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State v Sami [2004] FJMC 5; Criminal Case No 232 of 2002 (21 July 2004)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 232 of 2002

STATE

V

APPANNA SAMI

For Prosecution: Insp. Ashok
For Defence: Mr. Komaisavai.

JUDGMENT

The accused has been charged under S154 (1) of the Penal code for Indecent Assault. Particulars of Offence are on 27th day of March 01 he unlawfully and Indecently Assaulted Reginal Deo.

The accused has denied the allegation.

The facts are not complex.

The accused lived with his in-laws for a month in 2001. It was a 2 bedroom house where the accused family occupied the dining and kitchen area to sleep in. The mother-in-law and the complainant occupied 1 room and the complainant’s parents occupied the other. Early mornings the accused used to go to work as a taxi driver. He always changed his clothes in the room of his mother-in-law. Whenever he entered to change clothes the mother-in-law used to come out of the room leaving the complainant asleep by herself. The accused after changing would leave the room to have his breakfast. The family was normally up and about during that time. The complainant’s mother and wife of accused are up cooking for the family. The 2 bedroom house was small to cater for 5 adults and 7 children altogether.

The complainant alleges one morning on 27th March 01 said around 5 am when the accused was changing in the room she felt someone touching her around thighs and buttocks area. He was fondling and she was awakened. He asked her to separate her legs which she didn’t. He put his hands inside her undergarments and touched her vagina. She went to the kitchen and reported this incident to her mother. There was a repeat of incident on 28th about which she had told her mother also. She was shaken up and cried. Complainant was born on 13/6/91 and was 10 years old at the time of incident.

The mother of complainant stated the complainant’s story. She was told by her on 27th and 28th about the accused touching her private parts and telling her to spread her legs. She was distressed and crying at the time. The incident was repeated on 28th/3. The mother reported the incident to her husband who said he was going to talk to the accused.

The father of complainant confirmed the mother’s reports. He said he was going to talk to accused. It was repeated and he reported the matter to police. He said the second incident was on 27/3/01.

He also talked to the complainant who said "accused had touched her private parts". He said he didn’t report straight away as he was considering his sister’s interest in the family.

The accused on the other hand denies the incident. He said this was a concocted story as the complainant’s parents were not in good terms with the wife of accused. They also didn’t appreciate him and his family living with them.

LAW:

There is no question about the girl’s age or the statutory defence as the accused was well aware of the complainant’s age. She also looked frail and under 16 years in appearance. She appeared well spoken and intelligent for her age.

Due to the nature of the charge (sexual offence) corroboration is required.

In the present facts it is essential that corroboration be independent evidence which is reasonably safe to Act upon – P. Vosarawa [1970] 16 FLR z 02

The recent complaint relied upon by prosecution should be at first opportunity. It is important evidence but not by itself evidence of the truth of the facts complained of. It also is not independent. R –v- Wallwork (1958) 42 CR A Rep. 153.

ANALYSIS

There has been minor inconsistencies as to dates and times in evidence. However the complainant’s story and the parents evidence have been consistent. In such cases it’s difficult to give exact times and dates but the incidents and events were clearly stated in evidence.

I find complainant’s story to be the correct recollection of events as stated.

However on the question of corroboration in view of the family situation and the possible ill-will amongst them (which I accept) in such a situation is not unusual.

I do not consider it independent testimony which would be safe to convict the accused. I also consider the possibility of concoction and implicating accused in the present facts is strong. The recent complaints shows consistency of the complainant’s evidence. The victim’s distressed condition as noticed by mother may be taken as corroboration of her evidence. But the facts here are unlike Redpath’s case.

With the usual warning on danger of conviction upon uncorroborated testimony I am unable to convict the accused without reasonable doubt. Although I sympathize the incident involving a young complainant I am unable to say beyond reasonable doubt that the prosecution has met the burden required.

In the circumstances I find the accused not guilty and acquit him.

Dated 21st July 2004.

Ajmal Gulab Khan
RESIDENT MAGISTRATE