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State v Reddy [2016] FJMC 60; Criminal Case 73.2014 (9 May 2016)

IN THE MAGISTRATE’S COURT AT SAVUSAVU

CRIMINAL JURISDICTION

Criminal Case No.73 of 2014

STATE

v

SHELVIN SHAHIL REDDY

For Prosecution : CPL Rinesh

For Accused : Mr Ratule. K

Judgment : 9 May 2016

JUDGMENT

1. The Accused, Shelvin Shahil Reddy was charged with one count of Indecent Assault, contrary to section 212 (1) of the Crimes Decree of 2009.
   
2. The name of the victim is suppressed to protect her interest and privacy and will be referred to as “MK” in this judgment. The particulars of the offence are that - “Shelvin Shahil Reddy on the 3^rd day of April 2014, at Savusavu in the Northern Division, unlawfully and indecently assaulted MK by touching her right breast”.
   
3. The Accused pleaded not guilty to the charge on 10 June 2014. The case proceeded for hearing on 4 May 2015.
   
4. At the trial, the Prosecution called the Victim (PW1), victim’s grandmother (PW2), and the interviewing officer (PW3) as his witnesses. The Accused exercised his rights to remain silent and the Defence only called one civilian witness. At the end of the trial, the Defence Counsel seeks time to file his closing submission. On 20 November 2015, the Defence Counsel informed the Court that he will not file a closing submission and will rely on the court record.
   
5. Section 212 (1) of the Crimes Decree of 2009, provides;- “A person commits a summary offence if he or she unlawfully and indecently assaults any other person”
   
6. The elements of the offence that the prosecution must prove beyond reasonable doubt are;-
   1. the accused;
   2. has indecent contact with the victim;
   100. without the victim’s consent;
   4. by force.
      
7. On the hearing date the victim was 15 years old and her evidence was given in a close court. In her evidence, the Victim stated that on 3 April 2014, she was in class 8 at Saint Paul’s Primary School. They have library class from 10.30am to 12pm. She was counselled with two other classmates by Master Reddy just before lunch. She identify Master Reddy as person sitting in the accused dock. She was the last one to go out. It was only the Victim and the Accused who were inside the room. The Accused was sitting on the chair and the Victim sat at the floor at the corner. The Accused was sitting in front of her and they were closed to each other. The Accused told her three times to unbutton her school uniform. Victim told him that she cannot do that. On the third time the Victim started crying. The Accused told her to spread her legs and to lift up her breasts. The Victim did lift her skirt once and the Accused told her to take off her tight. She did not do it and the Accused stretched his arm and forcefully touched her breasts. He pressed the top of her breasts. He touched her breasts from where he was sitting. The Victim was crying when Joti walk into the room. The Victim told her grandmother about the incident in the afternoon.
   
8. The Victim’s grandmother Amelia Boteiviwa confirmed in her evidence that the Victim informed her about the incident on that evening of 3 April 2014.
   
9. The interviewing officer CPL Tamani confirmed that he caution interview the Accused where he deny the allegation.
   
10. The only witness for the Defence, Joti Kauleta (DW1) in his evidence, he confirmed that he was in the same class 8 with the Victim at the same school on the date and time of the incident. He confirmed that they were counselled by the Accused. He confirmed the sitting position described by the victim. He confirmed that the Victim was crying when he walk into the room and agree that something was wrong.
    
11. There will be no adverse inference drawn on the Accused in exercising his rights to remain silent.
    
12. The burden of proof vested with the prosecution. The Victim in her evidence stated that the Accused touched her breast by pressing the top of her breasts. That is the indecent contact in this case. It is clear from the evidence of the Victim that she did not consent to the indecent contact as she did not want to unbutton her uniform and she told the Accused that she cannot unbutton her uniform. The touching of the breasts was without the consent of the Victim and was done by force. The crying of the Victim proves that she did not consented and did not like what the Accused had done to her.
    
13. In assessing the witnesses and their demeanour, I find the Victim to be a credible witness and her evidence was supported by all the witnesses in this case. I will accept the Victim’s evidence as it was not challenged or discredited during cross examination.
    
14. In cross examination the victim maintained her evidence that the Accused told her to unbutton her uniform, to stretch her legs, take out her tight and forcefully touched her breasts and she was crying. The evidence of Joti support the evidence of the Victim on the sitting position and that the Victim was crying. The Victim reported the incident to her grandmother on the afternoon of 3 April 2014 as confirmed by her grandmother.
    
15. In assessing the evidence, I find that the Prosecution has proved his case beyond reasonable doubts. The evidence of the Victim has established all the elements of the offence that the prosecution must prove in this offence. The Victim’s evidence was supported by the evidence of PW2 and DW1. The Victim’s willingness and readiness to experience the questioning in the trial shows that she was genuine about her complaint and the incident. There was no other evidence or reason on why the Victim should make up the allegation. The consistency of the evidence of the Victims and the supporting evidence from other witness proves the incident.
    
16. Accused is the teacher of the Victim who is in a position of trust and he takes advantage of this position to do the indecent act to the Victim.
    
17. In my judgment, I find the Accused guilty as charge and I convict the Accused accordingly.
    

28 days to appeal

.......................................
C. M. Tuberi
RESIDENT MAGISTRATE