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DPP v Yavu [2013] FJMC 178; Criminal Case 40.2011 (1 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 40/2011

DPP

-v-

METUISELA HALAAPAIPI YAVU

Mr. J. Niudamu for the DPP
Ms. M. Tarai for the accused

1] The accused is charged with following offence namely;

AMENDED CHARGE:

Statement of Offence [a]

2] INDECENT ASSAULT: Contrary to Section 212 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

3] METUISELA HALAAPAIPI YAVU on the 21st day of November 2010, at Tovata, in the Central Division unlawfully and indecently assaulted Adi Caucau Nareko.

4] The accused pleaded not guilty to the charge. The Prosecution case began on 30th October 2012 and completed on 31st October 2012. The Prosecution called five (5) witnesses to prove it's case. They were;

PW1 – Adi Caucau Nareko

PW2 – Eseta Kunalulu

PW3 – W/A/Cpl 3082 Maria Golea

PW4 – D/Cpl Inoke Tui

PW5 – D/Cpl Elia Waqasoqo

5] I now consider the evidence. PW1 – Adi Caucau Nareko; She was 13 years at the time of the incident in 2010 and she was in Form 3 at the Ratu Sukuna Memorial School. They reside at Kubukawa Road, Tovata with her family. PW1 can recall that on the 20th November 2010 she was with her parents at their home in Kubukawa Road. On the evening of the 20th November 2010, the accused came to their home. The accused is the cousin of PW1's mother who resides at Nadera. PW1 referred to the accused as Metui. PW1 informed the Court Metui as drinking grog with her father outside their house on that evening. PW1 and her mother were watching television. At about 10.30 pm PW1 went to sleep on that night at around 10.30 pm. She slept with her mother in the sitting room. PW1 was wearing a light brown long pants and a T-Shirt and was covering her with a blanket. While PW1 was sleeping she felt that someone was touching her legs. Pw1 was lying sideways. PW1's face was facing the television and her back facing the mother. PW1 woke up and saw the accused standing near her legs. PW1 was able to recognize the accused because there was light on the sitting room. PW1 did not say anything but he kicked the accused away. PW1 noticed that her blanket has been pulled away but she continued to sleep. After a while, she felt that the accused was touching her buttocks and she kicked the accused. The accused was touching PW1 over her clothes. PW1 states that the accused was touching her for a few minutes. The accused then went to sleep after the incident. PW1 informed the Court that the incident happened at around 1am o 2pm on the 21st of November 2010. PW1 woke up at around 7.30am on the 21st November 2010 and informed her mother immediately about the incident. PW1's mother went and questioned the accused who was sleeping. The accused denied about the allegation and the accused was warned by PW1's mother to leave the house immediately.

6] In cross examination she said that the accused had touched her feet and her backside. She could feel that someone was touching her twice and she could see the accused properly because she woke up at that time and the accused was still touching her. She later stated that she had only seen the accused pulling off the blanket. However when it was suggested to her that she that she didn't see the accused touching her because she had only opened and closed her eyes, she replied that when she opened her eyes, she saw the accused walking out the door and he never came back inside the sitting room. She agreed that their sitting room is not big or small in size and that she wasn't lying far away from her mother. She didn't call her mother in a loud voice. When the accused was touching her mother was lying close to her, she didn't scream or shout for help because she was afraid. She also agreed that she shouldn't have been afraid as her other siblings were sleeping in the sitting room with her and her mother and that she feels safe with her mother. She confirmed that she had told her mother the next morning that the accused was touching her the night before and that she was calling her m other at the time but her mother didn't wake up. She denied lying about calling her mother when it was put to her. When it was put to her that she didn't inform, the Police that she had tried to wake her mother during the offence, she stated that she had told the Police who had recorded her statement however that particular officer didn't write it down. She also contended that she was never given her Police statement to read and that she had signed it without reading the contents. She further confirmed that she usually moves her legs when she is sleeping but she was sure the blanket was still fully covering her that night. A power plug is located somewhere around where she was sleeping and she agreed that if someone had wanted to charge their phone on that power plug, then they would need to stop over her body while she was sleeping. She admitted that she doesn't know whether the accused's feet were tangled on her blanket when it was put to her. However she again stated that she saw the accused pulling the blanket off her. She also denied it when it was put to her that the accused had fallen on top of her because his legs got tangled on her blanket while he was trying to charge his phone on the power plug. She further denied that the accused had braced his hands on her abdomen when he fell. She had also denied that the accused had braced his hands on her leg when he was trying to get up off her. She further stated that she had confronted the accused with her mother the next morning and she had told the accused that he had touched her. She agreed that she didn't tell the accused that he had fondled her. She also agreed that she knew that the accused had not touched her in an indecent manner. When it was put to her that the accused had not touched her for 15 minutes like she was claiming, she replied that the accused had touched her and then she kicked him. Also under cross examination she said that she had felt frightened when the accused was touching her however she later stated that she knew that the accused was not touching her in an indecent manner. In addition, she also agreed that she shouldn't be frightened because she had 4 other people sleeping next to her. But after further questions, she said that she didn't raise any alarm, because she didn't know what to do. The complainant also said that she was trying to wake her mother but was unsuccessful. When she was asked as to why she didn't tell this to the Police, she stated that she had told the Police but the Police did not write it down.

7] When she was re-examined, she confirmed that the accused had touched her feet, then she kicked him, then he touched her buttocks, then she kicked him again and he went outside. She also confirmed that understood the different between "touching" and "feeling". She further re-iterated that the accused had touched her buttocks and her feet.

8] PW2 – Eseta Kunalulu; PW2 is the mother of PW1. She is unemployed and her husband is a school teacher. PW2 can recall that on Saturday night (20th November 2010), she went to sleep at about 10.30pm. PW2 was sleeping in the sitting room with her daughter (Adi Caucau Nareko). PW2's husband was drinking grog with one of her cousin by the name Metui when they went off to sleep. PW2 woke up in the morning at around 7am to 8am and did her washing. When she came inside the house, she met PW1 who had just waked up. She noticed that PW1 was about to cry and PW1 relayed the incident to her saying that the Metui (accused)_ touched her legs, thighs and buttocks. PW2 asked PW1 why she did not called her but PW1 replied that she was calling her but it was unsuccessful. PW2 got angry and woke the accused and questioned him about the allegation. The accused replied saying that he was waking PW1 to ask for the mosquito coil. PW2 then informed the accused that he should have asked her or her husband as she was sleeping close to the door at the sitting room PW2 then called PW1 to the room where the accused was sleeping and asked PW1 what the accused was doing. The accused was quiet and she can see that the accused was about to cry. She then informed the accused to leave the house immediately.

9] When cross examined she stated that she only came to know of the incident the next morning when Caucau told her, even though she was sleeping a few spaces away from Caucau. Caucau had told her that the accused had touched her thighs and buttocks and that she knows the difference between "legs", "feet" and "thighs" and Caucau had told he that Metui had touched her thighs and buttocks. She further confirmed that Caucau, was lying in front of the television set and that there was an electric fan next to the television. She also confirmed that there was a power board (power plug) where the television and the fan were situated and if someone was to go to the power board, they would need to stop over Caucau. She also confirmed that Caucau had on a blanket that night and that Caucau didn't tell her how long the accused was touching her for. When it was suggested to her that the accused was trying to charge his phone when the alleged offence occurred, she stated that he wouldn't have touched Caucau if that was true because there was a gap. When it was put to her that the accused had stepped over Caucau to charge his phone when he fell on Caucau, she stated that they weren't even close to the power board. When it was further put to her that the accused had tangled his legs on Caucau's blamket and he fell on top of Caucau, she stated that he couldn't have tangled his legs because the blanket was a small blanket. She further stated that it was impossible for someone to touch Caucau while bracing on Caucau to get up.

10] Other witnesses were official witnesses. PW3 – W/A/Cpl 3082 Maria Golea; PW3 is a Police Officer and she is based at the sexual offences unit. She informed the Court that she visited the crime scene on the 23rd of November 2010 after they have received the complaint. She drew a rough sketch plan of the crime scene. PW3 informed the Court that there is some space in the living room for the accused to move around. PW3 then tendered the rough sketch plan as part of her evidence in Court.

11] During cross-examination, she stated that she had also recoded the Police statement of the victim and PW2. During the making of the 2 statements, she had recorded and noted everything they had told her and she didn't leave out anything. She then gave the victim her own statement to read after it was recorded. She also confirmed that the victim had told her that she felt someone touching her and she woke up. The report was lodged by the victim's father namely Iliesa however his statement was never taken down. When she had gone to sketch the crime scene, she could not recall on seeing a power board in the sitting room however she recalled seeing electric gadgets in the sitting room where the victim was sleeping. She also confirmed that she couldn't recall if there was a door for B1 and B2 and that she did not take any proper measurements. She also confirmed that from the size of the room, if the victim had called out, the mother and siblings would have been able to hear her.

12] PW4 – D/Cpl Inoke Tui; PW4 is the charging officer in this matter and he is based at CID HQ witht eh Major Crimes Unit. He formally charged the accused on the 12th of January 2011. He tendered the charge statement as part of his evidence in Court.

13] When he was cross examined he stated that he had to go over all the information before charging the accused. He also agreed that it was correct that the victim had said in her statement that the accused had touched her legs and buttocks. He also agreed that while he was charging the accused, he had put to him that he had touched the complainant's private parts. He confirmed that he knew the difference between "legs", "feet", "buttocks" and "private parts". But he couldn't answer as to how the "legs", and "buttocks" in the victim's statements became "private parts" as per the charging sheet.

14] PW5 – D/Cpl Elia Waqasoqo testimony; PW5 was the interviewing officer in this case. He is also based at CID Hq with the Major Crime Unit. He confirmed the accused was explained all his rights before the interview. He stated that the accused confessed in the interview that he touch PW1's private part accidently because he was drunk with grog. PW5 also tendered as part of the Prosecution evidence.

15] During cross examination he stated that all the interview questions were based from the victim's statement. He also stated that he was aware of the incident but he couldn't recall if he had read the statement or not. He further stated that the accused had said that he had touched the private part of the girl. When it was put to him that the accused had touched the abdomen and that he had told the accused that the abdomen is considered a private part, he replied that the accused had showed him the top of the vagina blaming that he was drunk. When it was put to him that he accused didn't show him that he had touched the top of the vagina, he replied that the accused had said in his interview and he had noted everything that was explained. When it was further suggested to him that he had told the accused that the abdomen is the private parts, he responded that the accused was old enough to explain. He further stated that everything that had transpired during the interview was noted. However when he was asked as to why he had failed to note in the interview that the accused was showing him the part which he had allegedly touched, he responded that everything which is relevant was noted.

16] Since there was a case to answer. The right to call defence is explained. The accused opted to give sworn evidence. Metuisela Halaapaipi Yavu (Accused); He said in for his evidence in chief that he is related to the complainant's mother. On 20th November 2010, he had gone to complainant's house at Tovata to drink grog with the complainant's father at about 7pm. They were drinking grog at a shed at the back of the house and the complainant was watching television in the sitting room with her mother and other siblings. He couldn't quite recall the time in which the grog finished but after he finished, he went inside the house with the complainant's father to eat in the kitchen. While the complainant's father was having his dinner, he went into the sitting room to charge the phone. He first went into the bedroom to get the phone and then he went into the sitting room to charge the phone on the power board. When he came into the sitting room, he saw the complainant lying in front of the television. So he stepped over her body because the power board was situated somewhere above the place where the complainant's feet were. When he stepped over the complainant, part of his feet was stepping on her blanket, as the blanket was covering her feet, and half of his feet were on the mat. After he had plugged the charger into the power board, he turned around to leave but then his feet got tangled in the blanket and he fell onto the complainant. When he fell, he reached out and his hands touched the complainant's abdomen to break his fall. As soon as he fell, he stood up again and this was when he braced his hand on the complainant's leg. As far as he could recall, he had only touched the complainant for less than a minute because he stood up as soon as he fell on her. When he got back to his feet, he went around the complainant and he saw the complainant open her eyes and then she closed her eyes straight after. Then he left the sitting room. He was in the sitting room for about 2 to 4 minutes only. He also stated that he did not mean to intend to touch the complainant; he had only touched her because he fell and the first thing his hands reached was her abdomen. When he woke up the next morning, the complainant's mother had asked him what he had done to the complainant and he said "nothing". He further denied saying anything about the mosquito coil and he also denied wanting to cry when he was confronted as alleged by PW2. During his caution interview, he did not tell the interviewing officer that he had touched the complainant's private parts. He had only showed the interviewing officer the part that he touched (he showed the Court the side of the abdomen_ and the interviewing officer had told him that is considered as a private part.

17] During his examination in chief, the accused demonstrated to the Court the following:

• The manner in which his feet had got tangled with the blankets
  
• How he fell on the complainant as his feet got tangled
  
• How he reached out and laid his hands on the complainant
  
• The complainant's body part his hand had touched when he fell which was the side of the abdomen
  
• The complainant's body part he had braced himself on when he was lying to get up off the complainant (which was the complainant's leg)
  
• The body part he had showed the interviewing officer (which was the side of his abdomen)
  

1. From the rough sketch tendered by the Sketching Officer:
   
   • The route he took from the kitchen to the living room to charge the phone
     
   • Where the complainant was lying in the sitting room
     
   • Where the power board was located
     
   • The complainant's position in regards to the location of the power board
     

18] Under cross examination the accused said that even though the sitting room was wooden floors, his fall did not make a sound because he had landed on the complainant rather than the floor. In addition, he did not brace on the settee or floor when he fell because the space where the complainant was lying was the only space he could brace his hands on. And even if he had turned to brace on the floor, then he would be lying on the complainant but he did not do this. He also did not inform the Police that their rough sketch was missing the door which he had highlighted in his evidence in chief because the Police did not show him the sketch when he was being questioned. It was put to him that he is guilty because he did not apologize to the complainant and he replied that he isn't guilty and he did not apologize because the complainant had only opened and closed her eyes again. He also stated that he was grog doped that night and so he didn't really see the blanket as he was turning to leave. The accused also denied the allegation that he had purposely touched the complainant's buttocks and he also denied intentionally touching the complainant's feet. He also confirmed that he had only showed the Police the part he had touched and the Police had told him that was the private part and he thought they were right.

19] When the accused was re-examined, he confirmed that he didn't change or alter his caution interview because the Police had told him that the part he had showed them was the private parts and he thought they were correct.

20] Indecent Assault interprets in Section 212 of the Crimes Decree 2009 which states:

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

21] The maximum sentence for Indecent Assault as per the Crimes Decree is 5 years imprisonment. Therefore this is a serious charge.

22] Elements of Indecent Assault has been explained by His Lordship Justice Temo in State v Namado - Summing Up [2012] FJHC 1172; HAC094.2010S (4 June 2012). Those are;

• The accused;
• Unlawfully; and
• Indecently
• Assaulted
• The female complaint
  

23] In that same case Justice Temo define assault as follows;

"To assault someone is to apply unlawful force to the person of another, for example, to punch someone in the face, without any justifiable reason, is to apply unlawful force to the person of another. Likewise, to touch and squeeze someone's breast and/or vagina, without that person's consent, is to apply unlawful force to the person of another. It wouldn't amount to an assault, if a doctor examine a patient by touching and squeezing a patient's breast and/or vagina with that person's consent, in the course of conducting a medical examination. To constitute an assault, the application of force to the person of another must be done with no legal justification whatsoever, that is, it was done unlawfully.

The assault must not only be "unlawful", it must also be indecent. An indecent assault is one committed in circumstances of indecency. A circumstances of indecency is what right minded people would consider indecent for example, an older man touching and squeezing a girl's breast and/or vagina, without her consent. It is therefore essential for the Prosecution to prove beyond reasonable doubt that the assault was not only unlawful, it was also indecent".

24] In Blackstone's Criminal Practice, (1993 Edition) at Paragraph B3.B4 described the term "indecent assault" as follows:

"The test indecent assault is primarily objective. An indecent assault is defined as an assault committed in circumstances of indecency. Spoken words may constitute circumstances of indecency on the part of the person using them. If the circumstances of the assault are incapable of being regarded as indecent, the assault cannot become indecent because of some secret motive of the accused. Where the circumstances are such that the assault could be considered indecent, it must at least be proved that the accused intentionally assaulted the victim with knowledge of the indecent circumstances or being reckless as to the existence of them. Court (1989) AC 28. This means intention or recklessness with regards to circumstances which are shown to contravene standards of decent behavior with regard to sexual modesty....whether or not the victim appreciates the fact of the indecency is irrelevant".

25] In R v Court [1988] 2 ALL ER 221, [1989] AC 28, 36, the term Indecent had been defined as an act "offensive to the contemporary standards of modesty and privacy". Lord Ackner said;

"Assault" consists of an act which involves the violation of another's person, however minor: and an indecent assault is one which involves conduct which "right–minded persons" would consider to be indecent according to contemporary standards of modesty and privacy"

26] This is a criminal case; the prosecution is required to satisfy the Court that the defendant's guilt is "beyond reasonable doubt."

27] The standard of proof to convict the accused in a criminal case, Lord Denning had this to say:

"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 a shadow of a doubt. The law would fail to protect the community if it permitted 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 favour 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; nothing short will suffice."

28] 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/b>. 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 uilty. If you have any reasonable doubt as to whether the athe 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 aboe thlt of the accused."