State v Talenasila [2010] FJMC 40; Criminal Case 103 of 2009 (19 February 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No. 103/09

The State

V.

Simione Talenasila

JUDGEMENT

1. The accused in this case is charged with one count of Rape and two counts of Indecent Assault.
   
2. The charges and the particulars of offences are as follows;
   
   • (i) Rape; contrary to Section 149 and 150 of the Penal Code.
     

Particulars of offence;

Simione Talenasila between the 1st day of January 2008 and the 31st day of December 2008 at Lautoka in the western Division had unlawful carnal knowledge of Loami Lauwai without her consent.

(ii) Indecent assault; contrary to Section 154(1) of the Penal Code.

Particulars of offence;

Simione Talenasila on the 20th day of January 2009 at Lautoka in the Western Division, unlawfully and indecently assaulted LaomiLauwai.

(iii) Indecent assault; contrary to Sectio 154(1) of the penal Code.

Particulars of offence;

Simione Talenasila on the 24th day of January 2009 at Lautoka in the Western Division, unlawfully and indecently assaulted Laomi Lauwai.

BACKGROUND

3. The accused, Simione Talenasila is the father of Loami Lauwai, the prosecutrix. Her date of birth is 23.12.1993. Her mother has left them when she was 13 years old. She had lived with her father and other siblings in a tin house with one room. The alleged rape incident had taken place on the 31st December 2008. The other two alleged indecent assault incidents have taken place on the 20th January 2009 and on the 24th January 2009. The alleged incidents have been reported to the Police on the 31st January 2009.
   
4. The accused was charged in this case on the 10th February 2009. The accused had deferred the plea saying that he wants to get the Legal Aid assistance. However the Legal Aid did not appear for the accused and on the 16th October 2009 the accused pleaded not guilty to all three counts. Subsequently the case was taken up for hearing on the 22nd January 2010.
   
5. Prosecution called Laomi Lauwai, the prosecutrix and Tobia Matai PC 3152, the police officer who recorded the caution interview, to prove the prosecution case. The prosecution led in evidence and marked the birth certificate of the prosecutrix as exhibit 1, the medical report of the prosecutrix as exhibit 2 and the caution interview and its English translation as exhibits 3 and 4. After the close of the prosecution case the court held that the accused has a case to reply. The accused opted to give sworn evidence and called his mother as a defence witness.
   
6. The prosecution case was that the prosecutrix was raped by the accused in one occasion and in two occasions she was indecently assaulted by the accused.
   
7. The accused did not put forward any particular defence yet he said that he is not guilty of the offences.
   

THE LAW

8. The section 149 of the Penal Code reads as follows;
   

"Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape."

9. The section 150 sets out the punishment for rape. Accordingly any person who commits rape is liable to imprisonment for life with or without corporal punishment.
   
10. The Section 154(1) of the Penal Code reads as follows;
    

"Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment."

ANALYSIS

11. Before analyzing the evidence of this case it should be noted that it is the primary duty of the court to safeguard the rights off all parties in assuring proper dispensing of justice. It was not transpired before this case was taken up for hearing whether there are admissions in the caution interview of the accused. It was transpired only when the caution interview was led in evidence by the prosecution.
    
12. It appears that the court has omitted to inquire from the accused (as he was unrepresented), whether he challenges the caution interview before the hearing was commenced. At the hearing he denied the facts contained in his statement. Hence it appears that the accused has been denied to exercise his right to challenge the caution interview.
    
13. Thus in order to prevent any prejudice being caused to the accused I decide to totally disregard the caution interview of the accused in the interest of justice.
    
14. Be that as it may, now it is a well settled law that corroboration is not indispensable in cases of sexual offences. Therefore in this case I decide to rely solely on the evidence of the prosecutrix and the medical evidence to assess whether the prosecution has proved the charges beyond reasonable doubt.
    
15. In this case the prosecutrix said that her father had sexual intercourse with her on the 31st December 2008 when she went to a farm with the father. She said that they went on horse back and this incident took place at the farm. She said her father had asked her to take off her clothes and had made her lie down on the ground. Then she said that her father inserted his penis to her vagina.
    
16. According to the facts of this case it appears that the prosecution has to prove the following elements regarding the first charge.
    
    1. that there was penetration
       
    2. the accused had sexual intercourse without the consent of the prosecutrix or
       
    100. the consent was obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm.
         
17. It should be noted that the accused did not cross examine the prosecutrix. The court has observed him listening vigilantly to the evidence of the prosecutrix with his eyes closed. The accused was explained his right to cross examine the prosecutrix and he was given the opportunity to ask any question from the prosecutrix. But the accused said that he has nothing to ask from her.
    
18. I have observed the demeanour of the prosecutrix. She gave evidence in a very impressive and a convincing manner. I did not observe any over enthusiasm or reluctance to give evidence, in her. She very firmly narrated the whole story although it would have been a traumatic reliving of the whole episode for her. Her evidence was very clear, consistent and precise. The defence did not even attempt to challenge her credibility at any point during the hearing. Without any doubt I state that her credibility as a witness was unblemished.
    
19. In this case the prosecutrix clearly gave evidence saying that the accused has inserted his penis in to her vagina. She said that she cried and it was painful. According to the medical report tendered, the prosecutrix has been subjected to a medical examination on the 08th February 2009. The medical report says that the hymen is not intact. These were not challenged by the defence at any stage. Undoubtedly penetration is the key element in a rape charge. I decide that in this case the prosecution has established penetration with solid evidence.
    
20. The other crucial issue, the court has to consider is whether there was consent. The prosecutrix is the daughter of the accused. She had only been 16 years when this incident took place. Apparently there was no evidence to suggest that she has expressly and patently resisted this alleged act.
    
21. However the prosecutrix said that she didn't tell this incident to any one as she was frightened. She further said;
    

"I did not consent to my father to have sex with me. I took off clothes because my father told me to do so. I did it out of fear."

22. It appears that she has not positively resisted the alleged act of her father according to her evidence. But it is clearly discernible that she had been under so much of fear to do any positive act to resist her father. This point is more buttressed from the evidence she gave at a later stage. She said in two instances that;
    

"I was afraid of my father. He beats me up very often, very badly."

"I did not report this to any one. I was frightened of my father because he will be angry and beat me up."

23. The complaint in this case has been lodged at the Police station nearly a one month after the alleged rape incident. Especially in sexual offence cases the courts have cautiously looked at the delay in complaining to the police or at least to a relative or a friend. However I believe this issue has to be addressed on case by case basis. Although generally this contention is a tenable one, under special circumstances a court would have to take other factors too in to consideration to ascertain whether the delay in complaining could truly hamper the credibility of a prosecution case.
    
24. I cannot imagine what a sixteen year old girl, living with her siblings, without a mother, under the only care of a father could do in a helpless situation like this against the same person who was supposed to provide protection and care to them. It appears that it was the accused who looked after them. In that back drop a young girl stricken with poverty and who was totally depending on her father with her siblings, could not be expected to do any thing more than what the prosecutrix in this case had done under the normal circumstances.
    
25. The prosecutrix said that she told this incident to her aunty on the 31st January 2009 and that was only when the aunty inquired from her. She said that;
    

"My aunty has dreamt that my father was doing something to me. She asked me. Then I told her the story."

26. In the circumstances the mere delay in making a complaint does not seem to have diminished the credibility of the prosecution case and I decide that the delay in making a complaint to the police has not created any inference to draw a conclusion that there was consent.
    
27. It is manifestly clear that although there was no evidence of expressed resistance, she had been under so much of force, duress and fear of bodily harm. It is an accepted fact that there need not be violent acts of resistance, screams or physical injuries to prove that there was no consent. On the other hand the Section 149 creates room for instances where consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm. Having analysed the evidence given by the prosecutrix I decide that her consent has been obtained by force and by fear of bodily harm. On the other hand there was not an iota of evidence to draw an inference that the accused was under the impression that the Prosecutrix was consenting. Naturally the accused being the father of the prosecutrix the accused should have had actual knowledge in all probabilities that she was not consenting.
    
28. The second charge against the accused is Indecent assault on the prosecutrix on the 20th January 2009. The prosecutrix said that on the 20th January 2009 she was sleeping in the room with her two brothers and the father. She said she was on the bed while the brothers who were 12 years and 9 years and the father were sleeping on the floor. She said that her father had called her to sleep on the floor. He had pushed the two brothers aside to make room for her. The prosecutrix said that she didn't know that he would harm her. She said then her father removed the pants she was wearing.
    
29. The prosecutrix said that she pushed her father's hands away but still he removed her pants and the underwear. She further said that she did not scream because she is afraid of her father as he beats her up very often.
    
30. She said her father had undressed himself and started rubbing his penis on her vagina. She said he did not insert his penis that time.
    
31. The third charge against the accused is again Indecent assault on the prosecutrix on the 24th day of January 2009. She said that while she was sleeping in her room her father called her to come down to the floor. She said that day too the two brothers were sleeping in the room. She said her father pushed the brothers to a side and took her clothes off. She said she went to the floor as she was afraid of her father. The prosecutrix said that her father rubbed his penis on her vagina. Further she said;
    

"I didn't call my brothers as I was afraid of my father."

32. It appears that the prosecutrix had been suppressing all these incidents due to the fear for her father. She said that;
    

"I was frightened. I didn't like what he did. I didn't report this to any one. I was frightened of my father because he will be angry and beat me up.'

33. I believe these two acts of the accused are unbecoming, immodest and obscene enough to be brought in to the definition of indecent assault in any civilized society. These acts of the accused clearly show that he intentionally assaulted the prosecutrix with knowledge of the indecent circumstances.
    
34. Although the court has to be cautious in drawing conclusions based on uncorroborated evidence, I did not find any reason as to why this court should disbelieve the prosecutrix. The prosecutrix in this case gave convincing and solid evidence. The accused did not even attempt to dispute what the prosecutrix said in evidence. He did not cross examine the prosecutrix. Even when he gave evidence he did not categorically deny the allegations brought against him. The accused just said that he is not guilty of this offence. Further he said that he was taking care of her.
    
35. It should be noted that although the accused has not put forward any defence in this case, even the little evidence he gave was not worth of credibility. He gave contradictory evidence and following are some excerpts which shows the inconsistency of his evidence;
    

"Q: Did any police officer beat you up or you gave it on your own?

A: They forced me to give the statement."

Q: How did they force you to give the statement?

A: They punched me and pulled my shirt."

"Q: Do you know the officer who assaulted you?

A: No

Q: Did the officer who gave evidence assault you?

A: I can't remember. I was crying at the Police."

"Q: Do you know most of the officers in the Police Station?

A: I used to know some officers when we played rugby together.

Q: None of the officers assaulted you?

A: They just forced to give evidence.

Q: Did they punch you?

A: They just pulled my shirt and punched on my back."

"Q: No body punched you?

A: No

Q: Did you get hurt?

A: No.

Q: There was no assault?

A: They just pulled me up and down. There were no punches.

Q: Now what is the truth? First you said you were punched. Now you say, didn't punch?

A: They didn't punch me. They were pulling me up and down."

36. It clearly shows that the accused had given very vague, inconsistent and contradictory evidence. During the cross examination the Accused admitted that he has gone to courts before and so that he is acquainted with the procedures.
    
37. The Accused's mother was also called for the defence. She just said that she wants to be a witness of the accused and that she wants to support her children. Further she said that she did not see any signs on the prosecutrix's body and she said the prosecutrix is healthy and fit. It appears that her evidence does not bear much relevance to this case.
    
38. The accused could not create any doubt regarding the prosecution case about the alleged rape and the two indecent assault incidents nor did he put forward any tenable defence.
    
39. I have considered the evidence in this case with much caution and I have cautioned myself of the danger of coming in to a conclusion on uncorroborated evidence. I should re iterate that the prosecutrix's evidence remained unchallenged through out the case. I accept her evidence. Although that's the only evidence the court could rely on in this case I decide her evidence itself without much corroboration apart from the medical evidence, was sufficient and strong enough to discharge the burden of proof.
    
40. In the circumstances I decide that the prosecution has proved the first count beyond reasonable doubt. I find the accused guilty of the first count of rape.
    
41. I decide that the prosecution has proved the second count beyond reasonable doubt. I find the accused guilty of indecently assaulting the prosecutrix on the 20th January 2009.
    
42. I decide that the prosecution has proved the third count beyond reasonable doubt. I find the accused guilty for indecently assaulting the prosecutrix on the 24th January 2009.
    
43. Thus I convict the accused for the first, second and the third counts accordingly.
    

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
19.02.2010.