State v Bale [2003] FJMC 3; Criminal Case No 2928 of 2000 (4 September 2003)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 2928 of 2000

STATE

V

MITIELI BALE

BEFORE M/S L LAVETI
RESIDENT MAGISTRATE

4TH SEPTEMBER 2003

JUDGMENT

The accused MITIELI BALE (B-1) is charged on one count of indecent assault contrary to Section 154 (1) of the Penal Code Cap 12. It is alleged that on the 17th of November 2000 at Suva in the Central Division, he unlawfully and indecently assaulted MEREIA TUIBOROTUKULA. B-1 had denied the charge and I heard the case on 26/6/03.

As is always the case in all criminal trials, the onus is on the prosecution to prove each ingredient of the offence to the requisite standard of beyond reasonable doubt. There is no requirement for the accused to prove his innocence and he may if he so chooses, remain silent. If at the end of the trial, there is some doubt created about the veracity of the charge, then that doubt is given in favour of the accused entitling him to an acquittal.

The State called as its’ witnesses complainant MEREIA TUIBOROTUKULA (PW1) and PC Peter Cassidy (PW2). According to PW1, she had returned from her in law’s house at Toorak. At 9.00 pm on 17/11/00, she had had a fight with her husband and was standing on the footpath at Bryce Street Raiwaqa awaiting transport to taker her to Nadera. She stated that she saw the accused walking along the road and he came towards her and tried to talk to her. He advanced towards her and fondled her breasts and touched her private parts. She indicated to him that she was a married woman but in response, he told her if she did not go with him he would kill her. According to the complainant, she agreed to follow the accused because her life was threatened.

They went from Bryce Street towards Grantham Road. According to PW1, the accused then pulled her hands and pushed her into a drain. PW1 stated that she called out for help. In the commotion, the accused left her and ran away. She was then rescued by patrolling police officers who escorted her to the Raiwaqa Police Station.

PW1 stated that she was injured in the struggle with the accused in the drain and her clothes including a jacket and top were torn. She identified the accused at the scene by the street lights.

B-1 cross-examined the complainant at length. She denied that her husband was chasing her away when they first met. She stated that she was pushed into a drain on Grantham Road. She also alleged that as part of the struggle with the accused, she lost her top and jacket. She was found by police wearing a skirt and a bra but without a top.

In response to questions by the court, PW1 stated that they were alone when the incident happened which lasted 1 hour. It was only after she called for help that other people arrived. There were houses about 10 meters away from where the incident occurred.

PC Peter Cassidy (PW2) was on duty at a check point in front of the Raiwaqa Police Station when he heard the complainant’s shout for help. With PC Senibici they ran towards the cry and saw the complainant running towards them with a skirt but without a top. The complainant stated that someone had "grabbed her" and indicated a man trying to get away. According to PW2, he identified the accused from the street light as he had seen him earlier that evening going past the police station. The witness stated that when he called out to the accused, he ran away. The officers gave chase but this proved futile. Subsequently on 18/11/00, which was the next day, they saw the accused again and arrested him. He identified the person in the accused box as the person whom he had arrested.

In cross-examination, PW2 stated that he was on curfew operation at Raiwaqa Police Station when he was alerted by the complainant’s call for help. He was adamant that he saw accused identified the accused at the scene. He also clarified that whilst he saw the complainant wearing a top, the top was torn.

On my finding a case to answer, the accused elected to give an unsworn statement. He admitted meeting the complainant and asking her to go home with him after he heard her husband chasing her away. He stated that he held her hand and they walked along Grantham Raod. Later on whilst still on Grantham Road, she fell into a drain and he assisted her out of it. According to his evidence it may have been during this contact that he touched her breast and private parts. He denied that the complainant cried for help. He stated that he then left and went home to sleep and was consequently surprised at being arrested the next day. He was adamant that he did not unlawfully touch the complainant nor did he threaten her as alleged.

ASSESSMENT

The evidence before me has 2 versions of the events of 17/11/00. The complainant tells one story whilst the accused another. I have heard the evidence and seen the witnesses as they give evidence. I am of the firm belief that the complainant is the more credible witness of the two on the following grounds.

1. She did not have any prior knowledge of the accused and therefore has no reason to bring this charge against him except for the assault.
   
2. She is married and has had to sacrifice her own marriage to pursue this charge.
   
3. She was alone on the night in question but her cries were heard by a police officer who verified her condition of distress.
   

In relation to PW2’s evidence, he corroborated PW1’s evidence in all material particulars. Moreso, PW2 also positively identified the accused at the scene and arrested him thereafter.

In comparison, the accused’s evidence is full of loopholes. He did not tell the court, what happened after the complainant fall into the drain. He wanted the court to believe that he was a good Samaritan in the circumstances. However he obviously had other reasons for trying to assist the complainant and that was supported by the complaint’s evidence.

Moreover he does not deny being at the scene or being in the company of the complaint. As for the charge, the complaint was adamant that she was touched on the breast and private parts by the accused. This occurred prior to falling in the drain. She stated that she followed the accused due to his threats and was pushed into the drain thereafter. The accused told the court that he only touched her after she fell into the drain. On this point, I believe the complainant and not the accused.

In the circumstances, I hold that the prosecution has proved its case. I find the accused guilty of the charge of indecent assault.

(Sgd) Laisa Laveti
RESIDENT MAGISTRATE