IN THE MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 1567/95

STATE

-vs-

SAMUELA CAGILEVU

BEFORE SYED MUKHTAR SHAH ESQ
RESIDENT MAGISTRATE

For Prosecution: Mr McNaughten
For Accused: No one

Dates of Hearing: 23/12/95, 12/1/96 and 10/1/96.
Dates of Judgment: 26 January 1996

JUDGMENT

The accused has denied two counts of indecent assault and one count of attempted rape. The two victims are his step daughters. 

	The charges against the accused initially were of indecent assault (Count 1) and rape (Counts 2 and 3). However, these were later amended to indecent assault (counts 1 and 3) and attempted rape (count 2). The charges as amended were put to the accused and he pleaded not guilty to them. I will no doubt have more to say on the charges as amended in my judgment at a later stage.

	Regrettably, I have to refer to material facts of this case. However, I shall attempt to be as discreet as possible.

	PW1 was 15 years old at the time of the alleged offences of indecent assault on 9 and 19 June 1995. She told the court that she was washing dishes at home on 9 June 1995 when the accused told him to sit beside him. She said that he then fondled with her breasts. She also said  that she cried and told him to stop it. She said that she told her elder sister about the incident the same day. When he touched her breasts, she told the court that she felt bad and frightened. She further stated that she never agreed to her stepfather touching her breasts. She then walked out of the house.

	Then about a week later, she said that she recalled that her step father had sex with her after touching her breasts. Then she said that she remembered it was 19 June, 1995 when she went to bed at 9pm. On that night she woke up when the accused was near her bed.

	Then she told the court that she wrote to the Director of Public Prosecutions on 20 July 1995 to drop the charges against her step father. Her reasons for doing so was that if the accused went to prison, no one will pay her school fees. 

	When questioned by the court what charges she wanted the DPP to drop, she said she meant rape. When questioned further what rape she meant she replied.

“He raped me after touching the breasts.”

When asked when, she stated:

“Same night when he woke me up.”

	She further stated that she wrote to the DPP after talking to her elder sister (PW2).

	She was cross-examined at reasonable length by the accused during which she repeated that the accused had fondled her breasts. She also said that the accused had touched her private parts. During re-examination she said that he touched her private parts first and then touched her breasts.

	The second prosecution witness the elder sister of PW1. She also told the court what her stepfather had allegedly done to her. She said that she went to the church on 10/6/95. When she returned from there, she received a beating from her stepfather as she did not concentrate in the church. She fell when trying to run away as the accused was beating her. She injured her shoulder in the process. Then on 11th June 1995 at 5.30am she woke up for the morning worship. She also said that after her arm was fractured, the accused wanted to hit her more but she pushed him away. Then she and the accused were in the house. The accused wanted to touch her shoulder but she told him to touch her. Then she went away to her relatives’ place as she did not want to get more beating from him. She stated that she told police about the beating she received. She also recalled the accused wanted to touch her breasts on the morning of 11/6/95. 

	Then she said:

“Accused wanted to touch my breasts. I was wearing my nightie. He was beside my bed. His hands were touching my shoulder. I was lying down. I told him not to touch me.

Then again he touched my shoulder i.e. for 5 minutes. He wanted to have sexual intercourse with me. He came on to me. He lay on top of me. I pushed him. He tried to have sex with me but he did not succeed. I fought against him. I kept refusing and he insisted to be on top of me. He had his penis out and I felt it on my thigh. My thigh was wet …………………… I felt that he was weak as he had masturbated and he could not fight with me ……………….”

Then she said:

“He was lying over me. I struggled to free myself. He tried to turn me around. With one hand he tried to turn me upright. The other hand tried to put my thighs apart. I was lying on my stomach. He tried to turn me and separate me and thigh was wet. The he lay beside me. I kept my thighs together. I felt accused was naked. His penis was on my thigh. Felt water on my thigh. Still lying on my stomach that time. He lay on side after masturbating. Left arm OK by then. He did all these for about 5 minutes. I walked away then and had a bath . . . . . . . 

On 23/6/95 spoke to police”.

	She told the court that she wrote to the DPP later so that the charges against her stepfather could be dropped. She wanted to forgive him. She said she was told by a pastor from the Seventh Day Adventist Church to forgive the accused.

Then she said:

“Don’t know difference between forging someone and having him punished for offences committed.”

	During cross examination she said that her younger sister was in bed near her when the accused was standing naked nearby.

	PW3 was the interviewing officer and PW1 was present with PW3 at the interview.

	PW5 was the neighbor of PW1 and PW2. She said she asked PW2 on 20/6/95 why she ran away from the house and she replied that her step father was hassling her and had actually raped her about a week earlier. PW2 also told her that PW1 was going through the same treatment and she wanted to run away too. PW1 met PW5 and told her that she was too raped by the accused and wanted to run away as he hassled her.

	During cross-examination she repeated that the two victims had told her that the accused had hassled as well as raped them.

	The accused elected to give sworn evidence. He denied the allegation.

	During cross-examination he agreed that he did not challenge PW1 and PW2 when they said in their evidence that he had raped and hassled them. He also agreed that he did not question them about the allegation that he indecently assaulted them.

	I have at length, considered the need for corroboration of PW1 and PW2’s evidence.

	What is corroboration?
	On the question of corroboration, Lord Reid in DPP v Kilbourne (1973) 57 Cr. App. R 381 at page 409 said that:-

“There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particulars statement one naturally looks to see whether it fits in with other statements of circumstance relating to the particular matter; the better it fits in, the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statement or circumstance with which it fits in.”

	His Lordship warned what in ordinary life one should be and in law we are required to be careful in applying the above idea and one must be astute to see that the apparently corroborative statement is truly independent of the doubted statement and if there was any real chance that there has been collusion between the makers of the two statements one should not accept them as corroborative.

	In DPP v Boardman ()1975) 60 Cr. App. R 165 at 183 Lord Hailsham accepted the above approach and said that when a jury (or judge) is satisfied beyond doubt that a given witness is telling the truth, they can, after a suitable warning, convict without corroboration.

 	His Lordship went on to say that unless a witness’s evidence was intrinsically credible he could neither afford corroboration nor be thought to require it and in such cases the witness’s evidence is rejected before the question of corroboration arises. His Lordship also said that a conviction in such cases can sometimes result if, notwithstanding the unreliable testimony, the independent evidence is strong enough. This is not because the unreliable witness is corroborated but because the independent evidence has proved the case independently of the unreliable witness.

	In Attorney General of Hong Kong v Wong Muk Ping (1987) 2 W.L.R. 1033 the Privy Council observed as follows:-

“…… any tribunal of fact confronted with a conflict of testimony had to evaluate the credibility of evidence in deciding whether the party who bore the burden of proof had discharged it. It was the commonplace of judicial experience that a witness who made a poor impression in the witness box might be found at the end of the day, when his evidence was considered in the light of all the other evidence, to have been both truthful and accurate. Conversely, the evidence of a witness who at first seemed impressive and reliable might at the end of the day have to be rejected. Such experience suggested that it was dangerous to assess the credibility of the evidence given by any witness in isolation from other evidence in the case capable of throwing light on its reliability.”

	Jesuratnam J in Criminal Appeal Numbers 9 and 10 of 1991 (Suva High Court) appears to be putting forward the view that a magistrate must at least indicate whether he has directed himself on the desirability of looking for corroboration of the evidence of the complainants in sex offences or even indicate that even without such corroboration on material points he was convinced beyond reasonable doubt that the complainants were speaking the truth and that he could act confidently on their evidence.

	Kepa J in State v David Pickering Criminal Appeal number HAC0001 of 1994, High Court of Fiji (Suva), stated that:-

“Corroboration is any evidence coming from independent source which implicates or tends to implicate an accused person in the commission of the offence alleged.”

	In spite of the above comments pertaining to corroboration one must lose sight of the comments by the Court of Criminal Appeal in R v Trigg (1963) 47 Cr. App. R. 94 to the effect that one must approach the complainant’s evidence with a sense of caution. 

	I have approached the evidence of every witness with a great degree of caution and in the light of the above guidance.

	In present case, apart from PW1 and PW2 telling each other, they also told PW5 about the alleged offences.

	In Mosese Naisaroi v State, Criminal Appeal Number 53 of 1993 (Suva High Court) Kepa J had to deal with an appeal in relation to the question of indecent assault.

	Briefly in that case, the accused had a habit of calling himself a doctor of women and as such considered himself an expert in curing diseases of women using his ingenious “modern scientific method of healing”. This method of healing included the inserting of two fingers inside the vagina in closed rooms without the presence of another female. His specialty  was to deal with devils commonly know as MORO, KAU, DAUCINA, and TATUISALEVU. He deceived women by telling them he could get rid of demons by chasing them away from their bodies but instead ended up indecently assaulting them.

	The complainant had in that case been subjected to indecent behaviour by the accused. She left the home of the accused and then went to tell her husband some 10 kilometres from her home by bus.  The accused complained that she did not complain for about three hours before she told her husband.

	He said that she met hundreds of people in between her home and Suva City and she should have told the first person she met or at least told the bus driver.

	In that case, I presided and held that the complainant had made an early complaint because she complained as early as could be reasonable expected. I held there that: 

“The complainant (PW1), immediately after the indecent assault on her of which she complains, got home and left to see her husband and then to report to police ……….. the complaint was made as speedily as the circumstances of this case warranted. It was clearly more reasonable for her to complain to her husband (someone she knew) instead of complaining to someone such as a bus driver (as the accused put it) who she did not know.”

	When the accused appealed against my decision, Kepa J in dismissing the appeal, held as follows:-

“He argued that if complainant had not consented to be healed healed by him she could have reported the matter to the first person she met but not to wait until the afternoon to report her experience to her husband.

It is without doubt that such a matter was very sensitive and personal and that complainant wanted to let her husband be the first to know to advise her on what action she should take.”

	In R v Lillyman (1896) 2 Q.B. 171 Hawkins L.J. said that evidence of the fact that a complaint was made is admissible provided it was made as speedily after the acts complained of as could reasonably be expected. His Lordship said that it is for the trial judge who tries the case to decide whether the complaint is made as speedily as could reasonable be expected and that here is no one else who can decide it.

	In R v Cummings (1948) a All E.R. 551 the complaint alleged that she was raped by the accused. It appeared that after the incident he took her back in his motor van to the land worker’s camp where for a week she had been living. She did not complain to the camp warden although she saw him, not to girls sharing her hut, but the following day she went to an older woman whom she know, living two miles from the camp, and to her made a complaint which led to his arrest. At the trial evidence of this complain was admitted and he was convicted. 

	But on appeal, it was argued that the complaint had not been made immediately and therefore, evidence of it was inadmissible. However, the Court of Criminal Appeal held that it was for the judge who tried the case to decide whether the complaint was made as speedily as could reasonably be expected. Once the trial judge holds that it was an early complaint, an appeal court could not interfere with the exercise of his discretion as to the admissibility of the evidence.

	In my opinion, in the present case, PW1 and PW2 made the complaint as early as could have been reasonably expected of them.

	The next issue to consider is whether the assault was indecent.

	The word “indecent” has been defined in different ways. The Concise Oxford Dictionary defines it as “unbecoming, immodest or obscene”.

	It is apparent from authorities such as Galletly v Laird (1953) S.L.T. 67 that there is no common law definition of indecency.
	In Regina v Stanley (1995) 2.Q.B. 327 it was held that “indecent” conveyed the idea of offending against the recognized standards of propriety. In other words, it offends the ordinary modesty of the average man.
	
	Strouds  judicial Dictionary defines indecent in a similar way.

	Blackstone’s Criminal Practice, (1993 Edition) at paragraph B3.84 defines indecent assault as follows:-

“The test for indecent assault is primarily objective. An indecent assault is defined as an assault committed in circumstances of indecency. Spoken words may constitute circumstance of indecency on the part of the person using them. If the circumstances 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.”

	Count 2 alleges attempted rape. Blackstone (1994 edition) paragraph B3.9 states about attempted rape as follows:

“Attempted rape is governed by the principles of the law of attempts generally. Attempted rape may be charges as such, or may be an alternative verdict on charge of rape where the evidence does not disclose that the accused achieved  sexual intercourse with the victim. There is an obvious overlap with indecent assault.

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 (Khan [1990] 1 WLR 813). It is not necessary to prove that the accused had gone so far as to attempt physical penetration of the vagina. Is suffices if acts be proved which the jury could regard as more that merely preparatory (Attorney-General’s Reference (No. 1 of 1992) [1993] 1 WLR 274).

	In the Attorney General’s Reference (No. 1 of 1992) (supra), the respondent who was charged with attempted rape, contrary to Section 1(1) of the Criminal Attempts Act 1981, was acquitted on the judge’s direction that the prosecution could not prove, and there was no evidence of, actual physical attempt at penetration. 

	The Attorney-General referred for the court’s opinion, under section 36 of the Criminal Justice Act 1972, the question whether, on a charge of attempted rape, it was incumbent on the prosecution as a matter of law to prove that the defendant physically attempted to penetrate the woman’s vagina with his penis.

	It was held that in the  opinion of the court, a prima facie case of attempted rape was sufficiently raised if there were evidence from which the intent to rape could be inferred and acts were proved which a jury could properly regard as more than merely preparatory to the commission of the offence; and that, accordingly, it was not incumbent on the prosecution, as a matter of law, to prove that the defendant physically attempted to penetrate the woman’s vagina with his penis.

	The facts in that case were as follows. During the evening of Friday 30 November 1990, the complainant aged 17 was drinking in the company of her boyfriend and others at various clubs. During the early hours of the following morning she lost contact with her immediate group, but began talking to the respondent, (aged 20), who she had known as a friend for several years. She indicated that she wanted to walk home, and began to do so. The respondent accompanied her. On the journey home, the respondent asked her to wait while he relieved himself behind a hedge. When he reemerged, he grabbed her, pulled her behind the hedge, forced her to the ground, lay full length on top of her and put his hand over her mouth to stifle her screams. He threatened to kill her if she did not stop screaming. At this stage the girl became extremely frightened, and lost consciousness. The occupier looked out of her window and was the respondent on top of the complainant, the complainant’s knickers being around her ankles.  

	The respondent then got up, and pulled the girl roughly up some stone steps further away from the road. The complainant was clearly distressed, crying and trying to cream. The police were called, and arrived within minutes. Two officers attended the scene, and heard muffled screams and crying. The complainant was on her back, her skirt pulled up to waist level, and her breasts exposed. She was barefoot, and without her knickers, which were subsequently found in nearby undergrowth. The respondent was kneeling beside her. The respondent immediately stood up on hearing the officers approach. His trousers were round his ankles, and he immediately pulled them up.

	When questioned by police, he stated that he could not have raped her because he was drunk. He even denied attempting to have intercourse.

The Court of Appeal stated as follows:

“It is not, in our judgment, necessary, in order to raise a prima facie case of attempted rape, to prove that the defendant with the requisite intent had necessarily gone as far as to attempt physical penetration of the vagina. It is sufficient if there is evidence from which the intent can be inferred and there are proved acts which a jury could properly regard as more than merely preparatory to the commission of the offence. For example, and merely as an example, in the present case the evidence of the young woman’s distress, of the state of her clothing, and the position in which she was seen, together with the respondent’s acts of dragging her up the steps, lowering his trousers and interfering with her private parts, and his answers to the police, left it open to a jury to conclude that the respondent had the necessary intent and had done acts which were more that merely preparatory. In short that he had embarked on committing the offence itself.”

	In R v Khan and Others (supra), question of attempted rape arose.

	The Court of Appeal held that a man may commit the offence of attempted rape even though he is reckless whether the woman consents to sexual intercourse since the attempt related to the physical activity and his mental state of recklessness relates, as in the offence of rape itself, not to that activity but to the absence of the woman’s consent and therefore no question of attempting  to achieve a reckless state of mind arises in such circumstances.

	In Khan (supra), on 24 June 1987 at the Central Criminal Court before his Honour Judge Rant QC and a jury the appellants Mohammed Iqbal Khan, Mahensh Dhokia, Jaswinder Singh Banga and Navaid Faiz were convicted of the attempted rape of a 16 year old girl. The case for the Crown was that on 19 March 1986 the girl met and danced with the appellant Dhokia and four other youths in a motor car which was driven to an address Uxbridge, where the occupants of the car, who included Faiz and Khans as well as Dhokia, were joined by others, including Banga.

	Inside the house Dhokia, without success, attempted to have sexual intercourse with the girl. He was followed by others. Three youths succeeded in having sexual intercourse; three others, the remaining appellants, attempted to have sexual intercourse but failed. The girls did not consent to any sexual activity in the house. After her ordeal, she left and traveled to a friend’s house, where he made a complaint. The judge dealt with the offence of attempted rape as follows:

“……. you are concerned with attempted rape. An attempt to commit a criminal offence is in law itself a crime. I have explain what rape amounts to. The question for you where attempted rape is the charge is to ask whether the defendant in question did more than merely prepare to commit the crime, but took a positive step that led directly to advance his objective.
I should say it matters not that he was not in the end capable of carrying out the final act. Thus a lack of an erection would not be fatal for a charge of attempted rape; proved the defendant made a real effort to effect the crime and was only prevented by lack of an erection, that would amount to it in law. In this case [the complainant] says each of the accused, except Mr Faiz, jabbed his erect penis against her vaginal area. If that is so, and it is only disputed in the case of Mr Faiz,  you may think the defendant could not have done more to achieve penetration. Only the final act of inserting the penis remained to be done. It is your decision but in this case you may think that there was an attempt to have sexual intercourse with her in the legal sense and it has not I think really been argued to the contrary. As in the case of rape, the principles relevant to consent apply exactly the same way in attempted rape…………”.

The full court finally held that the learned judge’s directions were correct in respect of attempted rape.

	The accused in his interview of 23/6/95 admitted that he asked PW1 to have sexual intercourse with him on 9/6/95. Then he said that he went to her, made her lie on the floor, kissed her, fondled with her breasts and touched her vagina. He also admitted that he had sexual intercourse with her on 19/6/95. On that night he admitted kissing her, fondling her breasts and touching her vagina. He then said that he went on top of her and had sexual intercourse with her.

The accused in his interview also admitted having sexual intercourse with PW2.

	He admitted hitting PW2 and injuring her hand. Then he said that he went to massage her hand. At that time he asked her to have sexual intercourse with him. He also admitted touching her breasts. About that time she was crying and he said he had no idea why she was crying. 

To be admissible, the alleged confession must be voluntary.

The legal test for admissibility in evidence of any alleged confession is set out in the preamble to the Judges’ Rules in these terms:-

“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, Suliano Draso and Elenava Raulukava, Criminal Case No. 34 of 92 of Labasa High Court had this to say:-

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

	In Ibrahim (1914) AC 599 at 609 it was held that:-

“It has long been established . . . .  that no statement by an accused is admissible in evidence against his unless it is shown by the prosecution to have been a voluntary statement, in that sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.”

	I therefore hold that the confession was voluntary and consequently admissible in evidence.

	I have considered every aspect of this case in great detail and very carefully.

	I have watched the demeanor of witnesses (as well as the accused’s) in the witness box and I find PW1 and PW2 to be more credible witnesses than the accused. Having heard what the complainants and the accused said in evidence, having seen the way they said it and having watched the way they behaved while the question were being asked, I reached this conclusion.

	I have directed myself on the desirability of looking for corroboration of the evidence of the complainants. I am convinced beyond reasonable doubt, even without any corroboration on material points, that the complainants are speaking the truth and that I can act confidently on their evidence. However, in this case, there is corroboration in the confession anyway. I must say at this stage that I have not lost sight of Trigg and the need to approach cautiously the evidence of the complainants. The evidence of the complainants fits in with the confession of the accused. In other words, the accused explained matter in his interview in virtually the same manner in which the two girls had alleged. I am of the view that the evidence of PW1 and PW2 is intrinsically credible.

	I am satisfied that the prosecution has proved its case against the accused beyond reasonable doubt.

	This is a criminal case. It is well establish that the general rule is that the prosecution bear the legal burden of proving all the elements in the offence necessary to establish guilt – Woolmington v DPP (1935) AC 462. No doubt throughout the web of the English Criminal Law one golden thread is always to be seen and that is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt.

	In respect of attempted rape, I find that the acts done by the accused in respect of count 2 were clearly more than merely preparatory.

	PW2 told the court unequivocally what the accused did to her on 11th June 1995. He lay on her but she struggled to free herself. He even tried to turn her around to have sexual intercourse with her while she was lying on her stomach. She managed to keep her legs together. Then the accused lay next to her naked and masturbated. These acts clearly show that what the accused did was more than merely preparatory in his intention to rape her. 

	In my view, this is clearly attempted rape in the light of established principles dealt with above – Attorney General’s Reference (No.1 of 1992) and Khan (supra) among others. 

	It is to be noted that originally the accused was facing, inter alia, two counts of rape in counts 2 and 3. However, these were amended to attempted rape and indecent assault respectively by the learned prosecutor for same reason. The two complainants alleged that they were raped by the accused. However, the accused though admitting in his interview that he had sexual intercourse with them, denied rape. Be that as it may, this count has dealt with the charges as amended and not with the charges of rape.

	As far as indecent assault is concerned, the acts done by the accused on PW1 and PW2 would by any standard by nothing less than immodest, obscene and unbecoming. Clearly his actions would offend the ordinary modesty of the average man in any civilized society. I find that the accused intentionally assaulted PW1 with the knowledge of the indecent circumstances. I further hold that the actions of the accused contravened standards of decent behaviour in respect of sexual modesty.

	I find the accused guilty as charged on both counts of indecently assault and one of attempted rape.

. . . . . . . . . . . . . . . . .
Syed Mukhtar Shah
RESIDENT MAGISTRATE