State v Waqa [2005] FJMC 7; Criminal Case No 2016 of 2004 (21 March 2005)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 2016 of 2004

STATE

V

ILAITIA WAQA

Prosecution: Sgt. Wilson
Accused: In Person.

JUDGMENT

The accused has been charged under S168 (1) of the Penal Code.

It states "Any common prostitute who loiters or solicits in any public place shall be guilty of an offence".

The evidence by prosecution is that the accused was seen standing near the Army barracks on the King’s and Omkaar Road junction. When asked what he was there for; he said he awaited for friends who had gone out with their clients. He repeated in his caution interview that he had come to see his friends. He said he worked as a house girl.

The accused remained silent in court. He called his mother as witness but she only told court about what happened the night before when he was arrested by police. I disregard her evidence as hear say and of no use to the accused.

The question is whether the accused was loitering for the purpose of prostitution?"

The prosecution witness one arrested accused without further verification or any enquiry as to whether the accused was a common prostitute. The Section state "any common prostitute . . . . "

He may have been charged under another sub-section but 168(1) only applied to "common prostitutes". The prosecution has not brought any evidence to show the accused was a common prostitute. The prosecution tried to bring oral evidence of previous conviction but that is not the proper procedure to adduce such evidence which is an element of the charge.

In absence of such evidence I am unable to say that the prosecution has proved its charge beyond reasonable doubt.

I therefore acquit the accused.

Dated this 21st day of March 2005.

Ajmal G. Khan
RESIDENT MAGISTRATE