State v Nabi Ud-Dean [2014] FJMC 85; Criminal Case 1406.2012 (19 May 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case : 1406/2012

STATE

VS

MOHOMMED NABI UD-DEAN

PC Josuha for the Prosecution
Mr. V. Singh for the Accused

JUDGMENT

[1] The accused is charged in this Court for following offence.

ABDUCTION OF PERSON UNDER 18 YEARS OF AGE WITH INTENT TO HAVE CARNAL KNOWLEDGE: contrary to Section 211 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MOHAMMED NABI UD-DEAN between 25th day of September 2012 and 27th day of September 2012 at Nabua in the Central Division, with intent that KASANITA WATI, being unmarried and being under the age of 18 years, be unlawfully and carnally known by MOHAMMED NABI UD-DEAN, took the said KASANITA WATI out of the possession and against the will of her grandmother namely SAINIANA TINAI.

[2] The accused pleaded not guilty for this offence and the trial was conducted on 05/12/13, 13/03/14 and 15/04/14.

[3] For the prosecution’s case 05 witnesses ( 03 civil witnesses and 02 police officers ) were called and for the defence 03 witnesses including the accused gave evidence. At the end of the trial both parties opted not to file closing submissions .

SUMMARY OF EVIDENCE
THE PROSECUTION’S CASE
[4] PW1 was Kasanita Wati and she said on September 2012 she was staying with her grandparents and was going to school from there. At that time she was 17 years old. Her grandfather worked in Central Bus Company and she used to take lunch there. She knew the accused as he used to come to her home for drinks and he was a bus driver. The accused knew PW1 was in school . On 25th September 2012 she was coming back home when she met the accused in the town. The accused took her to a friend’s place in Nabua where she stayed in the night. Next morning they had sex and. PW1 stayed in the house until her uncle came to look for her. PW1 also identified the accused in the Court.

[5] In cross- examination she said in 2011 she was in Form 3 and met the accused at that time. She also denied being with the accused before this incident and said she had to go with the accused as he took her bag. PW1 also said she could not call her grandparents as she did not have their number and could not leave the place as she did not have money.

[6] PW2 was Sainiana Wati the grandmother of PW1 . She said PW1 was staying with her and going to school at that time. On 25th September 2012 PW1 left home and the witness didn’t know where she went .In cross- examination PW2 said on that day she did not know where PW1 went and she went away without her permission.

[7] PW3, DC 3198 Atish Lal was the charging officer who tendered the charge statement of the accused as prosecution exhibit 01.

[8] PW4, DC 3656 Semi conducted the caution interview of the accused and this was marked as prosecution exhibit 02. This was conducted on 19th September 2012 and the accused was given his rights prior to the interview. PW4 also conducted the investigation about the case .

[9] PW5 was Saula Vuca , the father of PW1 and he said she was her eldest daughter. The witness also identified her birth certificate and this was marked as prosecution exhibit 03.

[10] After calling PW5 the State closed their case and being satisfied with the evidence the accused was given his rights pursuant to section 179 of the Criminal Procedure Decree which allows him to testify or remain silent. The accused opted to give sworn evidence.

THE DEFENCE’S CASE
[11] The accused said he was a bus driver and PW1 used to come to his work place. PW1 stayed with him for 06 months in a friend’s place . Again in September 2012 she told him she did not want to go and therefore he took her to another friend’s place and stayed with her. In cross –examination he stated that he did not know she was underage and he told her uncle that she was staying with him. In re- examination the accused said her uncle asked her to keep her safe.

[12] DW2 was Temalasi Radinikaba who knew the accused as a friend of her son. According to her the accused stayed in her house with PW1 for 06 months and they were acting like a family there.

[13] DW2 was Sudesh Kant who said that PW1 stayed there for 02 weeks and told him and his wife that she was 19 years old when inquired about her age.

THE LAW
[14] In Woolmington v DPP [1935] AC 462 it was held that

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained” (per Viscount Sankey L.C. at pp. 481-482).

[15] The standard of proof where the judge has to decide an issue of fact in a criminal case where the burden of proof is on the prosecution is proof beyond reasonable doubt (ARCHBOLD CRIMINAL PLEADING , EVIDENCE AND PRACTICE 2010 page 542).

[16] In STATE v Driti [2013] FJHC 644; Criminal Case005.2012 (26 November 2013) in his summing up his Lordship Justice Madigan defined burden placed on the prosecution in the following manner :-

"The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you."

[17] Now I would consider the charge. The accused is charged with one count of Abduction of Person under 18 years old with Intent to have carnal knowledge contrary to section 211 of the Crimes Decree No 44 of 2009.

[18] Section 211 of the Decree provides:

“A person commits a summary offence if he or she, with intent that any unmarried person under the age of 18 years shall be unlawfully and carnally known by any person (whether such carnal knowledge is intended to be with any particular person or generally), takes or causes to be taken the person out of the possession and against the will of his or her father or mother, guardian or any other person having the lawful care or charge of the person under 18 years.”

[19] Therefore the elements the prosecution has to prove in this case are

(i) The accused,

(ii) Took away Kasanita Wati without the nt of her gran grandmother ,

(iii) With intent te carnal knowledge edge ,

(2"> (iv) At that time Kasanita Wati0; is below&#low 18 years

[20].A person who is charged with this offence also has a statutory defence as provided in proviso to section 211 which states that :

" It shall be a sufficient defence to any charge under this section if it shall be made to appear to the court that the person so charged had reasonable cause to believe and did in fact believe that the other person was of or above the age of 18 years."

[21] The accused has to prove this defence on balance of probabilities (Section 61 of the Crimes Decree).

ANALYSIS OF THE EVIDENCE
[22] In this case there are two issues to be determined by this Court.

a. Has the prosecution proved all the elements in this offence ?

b. Did the accused manage to prove his statutory defence on balance of probabilities?

[23] After considering the evidence I believe that there is no dispute that on that day the accused took Kasanita Wati to his friend's house and had sexual intercourse with her. In cross- examination accused further stated that he took the permission from her uncle. But the defence did not call the uncle as a witness to corroborate this. Also I am satisfied from the available evidence that at that time the victim's guardian was her grandmother and not her uncle and she has not given consent for the accused to take her away from the house .

[23] The prosecution also tendered the birth certificate of Kasanita Wati as an exhibit and this revealed at that time she was 17 years old.

[24] Based on these evidence I am satisfied that the prosecution has proved all the elements in this offence which is enough to find the accused guilty for this offence. But as the accused has taken the statutory defence I would now consider if the accused has discharged this on balance of probabilities.

[25] According to PW1 the accused knew she was going to school. The accused also in his evidence in chief never mentioned that he believed PW1 was over 18 years old. Only place this came out was when the accused read part of his charge statement in his testimony where he mentioned that he thought PW1 was above 18 years old. I believe that is not sufficient to discharge this burden imposed on the defence .

[26] My view is fortified by the admissions the accused made in his caution statement which was marked as prosecution exhibit 02 without objection by the defence . According to PW4, DC 3656 Semi who conducted the interview the accused was given all his rights and he gave his statement voluntarily. In that he admitted that the victim told her that she was 17 years old. Also he knew she was attending school. When this was raised out in cross- examination the accused stated that he signed his statement without reading and also the police misquoted him. But this position was never put to the interviewing officer when she was cross- examined by the learned counsel for the accused and therefore I am not prepared to accept that. Therefore I am of the view that the accused knew the victim was 17 years old at that time . Based on these I find that the accused has failed to discharge his burden with regard to the statutory defence.

[27] Therefore I decide that the prosecution has proved this charge beyond reasonable doubt.

[28] The accused is found guilty for this offence and convict him accordingly.

[29] 28 days to appeal

19th May 2014

H.S.P.Somaratne
Resident Magistrate