State v Bulisara [2011] FJMC 22; CRC 877.2008 (8 March 2011)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 877 of 2008

STATE

V

IOWANE BULISARA

For Prosecution: Ms. Hamza (DPP Office)
For Accused: Mr. Vakaloloma
Date of Judgment: 08th March 2011
Name of the victim is suppressed.

JUDGMENT

1. Accused in this case is charged for 15 counts of Indecent Assault on Maria Tokalauvere an offence punishable under Sec. 154 (1) of the Penal Code. According to the charge sheet the first three incidents has happened between 24th January 2005 to 29th April 2005 and the remaining twelve incidents had taken place as follows.
   
   1. Fourth and fifth incidents were between 16th May 2005 and 19th August 2005
      
   2. Next three incidents were between 01st September 2005 and 30th September 2005.
      
   3. Ninth incident was between 01st May 2006 to 12th May 2006
      
   4. Tenth incident was between 21st January 2007 to 27th April 2007
      
   5. Eleventh incident was between 14th May 2007 to 17th August 2007
      
   6. Twelfth incident was between 03rd September 2007 to 30th November 2007
      
   7. Last three incidents were on or about 19th April 2008
      
2. Six witnesses including victim were called to testify for the prosecution case and accused gave evidence on oath. Both parties were allowed to file closing submissions.
   
3. Elements to be proved
   
   1. The accused,
      
   2. Assaulted a woman or a girl,
      
   100. The assault was unlawful and indecent.
        
4. In R v. Court [1988] 2 ALL ER 221, the term "Indecent" had been defined as an act "offensive to the contemporary standards of modesty and privacy".
   
5. Burden is on the prosecution to prove all elements of the charge beyond reasonable doubt. In the event that accused was successful in creating a reasonable doubt in the prosecution case, accused must be acquitted.
   

PW-1 (Victim)

6. Victim was 14 years old at the time of giving evidence in Court. During the process of examination-in-chief, victim told the Court about the incidents she had to face and how the accused had molested her during the time periods mentioned in the charge-sheet. However, during the cross-examination save for the last three incidents it had been proved by the defense counsel that the victim was not in a position to confirm the time periods mentioned in the charge-sheet.
   
7. During the cross-examination victim admitted misbehaving in the school and telling lies to the teachers. According to the victim during all those above-mentioned encounters accused had fondle her breasts, kissed her on her mouth, sucked her breasts and vagina.
   

PW-2

8. Witness was the head teacher of the victim's school. According to the witness, he was counseling the victim as she had problems with the teachers due to behavioral issues. During a counseling session victim had revealed to him about the indecent assaults she had received by the accused at her home. Witness had found that the victim was truthful about the incidents.
   
9. On 21st April 2008 Monday when the witness was back from a workshop had found victim waiting to see him. When he questioned the victim she had said that the accused had molested her on the previous Saturday. Witness had then informed the situation to the victim's parents.
   

PW-3

10. Witness had adopted the victim from her birth. Witness had come to know about the incidents through the head teacher and when she had confronted the accused he was looking worried and denied incident first. Then the victim had blurted out that accused was lying. In front of her parents victim had shouted at the accused telling him what he had done to her. Then the accused had admitted the incident and had said that "nothing had happened". Witness interpreted the phrased to mean that no sexual intercourse had taken place between the victim and the accused.
    

PW-4

11. Witness is a counselor at Women's Crisis Centre and had interviewed the victim. Victim had talked about the sexual assaults she had experienced by the accused. During cross-examination defense counsel attacked the experience of the victim to act as a counselor.

PW-5

12. Charging officer. In the charge statement accused had asked for forgiveness. Accused had voluntarily signed the charge statement.
    

PW-6

13. Interviewing officer. Accused had admitted the allegation during the cautioned interview and had signed the record.
    
14. During cross examination it was suggested to the witness that the accused did not understand anything happened during the cautioned-interview as he does not understand English at all. Witness denied this position and said that the accused choose to be interviewed in English and signed the notes on his own.
    
15. Calling above-mentioned witnesses, prosecution closed its case. Accused counsel sought to file 'no case to answer' submissions which is disallowed by the court in view of the evidence against the accused. Accused then choose to give evidence.
    

Accused

16. According to the accused police officers chose to interview him in English despite of the fact that he did not understand the language. Accused said that he studied up to class 8. Accused worked as a driver for the victim's father as the victim's father is his first cousin and he was living with the victim's family. Accused said that he just said 'yes' for everything asked from him by the police.
    
17. During the cross-examination accused admitted not complaining about the language during the cautioned interview and further admitted that this was the first time he is complaining the problem to any authority. Accused further said that he did not have any opportunity to complain the situation to the Court.
    

Analysis

18. After considering the evidence of the victim in Court, except for the incidents victim faced on 19th April 2008, I am unable to accept the time periods mentioned in first 12 charges. There is no doubt that the victim had been telling the truth about her experiences. However it is difficult to fathom from the manner in which she gave evidence in Court as to how she is capable to keep track of the dates for a period of three years.
    
19. Therefore, I decide to dismiss first 12 counts (Counts 1 to 12) against the accused.
    
20. According to the evidence of PW-3, accused had admitted the incident and was looking worried when confronted by the family. On behalf of the accused it was tried to prove that the accused was looking worried because he was angry. However, accused was failed to explain why he had said "nothing has happened" in front of the victim and the witness.
    
21. Apart from the fact that victim was uncertain about the dates of the past incidents, there is no evidence to suggest that the victim had created this story about being indecently assaulted by the accused. In fact on behalf of the accused it has been suggested that the victim was consenting to what has happened between the victim and the accused and she was actually being looking forward to be indecently touched.
    
22. It is important to note the closing submission filed in writing on behalf of the accused in Court. Para 5.7 of the submission is as follows:
    

"To conclude, we submit that the prosecution has not fully satisfied the court to prove beyond reasonable doubt that the accused person acted unlawfully and indecently against the complainant, but we say that this is an act of consent which is our defence in this case". [Emphasis mine]

23. It is clear from the above-mentioned paragraph that the accused is admitting the indecent touching and it is his defence that the victim had consented for what he has done to her. If I may quote paragraph 5.2 of the closing submission for the accused, it goes as follows:
    

"In evidence the court has now heard the evidence from witnesses especially PW-1 that proved the existence of reasons why indecent assault on female was a wrong charge in this case as it is evidently realized how much time PW1 (the victim) always and looking forward to be indecently touched, because in her evidence she said that would be waiting for the arrival of that knock every time the accused person goes out and would return late at night as he would come home to fiddle and fondle her body, to be caresses with those sexual motion. We therefore submit that she was consenting to the act of indecency because she never complaint to the parents". [Emphasis mine]

24. It is evident from the closing submission of the accused that he was denying the allegation not because that he did not do anything to the victim but because he believes that the consent of the victim is a lawful defence. Paragraph 4.1 of the closing submission states as follows:
    

"From the evidence, the accused person had denied the allegation of unlawful and indecently assault of the complainant because in her own evidence she repeated that she would go to her room and takes off her bra and panties and would wait in the sitting room, meaning that she is consenting to it and she wanted it to happen as it is good experience to her. Furthermore, she never complain to her mother or father that she has been bothered or being molested or abused by the accused, but one can assume that it was acceptable to her and she was consenting to the act".

25. Prosecution proved beyond reasonable doubt that the victim in this case was born on 21st April 1995. By the time victim gave evidence in court she was 14 years old and on the date mentioned in last three counts of the charge sheet she was just 13 years old.
    
26. According to PW-3, victim is her child even though she did not give birth to her. Witness during the cross-examination stressed the fact that she is the mother of the victim and when she was questioned that she cannot be the mother because she did not give birth to her, witness told that she was not the biological mother. When consider the manner of which PW-3 gave evidence regarding the victim, it is clear that witness had considered the victim to be her own daughter.
    
27. Therefore, it is clear that the counsel for the accused advanced this line of questioning on the instructions he received from the accused and this shows that the accused was not a stranger to the victim's family. According to the evidence of the victim and her mother, accused had been living with them. Accused admitted this position and further said that the PW-3's husband is his first cousin.
    
28. In the light of the above facts, it is clear that the accused knew almost everything about the victim and therefore, there cannot be any doubt as to the age of the victim.
    
29. Sec. 154 of the Penal Code read as follows:
    

154.-(1) 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.

(2) It is no defence to a charge for an indecent assault on a girl under the age of sixteen years to prove that she consented to the act of indecency.

(3) It shall be a sufficient defence to a charge for an indecent assault on a girl under the age of sixteen years to prove that she consented to the act of indecency and that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen years.

30. Accused in his written closing submission stressed sec. 154 (3) of the Penal Code and had developed his defence accordingly.
    
31. According to the evidence available to Court I have no doubt that the prosecution had been successful in proving final three counts (Counts 13, 14 and 15) against the accused beyond reasonable doubt.
    
32. According to law, consent of victim under age of 16 would be applicable only in situations where the accused had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen years.
    
33. In the present situation that there is no doubt that the accused was very well aware of the age of the victim and thereby the accused is not allowed to have the advantage of sec. 154 (3) of the Penal Code. According to sec. 154 (2) of the Penal Code, it is clear that the consent is not a defence in acts of indecency where the victim was under the age of sixteen.
    
34. Accused person in this case therefore had taken advantage of the naïve and young victim to satisfy his sexual needs.
    
35. I am of the view that I must place on record my disgust about the way the accused had tried to put the blame on the victim using phrases such as; "it is evidently realized how much time PW1 (the victim) always and looking forward to be indecently touched" and "she is consenting to it and she wanted it to happen as it is good experience to her" in his written closing submission. [Emphasis mine]
    
36. Inability of the accused person to interpret and understand the legal position mentioned in sec.154 (3) of the Penal Code seem to have made him to prepare such a written closing submission which is clearly defamatory to the victim.
    
37. When the law is very clear on one aspect, no one is allowed to distort it for their own whims and fancies.
    
38. Accused in this case clearly had tried to take sec. 154(3) as a defence in his case without realizing that according to sec. 154(3) it is paramount to prove that he honestly believed or that he had reasons to believe that the victim was above 16 years of age. Accused person's knowledge of the victim's age was clearly not an issue in this case.
    
39. If I am to comment on the accused person's allegation that he does not understand the English language, I must say after witnessing the demeanour of the accused and what has happened in the Court, the accused person was telling lies to the Court. I witnessed the accused answering the questions put to him in English way before it was translated to Fijian.
    
40. Apart from those facts, when I observed the accused person's signature he has places in cautioned interview it did not appear to me as a signature of an illiterate person. Further, accused admitted driving for the victim's father. As far as I can see all the road signs and other name boards throughout Fiji are in English language and if what the accused said was true he would not be able to find any roads as a driver. Therefore, I decide that accused person's allegation is without merit.
    
41. For the above-mentioned reasons I find accused guilty for counts thirteen, fourteen and fifteen in the charge-sheet. Counts one to twelve are dismissed. Accused person is convicted accordingly.
    

On this Tuesday the 08th day of March 2011

Kaweendra Nanayakkara
Resident Magistrate