State v Moulango [2015] FJMC 22; Criminal Case 195.2012 (25 February 2015)

IN THE MAGISTRATES COURT OF FIJI
AT TAVEUNI
Criminal Case : 195/2012

STATE

VS

SETAREKI MOULONGO

Counsel : Ms.Low for the State
Ms. Devi (LAC) for the accused
Date of Hearing : 24 and 25 February 2015
Date of Judgment : 25 February 2015
(Names of the victims are suppressed and identified as Ms.XY and Ms .KN respectively)

JUDGMENT

[1] The accused has been charged with following offences in this Court.

Count 1

RAPE: contrary to Section 149 and 150 of the Penal Code Act. 17.

Particulars of the Offence

Setareki Moulongo between the 01st day of January 2004 and the 31st day of December 2004 at Taveuni in the Northern Division, had an unlawful carnal knowledge of girl namely XY without her consent.

Count 2

RAPE: contrary to Section 149 and 150 of the Penal Code Act. 17.

Particulars of the Offence

Setareki Moulongo between the 01st day of January 2007 and the 31st day of December 2007 at Taveuni in the Northern Division, had an unlawful carnal knowledge of girl namely XY without her consent.

Count 3

RAPE: contrary to Section 149 and 150 of the Penal Code Act. 17.

Particulars of the Offence

Setareki Moulongo between the 01st day of January 2007 and the 31st day of December 2007 at Taveuni in the Northern Division, had an unlawful carnal knowledge of girl namely XY without her consent.

Count 4

ATTEMPTED RAPE: contrary to Section 151 of the Penal Code Act. 17.

Particulars of the Offence

Setareki Moulongo between the 01st day of January 2007 and the 31st day of December 2007 at Taveuni in the Northern Division, attempted to have unlawful carnal knowledge of KN without her consent.

[2] The accused pleaded not guilty for this charge and the hearing was conducted yesterday and today before me. For the prosecution 05 witnesses ( 03 civil witnesses and two police officers) gave evidence and for the defence the accused testified.

Summary of Evidence

[3] PW1 was Ms.XY and she said in 2004 she was 08 years old and was living with her parents and sisters. She went to her grandmother place in Undukadau village and one day playing with her sisters and uncle Setareki in the store room. While she was alone the uncle touched her breasts and vagina. He stopped only after her sisters started calling her. PW1 was scared and ashamed . Few days later while she was with her uncle in the kitchen he asked her to lie down , took her underwear and inserted his penis to her vagina. He moved on top of her and when the grandmother called he closed her mouth and said nothing was happening there. She was afraid and ashamed and did not tell anyone about that . Again few days later she with sisters and uncle went to the beach. While there she heard her uncle calling and saw he was in a tree. He asked her to climb the tree and when she reached to the place , took out her clothes and again inserted the penis to her vagina. Both of them were standing in a branch and she saw her younger sister ( Ms . KN ) watching them. The uncle asked her to wear the clothes and after that she went home. Even though her sister wanted to tell that to her mother she stopped her as she was ashamed and scared. In2009 she was 11 years old and stayed at Tavuku village with her parents and sisters and the uncle also stayed there. Her grandmother who was paralyzed also stayed with them. One day the uncle asked her to come to bed room and asked her to lie besides him. When she went to toilet the uncle followed her and dragged her to parent bed room , took her clothes off and inserted the penis again to her vagina. She was ashamed and frightened and did not tell anyone. In 2012 she in the school saw a programme about sexual abused children and ran away from the place. Two police officers followed her and she told them about everything. She was later taken to hospital for medical examination. PW1 also identified the accused in the Court as her uncle who committed these offences.

[4] In cross- examination she confirmed again that the uncle committed all these things to her but as she was afraid and ashamed did not tell to anyone. Also she did not tell her parents as she was afraid they would beat her.

[5] PW2 was Ms.KN , the younger sister of PW1 and she said in 2004 she was at grandmother place with her sisters and uncle and one day went to the beach with them. She saw her uncle kissing PW1 in a tree and touching her back side. She wanted to tell her mother about it but as she was busy did not do that. In 2007 she was 08 years old and was in Tavuku village . She was sleeping and woke up and saw the uncle lie beside her and rubbing his penis to her bum. He removed her pants. PW2 was afraid and ashamed. She did not tell it to parents as she was afraid. Also in the same year they went to collect coconut and the Setarki asked her to go with him. He told her to lie down and then lay on top of her and tried to remove her dress. She moved and struggled. She again did not complain . PW2 also identified the accused in the Court. In cross- examination she also maintained her version

[6] PW3 was Kristina Karen , the mother of the two victims and she said in 2012 while she was in her home the police approached her and told her about the incidents. She took the children to the hospital and gave the permission to examine PW1 by Dr.Kumar . AS PW2 was afraid she could not be examined. The victims told the incident to the doctor. She also identified the accused. In cross- examination she said that the accused was playing with her children and even though PW2 told her about kissing she did not take it seriously at that time .

[7] PW4 was WDC 3692 Asenaca, who conducted the caution interview of the accused on 01 October 2012. He was given all his rights and in his interview the accused in some questions admitted the allegations. The original interview was marked as PE-01. In cross- examination the witness said that the accused was conversing well and understood the questions.

[8] PW5was DC 3830 Apenisa, who charged the accused on 02 October 2012. He also gave the accused all his rights and the original charge statement was marked as PE-02 . The state was given time to locate the original medical report of PW1 but they informed me today that after searching they could not locate it and closed their case. After considering the evidence I gave the accused his rights pursuant to section 179 of the Criminal Procedure Decree. He elected to give evidence. .

[9] The accused in his evidence denied all these allegations and said as he was scared he lied to the police in his caution statement. In cross- examination the accused admitted in 2012 he was a student at teaching hospital in Latuka and understood English very well. Also he admitted that he read his interview and did not make any changes. He again denied these and said that the two victims were lying in the Court.

The Law
[10] The accused has been charged with 03 counts of Rape contrary to section 149 and 150 of the Penal Code and one count of Attempted Rape contrary to section 151 of the Penal Code. . Section 150 states :-

"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."

[11] In view of the above section the elements of this offence are;

[a] The accused

[b] Had unlawful carnal knowledge

[c] Of the complainant

[d] Without her consent

[12] Section 151 defined the Attempted Rape in the following manner.

"Any person who attempts to commit rape is guilty of a felony, and is liable to imprisonment for seven years, with or without corporal punishment "

[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 Naua [2015] FJHC 97; HAC162.2013in 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."

Analysis of the Evidence
[16] PW1 in her evidence said in 2004 the accused penetrated her vagina in two different occasions. First time it happened in the kitchen. There she was asked to lie down and the accused had sex with her. Second time in the beach the accused had sex with her in a tree.

[17] In 2007 in her home Tavuki the accused again had sex with her in the bed room of her parents. Even though she was cross- examined she maintained this and I am satisfied about her evidence. Even though she complained about these in 2012 she explained that as she was ashamed and afraid she did not inform earlier. I am also aware also that at that time she was a small child and could not expect to inform to anyone about these incidents. This was the same with PW2 who also informed that she was scared and that was the reason she failed to inform promptly.

[18] Even if these victims informed to some one at that time (recent complaint) only purpose this would serve is to show the consistency of their evidence. It would never corroborate their evidence in the Court . This was clearly stated in Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 2014) where 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."

[19] Even though the prosecution did not tender the medical report I do not think that would affect the prosecution version. This was conducted long time after the alleged incidents and even if tender in this case would not be much relevant .

[20] PW2 also in her evidence said in 2004 she saw the accused kissing and touching PW1 in the tree. This would be circumstantial evidence of the incident in the beach.

[21] After considering the demeanor also I am satisfied about the testimonies of these victims who I find credible and truthful . I am also mindful presently there is no need for corroboration as per section 129 of the Criminal Procedure Decree.

[22] But I find that the accused in fact corroborated the version presented by the prosecution through his caution statement. In his statement he admitted in the beach he was in the tree with PW1 and rubbed his penis. Also while in Tavuni he said in the bed room he put the penis to PW1's vagina.

[23] The accused in the Court said he was scared and was lying to the interviewing officer. Also he said he was in a rush and was not considering the seriousness of the admissions at that time. The accused is an educated person was studying for teaching at that time. Therefore I do not think I can accept that explanation. Also in the Court he was denying the incidents and most of the time was informing that he could not recall them. Again I do not think I can accept him as a credible witness for his case .

[24] After considering the above mentioned reasons I am satisfied that the State has proved beyond reasonable doubt that the accused committed all these offences.

[25] Therefore I find the Accused guilty for this offence and convict him accordingly.

[26] 28 days to appeal.

H.S.P.Somaratne
Resident Magistrate