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State v Cokalaca [2018] FJMC 20; Criminal Case 396.2013 (5 March 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: 396/2013

STATE
V
ILAITIA COKALACA

For the Prosecution: Sgt. Rao
For the accused: Ms.Radole(LAC)
Date of Hearing: 01^st of March 2018
Date of Judgment: 05^th of March 2018
(Name of the victim is permanently suppressed and referred in this judgment as Ms. SB)

JUDGMENT

1. The accused is charged with one count of Sexual Assault contrary to section 210(1) (a) of the Crimes Act No 44 of 2009(“Crimes Act”). The particulars of the offence are “ILAITIA COKALACA on the 28^th day of June 2013 at Namuk Village , Nausori in the Eastern Division unlawfully and indecently assaulted Ms. SB by fondling her vagina”.
2. The accused pleaded not guilty and with the consent of him this was fixed for hearing on 28/02/2018. On that day he was not present and the counsel for the accused informed this court that she has no instruction from him even though he was on bail. Even though all the witnesses were present, considering the serious nature of the charge I granted an adjournment to 01/03/2018 and informed both parties to check about the accused whereabouts.
3. On 01/03/2018 again the accused was not present in the court. The prosecution confirmed me that the accused was not in remand, police custody or serving prisoner and again the defence informed that they could not contact him through his phone numbers which were diverted.
4. Article 14(2)(i) h of the Fiji Constitution states :

“Every person charged with an offence has the right-

the court is satisfied that the person has been served with a summons or similar process requiring his or her attendance at the trial, and has chosen not to attend;”

5. The accused was well aware about this hearing but failed to attend to court for that. There were no valid explanations before me for his failure to attend the court. Even his counsel has failed to contact him through his available phones. The witnesses were coming from far away and the victim is a disabled person. As much as the accused has the right to finish his trial within reasonable time (Article 14 (2) (g) of the Constitution) the victim and other witnesses also have the right to see this trial proceed and concluded without delay. Based on all these I proceeded for the trial in absentia hearing in this case.
6. The prosecution called 04 witnesses and marked 03 documents as exhibits.
7. PW1, Ms. SB was in her home on 28/06/2013 when the accused came and touched her private part. He is her cousin and staying next to her home. She told the incident to her mother, uncle and father. She was medically examined and identified the report also in the court. Answering to the questions raised by this court she showed how the accused touched her private part and also said this happened around 11am in the morning and it lasted long. At that time also she was in a wheel chair.
8. In cross-examination by the defence she said even though at that time also she was disabled her mother was not with her. The accused was not passing comment from his house and came to her home and touched inside her private part. In re-examination the witness said even though the accused can joke with her he can’t touch her private part like that manner.
9. PW2, Epineri Manumanu was staying with his niece (PW1), and his mother and on 28/06/2013 went to Nausori town in the morning. When he came home around 1.30pm he saw PW1 looking sad and when asked she told the accused touched her private part. She was very scared. The accused was his nephew.
10. In cross-examination PW2 said at that time also the victim needs special care and his mother was with her on that day. The mother is 98 years at the moment.
11. PW3, Amelia Marama , the mother of the victim was working and afternoon the daughter told that the accused touched her private part. In cross-examination she also admitted that the victim was special need child at that time also. She needed constant attention.
12. PW4, WPC 4231 Vani was the IO and visited the scene and took the victim for examination in the hospital. She also uplifted the medical report (PE1).
13. With the consent of the defence the prosecution marked the caution statement and the charge statement of the accused as PE2 and PE3 respectively.
14. Both parties at the conclusion of the hearing elected not to make closing addresses and informed this court that they would rely on the evidence presented during the hearing.
15. In Woolmington v DPP [1935] AC 462 it was held that :

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained” (per Viscount Sankey L.C. at pp. 481-482).

16. The accused is charged with one count of one count of Sexual Assault contrary to section 210(1)(a) of the Crimes Act which provides :

“An person commits an indictable offence (which is triable summarily) if he or she—

(a) unlawfully and indecently assaults another person;

17. Hence the prosecution has to prove the following elements beyond reasonable doubt :
    1. The accused;
    2. Unlawfully and indecently assaulted the
18. The allegation against the accused is that on 28/06/2013 he unlawfully and indecently assaulted victim by fondling her vagina.
19. To prove this charge the prosecution called the victim, some of her relatives and the IO. The victim said whilst she was in her home the accused came and touched inside her private part. The accused is her cousin, this happened around 11am in the morning and lasted some time. Even though the defence cross-examined I find her evidence was not shaken and she maintained this version. In my view the victim properly identified the accused and on that day and also he committed this incident.
20. She informed about this to her mother and her uncle on the same day and they also came and confirmed this to the court. These are “recent complaints” and would only show the consistency of her evidence. I remind myself that it would not corroborate her evidence.
21. Further her uncle noticed the victim was in state of shock when he came home around afternoon. This behavior of the victim shortly after the alleged incident has further enhanced her credibility in this case.
22. The accused is not coming to court and hence I did not have the chance to hear his version. But in his caution statement (PE2) the accused admitted sitting in his grandmother’s porch and joking with her. Based on this the counsel for the accused even asked whether based on their relationship if the accused can make joke on her. The victim said joke would not mean touching the private part. This line of questioning by the defence seems to suggest the accused touched her private part as a joke on that day. But since he was not in the court I would rely on his caution statement only where he denied committing the offence.
23. Further the defence was trying to show that this incident could not have happened because the victim was not alone at that time. The evidence shows at that time she was with her grandmother who was 93 years old. I do not think with that age grandmother would have been able to give constant attention to the victim on that day.
24. Based on all these reasons I find that the prosecution has proved beyond reasonable doubt that accused committed this offence.
25. I find the accused guilty and convict him accordingly.
26. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate