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State v Talavutu [2016] FJMC 212; Criminal Case 94.2015 (6 October 2016)

IN THE MAGISTRATES’ COURT

AT LEVUKA

IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 94/15

State

.v.

Paulo Talavutu

Prosecution : PC Abinash (Police Prosecution)
Accused : Present – In Person

Judgment

Introduction

The accused was charged with 2 counts of Indecent Assault, contrary to Section 212 (1) of the Crimes Decree 2009.

Count One

The Particulars of Alleged Offence is that:

“Paulo Talavutu on the 25^th day of May 2015 at Lovoni Village, Ovalau in the Eastern Division unlawfully and indecently assaulted M S by fondling her breast nipples.”

Count Two

The Particulars of Alleged Offence is that:

“Paulo Talavutu on the 27^th day of May 2015 at Lovoni Village, Ovalau in the Eastern Division unlawfully and indecently assaulted M S by caressing her breast.”

The Elements of the Offence

The prosecution and the Defence (the accused in Person) agrred before the case as to the identification, date and time and place of the alleged offending. The only issue in both counts was whether the accused assaulted, MS (the complainant), and that the assault was unlawful and indecent, that is morally offensive.

Indecent assault

The standard definition of an incident assault is found in the English Court of Criminal Appeal decision in Beal v. Kelley (1951) 35 Cr App R 128, where Lord Goddard CJ, speaking for the Court said:

"The definition given in Archbold’s Criminal Pleading ((32nd Ed), p 1067) of an indecent assault is perfectly right; ‘an assault accompanied with circumstances of indecency on the part of the prisoner’, that is to say, indecency offered towards the person alleged to have been assaulted. If a person is assaulted, that is to say, if there is a hostile act with every circumstance of indecency, I cannot see why it is not an indecent assault. If a man assaults a woman, at the same time exposing his person to her, I have no doubt that that is an indecent assault on a female, just as I have no doubt that the conduct of the respondent was an indecent assault."

Element of indecency

For the assault to be indecent it must be accompanied by a circumstance of indecency. Conduct is indecent when it is as such that ordinary people would so describe it, in light of prevailing standards of morality (as per Court [1989] 1 AC 28) and, more specifically, in light of whether the victim has consented to the conduct in question.

The Standard and Burden of Proof

The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "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 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 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, but nothing short of that will suffice."

The Law and the Analysis of the Evidence

The Evidence

The prosecution called 3 witnesses. The accused gave sworn evidence. The accused’s Caution Interview and Charge sheet were tendered by consent.

Analysis of Evidence in Relation to the Law

This Court has analysed all the evidence by all the witnesses in this case. The crucial issue to be determined in this case is whether the accused person indecently assaulted the complainant or not. There is no dispute as to the identification of the accused and the time and date of the alleged offence for both the Counts.

The victim told the Court that the accused took her inside the house. Hugged her from the back, touched her thighs, stomach up to her breasts. She demonstrated in court the actions of the accused which she had described. Her younger brother was outside while the accused’s wife was away playing volleyball. She had not consented to being touched. She informed a friend and informed her mother. The second instance the accused touched the victim was when she was lighting firewood. The accused approached her and put his finger in her underwear. She had told Timoci about the incident. She told the Court she was frightened and felt evil touching her.

The second witness for the prosecution was Timoci. He told the Court that he was informed by the victim that the school teacher touched her body. She had mentioned he touched her breast. On both occasions the victim had mentioned to Timoci. The 3^rd Prosecution witness was Ulamila, the mother of the victim. She told the Court that the accused had asked her that as the victim was travelling long distance the victim could stay with him. After a weekend back at her home, the victim did not want to go back to the accused’s house. The victim told her mother that the accused touched her breast. She had narrated both incidents to her mother.

The accused’s version is that it was not his idea but his wife’s idea that the victim stay with them. According to the accused the victim was not comfortable and was frightened and when he passed she jumped. The accused told the Court that he hugged her from behind and asked her not to be frightened. He denied touching her breast and private parts. As for the 1^st incident the accused admitted hugging her shoulder and the 2^nd incident from the stomach. In cross-examination the accused told the court that it was necessary fro him to hug the victim as a teacher and a father. He told the Court that the victim was in his house and he was her father in the house.

The accused witness was his wife, Alanieta. The Court has noted her evidence.

Having noted all the evidence the Court believes the prosecution witnesses. The victim was very clear in her evidence. She did not make anything up. She told the court and demonstrated in court what the accused did to her. The accused in Court stated that he touched the victim. His version as that he was her teacher and at home he was her father and that he was trying to teach the victim not to be frightened of him. This Court does not believe the accused as a teacher he would not being doing that to all children. He must know the boundary between a teacher and his students. In this case he added that while she was at his house he was her father. This again is being put up by the accused to serve himself. A father would not deal with a daughter of that age in that manner. To teach her not to be afraid of him. In fact the Court believes the victim that the accused touched her breast and put his finger in her underwear. The accused is now making up to cover his immoral actions.

For the above-mentioned reasons this court finds that the charges, both counts against the accused is proven beyond reasonable doubt. The accused is found guilty of the charge.

Chaitanya Lakshman

Resident Magistrate

6^th October 2016