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State v Raiwalui [2010] FJMC 160; Criminal Case 2009.2008 (6 August 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 2009 of 2008

STATE

V

APETE RAIWALUI

For Prosecution: Mr. Daurewa J. (DPP Office)
Accused: Present in Person

JUDGMENT

1. Accused in this case is charged for one count of "Assault Occasioning Actual Bodily Harm" an offence punishable under section 245 of the Penal Code. (Cap 17).
   
2. Three witnesses testified for the prosecution case and accused gave evidence on his behalf.
   
3. Complainant is the sister of the accused and according to her testimony she and accused had altercation at her premises on 21st September 2009. Complainant had asked the accused to vacate her premises at no. 26 High Street, Suva where she had an accommodation business running. Whilst the complainant is having few drinks with her friend, accused had requested to join them and later he had asked further time to vacate the premises for which the complainant did not agree.
   
4. Accused had got agitated over the complainant's refusal and had punched her on her shoulder and face. Medical Report of the complainant had marked as prosecution exhibit 1.
   
5. Whilst cross-examining the complainant, the only question accused asked was that whether she had threw any glass at him for which complainant answered in negative.
   
6. None of the other two prosecution witnesses, who were the charging officer and the Investigating Officer was cross examined by the accused thereby the charge statement and the Cautioned Interview notes marked respectively as prosecution exhibit 2 and 3.
   
7. In his testimony accused said that the complainant had threw a glass object at him which, went pass him and simultaneously he reacted by bumping on the complainant. Accused re-iterated the fact that he was acting in self-defence.
   
8. However, according to the accused testimony it is evident that accused had been unhappy with the complainant over his working conditions.
   
9. After giving evidence accused informed the Court that he has a witness to confirm his version of the story. However, on the next adjournment date accused informed the court that he could not find the witness but moved the court to accept a letter which said to be from that particular witness confirming his version of the incident. However, court refuse to accept that letter as the witness is not present in the court.
   

Findings

10. Since the accused and the complainant are the brother and the sister, there is no question of identification in this case.
    
11. According to the medical report, complainant had received some bruises on her face and had left with a black eye and blurred vision.
    
12. According to the evidence of both parties, both were drunk at the time of the incident and that fact was not disputed.
    
13. According to the accused he had acted in self-defence, which is a total defence to a case.
    
14. However, accused informed the court that the complainant had thrown a glass object towards him which went past him without making any contact on his body. Therefore, it is clear that accused had not reacted simultaneously as he was stating in the court.
    
15. According to the accused that as a reaction to the complainant's behaviour he had bumped on the complainant and as a result she had fell on the ground.
    
16. According to the court's observation, both the accused and the complainant were well built people and both were more or less of the same hight. Therefore, just by bumping on each other complainant could not have received injuries to her face.
    
17. Even this court is to assume that the complainant had received injuries to her face when she fell on the ground it is difficult to explain the black eye. Unless the complainant had a direct impact to her eye, she could not have received the injuries mentioned in the medical report.
    
18. Therefore, I refuse to believe the accused person's version regarding the incident and find the accused is guilty as charged. I enter the conviction accordingly.
    

On this Friday the 06th day of August 2010

Kaweendra Nanayakkara
Resident Magistrate