IN THE MAGISTRATE’S COURT IN FIJI AT SIGATOKA
CRIMINAL DIVISION

Criminal Case No. 307/16

THE STATE 
–v- 
EMOSI KUNAIKA and JOSEFA NADRI

For the Prosecution:		Sgt. E. Cerei
For the Accused 1:		Mr. J. K Singh and Ms. M. Kumar
For the Accused 2:		Mr. A. Waqavakatoga

JUDGMENT

1.	The Accused persons are charged with the following offences: -

Third Count
Statement of Offence (a)
Criminal Intimidation: contrary to section 375 (1)(a)(i)(iv) of the Crimes Act.
Particulars of Offence (b)
Josefa Nadri on the 10th day of August 2016 at Sigatoka in the Western Division without lawful excuse, threatened Warren Lake by breaking the door of the house with an axe with intent to cause alarm to the said Warren Lake.

Fourth Count
Statement of Offence (a)
Criminal Intimidation: contrary to section 375 (1)(a)(i)(iv) of the Crimes Act.
Particulars of Offence (b)
Josefa Nadri on the 10th day of August 2016 at Sigatoka in the Western Division without lawful excuse, threatened Rosslind Lake by breaking the door of the house with an axe with intent to cause alarm to the said Rosslind Lake.

Fifth Count
Statement of Offence (a)
Criminal Intimidation: contrary to section 375 (1)(a)(i)(iv) of the Crimes Act.
Particulars of Offence (b)
Emosi Kunaika on the 10th day of August 2016 at Sigatoka in the Western Division without lawful excuse, threatened Warren Lake by uttering words “Open the Door or I will Hurt you” with intent to cause alarm to the said Warren Lake.

Sixth Count
Statement of Offence (a)
Criminal Intimidation: contrary to section 375 (1)(a)(i)(iv) of the Crimes Act.
Particulars of Offence (b)
Emosi Kunaika on the 10th day of August 2016 at Sigatoka in the Western Division without lawful excuse, threatened Rosslind Lake by uttering words “Open the Door or I will Hurt you” with intent to cause alarm to the said Rosslind Lake.

The Prosecution Case
2.	Prosecution called the following witnesses who gave evidence in support of the charges: 
1. Prosecution Witness 1 (PW1) – Roselyn Lake
2. Prosecution Witness 2 (PW2) – DC Viliame Uqeuqe
3. Prosecution Witness 3 (PW3) – CPL Mesulame
4. Prosecution Witness 4 (PW4) – Sgt. Trevor Bennett
5. Prosecution Witness 5 (PW5) – PC Jolame
6. Prosecution Witness 6 (PW6) – DC Benedito
7. Prosecution Witness 7 (PW7) – Warren Lake

3.	Prosecution also tendered in the following exhibits:
1. Prosecution Exhibit 1 (PE1) – DVD
2. Prosecution Exhibit 2 (PE2) – Record of Interview of Accused 2
	3. Prosecution Exhibit 3 (PE3) – Axe
	4. Prosecution Exhibit 4 (PE4) – Record of Interview of Accused 3
	5. Prosecution Exhibit 5 (PE5) – Record of Interview of Accused 1
	6. Prosecution Exhibit 6 (PE6) – Record of Interview of Accused 4
	7. Prosecution Exhibit 7 (PE7) – Record of Interview of Accused 5
	8. Prosecution Exhibit 8 (PE8) – Record of Interview of Accused 6
	9. Prosecution Exhibit 9 (PE9) – Statement of Isikeli Tasere 

4.	The Court has noted and considered all the evidence adduced through witnesses and exhibits. In its entirety, Prosecution primarily relies on direct evidence of PW1 and PW7 and the indirect evidence of PE1, PE2, PE3 and PE5. However, the following will only show what is relevant in as far as the charges against the Accused persons are concerned.

5.	PW1 recalls at around 1.40pm on 10th August 2016 being at home with her husband, PW7. She then saw a white car belonging to Accused 1 blocking the driveway and so she walked down the driveway. Suddenly she saw Accused 1 and others consisting of his son, two women and men running up the driveway with a cane knife and an axe yelling at her and PW7. PW7 then told her to run into the house and so they locked the doors. The said people then began banging on their doors and walls to come out. They were looking in but PW7 closed the windows. She hid in their bedroom as she was terrified. She said Accused 1 was very agitated and said “if you don’t come out, I’ll hit you.” While they were hiding in the bedroom, she got out her phone and started filming what was happening. At this time, two women tried to open the door when Josefa pulled the door which had a lock on it with both hands and came into the house. Petero then told them that she was filming the ordeal. Accused 1 then came in and pointed at her and PW7 in an angry manner and said he wanted to talk to her. She replied saying to only talk to them when the police are present. Accused 1 then gave them a copy of the letter while pointing at them while Josefa was behind him and the others moving in. Accused 1 then said “I told you one day I’ll get you out of the here and today is the day”.  Accused 1 then threw a towel over her head and pushed her to the ground. While filming she heard Josefa tell others with an axe in the room to go and break open the exterior doors of the house so she felt terrified. She and PW7 then called Cpl Mesulame for assistance and later two police officers arrived home.

In cross-examination, she did not wish to comment if she assaulted Accused 1’s wife before this incident by slapping her, being rude to Accused 1 and his family and calling them monkeys. She further states that when Accused 1 came into her house on the day in question, he did not touch her. She admits that Accused 2 named Josefa did not threaten her. 

6.	PW2 interviewed Accused 2 under caution on 11th August 2016 at the Sigatoka Police Station about the incident as per PE2. He recalls that during this interview, Accused 2 admitted to damaging property. 

In cross-examination, he states that the property which Accused 2 admits to damaging by PE3 is the padlock, and not the door. He also agrees that the interview had nothing to do with criminally intimidating someone.

7.	PW3 recalls on the day in question receiving call from PW7 complaining that some people had entered forcefully into his residence and so he directed officers to assist at the scene. 

8.	PW4 interviewed Accused 1 under caution on 11th August 2016 regarding the incident as per PE5. Accused 1 denied threatening PW1 and PW7 that he will hurt them if they do not open the door. 

9.	PW7 recalls that on the day in question he was with his wife PW1 in the house when he noticed a white car at the bottom of the driveway and about 11 individuals including Accused 1 and Accused 2 started running up the driveway carrying an axe another carrying a knife and so he told PW1 to run into their house and lock herself in there. He and PW1 locked the doors and he saw the individuals walking around the house banging on the walls and looking into the glass. They were in the back bedroom when PW1 started filming the ordeal. Accused 1 then yelled from the outside porch “if you don’t unlock the doors, we will come in and hurt you”. He felt terrified.  

10.	Prosecution then closed its case. 

The Defense Case
11.	Defense called two witnesses, that is the Accused persons and tendered in the following exhibits:
1. Defense Exhibit 1 (DE1) – Disclosure Certificate
2. Defense Exhibit 2 (DE2) – Statement of PW3
3. Defense Exhibit 3 (DE3) – Letter from Mr. Gerard dated 9/8/16
4. Defense Exhibit 4 (DE4) – DVD 2

12.	Defense Witness 1 (DW1) is Accused 1, Pastor of Nakalavo Village. Prior to the incident, he had a friendly relationship with PW1 and PW7 as they all resided on the same property. He and his family occupied the units while PW1 and PW7 occupied the double story up the driveway. The property in 2016 was owned by one Mr. Gerard who was in New Zealand and so he was instructed by the said owner to reside in the units on the property as Care Taker.  On 9th August 2016 he was informed by the owner of the property in question Mr. Gerard to evict PW1 and PW7 by virtue of DE3. Paragraph 5 of DE3 stated “If they do not leave immediately I have advised my friend and Vakaviti caretaker Emosi Kunaika and my manager Elisabeta Naiqato and their helpers to remove the Lakes and their belongings from Vakaviti.” He sought advice from one Mr. Bari of the Sigatoka Police Station, returned to the property. He showed and discussed DE3 with others who also stayed in the units on the property and together they went to show the letter (DE3) to PW1 and PW7 for them to vacate the property. Upon reaching the outside porch of the house of PW1 and PW7, he started calling their names and said that he wanted to give them the said letter. He then heard PW1 and PW7 say that they do not want to receive the letter. One Elizabeta then opened the door and he went in as he wanted to give the said letter but they still did not want to receive it. He then started to lift the first box and took it outside. At no time did he threaten PW7 before going into the house. Also, at no time did he threaten PW1 before going into the house. Even after entering the house, he did not threaten PW1 or PW7 nor did he say words “open the door or I will kill you” nor did he said the words “we will break them open and hurt you.” He states that PW1 and PW7 are lying. 

In cross-examination, he admits to shouting outside when calling PW1 and PW7 but he was not angry. 

13.	DW2 is Accused 2, unemployed of Vunavutu. He states that when he and others arrived at the house of PW1 and PW7, he noticed that the back door was locked by a chain that had a padlock. He then brought an axe and used it by chipping at the padlock until it opened. He did not break the door. At the time, he did not know what was going on inside the house but he could hear the voices of PW1 and PW7 conversing with DW1 and others.  So after the padlock opened, he pulled the chain and opened the door. He then went in and began lifting the cartons to bring them outside. At no time, did he show PW1 or PW7 the axe that he was holding nor did he threaten PW1 or PW7 by breaking the door as he did not break the door, but the padlock. 

In cross-examination, he states his intention was just to break the padlock.   

14.	Defense then closed its case.
Analysis
15.	The Prosecution bears the burden of proving the four counts of Criminal Intimidation in the charge against the Accused persons respectively. The standard of this burden of proof is one of beyond reasonable doubt. 

16.	Now the elements of the offence of Criminal Intimidation under the relevant provisions as alluded to are basically as follows:
a)	A person 
b)	Without lawful excuse
c)	Threatened another person 
d)	With intent to cause alarm to that person
The nature and confines of Element (c) can either be general or specific. This decision is the prerogative of Prosecution. In DPP v Solomone Tui [1975] 21 FLR 4,  the Court stated “It is an essential feature of the criminal law that an accused person should be able to tell from the indictment the precise nature of the charge or charges against him so as to be in a position to put forward his defense and to direct his evidence to meet them.” 
17.	Therefore, it is noted that in the four counts of the charge, Prosecution opted to be specific. For Counts 1 and 2, Prosecution has chosen to specify the mode of threat as by breaking the door of the house with an axe while for Counts 3 and 4, they have opted to specify the manner of threat as uttering words “open the door or I will hurt you.” The effect of particularizing the element of threat in law is that Prosecution has to specifically prove the essence and parameters of the same. All in all, the charge will always be framed in a way that is not different from what Prosecution has in terms of evidence (see R v Scalia [1971] VR 200 (CA); R v Westerman (1991) 55 A Crim R 353 (NSW CCA) and R v Le Boursicot (1994) 79 A Crim R 548 (NSW Smart J)).

18.	The following will now analyze the evidence against the respective elements of the offence.

Count 3
19.	There is no dispute that Accused 2 was present at the scene at the said time and day. There is also no dispute that the Accused 2 is not relying on any lawful excuse. What is in dispute whether the Accused 2 threatened PW7 by breaking the door of the house with an axe and by doing so had the intent to cause alarm to the said PW7. PW7 does not provide any evidence whatsoever to these two elements in contention. He only saw the Accused persons and others running up with an axe and knives. He does not say whether Accused 2 in particular was holding the axe nor did he provide any evidence of what and how the axe was used by Accused 2 on their door which caused alarm to him.

Count 4
 Like the preceding Count, there is no dispute that Accused 2 was present at the scene at the said time and day and that there is also no dispute that Accused 2 is not relying on any lawful excuse in relation to the commission of this offence. In relation to the remaining two elements, Prosecution relies on the evidence of PW1 when she states that while filming she heard Josefa tell others with an axe in the room to go and break open the exterior doors of the house so she felt terrified. But equally vital to note that PW1 does not say whether this eventuated. She nonetheless admits in cross examination that Accused 2 did not threaten her.  Prosecution also relies on the evidence of the Accused 2’s answers in his interview as per PE2 where he admits to damaging the padlock of the door by using PE3. However during cross-examination, Accused 2 further states that he damaged the padlock, not the door. His intention was to damage the padlock so that the chain could be loosened and the door opened. An appropriate Latin maxim in scenarios like this comes to mind “actus non facit reum nisi mens sit rea”, which when translated means “an act does not make a man guilty of a crime unless his mind be also guilty.” There is no evidence before the Court of PW1 being alarmed due to the Accused 2 breaking the door of the house with an axe. It is also in evidence that when PW2 interviewed Accused 2, he confirms that the interview had nothing to do with Accused 2 criminally intimidating anyone.

Count 5
20.	There is no dispute to the first two elements of the offence. As for element 3, PW7 states that about 11 individuals including Accused 1 started running up the driveway carrying an axe another carrying a knife. While locked in their house and being in the back bedroom, he saw PW1 started filming the ordeal. PE1 shows this as well. PW7 states that the Accused 1 then yelled from the outside porch “if you don’t unlock the doors, we will come in and hurt you” to which he felt terrified. This means that PE1 or the video would pick or show these words being yelled. Unfortunately, that is not the case. PE1 which shows PW1 and PW7 being in close proximity at all times, does not show this act or conduct by Accused 1. There is reasonable doubt. Accused 1 further states in his evidence that never did he yell or utter these words if you don’t unlock the doors, we will come in and hurt you to PW7 before going into the house or threaten PW7 inside the house.

Count 6  
21.	Again there is no dispute to the first two elements. Prosecution primarily relied on the evidence of PW1. PW1 apparently heard this before she started filming PE1 which is why PE1 does not show or record the words allegedly uttered by Accused 1. PW1 states that the Accused 1 while outside on her porch said to her “if you don’t come out, I’ll hit you.” She was terrified therefore alarmed. With respect, these words are distinctly different from the threatening words in the charge that is “open the door or I will hurt you”. Regrettably, Prosecution did not move the Court as well in the course of its case to amend the charge. Therefore, given that the specific mode or manner of threat was not adduced in Court to prove element 3 of the offence, there is reasonable doubt. The Accuse 1 on the other hand denies this allegation and states that PW1 lied under oath. I also had the privilege of assessing the demeanor of PW1 and Accused 1 or DW1 and I observed PW1 to be a bit evasive when asked questions during cross examination amongst other issues. On the other hand, DW1 was more firm and straight forward in his answers during cross-examination. As a result, I choose to believe DW1’s version of events.  

Finding 
22.	After assessing all the evidence before the Court against the relevant law, I hereby find that Prosecution has failed to discharge its burden of proving all four counts in the charge against the Accused persons beyond reasonable doubt. 

23.	I therefore find you, Emosi Kunaika and Josefa Nadri, not guilty as charged. 

24.	You are hereby respectively acquitted accordingly.

25.	28 days to appeal.

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Joseph Daurewa
Resident Magistrate
16th April 2024