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State v Nadan [2012] FJMC 265; Criminal Case 361.2010 (5 October 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 361/10

BETWEEN

THE STATE

AND

SHIU NADAN

JUDGEMENT

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 offence are as follows:
   

"Shiu Nadan on the 21st day of May 2010 at Lautoka in the Western Division unlawfully and indecently assaulted Smita Ashika."

2. The case was taken up for trial on the 9th February 2009. The Prosecution called two witnesses. After the prosecution case was closed the Court held that the Prosecution has made out a case against the Accused to reply. Accordingly the Accused and two other witnesses gave evidence for the Defence.
   
3. Section 212(1) reads as follows:
   

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

4. As per the evidence led in this case it appears that the Accused and the Complainant are relatives and they were living in separate houses in the same compound. The Complainant said that on the 21st May 2010 she was at home with her 5 year old son. She said at about 1.30 pm the Accused came and called her. She said that the Accused called her to his house regarding some prayers. The Complainant gave evidence in the following manner:
   

"I went to Shiu Nadan's house. I went inside his sitting room. He closed the sitting room door. Then I saw his look. It was dangerous. I got scared. From there I was going to the bathroom. He blocked my way. He rubbed a shell on my forehead. He kissed me on mouth to mouth. He held my face. I pushed him. He touched my breasts. Then I said uncle what you are doing. I am like you daughter. Then I called my son. Then Accused pulled the skirt up and put his hand inside. He touched my legs. I pushed him and called my son. "

5. The Complainant was cross examined at length by the Defence. She was extensively asked about the reason as to why she went to the Accused's house. The Complainant said that the Accused told her that he will give some power to do prayers. Although it was not clear what "the power" she was referring to, it was clear that she had gone to the house of the Accused for a matter relating to some sort of a praying. In reply to cross examination she said that she was living in the same compound for six years and they left the house soon after the incident. She denied that she had any dispute with the Accused or with his wife prior to this incident. Further she answered to a question put by the Defence in the following manner:
   

"Q: This whole incident is concocted by you because of a dispute between them?

A: No sir, we were living together happily and I was treating him like a father."

6. Although the Complainant was cross examined extensively it should be noted that her evidence could not be challenged by the Defence. The Complainant said that the Accused's family and her family had a good relationship and she was treating the Accused like a father. Further she said that they were living there for six years. Although the Defence tried to suggest that the Complainant did not have a reason to go to the Accused's house it seems that going to the house of the Accused is not a strange thing for the relationship they seem to have had.
   
7. Further the Defence cross examined the Complainant about calling for help. It was suggested that if she had screamed the immediate neighbours would have heard it. However it should be noted that reaction of persons to different scenarios could vary and the Court cannot expect stereotype reaction every time when a woman is harassed. Further it should be noted that lack of screaming is not a sign of consent or non existence of a crime.
   
8. There was no delay in reporting this matter to someone. The Complainant said that soon after the incident she complained it to her husband over the phone. This was further corroborated by her husband. The husband of the Complainant further said that when he came home the Accused kneeled down before him and pleaded him not to tell the incident to any body. Further he said that the Accused told him that he could punch the Accused if he wants. Although the Complainant's husband was also cross examined at length this was not disputed by the defence. I am satisfied that the Defence could not create any doubt during the cross examination in the Prosecution evidence. Further I am satisfied that the Prosecution witnesses gave evidence in a very consistent and convincing manner.
   
9. I have considered the evidence given by the Accused and the Defence witnesses as well. The Accused said that the Complainant came to her house when he was resting and asked him to do a prayer. He said that he asked the Complainant to come back when his wife is at home. He said that when she did not listen to him he pushed her out. It should be noted that pushing the Complainant out seems to be a new addition to the Defence. At no point during the cross examination it was suggested to the Complainant that the Accused pushed her out when she refused to leave. It should be noted that in a criminal case it is of paramount importance for an Accused to maintain consistency in his defence. But in this case I have observed inconsistency in the Defence case.
   
10. The Accused further said that they had disputes with the Complainant and her husband. He said that there were big issues. However this claim was disputed by the Prosecution during the cross examination of the Accused. The Accused tendered his caution interview as a Defence exhibit and said that it is the correct version of what happened. However the Prosecution pointed out that the Accused is giving contradictory evidence by saying that he had disputes with the Complainant's as he had stated in the caution interview that he has a good relationship with them. I have observed the demeanour of the Accused and I am not satisfied regarding the credibility of his evidence.
    
11. The Defence witness Neelam Sandya Singh said that the Accused and the Complainant were her neighbours. She said that she did not hear any body screaming or the Complainant calling her son. However during the cross examination she said during the time in question she was folding cloths and she would not have bothered about what happened out side. Further she contradicted the Accsued's evidence by saying that the relationship between the Accused and the Complainant's family was good.
    
12. The wife of the Accused also gave evidence. She said in reply to cross examination that her husband called her during the lunch hour and told her that Smita had asked him to do a prayer. She said that she objected to that. When the Prosecution asked her whether Smita was present in front of the Accused she said that she does not know. She further admitted that she does not know what happened prior to the call came from the husband. In regards to the relationship between the two families she only said that the relationship between the two families was not very good. It does not appear that she confirms what the Accused said in that regard.
    
13. The burden lies on the Prosecution to prove the charge against the Accused beyond reasonable doubt. The Accused need not prove his innocence. However it is sufficient for the Accused to create a reasonable doubt in the Prosecution case. However it should be noted that the Defence evidence was not consistent and strong enough to create any doubt in the Prosecution case.
    
14. Now I will proceed to consider what is meant by indecent assault. Blackstone's Criminal Practice, (1993 Edition) at paragraph B3.84 defines

"The test for indecent assault isarily objective. An ent assault is defined ined as an assault committed in circumstances of indecency. Spoords onstitute circumstance of indecency on the part of the person using them. If the the circucircumstances of the assault are incapable of being regarded as indecent, the assault cannot become indecent because of some secret motive of the accused. Where the circumstances are such that the assault could be considered indecent, it must at least be proved that the accused intentionally assaulted the victim with knowledge of the indecent circumstances or being reckless as to the existence of them. Court (1989) AC 28. This means intention or recklessness with regards to circumstances which are shown to contravene standards of decent behaviour with regard to sexual modesty ......... whether or not the victim appreciates the fact of the indecency is irrelevant."( State v Cagilevu [1996] FJMC 1; Criminal Case No 1567 of 1995 (26 January 1996)