State v Jako [2018] FJMC 111; Criminal Case 146 of 2016 (20 July 2018)

IN THE MAGISTRATES COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 146 - 2016

STATE
-v-
ERONI JAKO

For Prosecution : Inspector Lenaitasi [ Police Prosecution ]

Accused : In person, waived right to counsel

Date of Trial : 6^th day of July 2018

Date of Judgment : 20^th day of July, 2018

JUDGMENT

1. ERONI JAKO, you are charged with the following:
   

First Count

Statement of Offence

INDECENTLY ANNOYING ANY PERSON: Contrary to section 213 (1) (a) of the Crimes Act of 2009.

Particulars of Offence

ERONI JAKO, on the 29^th day of April, 2016 at Tavua Hotel in the Western Division, with intent to insult the modesty of Sneh Preetika Singh, uttered the words “Magaichinamu” meaning your “mother’s vagina”, and “Fuck you” intending that such words be heard by the said Sneh Preetika Singh.

Second Count

Statement of Offence

COMMON ASSAULT: Contrary to section 274 of the Crimes Act No. 44 of 2009.

Particulars of Offence

ERONI JAKO, on the 29^th day of April, 2016 at Tavua Hotel in the Western Division, unlawfully assaulted Sneh Preetika Singh.

2. You have waived your right to counsel and pleaded not guilty to both counts.
   
3. We had to proceed to trial therefore.
   
4. During the trial, the prosecution called 2 witnesses.
   

PW1

5. Prosecution witness 1 [ PW1 ] was Ms Sneh Preetika Singh. She is the alleged victim.
   
6. She was in Tavua on the date in question for work. There was a launch and she and a few of her work colleagues were staying at the hotel in town.
   
7. At around 8pm after work, she and a few of her colleagues came to the bar at the hotel. She said that you were already there with your group and some remarks were passed when she was on her way to the bar.
   
8. She said that your group looked and sounded drunk and she reached this conclusion after observing how your group was seated and were behaving. She said that she heard the Itaukei phrase ‘sa yawa‘ meaning ‘nice’ or ‘beautiful’ being said by one of them in your group.
   
9. PW1 ignored the ‘cat calls’ but you then said “Magaitinamu” or “mothers vagina” to her. She said that you said those words because it seemed to her that you got offended when she kept ignoring the cat calls.
   
10. She didn’t appreciate what you said and gave you a disgusted look. She said that then that is when you stood up with your glass of beer and motioned to her to come and drink beer.
    
11. You also told her in Itaukei “ I want to have sex with you”. She understands Itaukei or the words you said.
    
12. In response, she told you to “shut the fuck up”. She said that you also told her that she doesn’t know you and you said that ‘this is my land’.
    
13. You said other things but she could only hear mumbling.
    
14. You approached her and held her collar and you pushed her.
    
15. In the process your hand hit her cheek or the right side of her face. She heard you saying in Itaukei “oiko sega ni kilai au” meaning “you don’t know me”.
    
16. Her work colleagues managed to separate you from her. She asked the security at the hotel to kick you out but she was informed that you were a paying customer at the bar.
    
17. She then went to the Police Station and reported to police and returned to the Hotel with 1 or 2 policemen. She described that one of her work colleagues was crying because of your behaviour and even when the police came and tried to take you away peacefully, you resisted.
    
18. At the steps of the hotel you were shouting and tried to reach out to PW1 and her group.
    
19. PW1 says that you said so many things on that day.
    
20. You could have torn off her shirt if she was not wearing a t/shirt at the time.
    
21. When you cross-examined her or asked questions off PW1, she maintained or said that you swore at her.
    

PW2

22. The other witness or PW2 is Mr. Brandan Dayal.
    
23. He was a work colleague of PW1 and was also at the hotel at the time, according to his evidence.
    
24. He went to the bar with PW1 and some men were calling PW1.
    
25. When PW1 declined, the men started calling her in a rude manner.
    
26. He heard swearing in Itaukei language.
    
27. He heard PW1 asking ‘who are you saying that to’.
    
28. They told security and were told that the men were buying drinks.
    
29. He said that you then came towards PW1 and he and others had to come in between to you and PW1 to stop you.
    
30. PW2 identified you, trying to pull PW1.
    
31. He also heard you telling PW1 that you wanted to have sex with her.
    
32. The police were later called and you were escorted to the police station.
    
33. When you cross examined PW2, he said that you told PW1 to have sex and that you said this in English. You did not reach PW1 but you tried to and your hand reached PW1’s face.
    
34. Those were the only 2 witnesses and the prosecution closed their case thereafter.
    
35. I found that there was a case to answer and after advising you of the options available to you, you chose to give sworn evidence and chose not to call any witness.
    

DW1

36. Defence witness 1 was yourself.
    
37. On the day in question you were drinking beer at the hotel from around 3pm. You were there with some other males.
    
38. After 7pm, you described that some ladies and a man came into the hotel. You asked them to come and drink with you.
    
39. You said that one of them talked back and swore at you. The others in her group laughed and you got angry as a result and swore back at them.
    
40. You told them ‘what do you think, you from Suva and want to treat us like a child’.
    
41. You admitted being taken to the police station.
    
42. You denied telling PW1 that you wanted to have sex with her and you denied touching her face.
    
43. That was the end of the defence case.
    

ANALYSIS

Burden and Standard of Proof

44. I remind myself that the burden is on the prosecution to prove the allegation or the 2 counts.
    
45. Even if I reject the evidence of the defendant or I don’t accept his denial, it doesn’t necessarily mean that the prosecution has proven their case.
    
46. I remind myself too that the prosecution’s evidence must satisfy me beyond a reasonable doubt that the defendant committed the 2 counts alleged before I can find him guilty.
    

Elements of the Offence

47. The elements of the offence for the first count of indecently insulting or annoying any person contrary to section 213 ( 1 ) ( a ) of the Crimes Act 2009 are:
    
    1. The defendant;
       
    2. Intending to insult the modesty of PW1 Ms Sneh Singh;
       
    100. Uttered any word, in this case, allegedly said that he wanted to have sex with PW1 Ms Sneh Singh;
         
    4. Intending that such word be heard by PW1 Ms Sneh Singh.
       
48. The elements of the offence for the second count of common assault contrary to section 274 of the Crimes Act 2009 are:
    
    1. The defendant
       
    2. Unlawfully assaults, that is, doing an unlawful act which intentionally or possibly causes another person to apprehend immediate and unlawful personal violence [ Fagan v Metropolitan Police Commissioner [1968] 3 All E.R 442 ].
       
    100. That the unlawful assault was occasioned to PW1 Ms Sneh Singh
         

FINDINGS

49. There is no dispute that the parties were at the hotel at the material time. There is overwhelming evidence touching on the 1^st element or identification and I find this proven beyond a reasonable doubt.
    
50. PW2 Mr Brandan Dayal was a work colleague of PW1 Ms Sneh Singh. They are no longer working together now as PW1 is employed somewhere else.
    
51. It was in my mind when listening to PW1 and PW2’s evidence, whether they colluded before giving evidence and whether they would have had a motive to fabricate this allegation against the defendant.
    
52. Having listened and observed PW1 and PW2 give evidence, I was convinced by both their evidence that they were giving an honest description of what they experienced and observed on the day.
    
53. They were forthright and I accept their evidence as credible.
    
54. I accept that PW2’s evidence corroborates PW1’s evidence as it is independent of PW1 and connects the defendant to the offence.
    
55. Furthermore, the act of getting police to come and escort the defendant out of the hotel is consistent with the theory that the defendant was acting improperly. This makes PW1 and PW2’s account reliable as well.
    
56. I accept PW1’s evidence that the defendant told her that he wanted to have sex with her.
    
57. I accept that the defendant said this with the intention to insult her modesty.
    
58. This was said after PW1 ignored the calls made by the defendant and his group.
    
59. I accept that the defendant said this after he was ignored and felt insulted.
    
60. The above is corroborated by PW2’s evidence.
    
61. Even if I reject PW2’s evidence as there is no need for corroboration, PW1’s evidence in my mind on its own is credible and reliable.
    
62. This means that I reject the denials of the defendant or his evidence that he did not say those things.
    
63. I’m satisfied beyond a reasonable doubt that all the elements for the first count is proven and I therefore find the defendant guilty of the first count of indecently insulting or annoying any person.
    
64. At this stage, I remind myself that even if I find that the defendant has committed the first count that does not necessarily mean that he also committed the second count.
    
65. The finding for the second count must be based on the evidence and whether I accept the evidence of the prosecution.
    
66. For the second count, I also accept the evidence of PW1 that the defendant approached her and grabbed PW1 by her collar and in the process, his hand brushed her face.
    
67. There was no lawful justification for this and I accept that PW1 must have been frightened.
    
68. PW2’s evidence corroborates PW1’s evidence.
    
69. I also accept PW2’s evidence.
    
70. This means that I reject the denials of the defendant and I don’t accept his evidence that he did not do this.
    
71. I’m satisfied beyond a reasonable doubt that all the elements for the second count is proven and I also find the defendant guilty of common assault.
    

Conclusion

72. Based on the aforementioned reasons, I’m satisfied beyond a reasonable doubt that the defendant committed the two counts he is charged with.
    
73. My finding is as follows:
    

Count No.	Charge	Finding
First Count	Indecently Insulting or Annoying Any Person contrary to section 213 (1) (a) of the Crimes Act 2009	GUILTY
Second Count	Common Assault	GUILTY

....................................................
Lisiate T.V. Fotofili
Resident Magistrate

At Tavua this 20^th day of July, 2018.