State v Tewa [2007] FJMC 23; Criminal Case No 1153 of 2006 (5 July 2007)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 1153 of 2006

STATE

V

AVENAI TEWA

Before Ajmal Gulab Khan Esq

Date of Hearing: 21/06/07
Date of Judgment: 05/07/07

Prosecution: Sgt. Suruj
Accused: In Person

JUDGMENT

The accused has been charged for Indecent Assault Contrary to S154 (1) of the Penal Code.

Particulars are on 25th day of May 2006 at Samabula Avenai Tewa unlawfully and indecently assaulted Lusiana a girl aged 12 years 3 months.

The facts are not disputed. I have suppressed the names of parties so any reports would not be able to trace it to the victim.

The victim lay in the sitting room asleep with her 2 sisters. The accused who is the father came to her and started to touch her body. The victim suddenly woke and saw her father touching her private parts. She got up and ran to her mum’s bedroom where she told her mother. Later this matter was reported to police.

The accused in sworn evidence has told court he was massaging his daughter as she had body pains.

The accused contested the voluntarilyness of the interview and charge statement alleging assault. However, I found it was voluntarily given and admitted in evidence.

The complainant was young and didn’t give evidence on oath as I felt she did not understand the meaning of taking oath. I therefore, caution myself in evidence evaluating her. She was intelligent for her age and understood what was asked.

She reported the assault immediately to her mother who gave evidence. This shows consistency. The caution interview of accused also says, she got up and went to her. He also said she was asleep when he was massaging her. He also admitted massaging her breasts and her thighs.

The complainant denied she asked him to massage due to body pains. She didn’t know what he was doing till she woke up from her sleep. He also told her to be quiet when she woke up.

I find it as a fact that complainant didn’t say she had body pain or ask accused to massage her body. The accused was touching her breast and vagina whilst she slept and continued when she suddenly woke up.

I accept the evidence of the complainant. The accused has also explained his actions in the caution interview. The Prosecution has proved assault and indecency beyond reasonable doubt.

The accused is found guilty as charged.

Dated this on the 4th day of July 2007.

Ajmal Gulab Khan
RESIDENT MAGISTRATE