State v Datt [2008] FJMC 4; Criminal Case No 401 of 2007 (15 May 2008)

IN THE RESIDENT MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CRIMINAL CASE NO.: 401 OF 2007

STATE

V

BISUN DATT s/o Bhoj Datt

For the Prosecution: Sgt. Shaukat Ali
For the Accused: Ms N. Nawaisitoga

Date of Hearing: 06th May, 2008
Date of Judgment: 15th May, 2008

[PacLII Editors Note: this case has removed identifying information of the Complainant due to the age of the Complainant and the nature of offence]

JUDGMENT

[1] The accused is charged with the offence of indecent exposure. The charge reads as follows:

STATEMENT OF OFFENCE (a)

INDECENT EXPOSURE: Contrary to Section 154(4) of the Penal Code Cap 17.

PARTICULARS OF OFFENCE (b)

BISUN DATT s/o BHOJ DATT on the 06th day of April, 2007 at Lautoka in the Western Division intending to insult the modesty of woman namely [Complainant] indecently exposed his penis to the said [Complainant].

BACKGROUND

[2] The complainant is 14 years old female and a form 4 student. She is PW2 (MN's daughter). She lives with her parents and her three brothers. The accused is one of their neighbours. There are two other neighbours apart from the accused. They all live on a Native Land with the consent of landowners. The complainant’s family has been living on this land for quite sometime. It is not clear as to how long the accused has been living on this land. The accused claimed that he has been living on this land for the past twelve months. The complainant said that he had been living there for about four weeks and her father said that he had been living there for about two weeks. The accuseds’s nephew Ashneel Datt said that he has been living there for one month, although, he started building his house some three or four months earlier.

[3] The prosecution bears the burden of proof which is beyond all reasonable doubt. In this case the prosecution has to prove the following:

(1) That the accused exposed his penis;

(2) That it was seen by the complainant;

(3) That the complainant was either a woman or a girl;

(4) That the exposure of the penis insulted her modesty.

INCIDENT

[4] The complainant said that on 06/04/07 she woke at about 6.30 a.m to relieve herself. Their toilet is situated outside and she left her house to go to the toilet. As she was going to the toilet she heard someone called out to her and she raised her head and saw Bisun Datt standing by the toilet. She said his pants were dropped and he was holding onto his penis and showed it to her. She said that she became frightened and ran into their house and was crying and she woke up her father. Her father came out of the house with his wife and her brothers. She remained in the house and the accused was still standing near the toilet. There are no eye witnesses to this incident.

[5] The accused has denied the complainant’s allegations and he said that the whole case was a fabrication by the complainant and her family as they have not been on good terms. The accused maintained that he has been the complainant’s neighbour for the past twelve months. He admitted that the complainant’s father and brother had an argument with him on the day in question which developed into a quarrel and both were swearing at each other and he claimed that one of complainant’s brothers threw a pipe at his nephew Ashneel who received injuries to his leg.

[6] Both parties reported the matter to the police on the day of the incident. The complainant’s family lodged the complain first and the accused lodged a complain later on that day. The accused was interviewed by the police on 06/06/07 in regards to this offence and he denied the allegations of exposing his penis to the complainant.

IDENTIFICATION OF THE ACCUSED

[7] The complainant was cross-examined at length about recognizing the accused. She said that she recognized him by his face as she had known him for about a month before the incident. It was daylight and she saw the accused. She agreed that she gave a statement to the police when everything was fresh in her mind except that she felt very traumatized. She was shown her statement that she made to the police and she agreed that she said that the man was skinny and dark and she agreed that that description did not match with the description of the accused. Although the complainant was cross-examined on her statement to the police the statement was not tendered by the defence as an exhibit. I noticed hat the accused is of dark complexion and is not skinny. He is quite fat. The complainant said that she got the accused mixed up with his nephew Ashneel. She also agreed that this was not stated in her statement to the police. She was quite adamant that it was Bisun Datt. She said that she did not know his name the day of the incident but she was quite positive that she saw him.

[8] She was cross-examined about the land and the road problem and she admitted that the two families had some problem. It was suggested to her that her father came out with a cane knife and an iron rod and she denied that.

[9] The complainant’s father MN confirmed that her daughter came into the house and she was crying. She said that Bisun Datt showed his private parts to her. It was suggested to him in cross-examination that the allegation is being fabricated and he denied the allegation. It was put to him that the accused and his family had been living there for one and half years and in reply he said that they had been living there for about two weeks. It was also put to him that he came out with a cane knife and his son had a galvanized pipe and he denied that although he agreed that a case was pending in which the accused’s nephew was injured.

[10] The accused gave sworn evidence and he denied the allegation of showing his penis to the complainant. He said that he and his family came onto this land in April 2006. He also said that they were not in talking terms with the complainant’s family since April 2006 till the date of the incident. He also said that the complainant’s father blocked the pathway about eleven times.

[11] He said in cross-examination that the complainant’s father and her brother came out with a spade, a knife and a pipe.

CREDIBILITY OF WITNESSES

Accused’s Credibility

[12] This is a case where I have two different versions. The complainant’s version is that the accused showed his penis to her and he has denied this allegation. As I stated earlier there are no eye witnesses. The accused put his credibility in issues on many issues:

Firstly, his counsel in cross-examination put to the complainant’s father that he has been living there for one and half years. This question would have only been asked of course on instructions of the accused.

Secondly, when he gave evidence he said that he had been living there for one year and his witness Ashneel said that he had only been living there for one month which tends to agree with the version given by the complainant.

Thirdly, it was put to the complainant that her father had a knife in his hand and when the accused gave evidence he said that the complainant’s father had a spade in his hand.

Fourthly, when the accused was interviewed by the police he said M and his sons chased him with an iron rod and a spade. There is no mention of knife whatsoever.

Fifthly, in his record of interview he said that he met M and his sons whereas in his evidence he said he and his brothers called out to M.

[13] For the reasons given above I do not find the accused to be a honest and truthful witness.

Complainant’s Credibility

[14] The complainant was cross-examined at length and despite very vigorous cross-examination she maintained that the accused showed his penis to her. She readily admitted that she got confused between the accused and his nephew in her statement to the police but she maintained that it was the accused who showed his penis to her. She said that when she gave her statement to the police she did not know the name of the accused but she knows his name now. Whilst giving evidence at times she became distressed and was reduced to tears. She denied the allegation that she fabricated this story. I found the complainant to be a very impressive, reliable and a credible witness and I have no hesitation in accepting her evidence.

SECTION 10 OF THE JUVENILE ACT

[15] The complainant was 13 years of age at the time of the date of offence. She comes within the definition of a child of tender years under Section 10 of the Juvenile Act which states that the evidence need only be corroborated if the child does not understand the nature of oath. In this case I conducted a voir dire and she freely answered the questions put by me and I came to the conclusion that she was capable of giving evidence on oath and as such her evidence need not be corroborated under Section 10.

COROBORATION IN SEXUAL OFFENCES CASES

[16] It has been a long standing practice that there is a need for corroboration in all sexual offences cases and that it is dangerous to convict an accused on the evidence of the complainant alone unless there is some corroborative evidence against the accused connecting him with the offence.

[17] In this case there was no corroborative evidence. In the case of Seremaia Balelala –v- The State FCA Criminal Appeal No. AAU0003 of 2004S it was decided that corroboration is no longer required as a matter of practice. The Fiji Court of Appeal held that it was entirely a matter of discretion and all that I am required to do is to warn myself and give myself necessary cautions as to the dangers of convicting on uncorroborated evidence of the complainant. I repeat that I have given myself the necessary warning and have also cautioned myself of the dangers on convicting the accused on the evidence of the complainant alone. As I stated earlier I found the complainant to be a very reliable and credible witness and I accept her evidence and I find the accused guilty of the charge of annoying the modesty of a female and I convict him of the charge.

[Mohammed S. Khan]
Resident Magistrate

15th May, 2008