State v Nadriubalavu [2024] FJMC 33; Criminal Case 170 of 2021 (30 August 2024)

IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 170/2021

BETWEEN: STATE

PROSECUTION

AND: MAIKA VUETI NADRIUBALAVU

ACCUSED

Counsel: WCPL 4897 Venu Singh for Police Prosecution
Accused in person.

Date of Trial: 24 July 2024
Date of Judgment: 30 August 2024

JUDGMENT

Introduction

1. Mr. Maika Vueti Nadriubalavu (“the Accused”) was produced in Court on 8 April 2021 and charged with 1 count of Indecent Assault contrary to section 212 of the Crimes Act 2009. The particulars of the offence are:
   

Statement of Offence

Indecent Assault: Contrary to Section 212 of the Crimes Act 2009.

Particulars of Offence

Maika Vueti Nadriubalavu on the 21^st day of March, 2021 at Votua, Ba in the Western Division unlawfully and indecently assaulted Asenaca Bogivalu by touching her breast.

2. The Accused opted to represent himself and on 14 June 2022 entered a plea of Not Guilty. Trial was scheduled for 24 July 2024 and proceeded on that date with Prosecution with Prosecution calling 4 witnesses. Prosecution closed its case thereafter and the Court found that there was a case to answer for the above charge. The Accused was explained his options and he opted to give evidence and not call any witnesses.
   

Burden of Proof

3. 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.
   
4. 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.
   

Summary of Evidence

5. It is expected that to arrive at a proper conclusion, the matter ought to be considered in its logical progression with formulated reasons for the ultimate conclusion with the general rule being that a judgment should set out the relevant events and the material evidence in the correct sequence in narrative form with the identifying number of each pertinent witness being incorporated at the appropriate places – vide Pal v R [1974] 20 FLR 1 (17 January 1974) as referred to in Wang v State Criminal Petition No. CAV 0013 of 2021 (26 October 2023) and State v Wang Criminal Appeal No. HAA 30 of 2019 (19 February 2021).
   
6. On 21 March 2021 at about 3am, Serenia Tabua, Kemueli Naibuli, the Accused, Nabaro and Sala were drinking grog at Serenia’s house on the verandah. Prior to this, they had been drinking grog at Kemueli’s home. The Accused and Serenia are cousins whilst Kemueli was the Accused’s uncle. Both Serenia and Kemueli confirmed that the Accused had left the drinking session and after a while the Complainant had come to where they were drinking and was crying. The Complainant had asked to see Kemueli – her husband and told him that the Accused had come to their home, pushed the door, came into the room and started touching her on her breast. Kemueli left with the Complainant to look for the Accused but was unsuccessful.
   
7. The Complainant states that on 21 March 2021 at about 3am, she had been sleeping in her room when the Accused entered and laid on top of her and started touching her breast. The Complainant had been asleep at the time but when she saw the Accused she was afraid/scared for her life. The Complainant was able to see the Accused as the light was turned on inside the house. She quickly stood up and went to look for her husband - Kemueli who was drinking grog at another house which was 50 meters away from her house. She was crying and when she found her husband she informed him that the Accused had entered the room and started touching her breast while she was sleeping.
   
8. The Accused strongly denies that he had touched the Complainant’s breast. The Accused says that he had left Serenia’s home to get his earpiece from Kemueli’s home. He had gone into Kemueli’s house to get his earpiece and as he was leaving, he met the Complainant whom he had conversed with before he went home and slept.
   

Evaluation of Evidence

9. In evaluating the evidence, the Court must determine the testimonial trustworthiness of the evidence given by the witnesses based on the credibility and reliability of their evidence. In doing that, the Court should consider the promptness/spontaneity, probability/improbability, consistency/inconsistency, contradictions/omissions, interestedness/disinterestedness/bias, the demeanour and deportment in Court and the evidence of corroboration where it is relevant. (vide State v Moroci Criminal Case No. HAC 161 of 2023 (26 April 2024)).
   
10. For a proper analysis of the evidence for the offence of Indecent Assault, it is imperative for the Court to turn its mind to the elements of the offending, which are:
    
    1. the accused
    2. unlawfully and indecently assaulted the Complainant by touching her breast.
       
11. From the outset there is no issue with the identification of the Accused as there is evidence that on 21 March 2021, the Accused was present at a drinking session held at Kemueli’s residence first and then at Serenia’s residence. Further, there is no dispute that at some point in the drinking session at Serenia’s house, the Accused had left and made his way back to Kemueli’s residence which is according to the Accused’s own evidence.
    
12. The dispute that arises is what transpired at Kemueli’s residence. Thus, the Court will need to ascertain whether the Accused had unlawfully and indecently assaulted the Complainant by touching her breast when he returned to Kemueli’s residence on 21 March 2021.
    
13. The Accused states that he had gone to get his earpiece and that upon retrieving the same and leaving the house, he met the Complainant who had asked him what he came to do at the house and where her husband was. After answering her questions, the Accused states that he had gone home and slept.
    
14. On the other hand, the Complainant in her evidence stated that she was sleeping in her room when the Accused had entered the room and laid on top of her and then touched her breast. The Complainant further states that she had seen that it was the Accused as the light was turned on inside the house. Moreover, her evidence is that after this incident she went to her husband, who was drinking grog at a house which was 50 meters away from her house and told him what the Accused had done.
    
15. At this juncture, the Court is mindful of the Liberato principle as expounded in Liberato and Others v The Queen [1985] HCA 66; 159 CLR 507 at 515 where Brennan J held that
    

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question; who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question ( which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issue which it bears the onus of proving. The jury must be told that; even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is “a gross simplification.”

16. The Liberato principle was upheld in Goundar v State [2015] FJCA1; AAU 0077.2011 (2 January 2015) but in Naidu v State [2022] FJCA 166; AAU0158.2016 (24 November 2022) His Lordship Prematilaka highlighted the importance of modifying the Liberato principle and held:
    

[29] On the other hand Liberato has not uttered the final word on this issue. In Johnson v Western Australia [2008] WASCA 164; (2008) 186 A Crim R 531 at 535 [14]- [15] Wheeler JA identified one possible shortcoming in using Brennan J's statement in Liberato as a template for the direction: a jury may completely reject the accused's evidence and thus find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a ‘reasonable doubt’ on that issue.

[30] For that reason, it was usefully held in Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116 at 121 [26] that it is preferable that a Liberato direction be framed along the following lines (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?

17. Thus, if the Court believes the evidence given by the Accused is true or may be true, then the Court must find the Accused not guilty of the offences. Even if the Court rejects the Accused version, that does not automatically imply that the Prosecution has established that the Accused is guilty of the crime. The Prosecution must satisfy that it has established, on the evidence accepted by the Court, beyond a reasonable doubt, that the Accused committed these offences as charged in the information - vide Naidu v State [2022] FJCA 166; AAU0158.2016 (24 November 2022) and Liberato and Others v The Queen ((1985) [1985] HCA 66; 159 CLR 507 at 515) as cited in State v Prasad Criminal Case No. HAC 72 of 2021 (20 June 2024).
    
18. Coming back to the case herein, the Court will evaluate the evidence by Prosecution whilst keeping in mind the evidence presented by the Accused insofar as they relate to the issue I am considering. The evidence presented by the parties will be evaluated to determine the testimonial trustworthiness of the evidence which will be done by evaluating the credibility – the correctness or veracity of the evidence and the reliability of evidence – the accuracy of the evidence - vide State v Prasad Criminal Case No. HAC 72 of 2021 (20 June 2024).
    
19. When considering the Accused’s evidence, the Court is mindful that there was nothing suggested or pointed out by the Accused why the Complainant made such a complaint especially if there had been an ulterior motive. There was also nothing to suggest an ulterior motive with respect to the evidence of Kemueli – the Accused’s own uncle and Serenia – the Accused’s cousin.
    
20. The Court is also mindful of the probability of the Accused’s version of events – such as why the Complainant had gone crying and complained to her husband and why the Accused had gone to the Complainant and her husband’s residence on Sunday morning to explain what had really happened. These events do not support the Accused’s contention that he had merely picked his earpiece from the house, spoken to the Complainant and left to go to his home.
    
21. The Court finds that the Accused’s evidence has not created a reasonable doubt with respect to what transpired between him and the Complainant when he had gone to Kemueli’s house on 21 March 2021.
    
22. I now turn my mind to Prosecution’s case. Prosecution’s third witness, Serenia in her evidence stated that while they had been drinking at her residence, the Accused had gone missing and then the Complainant came crying and called for her husband, Kemueli.
    
23. Kemueli, who was Prosecution’s second witness also confirmed that the Accused had gone missing from the drinking session and that his wife - the Complainant had come after 5 minutes from when the Accused had gone missing from the drinking session. Moreover, Kemueli’s evidence is that when his wife came to Serenia’s residence, crying, she had then informed him that the Accused had come into the room and touched her breast.
    
24. The above evidence of Serenia and Kemueli is consistent with respect what had transpired when the Accused had left the drinking session and when the Complainant had come crying thereafter.
    
25. Kemueli’s evidence with respect to the Complainant informing him that the Accused had come into the room and touched her breast when considered in conjunction with the evidence of the Complainant that the Accused had entered the room, laid on top of her and then touched her breast is also consistent.
    
26. Considering the above, the Court finds that the Complainant’s evidence as well as the second and third Prosecution witnesses’ evidence as being credible and reliable and therefore truthful. Thus, Prosecution has proven beyond a reasonable doubt that the Accused had left the drinking party at Serenia’s residence, gone to the Kemueli’s residence where the Complainant was sleeping in the room and touched her breast which caused the Complainant to become distressed and led to her go to Serenia’s residence to call her husband and inform him what the Accused had done to her.
    

Determination

27. I find that Prosecution has discharged its burden in proving all the elements of Indecent Assault beyond reasonable doubt. I, therefore, find the Accused, Maika Vueti Nadriubalavu, guilty as charged for the offence of Indecent Assault.
    

N. Mishra
Resident Magistrate