IN THE MAGISTRATES’ COURT
AT NAUSORI
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 352/13

State

.v.

Joseva Sailasa

Prosecution : PC Abinash (Police Prosecution)
Accused : Present – Mr Luvena – Legal Aid
Judgment 
Introduction
The accused was charged with Indecent Assault, contrary to Section 212 of the Crimes Decree 2009.  The Particulars of Alleged Offence is that:
“Joseva Sailasa on the 30th day of June 2013 at Kaba Village, Tailevu in the Central Division unlawfully and indecently assaulted J D.”
Elements of the Offence
The prosecution in this case is required to prove the following elements of indecent assault (as per the charges laid) against the accused:
    (a) Joseva Sailasa, (the person in the charge and appearing in court – identification)
    (b) Assaulted, J D (the complainant), and
    (c) The assault was unlawful and indecent, that is morally offensive. 

Indecent assault 
The standard definition of an incident  assault  is found in the English Court of Criminal Appeal decision in Beal v. Kelley (1951) 35 Cr App R 128, where Lord Goddard CJ, speaking for the Court said:
"The definition given in Archbold’s Criminal Pleading ((32nd Ed), p 1067) of an indecent assault is perfectly right; ‘an assault accompanied with circumstances of indecency on the part of the prisoner’, that is to say, indecency offered towards the person alleged to have been assaulted. If a person is assaulted, that is to say, if there is a hostile act with every circumstance of indecency, I cannot see why it is not an indecent assault. If a man assaults a woman, at the same time exposing his person to her, I have no doubt that that is an indecent assault on a female, just as I have no doubt that the conduct of the respondent was an indecent assault."
Element of indecency
For the assault to be indecent it must be accompanied by a circumstance of indecency. Conduct is  indecent  when it is as such that ordinary people would so describe it, in light of prevailing standards of morality (as per Court [1989] 1 AC 28) and, more specifically, in light of whether the victim has consented to the conduct in question.

The Standard and Burden of Proof
The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice."

The Law and the Analysis of the Evidence
The Evidence
The prosecution called 2 witnesses. The accused gave sworn evidence. The accused’s Caution Interview and Charge sheet were tendered by consent. 

Analysis of Evidence in Relation to the Law
This Court has analysed all the evidence by all the witnesses in this case. The crucial issue to be determined in this case is whether the accused person indecently assaulted the complainant or not. There is no dispute as to the identification of the accused as the accused did not deny that he was not in the house or sleeping next to a number of persons including the victim or the time and date of the alleged offence. 
The victim clearly narrated the incident in Court and she told the Court that the accused put his hands on her vagina and upon hearing his wife’s voice he pulled his hands. The victim’s version was that the accused’s wife had gone somewhere and was not around where she had slept on the floor. She complained to her school teacher the next day. The school teacher also gave evidence in Court.
The accused’s version is that he turned to hug his wife but it was a different person. The case for the accused is that of mistaken identity. The evidence of the victim is very clear she knew the wife of the accused was not in the house. The accused also told the Court his wife was not sleeping there. He told the Court he did not know where she was. The question is then if the accused knew his wife was not there who he did he turn and hug and touch. In fact the Court believes the victim when she says that the wife of the accused was not sleeping near her. The accused also knew his wife was not sleeping there and he put his hands on the vagina of the victim. The evidence of the accused is muddled up and given to serve his interest. The Court does not believe the accused but believes the prosecution witnesses. 
For the above-mentioned reasons this court finds that the charge against the accused is proven beyond reasonable doubt. The accused is found guilty of the charge. This Court will now hear the accused’s mitigation. 

Chaitanya Lakshman
Resident Magistrate
1st September 2016