State v Daugunu [2017] FJMC 50; Criminal Case 2009.2016 (13 April 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: 2009/2016

STATE
v
KAMINIELI DAUGUNU

For the Prosecution : Cpl Shaw
For the Accused : Mr. Tuicolo (LAC)
Date of Hearing : 13^th of April 2017
Date of Judgment : 13^th of April 2016

JUDGMENT

1. The accused is charged with one count of Indecent Assault contrary to section 212(1) of the Crimes Decree No 44 of 2009. The particulars of the offence are “Kameli Daugunu on the 1^st day of December 2016 at Nabua in the Central Division, unlawfully and indecently assaulted Vani Nasogiri by touching her breast”.
2. The accused pleaded not guilty for this charge wherefore this proceeded for hearing. The prosecution called the complainant and her husband and for the defence the accused gave evidence.
3. The complainant, Vani Nasogiri said on 01/12/2016 she went to Nabua market with her husband. Whilst she was talking with the boy the accused came to her vehicle. He wanted to sell the coconuts and the witness asked him to wait. The accused tried to grab her breast and second time he grabbed her right breast using his right arm. She did not like it and shouted. She reported the matter and took the accused to the station with her husband. PW1 also identified the accused in the court.
4. In cross-examination she said her window was down the accused touched her right breast through that window 2 times. The first time he was using both hands but the second time she felt his right hand. He did not tap her shoulder and she shouted because he grabbed her breast.
5. PW2, Aseli Nasogiri said the accused approached his wife and touched her a way she did not like. He also did not like it and they took him to the station.
6. The accused in his evidence denied the allegation. He said he came to the vehicle to sell coconuts and since the complainant was busy he tapped her right shoulder. In cross-examination he said when they were taking him to the station he did not ask the reason.
7. In Woolmington v DPP [1935] AC 462 it was held that :

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained” (per Viscount Sankey L.C. at pp. 481-482).

8. The accused is charged with one count of Indecent Assault contrary to section 212(1) of the Crimes Decree which reads :

“A person commits a summary offence if he or she unlawfully and indecently assaults any other person.

9. Hence the prosecution has to prove following elements beyond reasonable doubt :
   1. The accused;
   2. Unlawfully and indecently ;
   100. Assaults the complainant.
10. In this case the accused is denying committing this offence. But he admitted that he was near to the place and touching the right shoulder of the complainant.
11. The complainant in her evidence said the accused tried to touch her breast and the second and third time touched her right breast. She did not like that and shouted. The defence failed to raise doubt about her evidence through the cross-examination.
12. Even though the husband was called to corroborate the evidence of the complainant he did not fully described what happened on that day. Hence his evidence is not much relevant in this case.
13. But presently there is no need to corroborate the evidence of the complainant in sexual offence cases under the Criminal Procedure Decree. If the court is satisfied about the evidence of the victim, based on that alone the court can find an accused guilty for this kind of offence.
14. In this case I am satisfied with the cogent evidence of the complainant and accept her version. I am satisfied with her demeanor also.
15. Further I do not accept the version of the accused. His version about just tapping the shoulder is not probable. I do not think the complainant would get angry and him to the police station merely because he touched her shoulder. Most probable version is what was described by the complainant.
16. I find the prosecution has proved this charge beyond reasonable doubt.
17. The accused is found guilty for this charge and convict accordingly.
18. 28 days to appeal

Shageeth Somaratne

Resident Magistrate