State v Mafutuna [2006] FJMC 25; Criminal Case No 1349 of 2006 (5 October 2006)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 1349 of 2006

STATE

V

JOHNNY MAFUTUNA

Prosecution: Ms J. Tuiteci
Defence: Legal Aid – ms R Senikuraciri

JUDGMENT

The accused (A) has been charged with 2 counts of Indecent Assault contrary to S154 (1) of the Penal Code.

Particulars (1) one Johnny Mafutuna between January 2002 and January 2003 unlawfully and indecently assaulted Charlotte Mafutuna (B) and Theresa Mafutuna (C).

Due to the tender age of the two complainants I have made an order that the identity of the complainants be concealed and all parties for purpose of any publication be known in alphabets (A,B,C, etc.)

BRIEF BACKGROUND

On the date of offence both complainants were aged 5 and 6 years. The accused is their Grand father’s brother.

First complainant says pa Johnny had licked her private parts many times. He also had sex with her inserting his penis in her vagina. Incident assault happened when she was about 5 years. Second complainant said accused called her in to bedroom and licked her vagina. She was not able to say anymore. PW3 said she heard others talk and then said accused had called her to suck his penis for $2.00. She had refused and was chased out of house.

PW4 didn’t believe the stories. She said the girls used to talk and laugh about it. She thought the whole incident was not true.

PW5 was instructed to report by her daughter on phone from U.S.A. No details of complainants were stated by the daughter to this witness. It was reported and accused charged.

I have considered the whole of the evidence in this case. I am unable to say without suspicion or doubt that the accused has committed the offences he is charged with for the following reasons.

1. There is no medical certificate tendered to show any injuries suffered particularly if a person aged 56 years had sexual intercourse with a girl aged 6 years. She said "she did not bleed "but" felt it going inside. She had asked if he had finished and he said ‘no’. She said it lasted ‘20’ seconds.
   
2. The complainants with friends played games together and watched movies. They exchanged stories about what grandfather allegedly did to them. But no one complained until 2005 for actions done in 2002 – 2003.
   

The grandmother Ms Tuakaane did not believe the complaints of grandchildren. She called it ‘rumors’. It was on instructions of her daughter in USA on phone that she made a complaint at the police station. They also tried to withdraw the complaint later but was not permitted to do so.

3. The similar fact evidence relied upon by prosecution is tainted with all possibility of collaboration between witnesses. They are related. Lived together; played together; and told stories and watched movies together. It has all the possibilities of collaboration against the accused. It’s also highly prejudicial to the accused and could have been easily in the sense it concocted comes from instructions of the children’s mother who has asked them to pursue matters. In these circumstances it can be explained why the grandmother didn’t believe it and disregarded it as "rumors". It has little probative value when compared to the prejudice to the accused.
   
4. The recent complaint relied upon was when one complainant told her mother on phone in USA. The mother than asked her sister (PW 5) to lodge complaint some 2 years later. The actual complaint made to the mother by daughter was not in evidence.
   
5. The children have been on visiting terms and still play at the house of the accused. They were not shy, traumatized, felt abused or kept aloof as normally would be the case in such tragedies. The two girls appeared to be normal as if they had forgotten the accused had done them wrong or there is a probability of concoction on their part. Except for words used such as ‘I dislike pa Johnny’. "He is good to us." "He never told us not to tell anyone about incidents".
   
6. "The police woman told me pa Johnny tried to have sex with me". She described the incident to police woman who had told (PW1). It could well be that (PW1) was told that it lasts for 20 seconds and what happens during sexual intercourse which was described by the witness who was then 6 years old but is now 10 years.
   

All of the above creates suspicion in my mind and I cannot say beyond reasonable doubt that the accused has committed the offences as charged. Even if I accept that corroboration is not needed as in Balelale case decided by court of appeal. Still, considering the facts in this case, there is a heavy caution required due to the age of the girls and the relationships and possibility of collaboration and concoction in the circumstances is greater than usual. The evidence still would appear suspect.

7. The accused gave sworn evidence. He was fortright and denied emphatically in the box He was unshaken in cross examination and I saw no inconsistency in his caution interview and the evidence in the witness box.
   
8. For reasons above given I find I cannot say beyond reasonable doubt that the accused did commit the offences in the 2 counts.
   

He is therefore found not guilty and acquitted.

Dated this on the 5th day of October 2006.

Ajmal Gulab Khan
RESIDENT MAGISTRATE.