State v Ali [2013] FJMC 306; Criminal Case 542.2011 (20 August 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case : 542/2011

STATE

VS

FAIAZ ALI

For Prosecution : Cpl. Williame
For Accused : Mr. Samad .

Judgment

[1] The accused was charged with one count of Indecent Assault contrary to section 154(1) of the Penal Code, Cap 17. The charge reads as follows:-

Statement of Offence (a)

INDECENT ASSAULT :- Contrary to Section 154(1) of the Penal Code, Cap 17.

Particulars of Offence (b)

FAIAZ ALI, on the 18th day of October, 2004 , at Samabula in the Central Division, unlawfully and indecently assaulted ADI KACARAINI DINACEVA.

[2] The accused pleaded not guilty for this offence and the hearing was taken on 29 and 30 July 2013.

[3] During the hearing the prosecution called 04 witnesses (02 civil witnesses and 02 police officers) and for the defence the accused gave sworn evidence and called his father as a witness.

Summary of Evidence

[4] PW1 was Adi, the victim in this case. She said in 2004 she was working in Western Wreckers as an office girl. She got that job through her aunty (PW2) who was also working there. On 18 Oct 2004 she went with the accused to get the fuel for the trucks. They went in a single cab. As they were going the accused wanted to give her a kiss and was touching her breast and her thighs. She did not like that and after they returned told her aunty about the incident. She identified the accused in the Court. In cross examination she said she came back to base before 5pm and the father of the accused was with them on the way back. She also did not tell the father about the incident as she was feeling bad.

[5] PW2 was Mereni, the aunty of PW1. She said at that time she was working as a manager of Western Wreckers and PW1 was working there as an office girl. On that day PW1 went with the accused to check for fuel in a pickup vehicle. They came back before 5pm and after they went home she found PW1 crying and upset. She told PW2 that the accused touched her breast and her thighs. In cross examination she said there were incidents like that and she has spoken to accused about them.

[6] PW3 conducted the interview of the accused and this was marked as EX-01. In cross examination PW3 said that the accused denied about the incident but admitted touching PW1's hand and back on that day. PW4 charged the accused and this statement was marked as EX-02.

[7] PW1 was recalled again based on the application of the defence's counsel. She said she did not withdraw the charge and the company tried to resolve this. She also said a legal clerk from the company brought a letter for her to sign, the content which she was unaware.

[8] The prosecution closed their case after that and being satisfied with the evidence I explained the accused about his rights as stipulated in section 179 of the Criminal Procedure Decree. The accused opted to give sworn evidence. The accused in his sworn evidence said on that day he went with PW1 to Lami and in there touched her hand and back whilst talking. But he denied doing the alleged incident. He also said they came back before 6pm with his father to base.

[9] DW2 was Aziz Ali, the father of the accused. He said on that day he came back to office with the accused and PW1 and she was normal and did not complain about anything. Only the defence opted to file closing submission and this was granted by the Court.

The Law

[10] The accused was charged with one count of Indecent Assault contrary to section 154(1) of the Penal Code. Section 154(1) provides as follows :-

"Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment."

[11] Based on the above section the prosecution has to prove following elements in this offence.

[a] The accused

[b] Unlawfully and indecently

[c] Assaults PW1

[12] Viscount Sankey LC in Woolmington v DPP (1935) AC 462 stated that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law".

[13] In State v LIVAI TAMANALEVU [2012] FJHC 1295; HAC 344 OF 2011S) His Lordship Justice Temo in his summing up said:-

"The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty. "

Analysis of the Evidence

[14] PW1 said in her evidence that the accused touched her breast and thigh on that day. Even though the defence cross examined her lengthily about this they failed to create any doubt about her story.

[15] There were some contradictions in her evidence but they were insignificant. These contradictions arose about the time the vehicle came back to the yard and some other minor matters. As this incident happened in 2004 I am mindful that there would be some omissions and contradictions in evidence.

[16] But as noted above these were insignificant and did not damage the prosecution's case. Also I have listened to PW1's evidence as well watched her demeanor and satisfied that she is a truthful witness.

[17] PW2 informed the Court that as soon as the victim got home she informed about the incident to her. This can be described as a prompt complaint and also consistent with PW1's version.

[18] Also when PW2 reached home she found the victim crying and not in a normal mood. This is again consistent with what happened during the day.

[19] The defence in cross examination inquired from PW1 why she did not inform about the incident to the father of the accused whilst in the cab. The victim being a girl it would be hard to imagine telling this ordeal to an outsider. Also that person being the father of the accused she would be a in difficult position to complain.

[20] I have no reason to accept the defence's version in this case. In fact the accused admitted touching the victim in her hand and back in Lami without any reason. Only thing he rejected is touching her breast and thigh that day which I am not prepared to accept. Also the witness called by the accused could not be categorized as an impartial witness (father) and he was also not there at the time of the offence.

[21] For the reasons mentioned above I accept that the prosecution has proved this charge beyond reasonable doubt. I convict the accused accordingly.

[22] 28 days to appeal

20/08/2013

H.S.P.Somaratne
Resident Magistrate