State v Tarieru [2013] FJMC 386; Criminal Case 254.2013 (24 October 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 254/13

State

V

Ikamawa Tarieru

Prosecution: Sgt Jiten (Police Prosecution)
Accused: Present – Counsel –Mr Feizal Haniff

Judgment

Introduction
Ikamawa Tarieru is charged with assault causing actual bodily harm, contrary to Section 275 of the Crimes Decree 2009.

The Particulars of Alleged Offences are as follows:

"Ikamawa Tarieru on the 21st day of July 2012 at Suva in the Central Division assaulted Joeli Wasabula thereby occasioning actual bodily harm."

The Standard and Burden of Proof
The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice."

The Evidence

The prosecution called 2 witnesses. The accused chose to remain silent and no witnesses were called for the defence. The Caution Interview of the accused was tendered by consent. The medical report was also tendered . This Court has noted all the evidence that was given and all the documents that were tendered.

Analysis of Evidence in Relation to the Law

This Court has analysed all the evidence by all the witnesses in this case. The onus was on the prosecution to prove all the elements of the offences committed by the accused.

In summary the complainant's evidence in examination in chief is as follows: "20th July 2012 was at hotel working. At hotel after 10pm then accused came with Mr Graham to South Seas Hotel.... Accused went to the back and slept and woke up at 1am. He entered the female washroom. I went and waited at the front of the ladies washroom. When he came outside. I told him he is not allowed to enter the ladies washroom. He gripped my hand. I have one hand. He grabbed my hand and pushed it towards my face. He then punched my face. I was on the floor when that happened. Punch landed on my face. My face got swollen. When I wanted to stand up he punched me again. I fell, he punched my knee. He punched with his hands. After he punched I tried to stand up accused punched me to the floor. "

In cross-examination he stated "accused in TV room at 10pm on 19th July. I told accused to leave TV room after 10pm. Accused requested to watch longer I said no. accused went to his room after that. On 20th July accused went out. Accused came back with Mr Graham. They returned at 10.30pm. no ladies watched TV at 10.30pm that night. Accused slept at the back of the hotel, that where he came from. He went to ladies wash room. I said to him its ladies room. He said he was sorry. No-one watching TV after 10pm that night. A step where we had conversation to TV room. Accused did not grab my hand to take me to TV room. We both did not fall backwards. No step there... Accused fell with me. Accused had no scratch on head. Accused had no bruise on ankle. We both fell back-wards. He gripped my hand. I fell on the floor. Accused threw only one punch. I had a bloody nose. He punched me when I was on the ground. When I tried to get up he forced me on the ground. Accused did not punch my knees. Accused forced me on the ground. Knee got swollen. Doctor saw me after 15 minutes. I had the same clothes. I explained to Doctor about face and knee. Knee was only scratched. Injury to face."

The complainants evidence in re-examination was as follows: "accused gripped my hand and forced me on the ground. He came from back, gripped my hand and forced me on the ground. I fell on the floor, accused punched my face. Accused sat on top of me. Accused did not fall on the ground. Accused did not fall. [in demonstrating where accused was punched accused pointed to his cheeks] cheek was swollen not forehead. My knee was injured.

The second prosecution witnesses evidence is not of much assistance as she did not see the alleged incident as per her cross-examination in Court. However her evidence has been considered and evaluated in this case. The accused remained silent and did not have any witnesses.

This Case basically boils down to whether this Court believes the complainants version and whether his evidence is credible and he is telling the truth. The accused chose to remain silent and this Court draws no adverse inference or otherwise from his right to remain silent. For ease of reference this Court has laid down the complainant's evidence. This Court has evaluated the complainant's evidence and scrutinized his medical report.

The complainant's version of assault in examination chief was that he was punched twice on his face and once on his knees. In cross-examination he said he was only punched once and he had a bloody nose and that did not receive any punches to his knee. In re-examination in demonstrating to the court he demonstrated that he received a punch to his cheeks. The inconsistency is quiet glaring and not to the complainants credit. The complainant also told the court he was taken to the Doctor shortly after the incident. His allegation of bloody nose and punch to nose and cheek is not consistent with the medical report. This Court has grave concerns with the complainant's version of events. For the major inconsistencies and different versions in his evidence this Court does not believe the complainant. The evidence of the complainant cannot be believed as he changed his story at every stage of the evidence that he gave. A slight inconsistency would have been treated with caution to the effect that the complainant might have forgotten some aspects, but inconsistency as varying as noted does not assist the prosecution case and cannot be ignored by this Court.

The crucial element that accused assaulted the complainant and caused him bodily harm is not proven beyond reasonable doubt. The accused is acquitted of the charge. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate

24th October 2014