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State v A.R [2026] FJMC 22; Criminal Case 199 of 2022 (27 February 2026)

IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 199/2022

BETWEEN: STATE

PROSECUTION

AND: A.R

ACCUSED

Counsel: Acting Sergeant 3443 Vaciseva Marawa for Police Prosecution
Ms. S. Singh (LAC) for the Accused.

Date of Hearing: 21 January 2026
Date of Judgment: 27 February 2026.

JUDGMENT
[TRIAL IN ABSENTIA]

Introduction

1. The names of the Complainant and the Accused are suppressed for the purposes of recording and publication.
   
2. Mr. A.R (“the Accused”) by way of an Amended Charge filed on 21 January 2026 was charged with 1 count of Indecently Annoying any Person contrary to section 213(1)(a) of the Crimes Act 2009 and 1 count of Indecent Assault contrary to section 212(1) of the Crimes Act 2009. The particulars of the offences are as follows:
   

Count 1

Statement of Offence

Indecently Annoying any Person: Contrary to Section 213(1)(a) of the Crimes Act 2009.

Particulars of Offence

A.R. on the 4^th day of May 2022 at Badrau, Ba in the Western Division intending to insult the modesty of V.L by uttering the words “show me your private part” intending that such words shall be heard by the said V.L.

Count 2

Statement of Offence

Indecent Assault: Contrary to Section 212(1) of the Crimes Act 2009.

Particulars of Offence

A.R. on the 5^th day of May 2022 at Badrau, Ba in the Western Division unlawfully and indecently assaulted V.L. aged 12 years and 11 months by touching her breast and her private part.

3. On 14 October 2025, when the matter was set for Trial, the Accused was warned to appear and failure to do so would result in the matter being heard in his absence.
   
4. On 21 January 2026, the date of Trial, the Accused failed to appear in Court and pursuant to section 171(1) of the Criminal Procedure Act, this Court decided to proceed with the Trial as if the Accused were present given that the Accused had notice of this matter and was aware to always be present and appear for his matter as per his Bail Undertaking Form signed on 25 May 2022. Further, despite being aware of these proceedings and undertaking to appear, the Accused’s absence in the matter is deliberate.
   
5. Further, as Prosecution filed an Amended Charge on the date of Trial and given the Accused’s failure to appear which the Court found to be deliberate, the Court entered Not Guilty pleas to the charges as particularized in the Amended Charge Sheet.
   
6. The matter then proceeded to Trial in absentia and Prosecution called 4 witnesses to give evidence and thereafter closed its case. This Court found that a case was made out against the Accused to sufficiently require him to make a defence in respect of the charges. Counsel for the Accused informed the Court that she did not have any instructions as such the matter was adjourned for Judgment.
   
7. It is important to note that the Accused’s absence from this Trial has not been taken negatively. It is the Court’s overriding duty to ensure that a hearing conducted in the absence of the Accused is conducted as fair as circumstances permit to lead to a just conclusion and the Court should not deviate from the applicable procedures and principles of conducting a fair and just hearing in the absence of an accused (vide Kumar v State; Criminal Case: HAA 34 of 2015 (15 December 2015).
   
8. Having considered the evidence presented by Prosecution, I now pronounce my Judgment.
   

Burden of Proof

9. It is imperative to highlight that as a matter of law, the onus or burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no burden on an accused to prove his or her innocence as an accused is presumed to be innocent until proven guilty.
   
10. It is for the prosecution to prove the accused’s guilt beyond a reasonable doubt. If there is doubt, so that the court is not sure of the accused’s guilt, or if there be any hesitation in the court’s mind on any of the ingredients or on the evidence led by prosecution, the accused must be found not guilty of the charges and accordingly acquitted.
    

Summary of Evidence

11. The Complainant testified that on 4 May 2022, she had been living in Badrau and that year she had been schooling at AKP School and had been in Year 8 with her date of birth being 28 May 2009. The Complainant testified that on 5 May 2022, A.R., her uncle had called her and touched her breast as well as her private part. She explained that he had touched her breast and moved his hands to her private part (she gestured to her vagina whilst stating this) and after doing this, he then laid down and told her to massage his stomach. She further explained that he had touched her over her clothes.
    
12. She testified that her uncle told her not to tell anyone and for her to massage him. After massaging him, the Complainant stated that he had told her to show him her private part and that he had stated this 3 times. However, she did not do this. The Complainant then stated that her uncle told him not to tell anyone about the money he had given to her for massaging him.
    
13. The Complainant’s mother – A.M (‘Ms. A’) testified that on 11 May 2022, at around 7pm, they had been having their family devotion. It was during their devotion that Ms. A stated that she had a vision that something shameful had happened to her family. She shared this with her family and asked if something was wrong but nothing was revealed. Ms. A then stated that God had put into her to speak to her daughter - the Complainant so after their devotion, Ms. A questioned the Complainant, but the Complainant had informed that nothing was wrong.
    
14. Ms. A then stated that the next morning, she was making roti with the Complainant and she asked the Complainant if something was going on when all of a sudden, the Complainant started crying and upon questioning the Complainant, Ms. A was informed by the Complainant that her uncle had touched her when she had come back from school and changed her clothes and that he told her to massage him.
    
15. PC 4384 Timoci (‘PC Timoci’) testified that he had been the Interviewing Officer of A.R. and that the interview had been conducted on 12 May 2022 at the Crime Office at Ba Police Station. The interview commenced at 11:20am and concluded at 5:23pm. PC Timoci explained that the interview was conducted in the English language as requested by A.R. PC Timoci testified that during his interview, A.R. had admitted to saying to the Complainant to show him her private parts but to the other allegation of touching, he denied this. The admissions from Question & Answer 45-48 and 52-59 were then read out by PC Timoci. The Caution Interview was then tendered as ‘PEX1’.
    
16. Acting Sergeant 3961 Meredani (‘A/Sgt Meredani’) testified that she was the Investigating Officer for the matter and that she had taken a photograph of A.R. when he had been arrested. The Accused Identification Form which contained the photograph of A.R. was tendered as ‘PEX2’.
    

Evaluation of Evidence

17. In evaluating the evidence, the Court must determine the testimonial trustworthiness of the evidence given by the witnesses based on the credibility and reliability of their evidence. In doing that, the Court should consider the promptness/spontaneity, probability/improbability, consistency/inconsistency, contradictions/omissions, interestedness/disinterestedness/bias, the demeanour and deportment in Court and the evidence of corroboration where it is relevant. (vide State v Moroci Criminal Case No. HAC 161 of 2023 (26 April 2024))
    
18. The elements for the offence of Indecently Annoying any Person are:
    
    1. the accused
    2. intending to insult the modesty of any person
    3. utters any word, makes any sound or gesture, or exhibits any object
    4. intending that such word or sound shall be heard or that such gesture or object shall be seen
    5. by another person.
       
19. For a proper analysis of the evidence for the offence of Indecent Assault, it is imperative for the Court to turn its mind to the elements of the offending, which are:
    
    1. the accused
    2. unlawfully and indecently
    3. assaulted the Complainant.
       
20. The Complainant testified that on 4 May 2022, she had been living in Badrau and that year she had been schooling at AKP School and had been in Year 8 with her date of birth being 28 May 2009. The Complainant spoke of how she had returned from school and changed her clothes and started doing her household chores whilst A.R., who is her uncle was at home at the time while his children had gone to the river for a swim and her parents were still at work.
    
21. The Complainant testified that her uncle had been sitting on the bed when he called her. She stated that he then touched her as such she pushed him away and ran outside. She stated that before she ran outside, her uncle had told her that he would give her money to massage his stomach.
    
22. The Complainant then testified that on 5 May 202 her uncle had called her and touched her breast as well as her private part. She explained that he had touched her breast and moved his hands to her private part. At the time of stating this in her evidence, the Complainant gestured to her vagina. She explained that he had touched her over her clothes. She then stated that after touching her, her uncle laid down and told her to massage his stomach.
    
23. The Complainant further testified that her uncle told her not to tell anyone. After massaging him, the Complainant stated that he had told her to show him her private part and that he had stated this 3 times. However, she did not do this. The Complainant then stated that her uncle told him not to tell anyone about the money he had given to her for massaging him.
    
24. The Complainant then explained that she was scared and ashamed and was questioning what he had done to her. She stated that she did not tell anyone but then, on 11 May 2022, her mother had questioned her given that her mother had had a vision. Upon being questioned, the Complainant stated that she started crying and told her mother what had happened and that her uncle had given her money not to inform anyone that she had massaged him.
    
25. Ms. A testified that on 11 May 2022, at around 7pm, they had been having their family devotion. It was during their devotion that Ms. A testified that she had a vision that something shameful had happened to her family. Ms. A shared this with her family and asked if something was wrong, but nothing was revealed. Ms. A then stated that God had put into her to speak to her daughter - the Complainant so after their devotion, Ms. A questioned the Complainant, but the Complainant had informed that nothing was wrong.
    
26. Ms. A then stated that the next morning, she was making roti with the Complainant and then questioned the Complainant if something was going on when suddenly, the Complainant started crying and informed that her uncle had touched her when she had come back from school and changed her clothes.
    
27. In cross-examination, Ms. A acknowledged that the Complainant had not told her that A.R. had told the Complainant to show him her private part.
    
28. The Court is mindful that during the cross-examination of the Complainant, the Complainant’s evidence with respect to the actual act of touching her breast and private part was never challenged by the counsel for the Accused.
    
29. Considering the Complainant’s evidence in conjunction with Ms. Alesi’s evidence, the Court finds that it is consistent with respect to Ms. Alesi questioning the Complainant if something had happened and that the Complainant had informed Ms. Alesi that her uncle – A.R. had touched her.
    
30. Thus, the Complainant’s evidence regarding being touched on her breast and her private part over her clothes on 5 May 2022 is credible and reliable and therefore truthful especially when considering Ms. A’s evidence who confirmed the same.
    
31. Prosecution relies on the Caution Interview of A.R. which was tendered as ‘PEX2’ which showed A.R. agreeing to telling the Complainant to show him her private part (Question & Answer 45) and not knowing why he had said this (Question & Answer 48) and that he said this while she was changing her clothes (Question & Answer 52).
    
32. In the case of Vodo v State Criminal Appeal Case No. HAA 31 of 2023 (19 April 2024) His Lordship Justice Rajasinghe succinctly outlined the relevant case authorities that have set forth the principle of evaluating a caution interview in detail. After considering the relevant case authorities, His Lordship stated:
    

“Applying the guidelines adverted in the above authorities mutatis mutandis to the hearing in the Magistrate’s Court, which is referred to as bench trial, the trial Magistrate, even though he had already ruled in the voire dire hearing that the admissions in the Caution Interview were made voluntarily and under fair and just circumstances, could still consider whether he still holds the same view of the voluntariness and fairness at the end of the trial proper if the Accused again presented or pointed out any evidence challenging the voluntariness and fairness of the recording of the caution interview. Suppose the learned Magistrate remains of the same view of voluntariness and fairness. In that case, the learned Magistrate must then proceed on to evaluate the truthfulness and probative value of the admission made by the Accused in his caution interview. In doing that, the learned Magistrate must consider all the circumstances surrounding the making of the confession and all other evidence presented during the hearing.”

33. It is notable that within the Amended Charge, Prosecution is alleging that this offence took place on 4 May 2022 but the Complainant in her evidence stated that on 5 May 2022, her uncle had told her to show him her private part.
    
34. Section 182(3)(a) of the Criminal Procedure Act states that a variance between the charge and the evidence produced in support of it with respect to the date and time at which an alleged offence was committed is not material and the charge need not be amended for such variation.
    
35. Such variance, therefore, does not materially affect the matter. Thus, considering Vodo [supra] I will decide whether the admission is credible and reliable which in turn will allow the Court to determine its truthfulness by ascertaining whether there is independent evidence to support the admission.
    
36. The Complainant in her evidence testified that after massaging her uncle, he had told her to show him her private part and that he had stated this 3 times. However, she did not do this. In cross-examination, she further explained that after she had massaged him then she ran out of the room and that she did not take the money he had offered. In his Caution Interview, A.R. stated that he had told the Complainant to show him her private part whilst she was changing her clothes. Thus, it is apparent that the sequence of events differs between the evidence of the Complainant and the admission made by A.R. in his Caution Interview.
    
37. In the case of State v SS Criminal Case No. HAC 211 of 2023 (23 February 2024) His Lordship Justice Aluthge after considering the case of Alfaaz v State [2018] FJCA 19; AAU0030.2014 (8 March 2018) with respect to evaluating the evidence of child witnesses stated:
    

14. ...it is essential to note that children do not have the same life experience as adults. They do not have the same standards of logic and consistency, and their understanding may be severely limited for many reasons, such as age and immaturity. Life viewed through the eyes and mind of a child may seem very different from life viewed by an adult. Children may not fully understand what they are describing and may not have the words to describe it. They may be embarrassed to talk about incidents of a sexual nature or use words they think are bad and, therefore, find it difficult to speak.

15. A child may not fully understand the significance of sexual activities, which may be reflected in how they remember it or describe it. A child's memory is different from that of an adult. A child's memory can fade even within the short term. When recounting events later, even after a reasonably short time, a child's recall of when and in what order events occurred may not be accurate. A child may be unable to speak of the context in which those events happened. A child may have difficulty dealing with conceptual questions such as how she/he felt some time ago or why she/he did or did not take a particular course of action.

16.Accordingly, evidence of the child witness must be evaluated by referencing factors appropriate to her strengths and weaknesses related to her age, mental development, understanding and ability to communicate. (vide; Nalawa v State [2021] FJCA 188; AAU014.2016 (25 June 2021).

38. Considering the dicta in SS [supra], although the Complainant stated that her uncle had asked her to show him her private part after she had massaged him and A.R. stated in his Caution Interview that he said this to her whilst she was changing her clothes, the Complainant was adamant in her evidence that he had said this to her but after he had touched her breast and her private part and after she had massaged him.
    
39. Further, from her evidence with respect to this incident that Complainant stated that she was scared and ashamed and questioned what he had done to her. This is consistent with A.R.’s admission in his Caution Interview where he had stated that after he had told the Complainant to show him her private part, she had gotten scared.
    
40. Moreover, the Court is mindful, that the counsel of the Accused never challenged the evidence of PC Timoci regarding the truthfulness of the admissions in A.R.’s Caution Interview. Additionally, the evidence of the Complainant with respect to A.R. telling her to show him her private part was never challenged.
    
41. Thus, considering A.R.’s admission in his Caution Interview with respect to telling the Complainant to show him her private part, I find that the admission is credible and reliable and thus truthful in conjunction with the Complainant’s evidence that he had told her to show him her private part and that she was scared and ashamed and questioned his actions.
    
42. The issue that the Court must consider is that of identity. As the Accused was absent, there was no dock identification. It is apparent from the evidence of the Complainant and Ms. Alesi that their evidence regarding the identity of the perpetrator, A.R. is based on recognition given that he was Ms. A’s cousin and the Complainant’s uncle and had been staying with them when the offending took place.
    
43. However, the evidence of PC Timoci who interviewed A.R. and A/Sgt Meredani who was the Investigating Officer who had photographed A.R. needs to be considered in conjunction with the evidence of the Complainant and Ms. Alesi.
    
44. It is apparent from the above evidence that the observation by PC Timoci and A/Sgt Meredani was one of identification and not recognition. As the observation is one of identification, the guidelines from R v Turnbull [1977] QB 224, most commonly known as the Turnbull Guidelines, are relevant in this instance. The following questions would have better assisted the Court when dealing with identification in such a manner as in this case:
    
    1. The length of time the accused was observed by the witness;
    2. The distance the witness was from the accused;
    3. The state of the light at the time of the observation;
    4. Was the observation impeded in any way?
    5. Had the witness seen the accused before? If so, how often? If only occasionally, had the witness any special reason for remembering the accused?
    6. The length of time that elapsed between the original observation and the subsequent identification to the police;
    7. Was there any material discrepancy between the description given by the witness and the actual appearance of the accused?
       
45. PC Timoci in his evidence stated that he had interviewed A.R. from 11:20am to 5:23pm on 12 May 2022. PC Timoci described A.R. as being of medium built, a little bit fat and as having a beard. He stated that he was able to identify A.R. as he had been sitting beside him during the interview and that A.R. had been with him for the whole day and had been wearing a Chiefs jersey. When shown a photograph, PC Timoci confirmed that it was a photograph of A.R., the person he had interviewed.
    
46. A/Sgt Meredani in her evidence stated that as the Investigating Officer for this matter, she had attended to the report by recording the Complainant’s statement, taking the Complainant to Ba Aspen Hospital and visiting the scene with CSI where photographs were taken. A/Sgt Meredani also stated that she had taken a photograph of A.R. when he had been arrested. She described him as being short, a bit dark and as having a beard. When shown a photograph, A/Sgt Meredani confirmed that it was a photograph of A.R. and that it was the same person brought in that day – 12 May 2022 for an interview. She also confirmed that he had signed the form that had been prepared by her. The Accused Identification Form which contained the photograph of A.R. was tendered as ‘PEX2’.
    
47. The Court is mindful that the Complainant described her uncle as being short, big in built with a dark complexion. She further described that he had a beard which wasn’t so big with a small moustache. When shown ‘PEX2’, the Complainant confirmed that it was a photo of her uncle who had touched her and said things to her. Even Ms. A described A.R. as being big in built, fair with a beard. When shown ‘PEX2’ she confirmed that it was A.R. and that he was the same person who the Complainant had informed her about.
    
48. In assessing the evidence of the Complainant and Ms. A’s with that of PC Timoci and A/Sgt Meredani, Prosecution has elicited the necessary and required evidence to allow the Court to consider that the evidence of the Complainant and Ms. Alesi regarding A.R. touching the Complainant’s breast and private part and telling her to show him her private part was the same person whom PC Timoci interviewed and whom had made admissions to PC Timoci and whose photograph and identification details were taken by A/Sgt Meredani.
    
49. Considering the evidence, the Court therefore finds the evidence of the Complainant, Ms. A, PC Timoci and A/Sgt Meredani with respect to the identity of the Accused – A.R. as being the person who had touched the Complainant’s breast and private part and told the Complainant to show him her private part, was the same person who was subsequently interviewed and arrested for this matter as credible and reliable and therefore truthful.
    
50. Thus, when considering the evidence in totality, Prosecution has proven beyond a reasonable doubt that the Accused had told the Complainant to show him her private part which was heard and which insulted the modesty of the Complainant and that he had indecently assaulted the Complainant by touching her breast and private part.
    

Determination

51. I find that Prosecution has discharged its burden in proving all the element for Indecently Annoying any Person and Indecent Assault beyond reasonable doubt.
    
52. I, therefore, find the Accused, A.R., guilty as charged for 1 count of Indecently Annoying any Person and 1 count of Indecent Assault.
    

N. Mishra
Resident Magistrate