State v Naduva [2015] FJMC 13; Criminal Case 1606.2010 (6 February 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case : 1606/2010

STATE

V

FABIANO DAKAI NADUVA

Counsel: Mr. Vosawale for the State
Mr.K.Prasad (LA) for the Accused

(Names of the two victims are suppressed and identified as Ms. DN and Ms.KN)

JUDGMENT

[1] The accused was initially charged with three counts of Indecent Assault on a Female contrary to section 154(1) of the Penal Code.

[2] The accused pleaded not guilty for this charge and also objected to admissibility of his caution statement based on assault, oppression and breach of judge's rules. A voir dire hearing was conducted on 26th September 2013 and on 04th October 2013 this Court decided that the accused has given his statement voluntarily and this statement could be admitted in the trail proper.

[3] Before the trail proper started on 02nd December 2014 the State filed the amended charge which reads as follows:

1ST COUNT

INDECENT ASSAULT ON A FEMALE: contrary to Section 154(1) of the Penal Code, Cap. 14.

Particulars of Offence

Statement of Offence

FABIANO DAKAI NADUVA between the 27th day of November 2009 and the 19th day of January 2010 at Flagstaff in the Central Division had unlawfully and indecently assaulted one DN by licking her vagina.

2ND COUNT

INDECENT ASSAULT ON A FEMALE: contrary to Section 154(1) of the Penal Code, Cap. 14.

Particulars of Offence

Statement of Offence

FABIANO DAKAI NADUVA between the 27th day of November 2009 and the 19th day of January 2010 at Flagstaff in the Central Division had unlawfully and indecently assaulted one KN by licking her vagina.

[4] Pursuant to section 182 of the Criminal Procedure Decree the amended charge was again read back to the accused and the plea was taken where he again denied the charges. There was no application made by the learned counsel for the accused to recall the witnesses who has given evidence in the voir dire. Therefore the trial proper was conducted on 2nd, 3rd and 17th December 2014 and 14th January 2015. For the state's case 05 witnesses were called and for the defence the accused gave evidence. At the end of the trial both parties opted to file closing submissions which they filed accordingly and I have considered them also for this Judgment.

SUMMARY OF EVIDENCE
THE PROSECUTION'S CASE
[5] PW1 was Ms. DN who is 12 years old and in 2009 was living with her step mother and father at Flagstaff. The accused (Fabiano) called her and her sister to down stairs where they were asked to take off their pants and he licked her meme (vagina). He also kissed DN and told her not to tell anyone. No one was in the house and he did that number of times to DN. He did these in sitting room and plantation and he also sucked her breasts. This happened in 2010 when she was in class 2. PW1 told this to her mother. She also identified the accused in the Court. In cross- examination she said she made a complaint to police and no one forced her to do that. The accused did not threaten PW1 not to see the mother and the mother took PW1 and her sister to police. She was shown her statement to police on 21st June 2010 and identified that. In re - examination the witness said all the things happened to her and she said them to the police.

[6] PW2 was Ms.KN who is 09 years old and was living in Flagstaff with her dad, sister and other relatives during that time. She was sleeping and Fabiano came and took her pant and was moving on top of her private part. He was moving his private part on top of her. She also identified the accused. There was no cross- examination.

[7] PW3 was Ms.Rusia, the mother of two victims and said her children (DN and KN) spend the Christmas holiday with their father in 2009. She visited them before the school started and noticed PW1 was not normal. Early 2010 again she went to see Pw1 and after PW1 got sick she was admitted to hospital. DN told her something happened to her but did not give details. After sometime PW1 told the witness someone kissed her. After 2 weeks she told her that Fabiano licked her meme. Also in plantation he took his pants off and rubbed his private part on her. PW1 told her this happened number of times. She asked PW2 also about them and PW2 told Fabiano came to sitting room and after taking off the pants licked her meme and moved up and down. PW3 lodged a complaint with Reiwaqa police station. The daughters told her that they did not tell these to their father as they were scared. They also showed her Fabiano and the witness identified the accused in the Court. In cross- examination she said she never met the accused in the house when she used to visit the children and her husband told her that the accused stayed there. She took the children to the police station to lodge the complaint. She also identified her statement made on 10th September 2010.

[8] PW4 was PC Tunuaka, the arresting officer and on 10th September 2010 he went with Cpl Inoke to Solomon Street to arrest the accused. He or other police officers did not assault the accused. In cross- examination the witness said after the arrest he was dropped home and he did not accompany the accused to police station. PW4 also identified the accused in the Court.

[9] PW5 was DC 3659 Inoke Tui, the Interviewing officer and was also part of the team that arrested the accused. The accused was taken to Major Crime unit and after giving all the rights to the accused the interview was conducted. There was no improper things done to the accused and also he was not told to lick the floor. The caution interview was marked as PE-01. In cross- examination the witness said the accused was interviewed on the same date he was arrested and there was a witnessing officer present during the interview. The prosecution closed the case after that and the defence made a 'no case submission' which was rejected by this Court. The accused was explained about his rights pursuant to section 179 of the Criminal Procedure Decree and he elected to give evidence.

THE DEFENCE CASE
[10] The accused said in 2009 he was in Nases with his relatives. He was in Solomon Street and the police transported him from Lami to CID HQ. On the way the police assaulted him and the driver slapped him and told him to confess. When he was brought to the station two police officers told him to lick the floor and before the interview a police officer brought a mop handle and threatened him with that. He was with the complainants from September 2009 to January 2010 and since their father was not there he told them not to go outside. He did not do anything to the complainants. In cross- examination also he said he was assaulted in the police vehicle and even though he spoke to his sister he did not tell about the assault. He admitted because the police assaulted him and he did not tell the magistrate about the assault. In re- examination the witness said after the police officer threatened him with a mop handle he was intimidated. The defence also closed their case after that.

[11] In his closing submission the learned state counsel submitted that through the evidence the State has managed to prove beyond reasonable doubt that the accused committed these two counts and therefore the accused need to be convicted for this charge.

[12] In his detailed and comprehensive submission the learned counsel for the accused said PW1 made the complaint nearly after four months from the alleged incident and there were discrepancies in the evidence of the prosecution witnesses. Therefore the prosecution failed to prove this charge beyond reasonable doubt and the accused need to be acquitted from this case.

THE LAW
[13] 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).

[14] 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).

[15] In STATE v DELANA [2014] FJHC 336 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."

[16] The accused is charged with two counts of Indecent Assault on a Female contrary to section 154(1) of the Penal Code. Section 154(1) provides:

"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."

[17] Therefore the prosecution has to prove beyond reasonable doubt following elements:

1. The accused
2. Unlawfully and Indecently assaulted Ms. DN and Ms.KN
   

ANALYSIS

[18] The defence taken by the accused was that he did not commit these offences. As for the admissions in his caution statement the accused said because of the assault and other improper methods used by the police officers he confessed. But after a voir dire this Court decided that there were no improper methods used by the police and the accused gave his caution statement voluntarily and in the trial proper this was tendered as evidence by the State through the interviewing officer.

[19] One of the main points argued by the learned defence counsel in his closing submission was that there was no recent complaint from PW1 about this allegation and therefore PW1's evidence is not credible. But only purpose of to admit a recent complaint in sexual offence case is to show the consistency of the victim's evidence. It would not corroborate her evidence. This was clearly stated in Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 2014) The Hon. Chief Justice Anthony Gates held:

"In any case evidence of recent complaint was never capable of corroboration the complaint's account: R v. Whitehead (1929) 1 KB 99. At most it was relevant to the question of consistency, or inconsistency, in the complaint's conduct, and as such was a matter going to her credibility and reliability as a witness: Basant Singh & Others v. The State Crim. App. 12 of 1989; Jones v. The Queen [1997] HCA 12; (1997) 191 CLR 439; Vasu v. The State Crim. App. AAU0011/2006S, 24th November 2006."

[20] To prove a recent complaint the prosecution has to call the victim as well the person to whom this complaint was made. In this case from the two complainants only PW1 (DN) in her evidence said she told her mother about that and also mother confirmed that. Even though the mother told in her evidence that KN also told about this I find that is hearsay as KN never mentioned that in the Court. But defence argued that even this complaint by DN is not a recent complaint as this was made nearly after 04 months after the alleged incident.

[21] Even if I agree with this argument I believe that would not affect the credibility of PW1. The complainants were small children when they were faced with these alleged incidents. Even a grown up person faced with a similar experience would be reluctant to come out and complain due to stigma, fear or various other reasons. Therefore it is no surprise to find that the victims failed to inform anyone early.

[22] The defence counsel also submitted that there were lots of discrepancies in the evidence of the prosecution witnesses. But it is important to keep in mind that these incidents happened around 2009 to 2010. It is not reasonable to expect the witnesses to remember all the details up to the small point from that period. I also note that the defence did not tender their out of the court statements (police statements) as exhibits and this suggests to me that these were consistent with their testimonies in the Court. Therefore I find that there were no major discrepancies in the prosecution witnesses' evidence as submitted in the closing submission.

[23] Now I would now turn to the testimonies of two complainants. MS.DN (PW1) who is 12 years old in her evidence in this Court clearly described that whilst she was living with her father and the accused took her downstairs, removed her pants and licked her meme (vagina). Also he sucked her breasts. These happened number of times. Even though she was cross-examined by the defence her evidence was not shaken in cross- examination where she maintained her position. After considering the manner she gave evidence in this Court I am satisfied about her credibility . Also her evidence was corroborated by the accused through his caution statement where he also admitted about this.

[24] Ms.KN (PW2) in her evidence said that the accused came to the sitting room took off the pant and rubbed his private part on her private part. In her testimony she did not mention that the accused licked her vagina as alleged in the particulars of the offence for that count. But this evidence came from the caution statement of the accused which I have already decided that the accused gave voluntarily to the police. The relevant parts of that statement I reproduced as follows.

Q. 79: Was the same down to KN?

Ans: Yes

Q.80: The incident involving KN, where did it occur?

Ans: At the guest house

Q. 81: Whereabouts in the guest house did it occurred?

Ans: In the sitting room?

Q. 82: How about with DN, did it also occur in the sitting room of the guest house?

Ans: Yes

Q. 83: Can you tell me what exactly happened between you and KN?

Ans: I told her to lie down and took off her trousers and panty then I licked her vagina.

Q.84: How many times you did such to KN?

Ans: Once.

[25] Therefore I find that the accused has admitted that he committed this offence on Ms.KN in her sitting room. Apart from denying these incidents the accused in the trial said he confessed to the police because he was assaulted and threatened. This same position was taken in the voir dire also. But he never informed about these alleged assault to his sister when he contacted her. Also he did not inform the magistrate when he was produced to the Court. Therefore I do not accept his evidence in the trail proper.

[26] Based on the above mentioned reasons I am satisfied that the State has proved beyond reasonable doubt that the accused committed these offences.

[27] Therefore I find the accused guilty for this amended charge and convict him accordingly.

[28] 28 days to appeal.

06th February 2015

H.S.P.Somaratne
Resident Magistrate