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State v Lagivala [2012] FJMC 176; Criminal Case 77.2012 (26 July 2012)

IN THE MAGISTRATE'S COURT OF NAVUA

CRIMINAL CASE: 77/2012

STATE

VS

SEMISI LAGIVALA

For Prosecution: - Sgt Lenaitasi
For Accused: - In person

Date of Hearing: 20 July 2012
Date of Judgement: 26 July 2012

Judgement

[1] The accused is charged with Indecently Annoying Person. Since the victim is a juvenile I have identified her as X. The charge reads as follows.

CHARGE:

Statement of Offence [a]

[2]

INDECENTLY ANNOYING PERSON – Contrary to Section 213(1) (b ) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

SEMISI LAGIVALA, on the 09th day of March 2012, at Nabukelev Village, Serua, Navua in the Central Division, intending to insult the modesty of X, intruded upon the privacy of X by pulling her pants to her knees and masturbated whilst she was sleeping, an act likely to offend her modesty.

[3] Since the accused pleaded not guilty this was set down for trial.

SUMMARY OF EVIDENCE

[4] At the trial, prosecution called following witnesses.

PW 1-Makereta Nayara; She is the mother of the victim. She said the victim is 5 years old and her daughter. On 09/03/2012 they went to the church service in their village. After the church service victim was sleeping near her aunt inside the church. Aunt asked the accused to take the child home. Later the PW1 went home and saw the lights on. But her daughter was not in the living room. Then she went to the bed room and saw the accused trying to put a blanket to cover her daughter. She asked the accused to go out and pulled the blanket. The girl was in the bed and her underwear was down to her knee. She was sleeping. Her back was wet. She touched the white liquid. The PW1 asked the accused about that but the accused denied. Then the PW1 chased the accused out of the house and made a complaint to the police.

[5] The accused was given the right to cross examined the PW1 But he did not ask a single question from her.

[6] PW2 –PC 2966 Jone; The IO (Interviewing Officer) in this case. He visited the scene and drew a rough plan of the house. It was tendered as Ex-1. Then he conducted the interview of the accused in Fijian language. Since the accused has confessed to committing the offence in his interview I asked the PW2 to read the interview in Fijian language so the accused can understand that. Then I asked the accused if he has any objection to the prosecution marking the document as an exhibit. The accused was silent. Therefore the prosecution was allowed to mark the interview note and translation as Ex-2a and Ex-2b.

[7] The accused did not cross examine the PW2.

[8] PW3 – PC 2950 Semisi; The Charging Officer. The charge statement and a translation were marked as Ex-3a and Ex- 3b.

[9] Thereafter the prosecution closed their case. Since there was a case to answer the accused was explained and given his rights to call the defence. The accused opted to give sworn evidence.

[10] DW1- Semisi; The accused in this case. He said he brought the child home and put her to bed. He put a blanket. On his way out he met the PW1. The PW1 told him there is something wrong with the child and then she complained to the police.

[11] In his cross examination he said even though he went with a friend to the house he went inside alone. He also said that he admitted to the police about the offence and that statement was true.

[12] The accused wanted to call another witness but said he was not present and wanted another date to bring him. He said the witness went with him to the house but was not with him inside the house. Sec 179 (2) of the Criminal Procedure Decree was helpful for me to decide whether to grant an adjournment.

[13] If the accused person states that he or she has witnesses to call but that they are not present in court, and the court is satisfied that:-

(a) the absence of the witnesses is not due to any fault or neglect of the accused person; and

(b) there is a likelihood that they could, if present, give material evidence on behalf of the accused person —

the court may adjourn the trial and issue process, or take other steps in accordance with this Decree to compel the attendance of the witnesses.

[14] This matter was called on 13 March and fixed for trial. The accused had all the time to bring his witnesses. Even if I am satisfied that the absence of witness was not his fault I do not think the witness would be much helpful for this case. According to the accused the witness was not with him inside the house. Therefore adjournment was not granted. Then the accused closed his case. Both parties informed that they did not want to file written submissions in this matter.

THE LAW

[15] The accused is charged with Indecently Annoying Person. The Section 213(1) (b) of the Crimes Decree No. 44 of 2009 provides that.

(1) A person commits a summary offence if he or she, intending to insult the modesty of any person —

(b) intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty

[16] Therefore the elements of the offence of INDECENTLY ANNOYING PERSON are:-

(1) A person intending to insult the modestly of another person

(2) intrudes upon the privacy of that person

(3) doing an act of a nature likely to offend his or her modesty

[17] What is the burden of proof in this case? In Woolmington v DPP [1935] AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[18] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This mhis means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt abou thet of the accused."