State v Luvu [2018] FJMC 8; Criminal Case 24 of 2017 (15 February 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT LEVUKA

Criminal Case No: 24/2017

STATE
v
VILINISI LUVU

Counsel : Ms.S.Serukai(ODPP) for the Prosecution
Mr.N.Chand(LAC) for the Accused
Date of Hearing: 14^th of February 2018
Date of Judgment: 15^th of February 2018

JUDGMENT

1. The accused is charged with one count of Indecent Assault contrary to section 212(1) of the Crimes Act No 44 of 2009(“Crimes Act”). The particulars of the offence are “VILINISI LUVU on the 12^th day of March 2017 at Beach Street, Levuka in the Eastern Division unlawfully and indecently assaulted ALISI CABEMAIWASA “.
2. The accused pleaded not guilty wherefore this proceeded for hearing. The prosecution called 03 witnesses and marked 3 documents as exhibits. The accused elected to remain silent and at the conclusion of the hearing both parties made closing addresses.
3. Pw1, Ms. Alisi Cabemaiwasa is renting a house with her husband in the town and on 12/03/2017 her husband left for work in National Fire authority instructing her not to open the door to strangers. Around 11am she heard someone knocking and saw the accused with the police uniform standing outside. Respecting him as a police officer and also trusting she opened the door and the accused asked for a glass of water. After drinking he asked her to find a girl for him and when she rejected that he asked her out. She replied that she was married and went to the kitchen with her bag and started to comb her hair. The accused came and standing at the doorway started to touch his penis from top of his clothes. Then he moved and held her tightly around her waist and started touch her private part (vagina) and thigh from top of her clothes. She was scared and uncomfortable of his actions and tried to release his grip. Finally she managed to escape and ran out of the house and ran to the work place of her husband. The work place was close to her home and she dragged him home. She did not tell him at the work place what happened and when her husband saw the accused in the home he asked what he was doing there. Then she told the husband that the accused tried to touch her which made him angry. He took the accused to police station after some struggle. After 2 days police officers came and made inquiries about the incident. Pw1 knows the accused well and seen him number of times in the town. She also identified him in the court.
4. In cross-examination she admitted that there was a flat next to her place where the land lord was living and other people were also living near to the place. She did not pass the police station on her way to the husband’s work place. The accused wanted to charge the phone and she showed him the plug point. He did not tell her to attend to school on that day. She did not like people questioning her decisions. As it was Sunday people were inside the houses. She did not cry for help and she did not receive injuries even though there was some back pain which she informed the doctor. When she was dragging the husband home she did not tell him about the incident. She informed him only in the home.
5. PW2, Kameli , the husband of the victim was in the fire station when he saw his wife coming. She was shocked and he felt something wrong with her. She took him to the home and he saw the accused inside there. The wife told in the kitchen that the accused touched her private part. He was angry and took the accused to the police station. He knew the accused as a friend for couple of years and also identified him in the court.
6. In cross-examination PW2 said when his wife came to the work place she was in a shock and was crying. She told the incident in his home. He was also shown his police statement where he stated that the victim told him about the incident in his work place when he inquired about that. From the police station he went back to the work because she was comfortable after that. Even though he knew the accused as a friend he did not come to his home previously to charge the phone.
7. PW3 , Dr.Anushka Goundar examined the victim on 15/03/2017 and did not notice any visible injuries. The victim complained about body pain but the doctor did not note that in the medical form as this was informed to her after she filled the form. She prescribed pain killers. In cross-examination she admitted that she could not confirm if the body pain was caused due to pressure.
8. The prosecution marked the following documents as exhibits :

Medical report of the victim – PE1

Caution statement of the accused- PE2

Charge statement of the accused- PE3

9. Both parties made comprehensive closing addresses at the conclusion of the hearing which I have considered also for this judgment.
10. 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).

11. The accused is charged with one count of Indecent Assault contrary to section 212(1) of the Crimes Act which provides :

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

12. Hence the prosecution has to prove the following elements beyond reasonable doubt :
    1. The accused;
    2. Unlawfully and indecently ;
    100. Assaults the complainant.
13. There is no dispute that the accused was present in the home on that day as shown from the evidence presented by the witnesses as well as the caution statement. Based on these the learned counsel from the Legal aid also admitted that the identity of the accused is not disputed in this case. Hence the prosecution has to prove beyond reasonable doubt only that he unlawfully and indecently assaulted the victim.
14. The accused has elected to remain silent and this is his right under the article 14(2) (j) of the Fiji Constitution and I am not going to draw any adverse inference from that. But the accused has described what happened on that day in his caution statement and the defence has invited this court to consider this.
15. In this caution statement the accused has denied committing this offence. He said after duty he went to the victim house to charge the phone and whilst there she came with the husband who punched him there. He did not touch the victim.
16. To rebut this version as well as to prove the disputed elements the prosecution is relying mainly on the complainant evidence as well as the husband. They have also called the doctor as a witness whose evidence is not much relevant in this case apart from to show that the victim was suffering from some body pain few days after the alleged incident. But the doctor could not confirm if this was due to the attack happened on that day.
17. Before turning to the victim I would like to consider the evidence of the husband. He said whilst in the work place his wife came in a state of shock and seemed to be crying. After he went with her to home she informed him about this incident. The victim also confirmed about this to the court.
18. This witness evidence can be considered to show about the “recent complaint” of the victim. This evidence would not corroborate the victim evidence and would go to show only the consistency of her evidence. Further his evidence would show the state of the victim soon after this alleged incident( in a shock and crying) and this can be considered as evidence of Res gestate which would also give credibility of the victim evidence.
19. The defence was trying to show that there were major contradictions in the evidence of the husband. They were mainly relying on the police statement of this witness where he said he inquired about this incident from the wife in his work place. But as shown above in his evidence he said this was disclosed to him only in the home.
20. Evidence in criminal case is what a witness would come and submit in the witness box and his previous out of court statement including police statement would go to his credibility only. When there are contradictions between his testimony and an out of court statement, it has to first consider if these contradictions are major contradictions and whether there is a reasonable explanation for that. Only then court may consider the witness is unreliable.
21. Having applying the above principles I find even though there were some contradictions, it has not affected the credibility of this witness. It has only shown there was some dispute about where the husband inquired from his wife about the incident. Apart from that his evidence was consistent with the victim evidence about this incident.
22. Now I would consider the evidence of the victim. Pursuant to section 129of the Criminal Procedure Act I remind myself that presently there is no need to corroborate her evidence and only mater that I have to consider is whether she is telling the truth in this court.
23. The victim said she opened the door to the accused against the advice of her husband because he was in a police officer in his uniform on that day. Whilst she was inside the kitchen he grabbed her and touched her private part and thigh. Even though she was cross-examined thoroughly I find the defence has failed to raise doubt about her evidence. She was consistent throughout her evidence in the court.
24. The defence asked and the victim admitted that she did not raise alarm at that time even though there were neighbors around in their homes including landlord. But in my view the victims of sexual offences would behave in different manners and can’t be always expected to shout when they are subjected to these attacks. Whilst some may be able to raise alarm or struggle at the same moment others would be shocked to make any resistant even though they are adults .Further the accused was in his police uniform on that day .The victim said she was sacred and shocked when she was subjected to this assault inside her kitchen. This may explain why she was not shouting at that time.
25. Further the defence was asking why she failed to go to nearby shop or the police station on that day. But she ran to the only place where she thought she would be safe and protected which was her husband work place that was not far away from her home. It is highly unlikely she would have gone to the police station where the accused was working on that day or was in a right state of mind to seek assistant from nearby shops or houses.
26. In my view the victim is truthful witness in this case. I have come to this conclusion having considered her evidence as well as observing the way she was giving this in the witness box. Also I reject the version of the accused as stated in his caution statement. I find it highly improbable that he was subjected to assault by the husband inside the home of the victim when he was just charging his phone.
27. Based on the above mentioned reasons I find the prosecution has proved this charge beyond reasonable doubt.
28. The accused is found guilty for this charge and convict accordingly.
29. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate