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State v Prasad [2013] FJMC 338; Criminal Case 1143.2006 (10 July 2013)

IN THE MAGISTRATE'S COURT OF NASINU

CRIMINAL CASE NO.1143/2006

STATE

VS

MAHESH PRASAD

Mr. J. Niudamu for the State (DPP Office)
The accused appeared in person

Judgment

[1] The accused filed no case to answer through his lawyer Mr. Rajendra Chaudhry and on 14th October 2011, the court held there was a case to answer. Then, Mr Chaudhry was suspended practising and the court allowed the accused to find another counsel. On hearing date Ms Vasiti appeared and tendered that the accused got heart attack and sought a vacation of hearing. Hearing was fixed on 01st May 2013, but the accused evaded the court. Ms. Sou said now the accused got a stroke and he is paralysed. Finally, the hearing was done on 21st May 2013; the accused came on wheel chair. He gave sworn evidence. The judgment is for today. I now consider the judgment.

[2] The accused is charged as follows:-

CHARGE

Statement of Offence [a]

First Count

INDECENT ASSAULT: Contrary to Section 154 (1) of the Penal Code Act 17.

Particulars of Offence [b]

MAHESH PRASAD S/O GOBAR DHAN, on the 12th day of September 2006, at Nasinu in the Central Division, unlawfully and indecently assaulted PRIYASHNA D/O KRISH CHAND.

[3] To prove this charge prosecution called following witness;

PW1-Priyashna
PW2-Avinesh Pal
PW3-DC 2771, Aminand Prasad
In addition interview notes of the Accused and Charge Statement tendered as Ex-1 and Ex-2 respectively.

[4] PW1-Priyashna; said on this particular day at about 6.30 am in the morning, she was changing her clothes in the accused's room as she was attending school at the time. This was the room that she usually used to change in before going to school. (PW1) further stated that whilst she was getting dressed in the accused's room, the accused entered the room, "touched and pinched her backside". He then said in Hindustani that her backside was "small" and was in the room for two (2) minutes. The complainant stated that when the accused touched her backside and said those words to her, she "felt bad". She stated that her brother entered the accused's room and questioned the accused as to what he was doing to his sister. She straightened her dress, when the accused swore at her brother saying in Hindustani "fuck your mother, just go out or else I'll kill you".

[5] At cross examination, she said that she didn't see brother standing in room; When dressing wears panties first; she made no reference to any dress being stuck; she was getting ready at 6.30 am as was getting late for school; her father took her to Police Station; her father wanted mother of PW1 to go back to him; further father helped give statement; she didn't know why father signed.

[6] PW2- Avinesh Pal; on the day in question, he was in the sitting room and waiting for his sister. As she was taking too long, he went to the bedroom and saw the accused touching the complainant's backside/bum and saying it was small in Hindustani. He was shocked to see what was happening and called out to the accused, saying what he was doing. The accused yelled at (PW2) and said what he wanted then swore at him.
[7] In cross examination witness said that the light in the room was off and curtains were drawn; at that time. His sister was by the wall and accused was standing behind the sister and couldn't memorise and then that the accused was standing on one side; his sister was half dressed and said she was wearing panties and then said he was not sure; His father was standing beside him as he gave his statement to Police.

[8] PW3-DC 2771, Aminand Prasad; this investigations Officer and said that he interviewed and recorded the accused's statement. In cross examination said he did not visit the crime scene and that he should have. Duplicate interview notes were marked as Exhibits.

[9] Thereafter prosecution closed their case. The court held there was a case to answer. The accused opted to give sworn evidence.

[10] DW1: Mahesh Prasad: He said;

"on that day I was at work. Sir the complainant has made false allegation against me. When I came back in the afternoon Sir then I was informed about this case. And then I rushed to Nasinu Police Station to find out what the matter is. And then I was informed that the complainant has reported the matter against me. And I also informed the Police Officers that I was at work during the day. Sir I want to inform the Court that I always leave for work by 5.45 Sir in the morning. And I haven't committed this offence "

[11] In cross examination the accused admitted that his daughter brought the victim and, her mother and brother because they had family problem with their dad. Initially the accused said that he left home at 5.45 in the morning. Later he admitted he was about to leave for work. The accused said that the victim did not go to school on that day. He said that he did not pinch her buttocks and swore at her brother as they were sleeping. Further he said that he did not touch her buttocks.

[12] In now consider burden of proof and law on this offence. In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[13] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsels asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasondoubt about the the guilt of thu accused."

[14] As Lord Devlin mentioned evidentiary burden of proof in the Privy Council in Jayasena v. The Queen (1970 8)

"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[15] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted.

[16] Section 154(1) of the Penal Code states as follows:-

"154.-(1) any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment."

[17] Elements of the charge of indecent assault are:

(1) Any person
(2) Unlawfully and indecently
(3) Assaults
(4) Any woman or girl

Analysis of the evidence

[18] In line with the above guiding principles, I now evaluate the evidence adduced before me. The court should find actually what had happened. The PW1 said she was touched by the accused. The PW1 says that her backside was touched by the accused, when he touched he uttered it was "small". Thus, this evidence itself sees that all the elements are patent in this charge. This was corroborated by PW2. However current law development indicates corroboration is no longer required for sexual offences. (Eliki Mototabua v State HAC0020 of 2002 and State v AV HAC 192 of 2008). Although there were minor discrepancies, the court notes those did not vitiate the prosecution's case.

[19] In R v Kilbourne [1972] 3 All ER 545 Lawson J directed the jury, as to what constituted as indecent assault, in the following terms:

"It means a deliberate touching of somebody else's body, clothed or unclothed with an indecent intention. That is to say a deliberate touching which is activated by some indecent purpose".

[20] The victim's evidence well ahead suits for this notion. The accused is in his evidence first put defence of alibi for first time. When cross examined he admitted that he was about to leave the work and victims were sleeping. But the victim and her brother confronted this version and the accused admitted that it was a school day. The defence was shaky and cannot be accepted. It is seen that the accused took advantage of the situation and he abuse the victim and her brother. The victims were not his biological granddaughters and grandson and the accused knew that they don't have a father to complain to. Thus, the accused did this to the victim. I hold the prosecution proved its case beyond reasonable doubt.

[21] The accused is convicted as charged.

[22] 28 days for appeal.

On 10th July 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate