State v S.T [2011] FJHC 135; HAD002.2011 (4 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
DOMESTIC VIOLENCE JURISDICTION

Crim. DV Case No: HAD002 of 2011

STATE

V

S.T

Hearing: 28 February 2011
Ruling: 4 March 2011

Counsel: Mr. J. Singh for State
Accused in person

RULING

[1] The accused is charged with assault causing actual bodily harm contrary to section 275 of the Crimes Decree. The victim is his spouse. The State applies for a restraining order against the accused under the Domestic Violence Decree.

[2] Evidence was led from the victim. She said on the date of alleged assault, she had an argument with the accused over his extra marital affairs. They ended up grabbing a jug of hot water and in a scuffle the hot water splashed on her face and hands. She was taken to a public hospital. She informed the examining doctor that her husband threw the hot water on her. In her statement to the police she said her husband threw the hot water on her. The victim sustained superficial first degree burns on her face and hands. The injuries are now healed. The injuries did not leave any scars.

[3] The victim said the accused had assaulted her on an earlier occasion. The assault was reported and the accused was charged. They reconciled and the Magistrates' Court terminated the proceeding. The victim expressed a desire to continue her relationship with the accused.

[4] The accused gave evidence. He said he is not a violent person. He is receiving faith-based counselling and he wants to continue his relationship with the victim.

[5] Since the accused is charged with a domestic violence offence there is no discretion but to issue a restraining order against him for the protection of the victim.

[6] I order the accused to restrain from threatening or assaulting his spouse.

[7] The accused is advised that breach of this restraining order is a criminal offence under the Domestic Violence Decree.

[8] Either the accused or the victim may apply to the High Court for a discharge of the order in writing.

[9] A sealed copy of the order is to be made available to the accused, the victim, the Commissioner of Police and the Station Officer, Valelevu.

[10] Before I conclude, I have a few observations to make.

[11] When the police charged the accused and bailed him to appear in the Magistrates' Court on 18 November 2010, the Domestic Violence Decree had already come into effect. The police made no attempt to obtain a restraining order as required under the law. On this date, the accused failed to appear in court.

[12] A bench warrant was issued for his arrest. On 9 December 2010, the accused voluntarily appeared and had his bench warrant cancelled. He pleaded guilty to the charge of act with intent to cause grievous harm and informed the court that he had reconciled with the victim. The learned Magistrate convicted the accused and adjourned the case to 7 February 2011 for sentencing. Unfortunately on 9 December 2010, neither the police prosecutor nor the learned Magistrate considered the provisions of the Domestic Violence Decree as they were obliged to do so.

[13] On 7 February 2011, the learned Magistrate noted he had no jurisdiction to sentence for an offence of act with intent to cause grievous harm. The case was transferred to the High Court. It was only when the case was called in the High Court when I highlighted to counsel for the State that this was a case of domestic violence and the State was bound to implement the provisions of the Domestic Violence Decree.

[14] This is rather an unfortunate state of affairs. The Domestic Violence Decree came into effect on 6 September 2010. But it seems to me that there is a lack of commitment to enforce the law by the law enforcement officers. This lack of commitment can defeat the clear objectives of the Domestic Violence Decree. The Domestic Violence Decree is designed to give greater protections to the victims of domestic violence who are generally women. Women victims are vulnerable. Most of them are financially depended on their spouses.

[15] Judicial experience has shown that they do not have equal bargaining power as their spouses. They are forced to reconcile in domestic violence cases because of cultural and social constrains placed on them. The Domestic Violence Decree is designed to take away those constrains and to empower them to live a life without violence.

[16] Police and judicial officers should remember that domestic violence offences are no longer reconcilable. When an accused informs the court that he has reconciled with his spouse in a domestic violence case, there is no longer a discretion to terminate the proceeding without implementing the provisions of the Domestic Violence Decree.

[17] In this case, by the time the application for restraining order was heard in the High Court, the victim was left with the accused without any protection against future violence on her.

[18] In future these occurrences must not occur and the police officers and the magistrates are urged to show genuine commitment to implement the Domestic Violence Decree.

Daniel Goundar
JUDGE

At Suva
4 March 2011

Solicitors:
Office of the Director of Public Prosecutions for State
Accused in person