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State v Roko [2012] FJMC 352; Criminal Case 103.2012 (28 December 2012)

THE MAGISTRATE'S COURT OF NAVUA
Criminal Case : 103/2012

STATE

VS

JIUTASO ROKO

For Prosecution : Sgt. Lenaitasi
For Accused : In person

Date of hearing : 24 Dec 2012
Date of judgment : 28 Dec 2012

Judgment

[1] The accused is charged for the offence of Indecent Assault contrary to Sec 212 (1) of the Crimes Decree No 44 of 2009. The charge reads as follows.

Statement of Offence [a]

INDECENT ASSAULT – Contrary to Section 212(1) of the Crimes Decree No 44 of 2009.

Particulars of Offence [b]

JIUTKO ROKO, on the 10th day of January 2012, at Wainadoi, Navua in the Central Division, indecently assaulted ELENA REIJELI.

[2] The accused initially applied for the Legal Aid, but it was rejected. Then on 09/07/2012 he informed the court that he was waiving right to legal counsel and pleaded not guilty for the charge. The hearing was taken on 24/12/2012. The prosecution called 03 witnesses and the accused opted to remain silent.

SUMMARAY OF EVIDENCE

PROSECUTION CASE

[3] The prosecution called following witnesses.

Elena Raijieli (PW1) – The complainant in this case. She said she has been married for 05 years and lives in Wainadoi, Navua. The accused is her neighbor. On 10/01/2012 she was returning home with her mother and noticed the accused standing in a footpath with some other people. As she was passing the accused touched her buttock. She was shocked from that.

[4] The accused was given the chance to cross examine the PW1. He asked only one question as to why she did not tell about that to her mom. The PW1 stated her mother saw the incident.

[5] Filimore (PW2) – The mother of the PW1. She said on that day she was coming back with her daughter. She was following her daughter and saw the accused touching the PW1's buttock. She asked about that from the PW1. There was no cross examination of the PW2.

[6] PC Pram (PW3) – The officer who charged the accused. Through him the interview notes and the charge statement were tendered as Ex-01 and Ex-02 respectively.

[7] Thereafter the prosecution closed their case. This court was satisfied about the prosecution's evidence and the accused was explained about following rights under Sec 179 of the Criminal Procedure Decree.

[a] To give evidence on oath

[b] To call other witnesses

[c] To remain silent.

[8] The accused informed that he did not want to give evidence neither did he want to call any other witnesses. Therefore the defence case was closed.

THE LAW

[9] The accused is charged with the offence of Indecent Assault. The offence is described in the Sec 212 ( 1) of the Crimes Decree as,

"(1) A person commits a summary offence if he or she unlawfully and indecently assaults any other person "

Therefore the elements of this offence are

[a] The accused unlawfully and indecently

[b] Assault the PW1

[10] Sec 57(1) of the Crimes Decree No 44 of 2009 imposes the prosecution with the legal burden of proving every element of the offence and Sec 58(1) of the same Decree stated that the burden must be discharged beyond reasonable doubt. This is in line with what was emphasized in the landmark case of Woolmington v DPP (1935) AC 462. Viscount Sankey LC stated in that case 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".

[11] In Miller v Minister Of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt' as, ' That degree is well settled It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence "of course it is possible but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.'

[12] Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution in this case. If the evidence creates any doubt, this should be given to the accused.

[13] Keeping in mind the above principles now I will closely examine the evidence in this case.

ANALYSIS OF THE EVIDENCE

[14] The complainant in her evidence stated the accused touched her buttock on that day. I am satisfied with her evidence and also her demeanor in the court. The accused given the chance, failed to raise a doubt about her evidence.

[15] Presently there is no need for corroboration of a complainant's evidence in sexual offence cases as per the Sec 129 of the Criminal Procedure Decree. But I note that in this case the complainant's evidence is corroborated by the PW2 (mother of the victim) who was also present at that scene.

[16] Only weak point in the Prosecution's case is the time period of the victim's complaint to the police. She answering to the question raised by the court said that the complaint was made after nearly 03 months from that incident. The reason was that she forgave him for that incident but the accused kept harassing her. Therefore she went and made complaint about that incident. Therefore I am satisfied with her explanation about the belated complaint.

[17] The accused has a right to remain silent. This a common law right in a criminal trial as well as a right given under Sec 179 of the Criminal Procedure Decree. But when a serious charge is raised against the accused and when strong evidence is given against him by the prosecution's witnesses it is strange that he did not call any witnesses or explain about that in the court.

CONCLUSION

[18] Based on the above reasons the court decides that the prosecution has proved beyond reasonable doubt that the accused committed this offence against the PW1 on 10/01/2012.

[19] Therefore I find the accused guilty for Indecent Assault and convict him for that offence.

[20 ] 28 days to appeal.

28/12/2012

H.S.P.Somaratne
Resident Magistrate