State v Bulivou [2006] FJMC 31; Criminal Case No 699 of 2006 (15 December 2006)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 699 of 2006

STATE

V

MOSESE BULIVOU

Before Ajmal Gulab Khan Esq
Resident Magistrate

Date of Hearing: 17/11/06
Date of Judgment: 15/12/06

Prosecution: Insp. S. Gosai
Accused: Mr S R Valenitabua

JUDGMENT

The accused has been charged for Indecent Assault and wrongful confinement under S154 (1) and S251 of the penal code. The facts are not in dispute. The accused has denied the charges.

FACTS:

On the night of 25th February 2006 the accused was driving his van transporting passengers. About 9pm the complainant hired him to drop her home at Nepani. She was dropped to the van by fellow Church girls who left after the complainant had sat inside the van. The accused had conversation with the complainant whilst he drove. He did not take her home but drove towards Laqere bridge. He turned from there and drove through Fletcher road to Laucala Bay Road and stopped at the seawall in Veiuto near the Pacific Theological College. They sat at the seawall for a few hours. At the wall the accused and complainant kissed and caressed till the complainant asked him to drop her home. He continued to touch her body. The complainant refused to sit and started walking away on foot. The accused promised he will drop her straight home and she sat again.

On the way, the accused tried to touch her legs in the van. The complainant jumped off the mobile van near Maunikau Police Post. The accused stopped at a little distance and called her back but she didn’t get in the van. She pretended to talk to someone at the Police Post but it was in fact closed.

The accused drove off to Nasinu 8 miles and brought a security guard to look for the girl but they didn’t find her.

Complainant was picked up by a taxi driver at the road. The Taxi Driver noticed her condition and bleeding. She related her story to him and he asked her to report to Station. She told her cousin at home who was a police officer then went and reported to the police.

EVIDENCE.

The taxi driver saw the complainant running. He stopped and saw her condition. He described her as shaking and shivering. She was also bleeding in her arms. He described her clothes as decent like ‘sulu chaba’.

Medical report showed injury to her left arm. It was consistent to a fall. In his defence the accused elected to give sworn evidence. He said the complainant had consented to the acts of going to seawall, kissing and caressing. He doesn’t know why she jumped off the van.

He called witness who was fishing at the seawall. She saw them sitting there. She didn’t know very much more. The accused had picked them up that morning around 9am from the seawall where they were fishing and dropped them home.

Another witness said she was told by complainant she didn’t wish to press charges but her cousin police officer forced her to carry on.

LAW.

Under S154 the Prosecution has to prove the assault which was unlawful and indecent on the complainant.

Under wrongful confinement (S251) the prosecution has to prove the accused kidnapped or abducted complainant with intent to secretly and wrongfully confine her.

The kidnapping at common law includes the stealing and carrying away or secreting of any person against the will or consent of such person. R –v- Reid (1972) 3 WLR 359.

ISSUES & ANALYSIS

This court has to decide if there was assault on the complainant and it was unlawful and indecent. Also if the complainant was confined by the accused against her will.

I have considered whole of the evidence. I find the complainant’s evidence credible in its entirety. She has given explanation that she did not raise alarm at the seawall at night as there was no one else to drop her home. She allowed him to kiss her under duress that he was going to take her home.

Further, she got out of van and walked but the accused picked her up saying he would drop her straight home. She got in the van once again. However, when he started to touch her legs on the way, she jumped off the van. This injury is confirmed by the medical report.

The taxi driver who picked her from near the road where she jumped off also described her condition to be "shaking and shivering and bleeding."

Her actions were certainly not of a consenting person. Her decision not to shout and attract attention at seawall was not by her freewill and I accept she was relying on the accused to drop her home that night and complied with his requests.

The accused being much older than the complainant knew exactly what he was doing. The same could not be said of the complainant who was young and vulnerable in comparison.

I find it as a fact that the accused kept her from dropping her home against her will. He also was touching her legs against her will. In desperation and rejection she took the action of jumping out of a mobile van.

The accused called witnesses on his behalf but their evidence was of little use to his defence. The accused submits she had agreed to go for a ride after the pick up. However, even if she agreed to go to Suva she had not consented to indecent acts of the accused. Furthermore, she sat in his van to be taken home to Nepani.

She also should have been taken home when she had first requested at the seawall. The accused failed to comply. If what accused says is true, any consent to ride to Suva was revoked when she made requests to be dropped home.

The learned defence counsel submits the complainant had consented to the indecency by not raising alarm. She also showed maturity and capacity to give consent.

However, evidence shows the complainant continued to ask him to drop her home. She only stayed as there was no one else to take her back at night.

I believe her when she said the accused said "If I don’t kiss, he won’t drop me home."

She later walked away on foot. He picked her up again promising to take her home. She agreed. On the way he started to touch her legs and open her top when she jumped out of a running vehicle.

He kept her there against her will and under false promises to drop her home later. She agreed to stay with him under duress.

The learned defence counsel also submits it was an accepted standard of modesty when two people were kissing at the seawall and not indecent assault. But the touching of her legs, breasts and body in the van and kissing on conditions by accused and her walking away on foot would be indecency in the eyes of a reasonable person. In the circumstances accompanying this case any right minded person would consider it to be indecent.

I find the complainant’s version of evidence to be credible and reliable. It was also well supported.

I find the Prosecution has proved its case beyond reasonable doubt.

The accused is found guilty on both counts as charged.

Dated this 15th day of December 2006.

Ajmal G Khan
RESIDENT MAGISTRATE