situation as this. The evidence of prosecution establishes this. Accused held a knife in his hand at relevant time and with swears being uttered simultaneously any person would have felt threatened and immediately ran or get away for their safety. This again is established by prosecution evidence.

25. In a situation as this I’m more inclined to accept prosecution evidence. I refuse to accept DW1’s evidence that accused never struck the knife on the side of the house and neither ran after anyone with a cane knife and neither did he swear at anyone. It’s this part of DW1’s evidence I refuse to accept as it doesn’t tie up with the circumstances of the case. I’m entitled to accept part of her evidence and also refuse to accept part of her evidence. I refer to the case of case of Dayaram Sharma v. Northern Hotels Limited (1968) 14 F.L.R. 157 when Moti Tikaram J. (as he then was) said at p.159/160: 'There is no rule of law that a witness credibility is indivisible.'

26. As I've mentioned earlier the accused motive was the impetus which could have driven him to act unlawfully the way he did.

In considering the evidence I alnd that there is nothing cong compelling to show that the three prosecution witnesses had conspired to falsely make up this allegation against the accused.

27. When considering all the evidence in entirety I find that accused had unlawfully threatened to injure PW1 with intention to cause alarm to her. If find that PW1 was actually alarmed as proven by the evidence.

Conclusion

28. On the basis of the evidence adduced before the Court, I'm satisfied that all elements of the offence have been proved beyond a reasonable doubt.

29. I find the accused guilty of Criminal Intimidation as charged. His convicted accordingly.

30. I will now consider mitigation before proceeding to sentence.
    

Samuela Qica
Resident Magistrate

7th August 2013