State v Matacagi [2013] FJMC 63; Criminal Case 192.2012 (5 February 2013)

IN THE MAGISTRATE'S COURT AT NAVUA
Criminal Case: 192/2012

STATE

VS

ABARAMA MATACAGI

For Prosecution: Sgt. Lenaitasi
For Accused: In person

Date of Hearing: 29 Jan 2013
Date of Judgment: 05 Feb 2013

Judgment

[1] The accused was charged with four counts under the Crimes Decree. The charge reads as follows.

FIRST COUNT

Statement of Offence [a]

INDECENTLY ANNOYING PERSON:- Contrary to Section 213 (1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

ABARAMA MATACAGI, on the 18th day of June 2012, at Wainadoi, Navua in the Central Divison, with intent to insult the modesty of MARIANA BIBIANA, uttered words such as 'magaitinamu' meaning 'mothers vagina' and 'va solevaki savatu ga na magamu me ra vaciti iko makawa sara ga na tagane marua nai o sa qai mai soli iko t lei au meu qai mai kana tu na kawa ca" meaning 'you give yourself to those men to fuck you properly and then come to give yourself to me to eat the left over', intending that such words be heard by the said MARIANA BIBIANA.

SECOND COUNT

Statement of Offence (a)

WRONGFUL CONFINEMENT:- Contrary to Section 246 of the Crimes Decree No. 44 of 2009

Particulars of Offence (b)

ABARAMA MATACAGI, on the 18th day of June 2012, at Wainadoi, Navua in the Central Division, wrongfully confined MIRIAMA BIBIANA.

THIRD COUNT

Statement of Offence (a)

CRIMINAL INTIMIDATION:- Contrary to Section 375 (1)(a) of the Crimes Decree No. 44. Of 2009.

Particulars of Offence (b)

ABARAMA MATACAGI, on the 19th day of June 2012, at Wainadoi, Navua in the Central Division, without lawful excuse with intent to cause alarm to MIRIANA BIBIANA, threatened to cause injury to the said MIRIANA BIBIANA.

FOURTH COUNT

Statement of Offence (a)

BREACH OF DOMESTIC VIOLENCE RESTRAINING ORDER:- Contrary to Section 77 (1)(a) of the Domestic Violence Decree of 2009.

Particulars of Offence (b)

ABARAMA MATACAGI, on the 18th day of June 2012, at Wainadoi, Navua in the Central Division, having notice of the Domestic Violence Restraining Order by which he is bound by non-molestation condition without reasonable excuse contravened such order vide Domestic Violence Restraining Order Number CR 56/12.

[2] The accused on 29 June 2012 waived right to counsel and pleaded guilty for the first and fourth counts. Therefore the disclosers were served to him and this was set down for hearing for the second and third counts in the charge sheet. .
During the hearing the prosecution called 03 witnesses and the accused elected to give sworn evidence.

SUMMARY OF EVIDENCE

PROSECUTION CASE

[3] Mariana Bibina (PW1) – The defecto partner of the accused and the complainant of this case. She said the accused locked the door and windows of the house and did not even let her go out to the wash room. The accused did not let her go out and he also held a knife and said he would kill her. The accused did not cross examine the PW1 when given the chance.

[4] Vivile NaganevinakaPW2)- He said on 18 Jan 2012 he was at church and the accused's house was situated beside that. He heard the accused's swearing on that day. Again the accused did not cross examine the witness.

[5] WPC Katrina(PW3)- The charging officer. The charge statement was tendered as EX-01 and the caution statement was marked as EX-02.

[6] Thereafter the prosecution closed their case and the accused was explained about his rights under s 179 of the Criminal Procedure Decree. The Accused opted to given sworn evidence.

DEFENCE CASE

[7] Abarama Matacagi (accused)- He said only the court can judge what happened. In cross examination the accused said on 18 Jan 2012 he was with the PW1 and locked the door because she used to run away from the house. The accused did not call any other witnesses and also closed his case.

THE LAW

[8] The accused was charged with Wrongful Confinement contrary to section 286 of the Crimes Decree as second count and Criminal Intimidation contrary to section 375[1] [a] of the Crimes Decree as third count. Before the hearing he pleaded guilty for the first and fourth counts in the charge sheet.

[9] The Wrongful Confinement is defined in the Crimes Decree as follows,
A person commits a summary offence if he or she wrongfully confines any person.
Therefore the elements of the offence are

[a] The accused

[b] Wrongfully confines any person.

[10] According to section 375(1) (a) of the Crimes Decree, the Criminal Intimidation is defined as,

(1) 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; or

(ii) their reputation or property; or

(iii) to the person, reputation or property of anyone in whom that person is or those persons are interested —

with intent –

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

(v) 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

(vi) 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

[11] In view of the above definition the elements of this offence are:-

1. The accused without lawful excuse
   
2. Threaten another person, with injury to the person, reputation, property,
   

100. With intent to cause alarm and / or
     

4. To do any act which that person is not legally bound to do or omit to do, as a means to avoid the execution of such threat
   

[12] In Woolminton v DPP [1935] A.C. Viscount Sankey L.C. 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. Where the burden of proof, remains on the prosecution throughout the trial, in that circumstance, the accused need only to raise sufficient evidence to cast reasonable doubt on the issue.

[13] In State v LIVAI TAMANALEVU [2012] FJHC 1295; HAC 344 OF 2011S) his Lordship Justice Temo told to assessors (summing up);

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.

[14] In Miller v Minister Of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt' as follows. 'That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence "of course it is possible but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.'

ANALYSIS OF THE EVIDENCE

[15] The complainant stated in the Court that the accused did not let her go from the house and even not allowed her to go to the wash room. The accused in cross examination admitted this in following statement.

"On 18 Jan 2012 I was with the PW1 and closed the door because she used to run away"

[16] Therefore based on the PW1's evidence and the accused's above statement in the Court I find that the prosecution has proved the offence of Wrongful Confinement beyond reasonable doubt.

[17] I also have no reason to doubt about the Pw1's evidence regarding the accused threatening her with a knife. The accused did not cross examine her about her claim nor mentioned anything about that in his evidence. And this Court also is satisfied with the demeanor of the PW1 and considers her a truthful witness.

18] I believe there is no need to look in to the PW2's evidence. He heard only the accused swearing on that day and that was already admitted by the accused before the hearing.

[19] Therefore based on the above reasons I find the prosecution had proved beyond reasonable doubt that the accused committed second and third counts in the charge sheet.

[20] Accordingly I find the accused guilty for the offence of Wrongful Confinement contrary to section 275 of the Crimes Decree and the offence of Criminal intimidation contrary to section 375(1) (a) of the Crimes Decree. I convict him for both offences.

[21] 28 days to appeal.

05/02/2013

H.S.P. Somaratne
Resident Magistrate, Navua