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State v Nadan [2012] FJMC 242; Criminal Case 361.2010 (3 May 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 361/10

BETWEEN

THE STATE

AND

SHIU NADAN

RULING

1. The Accused is charged with one count of indecent assault contrary to Section 212(1) of the Crimes Decree No 44 of 2009.
   
2. The Case was taken up for trial on the 09th February 2012. The Prosecution called two witnesses. After the prosecution case was closed the Defence Counsel tendered written submissions on no case to answer.
   
3. Section 178 of the Criminal Procedure Decree states as follows;
   

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused."

4. Justice Nazhat Shameem in Abdul Gani Sahib V The sate discussed the tests that are applicable in considering whether there is a no case to answer. Accordingly the court has to consider;
   
   1. Firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence and;
      
   2. Secondly, whether on the prosecution case, taken at its highest, a reasonable tribunal could convict.
      
5. It should be noted that at this stage the Court is not expected to do a detailed analysis of evidence. All what the Court should consider is whether the evidence in its totality would touch all the ingredients of the offence and whether the Prosecution has produced reliable evidence.
   
6. Section 212(1) reads as follows;
   

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

7. I have considered the submissions made by the defence. Basically the Defence submits that the evidence of the Prosecution was conflicting and unreliable. Also it was submitted that the Complainant has consented to the alleged acts and the alleged acts do not amount to indecent acts.
   
8. The Complainant and her husband gave evidence in this case. Although the husband is not a witness to the incident he corroborated the fact that he was informed by the Complainant soon after the incident. The main contention of the Defence was that the Complainant went to the Accused's house on her own freewill and that she did not scream when the alleged acts were done. However it should be noted that merely because the Complainant went to her neighbour's house on her own freewill does not mean that she is barred from complaining about any indecent assault took place at the neighbour's house. Similarly I do not accept the contention that screaming is a universal expression of lack of consent. I am of the view that these issues raised by the Defence do not render the evidence of the Prosecution unreliable.
   
9. Secondly the Defence alleges that the ingredients of the offence were not proved by the Prosecution. I have considered the evidence given by the two Prosecution witnesses. I am satisfied that the Prosecution has produced admissible evidence which is sufficient to implicate the Accused in respect of each element of the offence.
   
10. In the circumstances I decide that a case is made out against the Accused sufficiently to require him to make a defence.
    
11. Accordingly I proceed to read out and explain the charge again to the Accused and act under Section 179 of the Criminal Procedure Decree.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

03.05.2012