State v Tinikaono [2016] FJMC 19; Criminal Case 533.2015 (18 February 2016)

IN THE RESIDENT MAGISTRATE'S COURT
AT LAUTOKA FIJI ISLANDS

CRIMINAL CASE NO 533 OF 2015

STATE

V

JONE TOLU TINIKAONO

BEFORE : Resident Magistrate, Kashyapa Wickaramasekara
DATE : Thursday 18th day of February 2016
COUNSEL : PC. Theodore for the Prosecution
Ms.Nasedra S. (L/A/C) for the Accused

JUDGMENT

A. INTRODUCTION

1. The Accused is charged with one count of Indecent Assault Contrary to Section 212(1) of the Crimes Decree 2009. The charge reads as follows;
   

Statement of Offence (a)

Indecent Assault: Contrary to Section 212 (1) of the Crimes Decree No: 44 of 2009.

Particulars of Offence (b)

Jine Tolu Tinikaono on the 18th day of January 2014 at Lautoka in the Western Division, unlawfully and indecently assaulted Kesaia Bale by touching her vagina.

2. Accused pleaded not guilty to the count and the matter was fixed for Hearing. Prosecution informed that they are not relying on the caution interview of the Accused and thus the trial in proper was held on the 12th of February 2016. Prosecution called the Victim alone to give evidence for the prosecution's case and their case was concluded with that evidence. Court then called for the defence case and the Accused gave evidence for the defence case. Defence case was closed along with the evidence by accused.
   

B. THE LAW

3. Section 212 (1) of the Crimes Decree reads as follows;
   

212. — (1) A person commits a summary offence if he or she unlawfully and indecently assaults any other person.

Penalty — Imprisonment for five years.

(2) It is no defence to a charge for an indecent assault on a boy or girl under the age of 16 years to prove that he or she consented to the act of indecency.

(3) It shall be a sufficient defence to a charge for an indecent assault on a boy or girl under the age of 16 years to prove that —

(a) the boy or girl consented to the act of indecency and that the person so charged had reasonable cause to believe, and did in fact believe, that the boy or girl was of or above the age of 16 years; or

(b) that the offender was of a similar age to the boy or girl and that consent to the act of indecency was given in the context of a continuing friendship between the offender and the boy or girl.

(4) No person who is on a relationship of control or trust over the boy or girl may rely on a defence provided for in sub-section (3).

4. As per the above section the elements of this offence can be identified as below;
   
   1. A person (accused),
   2. unlawfully and indecently,
   3. assaults,
   4. any other person (the victim).
      

5. In order to prove the Charge, the Prosecution has to prove each of above elements beyond reasonable doubt. This is the standard of proof required in any criminal case. It is further a pertinent rule of law in common law legal systems that the burden of proving each element of the offence lies with the prosecution and it shall not at any instance or by any means shifts to the accused person.

6. Before analyzing the evidence on each element, it is to be noted that the overall evidence in this case establishes the following two elements, without any doubt, on an undisputed basis.

i. The Accused - The Accused in court for this case is in fact the

person alleged to have committed this offence and

there are no challenges to the identification of the accused person.

iv. The Victim - Victim in this case is in fact the Witness who gave evidence in court and there are no challenges to the identification of the victim.

7. Thus, the task presently at hand for this court is to evaluate the evidence in respect of the remaining two elements of the offence:

ii. Unlawful and Indecent act;

iii. Assault.

8. I shall now consider the legal definition of "unlawful and indecent act" and "Assault".
Hon. Justice Temo, in the case of State v. Namado – summing up; HAC 094, 2010
(4 June 2012) has held thus;

"To "assault" someone is to apply unlawful force to the person of another, for example, to punch someone in the face, without any justifiable reason, is to apply unlawful force to the person of another. Likewise, to touch and squeeze someone's breast and/or vagina, without that person's consent, is to apply unlawful force to the person of another. It wouldn't amount to an "assault", if a doctor examines a patient by touching and squeezing a patient's breast and/or vagina, with that person's consent, in the course of conducting a medical examination. To constitute an "assault", the application of force to the person of another, must be done with no legal justification whatsoever, that is, it was done unlawfully.

The "assault" must not only be "unlawful", it must also be "indecent". An "indecent assault" is one committed in circumstances of indecency. A circumstance of indecency is what right-minded people would consider indecent; for example, an older man touching and squeezing a girl's breast and/or vagina, without her consent. It is therefore essential for the prosecution to prove beyond reasonable doubt that the assault was not only unlawful, it was also indecent."

9. Further in the case of R v Court (1989) 1 AC 28, The House of Lords has held thus: "... on a charge of indecent assault the Prosecution must prove: (1) the Accused intentionally assaulted the victim; (2) that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right minded-persons as indecent (3)that the Accused intended to commit such an assault as is referred to in (2) above."

Further Lord Ackner held in the above case:

"The assault which the Prosecution seeks to establish may be of a kind which is inherently indecent. The defendant removes against her will, a woman's clothing. Such a case, to my mind, raises no problem. Those very facts devoid of any explanation would give rise to irresistible inference that the defendant intended to assault his victim in a manner which right minded persons would clearly think was indecent..."

10. Further in the case of R v C (1992) Crim. LR 642, the House of Lords held; ".. where there was no equivocal aspect to the assault – if it occurred it was undoubtedly indecent, there was no requirement to consider a defendants motive or intent if he in fact did what was alleged."

11. However, in this case it is to be noted that the victim was only 05 years old and there been no challenge to the age of the victim, the fact of 'consent' shall play no role pursuant to section 212 (2) to (4) of the Crimes Decree 2012 in deciding the unlawfulness of the act complained.

C. EVIDENCE

12. The victim in her evidence in chief stated that on the 18th day of January 2014, she was at her home with her parents, elder sister and the brother. Her father had left for work during the night and the mother had gone to sell 'rotti' parcels. She claimed further that after the parents had left, she was left with her brother and the sister at which time her uncle 'Jone' had come to the house. At this point court allowed the application by the prosecution to have the father of the victim present with her whilst giving evidence just to comfort her, considering the tender age of the victim. She identified 'Jone' to be the accused of this case. She claimed that during the night she had come out to 'pee' when 'Jone' who followed her had taken her to the bathroom nearby and had kissed her on the lips and touched her body from the chests to the vagina including her 'bums'. She further claimed by this time 'Jone' had taken her clothes off.

13. During the cross examination the victim retrieved from her former version and claimed that 'Jone' only kissed her on her cheek and did nothing else. At this point, as the court had noted that the victim appeared to be confused and worried, questioned her for a clarification as to her earlier version of 'Jone' touching her body including the vagina and the 'bums' to which the victim clearly answered that 'Jone' only kissed her on her cheeks and did nothing else. She had further stated that by this time her brother and sister was asleep and thus she could not shout for help. It was further revealed that she had not complained this incident to the parents but had only informed her sister and the sister had informed their neighbour, one Maiva, and the matter was reported almost after a month.

14. During the re-examination the victim reverted back to the original version and claimed she was kissed and touched by 'Jone' including her vagina and the 'bum'. When the court questioned on the correct position she claimed that 'Jone' kissed her and as well as touched her body. However, it is noted by court that the victim did not offer an explanation for her inconsistent evidence before court.

15. The accused evidence was to the effect that on the day alleged by the prosecution he was at the victim's house whose mother is his cousin, drinking beer with the mother of the victim and some others. He had then left the house and whilst leaving the house he took the victim, who was at the porch of the house, kissed her cheeks and said goodbye to her. In cross examination he had maintained his version and reiterated that he was drinking beer with the mother of the victim and he only kissed goodbye the victim.

D. ANALYSIS AND FINDINGS
16. It is now well settled in Fiji that when considering the evidence of a child witnesses a court is not required as of a rule of law to look for corroboration, as decided by the Court of Appeal of Fiji in Kumar v State; AAU0049.2012 (4 March 2015).

17. However, the evidence adduced for the prosecution has to be reliable and credible and the prosecution must prove all elements of the charge beyond reasonable doubt. As discussed above in this judgment the disputed elements of this offence is the 'actus reus'.

18. Except for the evidence by the victim there was no other witness called for the prosecution's case. Prosecution therefore wholly depends on the evidence of the victim. Thus the evidence by the victim should, in such event be firm and without any room for gaps to have the full length of the 'actus reus' established without a doubt. If the court at any instance is to find gaps in the evidence for the sole witness for the prosecution, it is rather unfortunate that there are no other witnesses who had given evidence for the prosecution in this case, for the court to consider whether such gaps in the evidence has been bridged by the evidence of another witness.

19. This court is fully aware on the fact that the victim is a 07 year old child, giving evidence at present. However, having attributed the inherent disadvantages a child of tender years
may face whilst giving evidence, especially in a sexual assault case; this court finds that the evidence of the victim in this case does not reach the threshold of reliable and credible evidence that the court could safely rely upon to convict the accused. The evidence was clearly inconsistent and was without any explanation for such inconsistencies. Further, the prosecution had not called material witnesses who could have given important evidence in this case. There are clear gaps in the evidence of the victim, in relation to the actus reus. Such as when did her parents leave the home? How long was the victim alone at home with her siblings? What time did her parents return? Was the mother of the victim home at the time the accused was at her house? What did the victim informed her sister on that particular day or Did the victim informed anything regarding the alleged incident on that particular day or was it informed on a later date? None of these evidential gaps were filled by any other evidence and the prosecution does not explain why any other witnesses were not called to give evidence on these facts. The victim's inconsistent evidence unfortunately does not provide any answers on these questions.

20. It is therefore the finding of this court that there is no reliable or credible evidence before this court to safely conclude on the guilt of the accused in relation to the charge and to base a conviction.

E. CONCLUSION
21. Upon the evidence transpired in this case, court is of the view that the Prosecution's case does not reach the threshold of the high standard of proof required in a criminal case. Accordingly, it is concluded by this court that the Prosecution has failed to prove the charge against the Accused beyond reasonable doubt.

22. Accused is accordingly acquitted from the charge.

F. RIGHT OF APPEAL.
23. 28 days for appeal by or with sanction of the D.P.P.

7. ORDERS OF COURT
   

24. 1. Accused Acquitted from the charge.

2. Accused to be released from prison forthwith.

3. Publication of the name of the victim is prohibited.

L.K.Wickramasekara,
2016/02/18

Resident Magistrate.