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State v Kotobalavu [2016] FJMC 186; Criminal Case 54.2015 (28 September 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 54/15

STATE

-v-

JUDITH KOTOBALAVU

JUDGEMENT

1] The accused in this case is charged with the offence of Assault causing Actual Bodily Harm. The charge is as follows;

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JUDITH KOTOBALAVU on the 28th day of October 2014 at Suva in the Central Division assaulted ShaileshniSritika Devi thereby occasioning her actual bodily harm.

2] The complainant in this case is a junior physiotherapist attached to the CWM hospital in Suva. The accused was a colleague of her but a senior physiotherapist.

3] The accused on 28.10.2014 at about 7.55 a.m. wanted to speak to the complainant regarding the complainant’s job description in peruse of a decision taken at a meeting on the previous day.It appears that the complainant was not happy with change of her duties. Both of them were under a Superintendent Physiotherapist. There is no evidence that the accused had any control over the complainant’s duties. However for some reason the accused wanted to discuss the change of the complainant’s duties on call.

4] The complainant did not respond when the accused talked to her at the outdoor patients’ area. She only replied that it can be solved when the Superintendent Physiotherapist is present. The complainant then moved to the waiting area. The accused followed her and raised the same issue. The complainant ignored the accused and without any response to her question moved to the staff room. The accused again followed her and spoke to the complainant in a loud voice. She again did not answer as she wanted to raise the matter with the Superintendent Physiotherapist. The complainant wanting to ignore the accused went down to the gym and there she took a phone call to a patient. The accused followed her to the gym as well. She again attempted to take the complainant’s attention in a loud voice. The complainantcovering the phone receiver with one hand said that the accused’s manner was unprofessional.

5] According to the complainant the accused then pushed her suddenly whereby a register book which was in her hand fell down. The complainant said in evidence that the accused then threw a punch on her right cheek. The prosecution case is that the complainant has received injuries as a result of the punch.

6] The followings are the elements of the offence of Assault Causing Actual Bodily Harm.

1. an assault which occasioned actual bodily harm
2. The intention to cause bodily harm or the knowledge that the assault causes actual bodily harm.

7] The accused admitted in her evidence thatshe followed the complainant up to the gym when the complainant ignored her attempt to talk to her. She further said in evidence that she slapped the book that was in the complainant’s hand to draw her attention. After that the accused said that the complainant threw a punch on her. In order to defend herself according to the accused she raised her hand which hit the complainant’s cheek. The accused said in defence that she had no intention to harm the complainant.

8] Defence called another witness who was another physiotherapist worked with them. She in her evidence basically said that the complainant threw a punch first and the accused raised her hand in response.

9] Now I shall consider whether this defence evidence has raised any reasonable doubt on the prosecution case.

When the accused’s behaviour at the time of the incident is taken into account it appears that she was furious about the complainant’s refusal to listen to her. She said in her evidence “I was frustrated and I was angry because she sort of disrespected me in front of the other colleagues.” She attempted to talk to the complainant but the complainant ignored her. The complainant in fact wanted to get rid of any encounter with the accused so that she went to some other places and lastly to the gym where this incident occurred.The accused followed her. Then the complainant went to the Gym. The accused followed again and at the gym the complaint was on a phone call. It was confirmed by the defence witness as well. It is there that the accused was more furious. The accused says that she then slapped a book which was in the complainant’s hand. She has gone to that extent to draw the complainant’s attention. These circumstances suggest that the accused was in an extra ordinary hostile situation with the complainant because of her refusal to respond. So in these circumstances did the accused attacked or the complainant attacked first?

10] Now I shall consider in the following paragraph whether the injury sustained by the complainant is a result of a defensive act of the accused. If itis a defensive action then of course the accused has had no intention to cause any injury to the complainant. Accordingly one element of the charge cannot be proved.

11] Thecomplainant has been examined by two medical officers. One has found a right intra-oral laceration and right cheek swelling on the complainant. The other medical officer has observed a slight swelling and tenderness. He has not observed the intra-oral laceration. The defence suggested that there is a discrepancy in the medical reports. However there is no discrepancy but there is an omission on the part of one medical officer. The complainant testified that she received the lacerating inside the mouth. The injury has extended to interior side of the mouth apart from the swelling. It appears that the accused has used a considerable amount of force with her hand. The accused said that the complainant threw a punch on her and it landed on her forehead. She had raised her hand anticipating a second punch. She also says that the complainant did not hit again. So why she raised her hand with such a force?According to the injuries that the complainant has received there is no doubt that the accused intentionally punched her to cause bodily harm. The injury cannot be a result of the accused’s defensive action. This conclusion is supported by the circumstances that prevailed at the time of the incident as discussed above. On the other hand the accused has not reported any where at least to the Superintendent Physiotherapist that she was assaulted by the complainant.

12] When the totality of the evidence is evaluated the only conclusion that can be drawn is that the accused had intentionally punched the complainant to cause bodily injuries. Accordingly I refuse the defence.

13] For the reasons adduced above this court is of the view that the prosecution has proved the charge beyond reasonable doubt. Accordingly the accused is found guilty to the charge and enter a conviction.

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

28/9/2016