State v Vunivale [2024] FJMC 22; Criminal Case 460 of 2019 (10 May 2024)

IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 460/2019

BETWEEN:
STATE
PROSECUTION

AND:
RUSIATE VUNIVALE
ACCUSED

Counsel: Sergeant 4971 Veni Vunaki for Police Prosecution
Accused not present and unrepresented.

Date of Hearing: 15 April 2024
Date of Ruling: 10 May 2024

JUDGMENT
[TRIAL IN ABSENTIA]

Introduction

1. Mr. Rusiate Vunivale (“the Accused”) was charged with 1 count of Assault Causing Actual Bodily Harm contrary to section 275 of the Crimes Act 2009. The particulars of the offence are:
   

Statement of Offence

Assault Causing Actual Bodily Harm: Contrary to Section 275 of the Crimes Act 2009.

Particulars of Offence

Rusiate Vunivale on the 08^th day of November, 2019 at Nailaga, Ba in the Western Division assaulted Mukeshwar Sharma thereby causing him actual bodily harm.

2. The Accused was produced for this matter on 9 November 2019 and subsequently bailed on the same date. Thereafter, the Accused failed to appear on his next Court date of 20 January 2020 and all other dates that followed.
   
3. A Bench Warrant was issued on 20 January 2020 and after various adjournments on 15 May 2022, the Investigating Officer for this matter was present in Court and provided the Court with an update as to the execution of the Bench Warrant and the information received regarding the Accused’s whereabouts. Subsequently, on 13 March 2023, this Court’s first predecessor granted that the Trial in this matter would proceed in absentia. The Trial in absentia date was set for 31 July 2023 but was vacated due to a new Resident Magistrate being appointed.
   
4. Then on 17 August 2023, this Court’s second predecessor ordered for Trial in absentia and Trial was set for 20 December 2023. However, on 20 December 2023, Prosecution sought an adjournment as the Doctor, a witness in the matter, was unavailable. The same was granted and a new Trial in absentia date was set for 15 April 2024.
   
5. When the matter was called for Trial on 15 April 2024, pursuant to section 171(1) of the Criminal Procedure Act, this Court decided to proceed with the Trial as if the Accused were present. Trial in absentia subsequently proceeded before this Court.
   
6. It is important to note that the Accused’s absence from this Trial has not been taken negatively. It is the Court’s overriding duty to ensure that a hearing conducted in the absence of the Accused is conducted as fair as circumstances permit to lead to a just conclusion and the Court should not deviate from the applicable procedures and principles of conducting a fair and just hearing in the absence of an accused (vide Kumar v State; Criminal Case: HAA 34 of 2015 (15 December 2015).
   

Burden of Proof

7. It is imperative to highlight that as a matter of law, the onus or burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no burden on an accused to prove his or her innocence as an accused is presumed to be innocent until proven guilty.
   
8. It is for the prosecution to prove the accused’s guilt beyond a reasonable doubt. If there is doubt, so that the court is not sure of the accused’s guilt, or if there be any hesitation in the court’s mind on any of the ingredients or on the evidence led by prosecution, the accused must be found not guilty of the charges and accordingly acquitted.
   

Elements of the Charge

9. For a proper analysis of the evidence, it is imperative for the Court to turn its mind to the elements for assault causing actual bodily harm, which are:
   
   1. the accused
   2. commits an assault causing actual bodily harm
   3. to another.
      

Summary of Evidence

10. Prosecution called 2 witnesses to prove its case. The first witness was the Complainant, Mukeshwar Sharma who testified that on 8 November 2019 he went to pick his labourers when the bus behind him bumped into his car. He then stated that everything was normal when someone came and punched him on the left-hand side of his face on the eye. He was punched only once and then he fell. He recalled that the person’s name was ‘something Rusiate’. When shown a photograph of a person, the Complainant stated that the person looked like Rusiate but it had been a long time. Further he stated that if the photograph was coloured then he would be able to recognize. He described the person who assaulted him as being of normal height and looked like a student. When asked if the person in the photograph was the same person who assaulted him, the Complainant responded “can be”. He stated that the person who assaulted him was wearing the same t-shirt which was blue. The Complainant then stated that he was taken to the Ba Mission Methodist Hospital and that for 2 weeks his eye was causing problem.
    
11. The final witness for Prosecution was Doctor Monisha Sharma, who testified that she medically examined Mukeshwar Sharma, the Complainant on 8 November 2019 at about 10am. She stated that the witness had informed her that he had been involved in a motor vehicle accident and was then hit by a third party. She then medically examined him. Her medical findings were that the left eye had a blackish area and was red and watery. She stated that the cause of the blackish area was due to blunt force trauma which was bruised due to small vessels rapturing. The cause of the red watery eye could have been due to conjunctivitis, glaucoma, and irritants or in children who rub their eyes. When questioned if the present injury could be sustained by assault, the Doctor replied affirmatively and stated that it was evident by the ecchymosis around the eye. She further stated that the ruptured blood vessel would last 2-4 weeks, and the watery eye would last for a week. The Medical Report of Mukeshwar Sharma was then tendered as ‘PEX1’.
    
12. As the Accused was not present and not represented, there was no cross-examination on his behalf. The Court will consider the evidence of the witnesses separately and collectively and ensure that all due consideration will be provided to ensure that the Accused is afforded a fair trial in his absence.
    

Analysis

13. From the outset, there is evidence from the Complainant that on 8 November 2019, an assault was perpetrated against him in the form of one punch to the left side of his face on his eye.
    
14. The Doctor’s evidence as well as the Medical Report tendered as ‘PEX1’ confirms that due to the said assault, the Complainant’s left eye had a blackish area and that the left eye was red and watery. The Doctor also confirmed that such injuries could be caused due to blunt force trauma such as assault due to the ecchymosis (the discoloration) around the eye.
    
15. Thus, the Complainant’s evidence regarding being assaulted is credible and reliable especially with the evidence of the Doctor who confirmed the same.
    
16. The issue that the Court has to consider is that of identity. As the Accused was absent, there was no dock identification. Rather, Prosecution intended to rely on a photograph which was marked for identification but never tendered as evidence.
    
17. The evidence of the Complainant is that someone came and punched him and when questioned if he knew the person, he stated yes and that the person’s name was ‘something Rusiate’. When shown the photograph by Prosecution, the Complainant stated that it looked like him with the same built, normal height and same t-shirt.
    
18. It is apparent from the above evidence that the observation is one of identification and not recognition. As the observation is one of identification, the guidelines from R v Turnbull [1977] QB 224, most commonly known as the Turnbull Guidelines, are relevant in this instance. The following questions would have better assisted the Court when dealing with identification in such a manner as in this case:
    
    1. The length of time the accused was observed by the witness;
    2. The distance the witness was from the accused;
    3. The state of the light at the time of the observation;
    4. Was the observation impeded in any way?
    5. Had the witness seen the accused before? If so, how often? If only occasionally, had the witness any special reason for remembering the accused?
    6. The length of time that elapsed between the original observation and the subsequent identification to the police;
    7. Was there any material discrepancy between the description given by the witness and the actual appearance of the accused?
       
19. There was no relevant evidence before the Court regarding the length of time the Complainant had observed the Accused or from what distance or the nature of lighting the observation (if any) was made by the witness. The time at which the assault occurred was preceded by a motor vehicle accident between the Complainant and a bus and there were people around who had assisted the Complainant after he had been punched and fell to the ground. Prosecution failed to elicit from the Complainant whether his observation of the Accused had been hindered in anyway.
    
20. Further, no questions were asked to confirm whether the Complainant had seen the Accused previously and the length of time that had elapsed from observation at the time of the assault to the time to the time the matter was reported and the Accused arrested.
    
21. The only evidence that is before the Court regarding the perpetrator is that his name was ‘something Rusiate’ being of same built, normal height and who looked like a student.
    
22. Moreover, Prosecution showed a photograph to the Complainant, and he stated that the person looked like the Accused and the person could be the same person who assaulted him. The photograph was merely marked for identification and never tendered as evidence.
    
23. In assessing the Complainant’s evidence, regarding the identity of the Accused, it is apparent that the Complainant was being truthful with respect to his observation of the Accused, however, Prosecution failed to elicit the necessary and required evidence to allow the Court to consider the same.
    
24. Thus, little weight is given by the Court regarding the identification of the Accused which is, therefore, insufficient evidence that it was the Accused who assaulted and committed bodily harm to the Complainant.
    

Determination

25. I find that Prosecution has not discharged its burden in proving all the elements of the offence of Assault causing Actual Bodily Harm beyond reasonable doubt.
    
26. I, therefore, find the Accused, Rusiate Vunivale, not guilty as charged and hereby acquit him forthwith.
    
27. Any party aggrieved with the Court’s decision has 28 days to appeal.
    

N. Mishra
Resident Magistrate