State v Penjueli [2012] FJMC 73; Criminal Case 668.10 (3 February 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal case No 668/10

BETWEEN

THE SATE

AND

IAN ANDREW PENJUELI

JUDGEMENT

1. The accused in this case is charged with three counts of indecent assault. The statements of offences and the particulars of offences are as follows;
   

First count

Statement of offence

Indecent assault on female contrary to Section 154(1) of the Penal Code Cap 17.

Particulars of offence

Ian Andrew Penjueli between 1st and 31st day of April 2004 at Lautoka in the Western Division unlawfully and indecently assaulted the victim.

Second count

Statement of offence

Indecent assault contrary to Section 212(1) of the Crimes Decree No 44 of 2009

Particulars of offence

Ian Andrew Penjueli between 1st and 31st day of April 2010 at Lautoka in the Western Division unlawfully and indecently assaulted the victim.

Third count

Statement of offence

Indecent assault contrary to Section 212(1) of the Crimes Decree No 44 of 2009

Particulars of offence

Ian Andrew Penjueli on the 12th of June 2010 at Lautoka in the Western Division unlawfully and indecently assaulted the victim.

2. The Complainant is a sixteen years old girl and I decide to suppress the names of the victim and of the other witnesses in this case to conceal the identity of the victim.
   
3. The alleged offences are committed in the years 2004 and in 2010. The accused was charged in this case on the 29th October 2010. The case was taken up for trial on the 13th May 2011. The accused was represented by a Counsel and the prosecution was conducted by a Police prosecutor. The Prosecution called the Complainant and three other witnesses. After the Prosecution case was closed the Court decided that the Prosecution has made out a case for the accused to reply. The accused and two other witnesses gave evidence for the defence.
   
4. 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."

5. Section 212(1) of the Crimes Decree reads as follows;
   

" A person commits a summary offence if he or she unlawfully and indecently assaults any other person."

6. It is very clear that the elements of the offence, indecent assault are similar under the Penal Code as well as the Crimes Decree. I will now proceed to consider the evidence produced by the Prosecution.
   
7. The Victim gave evidence that in April 2004 she was indecently assaulted by the accused. She said "I was sleeping in the sitting room with my cousin in Waiyawi. I felt someone pressing my breasts and touching my stomach and moving down slowly to my private area. When I moved I saw Uncle Ian standing up from where I was lying down".
   
8. The victim also said that in the year 2010 she was indecently assaulted by the accused in two instances. In one instance she said "My Uncle Ian came and hugged me from behind and he was pressing my breasts. I turned away and tried to ignore him."
   
9. Further she said in June 2010 once again she was indecently assaulted by the accused. She gave evidence that "I was sleeping in the sitting room on the floor. Then I felt someone touching my breasts from behind. He was moving down slowly towards my private area. When I turned around my Uncle Ian was waking me up and telling me to sleep in the room. I said no and kept on ignoring him."
   
10. However no complaint is made to the Police regarding these incidents until 2nd July 2010. Further until the victim unfolded these incidents to her Aunt she had not informed these incidents to any person. It appears that there is considerable delay in complaining about the alleged acts of the accused. In cases where no recent complaint is made the Court has to be very cautious in drawing conclusions with regard to the credibility of the witness. The Court is mindful of the importance attached to recent complaint when believing a witness. Thus I will first deal with the issue of recent complain.
    
11. At this juncture I wish to reproduce the following two paragraphs from the judgement in Senikarawa V State 2006 FJCA 25.
    

[15] The principle on which the evidence is admitted is to support and enhance the credibility of the complainant. The jury, in assessing the truth of the complainant's evidence, may take into account evidence as to the consistency between that evidence and evidence of her contemporaneous complaint. It can be an aid to her credit (Spooner v. R [2004] EWCA Crim. 1320, Eng. Court of Appeal).

[16] Spooner also considered the degree of consistency required for the evidence of recent complaint

"The decision in each case as to whether it is sufficiently consistent for it to be admissible must depend on the facts. It isin our judgment necessary that the complaint discloses the the ingredients of the offence; it will, however, usually be necessary that the complaint discloses evidence of material and relevant unlawful sexual conduct on the part of the defendant which could support the credibility of the complainant. It is not, therefore, usually be necessary that the complaint describes the full extent of the unlawful sexual conduct alleged by the complainant in the witness box, provided it is capable of supporting the credibility of the complainant's evidence given at the trial.

Differences may be accounted for by a variety of matters, but it is for the jury to assess these. For example, in cases of alleged abuse (such as this) by a stepfather or other family member, it would be for the jury to consider whether the difference arises because, as is known to happen on some occasions, the complainant cannot bring herself to disclose the full extent of the conduct alleged against the defendant at the time of the contemporaneous complaint."

12. The mother of the victim "A.M." gave evidence that these incidents were transpired subsequent to three letters written by the victim. She said that on the 28th June 2010 when she was cleaning the victim's room, she saw an empty packet of tablets belonging to her husband and three letters on the dressing table. The said letters were tendered as exhibits and the witness said that she was shocked when she read the letters written by the victim. Then she had called her sister "S.M.", who is another witness in this case and on her advice she had called the victim's school for the Counsellor to speak to her daughter. The witness further said that when she went to school and inquired about the letters from the victim, she told the witness that she will tell the details only to her Aunty. The witness said the victim did not say any thing else but she burst into tears when she questioned about Uncle Ian. The witness said that she called her sister, "S.M." who is the Aunty of the victim and she came to their place in the same evening.
    
13. The witness, S.M. gave evidence that she is like a mother to the victim and the victim is very close to her. She said when she came to the victim's house she gave the victim enough time to relax and to confide with her. The witness corroborated the story of the victim and she said that the incidents had happened in April 2004, April 2010 and June 2010. The witness said that she inquired form the victim as to why she did not complain to any body. The victim had told her that "no body will believe me".
    
14. The victim was cross examined at length as to why she did not disclose this to any one before she wrote letters. Following are some excerpts of the responses given by the victim during cross examination;
    

"Q: In 2004 your uncle never touched you?

A: He did touch my private parts and breasts.

Q: You didn't tell your mother?

A: Yes.

Q: You said that she might not believe you?

A: Yes."

"Q: You are lying. This incident never happened?

A: I was scared. It happened. I didn't tell anybody because he is family."

"Q: Your letters said everything why you were uncomfortable?

A: Because he was considered as a father to me. He was close to our family."

"Q: You were uncomfortable because you were lying?

A: No. Because he was like family to us. If everybody from outside knew, it would be embarrassing to the family.

Q: So you were more concerned about the embarrassment to the family than telling the truth?

A: I just couldn't tell them. My mother was very close to Ian. If I told her she would have been very sad. I didn't want that to happen."

"Q: In your statement you said you thought that your parents will beat you up?

A: Yes.

Q: Why did you think that they will beat you up?

A: Because they will not believe me."

15. It is very evident that the victim has not divulged these incidents due to the stigma and due to the lack of confidence that her family would believe her. At this point it has to be noted that the victim was only 16 years at the time she gave evidence and when the alleged incidents occured she had been younger than that. A young girl of tender age would invariably give her mind to the stigma attached to this type of incidents specially when the culprit is a close relative. It appears from the letters she has written that her long standing endurance of this trauma has come to a point where she could not take up any more. Further it appears that the issues she had with her step father and other problems have contributed to the decision of her to put an end to her life.
    
16. I have observed the victim's demeanour. I am satisfied about the explanation given by the victim as to why she had to keep it to herself for such a long period. I am convinced that the delay was properly explained by the victim. In the circumstances I decide that the issue of recent complain does not have any effect on the credibility of the victim in this case.
    
17. The accused totally denied the allegations levelled against him. The Defence tried to attack the credibility of the Prosecution witnesses and in the process the Defence drew the Courts attention to certain facts. Mainly it was high lighted that the victim lied by saying that she was raped at one point and by saying it was not rape during the trial. I have considered this contention. It is true that the victim has stated in one of her letters that her uncle raped her. However whilst giving evidence she said that she was not raped. But she explained as to why she called it rape before. She categorically said that when she told the incident to the Police, she was explained that it was not rape. Although in her letters she has referred to it as rape at no point during the trial she did say that she was raped. She replied to the cross examination on this point in the following manner;
    

Q: In your second letter did you write Uncle Ian raped you?

A: Yes.

Q: He did not rape you at all. Is that correct?

A: Yes.

Q: In this letter you created a big issue by saying he raped you?

A: Because at my age that's the only term I knew for what he did to me. I thought it was rape.

18. I am satisfied about the explanation given by the victim regarding calling the alleged acts as rape. I do not see that she intended to aggravate the offence by concocting a story.
    
19. Further the defence highlighted an inconsistency between the evidence of the Prosecution witnesses on one point. The victim and her mother both informed Court that the victim did not disclose about these incidents at the school before the Principal and the Counsellor. How ever the said Counsellor was called as a witness by the Prosecution and she gave evidence that the victim in fact told her about these incidents at school. The Counsellor was a 70 years old lady at the time of giving evidence and she gave evidence without referring to a record and only by her memory. Although the Defence has capitalized this inconsistency, I am of the view that it is not a contradiction which goes into the root of the offence. Besides I prefer more to rely on the evidence of two younger witnesses than a 70 year old witness's evidence as the trial Magistrate who had the opportunity to observe the demeanour of the witnesses.
    
20. I have considered the evidence given by the Defence witnesses too. The Defence witness, Julus Cliffton Powell said that he was at the victim's house on the 12th June 2010, on the day the alleged last incident took place. He said that he was drinking beer with the accused and the accused went to sleep at 9 pm as he was drunk. The witness said that again around 12 in the night he woke up the accused and they started drinking. He said that when he went inside the house to get his phone battery he saw the accused's daughter was right at the edge of the bed and he told that to the accused. He said that the accused went inside the house to check on that. Further he said that the victim was also sleeping in the sitting room during that time. However in reply to cross examination the witness said that he would not have seen even if anything happened in the sitting room.
    
21. In any event the line of cross examination by the Defence was inconsistent and contradictory to the position of the Defence witness, Powell. The following are some excerpts of cross examination of the victim by the Defence;
    

Q: I put to you that there was a school teacher by the name of Powell?

A: Yes.

Q: I put to you that it was Master Powell who woke you up?

A: No it was Ian.

22. It should be noted that at no point of time did Powell said in his evidence that he woke up the victim. Therefore it appears that the Defence was cross examining the victim without even being conscious of what their defence was. It is clearly discernible that the facts suggested during the cross examination of the victim by the Defence do not fall in line with the evidence given by the defence witness, Powell.
    
23. Be that as it may, it is the duty of the Prosecution to prove the charges beyond reasonable doubt. I have considered the evidence led for the Prosecution as well as for the Defence. Further I have observed the demeanour of all these witnesses. I am satisfied that the victim's evidence was very consistent, convincing and corroborative. I have further considered the alleged acts of the accused in the three separate incidents. The evidence of the victim was undoubtedly strong enough to prove the elements of each charge pertaining to the three incidents. I am of the view that those acts are nothing less than unbecoming, immodest or obscene in a civilized society.
    
24. In the circumstances I am satisfied that the Prosecution has proved all three counts beyond reasonable doubt. In the circumstances I find the accused guilty for the offences and convict the accused for all three counts.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

03.02.2012