State v Singh [1995] FJMC 1; Criminal Case No 1593 of 1995 (11 December 1995)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 1593 of 1995

STATE

-vs-

JAGDISH SINGH

s/o Gyan Singh

BEFORE S M SHAH ESQ
RESIDENT MAGISTRATE

For Prosecution: Mr Wilkinson (Acting D.P.P)
For Accused: Mr T Fa

Date of Hearing: 7.12.95 and 11.12.95
Date of Judgment: 11 December 1995

JUDGMENT

The accused has denied the charged of attempted rape.

The complainant, PW1, told the court what had transpired on the day in issue.

She said that the accused entered her flat uninvited. Then he asked her to be shown the various places which required repairs to be done. She showed him even though her flat mate had the previous evening showed him what repairs were actually required in the flat.

Then she said that he touched her on the shoulder, pushed her onto the bed backwards by holding her hands, tried to kiss her, and tried to pull her dress out. She testified that at all stages she told him not to do it and to leave her alone. Then she said that she kicked him in his testicles. She then went into the kitchen, picked up a knife and threatened him to the effect that if he did not leave, she would kill him.

She made it very clear that she did not consent to what he did or attempted to do.

At the end of the prosecution case, Mr Fa indicated that he would call no evidence. He submitted that what the accused did falls far short of what amount to an "attempt" in law. He submitted that perhaps what the accused did may amount to indecent assault.

Mr Wilkinson, on the other hand, submitted that what the accused did was more than merely preparatory and that is clearly attempt. He further submitted that the prosecution had proved its case beyond reasonable doubt.

The concise oxford dictionary describes an "attempt" as to "seek to achieve or complete".

Section 380 of the Penal Code defines an "attempt" as:

"when a person intending to commit an offence, begins to put his intention into execution by means adapted to his fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence"

The 1994 edition of Blackstone in paragraph B.3.9. states that the mental element in attempted rape is the same as that required for the full offence, namely, an intent to have sexual intercourse coupled with, at least, awareness that the woman, may not be consenting. It is not necessary to prove that the accused had gone so far as to attempt physical penetration of the vagina. It is vital that the acts could be proved to be more than merely preparatory. This is illustrated by the English Court of Appeal decision in Khan (1990) 2 All E.R. 783.

The Court of Appeal in R v Jones (1990) 1 W.L. R. 1057 stated the same.

Again, the Court of Appeal in the Attorney General’s Reference (No. 1 of 1992) as reported in (1993) 1 W.L.R. 274 stated that a prima facie case of attempted rape was sufficiently raised if there was evidence from which the intent to rape could be inferred and acts were proved which could be regarded as more than merely preparatory.

There is striking similarity between the evidence of PW1 pertaining to what had happened on the 3^rd of May and the caution interview.

In the cautioned interview, the accused admitted in question 14 that he wanted to have sexual intercourse with her. Then in question 16, he stated that he was out of his mind. In question 18, he admitted lifting PW1’s dress.

There is no allegation that the interview was not voluntary. I have in mind the preamble to the Judges Rules in respect of alleged confession. It is as follows:-

"That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression."

Sir Timoci Tuivaga, the Honourable Chief Justice, in DPP v Epi Nabua, Marika Muavere, Suliasi Draso and Elenava Raulukava, Criminal Case No. 3 of 92 of Labasa High Court had this to say:-

"To be voluntary and therefore admissible in evidence a confession must not have been made under the pressure of intimidation, substantial or undue persistence or by oppression. A confession must also not have been made as a result of any promises offered."

There is no allegation that what the accused stated in the caution interviewed was because of pressure of intimidation, undue persistence or by oppression.

I believe PW1’s evidence as credible and that she told the truth. I have no reason whatsoever to doubt her evidence.

In the present case, in my view, the acts by the accused of touching her shoulders, holding her hands, pushing her on to the bed, lifting her dress and attempting to kiss her are more that merely preparatory.

On the facts and evidence before this court, I find that there is ample evidence from which the intent to rape could be inferred and these acts, in my view, are more than merely preparatory, to the commission of the offence.

I am satisfied that the prosecution has proved its case beyond reasonable doubt. Mr Fa advised the court that he would call no evidence and rely on his submission that what the accused did does not amount in law to an attempt to rape.

I now find the accused guilty of attempted rape has charged.

SYED MUKHTAR SHAH

RESIDENT MAGISTRATE