State v Baleimalea [2013] FJMC 360; Criminal Case 328.2013 (4 April 2013)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS
Criminal Case No: 328 of 2013

State

V

Apenisa Baleimalea

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution: Sgt Jiten
Accused: Present – With Mr. Fesaitu (Legal Aid)

JUDGMENT

Introduction
The accused is charged as follows:

First Count

Statement of offence (a)

INDECENTLY ANNOYING A FEMALE: Contrary to Section 213 (1) (a) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

APENISA BALEIMALEA, between the 17th day of February, 2013 at Suva in the Central Division, with intent to insult the modesty of a women namely ANASEINI MAUKOTO, touched the buttocks and breast of the said ANASEINI MAUKOTO.

Second Count

Statement of offence (a)

INDECENTLY ANNOYING A FEMALE: Contrary to Section 213 (1) (a) of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

APENISA BALEIMALEA, between the 17th day of February, 2013 at Suva in the Central Division, with intent to insult the modesty of a women namely LEBA FOE, touched the vagina and buttocks of the said LEBA FOE.

Third Count

Statement of offence (a)

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree Number: 44 of 2009.

Particulars of offence (b)

APENISA BALEIMALEA, between the 17th day of February, 2013 at Suva in the Central Division, assaulted ASESELA ESEVO, thereby occasioning him actual bodily harm.

The accused pleaded guilty to the 3rd Count and not guilty to counts 1 and 2. The matter proceeded to hearing and witnesses were called.

The Law and The elements of the offence

Section 213 of the Crimes Decree provides for the offence of Indecently Annoying the Modesty of Females - and it is stated as follows:

"213. — (1) A person commits a summary offence if he or she, intending to insult the modesty of any person —

( a ) utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person; or

(b) intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.

Penalty — Imprisonment for one year."

The Elements of the charge of Indecently Annoying the Modesty of Females are:

(a) intending to insult the modesty of any woman or girl

(b) uttering any word, makes any sound or gesture, or exhibits any object

(c) intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman or girl,

(d) intrudes upon the privacy of a woman or girl by doing an act of a nature likely to offend her modesty.

The Evidences of the Witnesses

The Prosecution called 4 witnesses. PW- 1 – Anaseini Maukoto, PW-2 – Leba Foe, PW-3 WPC Vulaono, and PW-4 PC Anare.

At the close of the prosecution case, this Court ruled a case to answer. The accused was put to his defence and the options available to him were explained to him. The accused chose to give sworn evidence.

Analysis of the Evidence in Relation to the Law

This Court has noted the evidence of all the witnesses. The onus is on the prosecution to prove the charge beyond reasonable doubt.

The material evidence of PW-1 in examination in chief was "...we got off taxi, he started pulling me, not to house to the forest. He pulled both sides of the waist. When i did not want to get off. He touched one of my breasts. He touched both my bums. He put both hands – back of panty. I was wearing tights that day. I tried to run away from him, accused told me he was looking for his phone. He said i took his phone. We tried to run away i slapped his hand... He came running back to me he started to touch my breasts. He pulled my top. At the main road he started touching my friends private parts. He put his hand (one) inside my friends panty. Put hand in front. I was annoyed. It was our private part..."

In cross-examination PW-1 stated "I do not agree he was asking for phone as he touched me."

The material evidence of PW-2 in examination in chief was "... i refused. He asked Ana first and then me. She refused. He started pulling us. He pulled her top. He touched her breast. I saw him put his hand inside he breast and touch. He pulled me and touched my breast and private parts and back side. He put both his hands inside my panty and my buttocks. He was asking for his phone. He touched my private parts and touched me..."

In cross-examination PW-2 stated "... he touched my breast and put his hands in my panty. He did it..."

The material evidence of the accused was "...i questioned both of the phone. They walked away. I touched Leba's pocket and Ana's bag and pulled it down. They did not want me to touch the bag. I touched their pockets (outside). I was looking for the phone."

The crucial issue in this case is whether the accused intruded upon the privacy of the complainants as is alleged and insulted their modesty. The accused for his part denies that he invaded the privacy or touched the breasts and private parts of the complainants. The Court is satisfied as to the other elements of the offence which are identity, date and time of the offence which are not denied by the accused person.

From the evidence given in Court the Court noted the demeanour of all the witnesses and in this case the important question is who is telling the truth. The complainants were thoroughly cross-examined by the counsel for the accused person. They stood the cross-examination. They were not discredited in the cross-examination. The court believes the complainants version of events as they were consistent and did not waiver from the version of events they told the Court in their evidence. Some details when giving evidence are difficult to recall with precise detail. That is noted by this Court. Some minor discrepancies existed but were not fatal to the prosecution case.

The Court also notes that the accused for his part does not deny searching for the phone and touching the complainants from outside, which in itself is an unauthorised and illegal search and an invasion of the privacy of the ladies in this case, when they were touched by the accused as per his own admission. In this case the Court believes the complainants and believes their version of events.

This Court finds that the prosecution has proved all the elements of the 2 counts (Count 1 and 2) beyond reasonable doubt that the accused is charged with and finds the accused guilty of the 2 counts (Counts 1 and 2).

Chaitanya Lakshman
Resident Magistrate

4th October 2013