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State v Raiqavi [2009] FJMC 18; Criminal Case 24.2009 (16 September 2009)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No: 24 of 2009

STATE

V

SAKARAIA RAIQAVI

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution: Inspector Ali
Accused: Present
For Accused: Mr. Rigamoto (Legal Aid)

JUDGMENT

Introduction

The accused is charged with Indecent Assault, Contrary to Section 154 (1) of the Penal Code (Cap 17). It is alleged that Sakaraia Raiqavi on the 26th day of October 2007 at Naiborebore Village, Nausori, in the Central Division, unlawfully and indecently assaulted a girl namely, M R.

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.

The elements of the offence that the Accused is charged with that the Prosecution needs to prove beyond reasonable doubt in this case are as follows:

(a) Sakaraia Raiqavi, (the person in the charge and appearing in court – identification)

(b) assaulted, M R (the complainant), and

(c) the assault was unlawful and indecent, that is morally offensive.

Prosecution Case

The first witness for the prosecution was the complainant. The Court enquired with the complainant the importance and the significance of the taking of oath and telling truth. The complainant stated that she knew the importance of taking oath and the need to tell the truth. The complainant took oath on the Bible in Fijian after it appeared to the Court that the complainant was competent to give evidence.

The Complainant’s (PW-1) evidence in Examination in Chief was as follows:

" – residing in Naimasimasi, Tailevu.

- Class 4 student.

- Going to Naimasimasi School only for class 4.

- In 2007 – at Tai District School.

- Staying with grandmother when I was going to Tai District School.

- In October 2006 I recall my teacher called me.

- I recall what I told her (my school teacher)

- When we play in school we go to river (nearby creek) to wash our hands.

- On 26th October 2007, I went with friends to wash hands in the creek.

- When I was washing hands at the creek I saw someone call me.

- I know the person who called me.

- I call that person "dad"

- I know the name.

- It’s Raiqavi.

- He called me to have some pineapples.

- So I went to him. He was lying to me. He asked me to take out my panty.

- He asked me to lie down on the ground. But I refused to do so.

- He forcefully laid me on the ground and with his fingers he started playing with my vagina.

- He was feeling his penis and playing with my vagina.

- He told me if someone asked me I was to tell I came looking for coconuts.

- After that incident happened I went straight home.

- I know Raiqavi for since I went to stay with my grandmother.

- I will be able to identify Raiqavi in a group of people.

- (PW-1 pointed out accused in the witness box as Raiqavi).

- I was taken to hospital later for check up – Nausori hospital."

In Cross Examination (Pw-1) (the Complainant) responded as follows:

"Q: How long you stayed with your grandmother?

A: for 1 year.

Q: Went to creek to wash hands with other girls?

A: I am in the same class with these girls.

Q: how many?

A: 5 of them.

Q: something bad happened to you on 26th October 2007 at about 3.30pm?

A: yes.

Q: Did you shout?

A: he asked me not to shout or yell.

Q: did you run?

A: no

Q: After that bad thing happened at 3.30pm on 26th October 2007. Did you tell anyone on that day?

A: I told my teacher.

Q: Did you tell your grandmother?

A: yes.

Q: on the same day?

A: yes in the afternoon.

Q: There were 5 other children with you?

A: yes.

Q: Sure told grandmother?

A: yes.

Q: Marica I put it to you that this incident did not take place. You were not fondled by my client?

A: it happened

Q: at the time my client was nowhere near the school or the creek?

A: he was there.

Q: He was with a relative, Latileta?

A: he was there.

Q: The events you described did not occur, 5 other people were present at the time you did not yell?

A: I wanted to yell. He forcefully ordered me not to yell or shout."

In Re-examination PW-1 was asked "you stated there were 5 other girls near the creek for washing?" her response was "yes." In subsequent questions she responded as follows:

"Q: Were these near to you when incident took place?

A: no, they were far.

Q: What happened to these girls?

A: they washed their hands and they ran away."

The prosecution and the defence counsels consented to the tendering of the accused statement, charge sheet, the victims medical report, grandmothers statement and the statement of the school teacher.

Defence Case

The Accused (D-1) gave sworn evidence (Bible in Fijian). His evidence in chief was as follows:

" –since birth lived in village.

- 26th October 2007 on that day after 12, I went to my wife’s place – Naqati settlement.

- I cannot figure out how far it is from my village.

- I went by a vehicle. It is about 8-10 minutes.

- I went to see my cousin (Latileta)

- I went to get some money from Latileta. I returned around 5pm.

- When I left settlement I reached village home after 6 pm. I walked.

- There is a village Naimasimasi. It is close to Naqati settlement. First village close by.

- I know M R. She is my niece.

- The evidence of P-1 is not correct. I was in the settlement.

- I was not at Tai District School."

In Cross Examination the accused stated the following:

"Q: how long you know the victim?

A: since her birth.

Q: any dispute between you and her family?

A: I used to go to her house."

The accused other response in cross examination as follows:

"- I always help them financially with education.

On that day I was not even close to the school compound."

"Q: any reason she gave your name to the police?

A: may be because I am close to their family."

There was no re-examination.

The 2nd defence witness was Latileta Kaisuva (D-2). D-2 gave sworn evidence (Bible in Fijian). Her Evidence in Chief was:

"- the accused’s mother is the eldest amongst the sister (my mother). We are cousins.

- Since birth we know each other.

- 26th October 2007 on this day he (accused) came home to get some money."

"Q: what time he came home?

A: 2 pm

Q: what time did he leave?

A: after 5 pm.

Q: what did he do while he was there?

A: we were telling stories. He was at home. He brought fish in exchange for money. He called earlier on Wednesday."

He other responses were as follows:

"3 children. 2 in school. When son returned accused was at home."

In Cross Examination, D-2 stated the following:

"- Q: accused spent 2-5 at your home?

A: yes. I am certain about the time.

Q: What if I tell you accused left your house at 3.30pm and not 5pm?

A: no. he left home at 5pm."

The prosecution asked that the court consider q. 25 of the accused caution interview.

"Q: Where accused went?

A: When he left he walked back and accused stopped at the victim’s house. That’s what the victims mum told me.

Q: did accused tell he went to Naimasimasi?

A: no. he took a walk to Naiborebore village."

No Re-examination.

The Law and the Analysis of the Evidence

The prosecution in this case needed to prove the following elements of indecent assault laid against the accused:

(a) Sakaraia Raiqavi, (the person in the charge and appearing in court – identification)

(b) assaulted, M R (the complainant), and

(c)the assault was unlawful and indecent, that is morally offensive.

The Court in this case notes the ruling of the Supreme Court in Eliki Mototabua –v- The State, Criminal Appeal No. CAV0004 of 2005S (Date of Judgment 29th February 2008) where Mason, Handley and Weinberg JJ stated (In paragraph 39):

" ... First, it has never been the law that actual corroboration is required in cases involving sexual offence. There was only a requirement, at common law, that a warning be given of the dangers of convicting on the uncorroborated evidence of complainant. Second, it has been held by the Court of Appeal that that rule of practice no longer exists in Fiji: See Sereima Balelala –v- The State at p.19."

This Court takes notes of and heed of the comments by the Supreme Court Justices.

Identification

One of the elements that the prosecution needed to prove in order to prove its case was the identity of the accused. The identity of the accused is established by the prosecution beyond reasonable doubt. The victim correctly identified the accused in court as the one whom she alleged indecently assaulted her near the creek.

Analysis of Evidence

The evidence of the victim, who was 9 years old at the time of the alleged incident, is that the accused called her when she came to wash hands at the creek on 26th October 2007. She was with other girls who returned and she was alone. The accused asked her to take out her panty. He asked her to lie down on the ground and when she did not lie down the accused forcefully laid her on the ground and started to play with her vagina. The accused was feeling his penis and playing with her vagina.

The statement of Sereana Tagive, a school teacher was tendered by consent of the prosecution and the defence counsel. The statement was given to police by Ms Tagive on 13th March 2008. The statement evidence is as follows: "She (meaning the victim) said that she had c[o]me from Naimasimasi village with her grandmother on Friday evening 26/10/07 and in the dark, her grandmother asked her to get water from a tank beside another house. She said she was returning when Mana pulled her to a nearby bush and removed her panty and tried to insert his penis into her vagina and later let her go. The second time was on the following morning she was sent to fetch for dried coconuts. While she was at the bush collecting coconuts, she met Mana again and Mana did the same thing to her. These were the two incidents that M R told me. She is a very slow student and I knew that this might be why she did not tell me the incident by the river. On that day I was questioning her..."

The other statement that was tendered was tendered by consent of the prosecution and the defence counsel was the statement of Salote Waqabaca, the grandmother of the victim. Ms Waqabaca’s statement was as follows: "on Monday 29th November 2007 at about 6pm I was at home and realized that my granddaughter still hasn’t arrived at home. Then I went to the main road and I was on my way to school when I met the Head Master of Tai District School namely, Master Atu then he asked me if I knew anything happened to Marica but I told him no, then he informed me to see Mrs Sereana (MR’s teacher). I went up to Sereana’s house and she asked me if I knew anything that happened to Marica on Friday 26/10/07 then I told her no." This statement was given by Ms Waqabaca on 1st October 2007.

The Court notes that in Cross Examination the victim’s responses were as follows:

Q: After that bad thing happened at 3.30pm on 26th October 2007. Did you tell anyone on that day?

A: I told my teacher.

Q: Did you tell your grandmother?

A: yes.

Q: on the same day?

A: yes in the afternoon.

Q: There were 5 other children with you?

A: yes.

Q: Sure told grandmother?

A: yes.

Firstly, the statements of the two prosecution witnesses (Ms Waqabaca and Ms Tagive) do not support the evidence of the victim. The victim did not give any evidence of the two incidents related to by the school teacher. In fact the Court notes that the School Teacher is also talking of an incident on 26th October 2007 at night but it is not related to what the victim is saying. Secondly, the victim in cross examination maintained that she told her teacher and grandmother about the incidents at the creek. In fact the statements by the two do not support her version. The victim’s grandmother came to know of the incidents from the teacher. The victims teacher states in her statement that the "victim is a slow student and I knew this might be why she did not tell me the incident by the river." From this statement the Court can deduce that the Teacher herself came to know of the incident of by the river/creek from someone else and not from the victim as the victim has told the court in her evidence. These contradictions do not support the prosecution case.

The victim is 9 years old and her teacher cites her to be a slow learner. The Court in its own assessment found the victim to be competent witness. The victim knew the importance of telling the truth and the reason and importance of taking oath. The victim gave sworn evidence. The Court acknowledges the need to protect our children who are vulnerable and tender. However the court is governed by law, practice and procedures and it can only rule on the evidence that comes before it. It cannot take extraneous issues or fill in the evidence. The evidence from the prosecution case has left doubts in the Courts mind and the evidence is not as strong against the accused 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’. A number of contradictions are in the way of the prosecution case. The case against the accused is not proved beyond reasonable doubt.

The accused is acquitted of the offence he is charged with.

28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
NAUSORI

16/09/09