State v Wakeham [2014] FJMC 10; Criminal Case 1598.2011 (15 January 2014)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS

Criminal Case No: 1598 of 2011

State

v

Charles Daniel Lum Wakeham

For Prosecution: Sgt Jiten (Police Prosecution)
Accused: Present – With Mr Ravuniwa

JUDGMENT

Introduction

The accused is charged as follows:

Count One

INDECENTLY INSULTING ANY PERSON: Contrary to Section 213 (1)(a) of Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

Charles Daniel Lum Wakeham, on the 29th day of September 2011 at Suva in the Central Division, with intent to insult the modesty of Uma Wati uttered the words "You Bitch, Withcraft Lady" intending that such words be heard by the said Uma Wati.

Count Two

CRIMINAL INTIMIDATION: Contrary to Section 375(1)(a) (i) & (iv) of Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

Charles Daniel Lum Wakeham, on the 29th day of September 2011 at Suva in the Central Division, without lawful excuse threatened Uma Wati with any injury to her person, with intent to cause alarm to Uma Wati

The Standard and Burden of Proof

The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of 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 favour, 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."

The Evidences of the Witnesses

The Prosecution called 4 witnesses. At the close of the prosecution case, the defence conceded that there was a case to answer. The accused was put to his defence and the options available to him were explained to him. The accused chose to give sworn evidence. The defence called one other witness. The Caution Interview of the accused was tendered by the defence.

Analysis of the Evidence in Relation to the Law

This Court has noted the evidence of all the witnesses. The onus is on the prosecution to prove the charges beyond reasonable doubt. This Court has noted the elements of the offence of the two counts.

From the evidence given in Court, this Court notes that the issues to be determine are whether accused said the words as alleged by the complainant and that he intimidated the complainant and caused her alarm by threatening to kill her. There is no dispute as to the identification, place, time and date of the alleged offending.

The alleged incident happened in the Fiji Police Force Officers Mess and the allegation by the complainant was that the accused abused, swore and threatened to kill her. The time of the alleged incident was about 12 noon. It was around lunch time. Many other persons were present in the Mess at the time of the alleged offence. This Court has noted all the evidence given in Court and analysed it accordingly. The prosecution called 4 persons (the complainant and 3 of her co-workers) who were present at the scene of the alleged offence to prove its case. The evidence of the complainant was that the accused said "bitch, witchcraft, will kill you". She said she felt bad and embarrassed and was afraid. She further told the Court that Vijen was near her at the time of the alleged incident. Marica and Afroza were far away.

The second prosecution witness (PW-2) was Vijen, he told the Court that the accused said "Uma you tried witchcraft, ugly face, will kill you." PW-3 was Afroza Ali she told the Court "Uma entered and he started to growl at Uma. He said to stop doing witchcraft to wife. He was growling, she left the mess." Afroza later told the Court that "accused only said witchcraft lady, accused did not say anything else."

PW-4 was Marica Bau she told the Court "we were beside accused at the bar, when complainant came in he off his phone and said witchcraft lady, devil lady, ugly woman. He shouted and complainant ran outside." She later told the Court he did nothing to harm the complainant.

The sworn evidence of the accused was that he "confronted the complainant. Said to her to stop witchcraft and devil woman... did not tell her anything else."

From the charge this Court notes that the allegation is that the accused mentioned "bitch" to the complainant. Apart from the complainant no other witnesses gave evidence that this word was uttered by the complainant. As to the utterance that the accused would kill the complainant 2 other prosecution witnesses, Marica and Afroza who were present did not hear the accused say those things. They were close by and they did not give evidence that they heard the accused say that. The evidence of the prosecution witnesses is not consistent and cast doubts on what actually transpired. They contradict one other. The complainant mentioned that the accused called her a bitch; no other witnesses heard this and stated so in Court. Even PW-2, Vijen did not state in his evidence that the accused called her a "bitch".

Having considered all the evidence in totality this Court notes the inconsistencies between the evidence of the prosecution witnesses are not reconcilable. The inconsistencies create doubts on what actually transpired and do not assist the prosecution case. The complainant is saying one thing which is not supported by the other 3 witnesses at the scene. At another time the complainant and Vijen are saying similar things while Marica and Afroza are saying something else. The evidences are starkly inconsistent. The case against the accused is not proven beyond reasonable doubt.

For the foregoing reasons this Court finds the accused not guilty of both counts. Charles Wakeham is acquitted of both the counts. Any party aggrieved with this judgment has 28 days (from date of this judgment) to appeal to the High Court.

Chaitanya Lakshman
Resident Magistrate

15th January 2014