State v Drau [2014] FJMC 48; Criminal Case 348.2011 (27 March 2014)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS
Criminal Case No: 348/11

State

v

Kasiano Drau

Prosecution: Cpl Vili (Police Prosecution)
Accused: Present – Ms Raisua

Judgment

Introduction
Kasiano Drau was charged with Indecent Assault, contrary to Section 212 of the Crimes Decree 2009. The Particulars of Alleged Offence is that:

"Kasiano Drau on the 28th day of February 2011 at Samabula in the Central Division unlawfully and indecently assaulted Romiliana Tuisese."

Elements of the Offence
The prosecution in this case is required to prove the following elements of indecent assault (as per the charges laid) against the accused:

(a) Kasiano Drau, (the person in the charge and appearing in court – identification)

(b) Assaulted, Romiliana Tuisese (the complainant), and

(c) The assault was unlawful and indecent, that is morally offensive.

Indecent assault
The standard definition of an incident assault is found in the English Court of Criminal Appeal decision in Beal v. Kelley (1951) 35 Cr App R 128, where Lord Goddard CJ, speaking for the Court said:

"The definition given in Archbold's Criminal Pleading ((32nd Ed), p 1067) of an indecent assault is perfectly right; 'an assault accompanied with circumstances of indecency on the part of the prisoner', that is to say, indecency offered towards the person alleged to have been assaulted. If a person is assaulted, that is to say, if there is a hostile act with every circumstance of indecency, I cannot see why it is not an indecent assault. If a man assaults a woman, at the same time exposing his person to her, I have no doubt that that is an indecent assault on a female, just as I have no doubt that the conduct of the respondent was an indecent assault."

Element of indecency
For the assault to be indecent it must be accompanied by a circumstance of indecency. Conduct is indecent when it is as such that ordinary people would so describe it, in light of prevailing standards of morality (as per Court [1989] 1 AC 28) and, more specifically, in light of whether the victim has consented to the conduct in question.

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 Law and the Analysis of the Evidence
The Evidence
The prosecution called 2 witnesses. The accused gave sworn evidence. The accused's Caution Interview and Charge sheet were tendered by consent.

Analysis of Evidence in Relation to the Law
This Court has analysed all the evidence by all the witnesses in this case. The crucial issue to be determined in this case is whether the accused person indecently assaulted the complainant or not. There is no dispute as to the identification of the accused or the time and date of the alleged offence.

The complainant stated in examination in chief that "... he started to move towards me. He touched my legs and came up to my arms. I moved away from him. He kept coming. He stood up and hugged me. He did not wear T/shirt. My body was shaking when he touched me. I pushed him away and ran out of the house. When I returned home and sat in sofa and started crying my sister came... " In cross-examination she said "..he did touch my legs. He touched my arms. He left his position and moved closer to me... reported to police told accused to pay $300 if he wanted charges withdrawn.... He sent $300 to me." In Re-examination she stated "I did not tell him not to touch me. I moved aside. I told him "you mad" as he touched me. I stopped him from touching. Accuse paid me $300 to withdraw the matter."

The accused's evidence in Court was as follows "..I did not go and sit beside complainant when she read newspapers. I did not touch her legs and arm. I sat about 1m away from complainant. I did not forcefully kiss her. I gave complainant $300 when she asked for the money. For her not to report to police. I was in Taveuni then. She asked for the money.

The 2nd Prosecution witness told this Court ".. was watching TV, she came home she was crying. I asked her what happened.... She said accuse had forced himself on her. She said he tried to kiss her."

Having noted all the evidence This Court notes from the evidence before it that this is a case where it's the complainant's words against that of the accused. This Court also has noted the evidence of the other prosecution witness who was informed by the complainant immediately after the alleged incident. This Court further notes that in such offences there is no need for corroboration of evidence of a complainant.

Having noted all the evidence and the demeanor of the witnesses this Court believes the complainant. The complainant narrated the story immediately after the incident to another person. She was crying. This was confirmed by the other witness who saw her immediately after the incident. The complainant and the accused were alone at the time of the allegation. The complainant told the court what happened. This has been supported by what she narrated to another person immediately after the incident. This Court finds that the version of events of the prosecution witnesses is credible and consistent. The complainant had no reason to make up a story and put her cousin's husband in trouble. She had no animosity towards the accused. This Court does not believe the accused's version that the complainant's sister asked her to make up the story. Did the complainant make up a story with her sister for not getting to read the papers? No, this did not happen in this case. In this case the accused touched the complainant's legs and arms. This was not approved by the complainant. She was related to the accused's wife. It was morally wrong in her eyes for a person married to her cousin to touch her. She had made it known to him and she immediately moved away from the accused and she narrated it to PW-2. The actions of the accused amounted to indecent assault.

For the above-mentioned reasons this court finds that the charges against the accused is proven beyond reasonable doubt. The accused is found guilty of the charge. This Court will now hear the accused's mitigation.

Chaitanya Lakshman
Resident Magistrate

27th March 2014