State v Vueti [2013] FJMC 420; Criminal Case 1176.2012 (20 December 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 1176/2012

STATE

V

FILISE MAIKA VUETI

For Prosecution: Ms. Fatiaki
For Accused: In person

JUDGMENT

1. The accused is charged with two counts of Common Assault contrary to section 274 of the Crimes Decree No. 44 of 2009.
   
2. The charge states as follows:
   

COUNT 1

Common Assault: contrary to Section 274 of the Crimes Decree No. 44 of 2009

Particulars of Offence

Filise Maika Vueti on the 26th day of March 2012, at Suva in the Central Division, unlawfully assaulted Senitamole Bogilima.

COUNT 2

Common Assault: contrary to Section 274 of the Crimes Decree No. 44 of 2009

Particulars of Offence

Filise Maika Vueti on the 16th day of August 2012, at Suva in the Central Division, unlawfully assaulted Salaema Cabebula.

3. The accused pleaded not guilty to the charge and the trial was on 19 December 2013. The State called 04 witnesses and for the defence the accused gave sworn evidence.
   
4. PW1 was Senitamole Bogilima, the victim of the 1st count. She said that the accused is her son in law and on that day she went to police station to lodge a complaint against him. Whilst they were sitting the accused came and punched her on her mouth. She was medically examined by a doctor. She identified the accused and her medical report was marked as Ex-01. In cross examination she reiterated that the accused punched her and blood was coming because of that.
   
5. PW2 was WPC Meri and she said that she saw the accused squeezing the PW1's mouth that day. In cross examination she said even though she was busy she saw the incident.
   
6. PW3, Cpl 3436 Cama was the IO as well as the interviewing officer of the accused for both counts and the statements were tendered as EX-02 and EX-03 respectively.
   
7. PW4, Salamea Cabebula was the wife of the accused. She said on 16 August 2012 near Market police post the accused twisted her arm.
   
8. The State closed the case after calling this witness and being satisfied with the evidence I gave the accused his rights pursuant to section 179 of the Criminal Procedure Decree. The accused opted to give sworn evidence.
   
9. The accused denied both incidents. He also said on 26 March 2012 he went to police station to lodge a report and saw PW1 there. He accused her of lying and touched her mouth gently. In cross examination he admitted he touched her mouth without her consent.
   
10. I will briefly consider the applicable law in the following paragraphs before analyzing the evidence.
    
11. The accused was charged with two counts of Common Assault contrary to section 274 of the Crimes Decree.
    
12. Section 274 provides:
    

"A person commits a summary offence if he or she unlawfully assaults another person."

13. Woolmington v DPP (1935) AC 462 Viscount Sankey LC observed 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".
    
14. In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Shameem in her summing up said :
    

"The standard of proof in a criminal case is one of proof beyond reasonablet. This meansmeans that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonablbt as to whether the accuseccused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any rable doubt about the the guilt e accu accused."

15. Whilst denying this the accused admitted he touched PW1's mouth without her consent. Even if I accept the accused's version this is enough to satisfy the elements in this offence.
    
17. An assault requires conduct which causes the victim to apprehend the imminent application of unlawful force upon him (Ireland [1997] UKHL 34; [1998] AC 147, per Lord Steyn at p.161) Blackstone's Criminal Practice p. 227.
    
18. For the second count wife said that the accused twisted her arm. Again the accused denied this. I believe the wife is a credible witness. Even though she is also a victim she was trying to save the accused. She even refused to tender her medical report and was asking the Court to drop the charges against the accused.
    
19. Based on the reasons mentioned above I am satisfied that the prosecution has managed to prove both these counts beyond reasonable doubt.
    
20. Therefore I find the accused guilty for the two counts of Common Assault contrary to section 274 of the Crimes Decree and convict him accordingly.
    
21. 28 days to appeal.
    

H.S.P.Somaratne
Resident Magistrate, Suva

20 December 2013