State v Qalulu [2016] FJMC 236; Criminal Case 118.2016 (14 December 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: 118/2016

STATE
v
JEMESA GAUNAVINAKA QALULU

For the Prosecution : Inspector Rajesh
For the Accused : Mr.Gade(LAC)
Date of Judgment : 14^th of December 2016
(The name of the victim is suppressed and identified as Ms. NM)

JUDGMENT

1. The accused is charged with one count of Indecent Assault contrary to section 212(1) of the Crimes Decree No 44 of 2009. The particulars of the offence are “Jemesa GaunavinakaQalulu on the 15^th day of January 2016 at Samabula in the Central Division, unlawfully and indecently assaulted Ms.MN by touching her breast”.
2. The accused pleaded not guilty for this charge wherefore this proceeded for hearing. The prosecution called 04 witnesses.
3. PW1 was Ms. NM, the complainant in this case. She is 12 years old and stays with her father, mother, siblings and grandmother. On 15/01/2016 she was in grandmother’s house with her cousins playing. The accused came near to the window and whispered to Pw1 to go to the wash room. He was smelling liquor and was holding a bottle of beer. She went to the wash room and the accused told her to step in to pan of toilet. He was outside and touched her breast. PW1 was afraid the accused would come and rape her. He told her to wait until he comes inside. She went out and ran away from that place with her young brother. She went to her aunt, Seini and told her about that. She took the witness to her mother and after her boss came they went to the police station. PW1 also identified the accused in the Court.
4. During cross-examination she said her cousins would not hear uncle calling to her and when she went inside toilet he touched her. She was afraid and did not scream. Her cousins were sitting beside her and could not hear uncle whispering to her. When she first went to aunt’s house she told her to hide.
5. PW2 was Ms.Senitalai, the aunt of victim and said on that day she saw PW1 coming to her home. When the witness asked, PW1 told that the accused touched her breast inside the toilet. First the witness did not believe that, but when she saw the accused coming she accepted the story and told PW1 to hide inside the room. The accused was looking from poach. Later PW2 took the victim to her mother, where she told the same thing to her mother. During cross-examination the witness said PW2 was not running, but was looking frighten.
6. PW3 was Jokepeni Siliva, the mother of the victim and was doing house work in her boss house. Her daughter came with Seini to her place and told what happened. The accused was her cousin brother. Even she did not believe the story first, but when she saw the accused coming ,started accepting that.
7. PW4 was WPC Mafi, the investigating officer and recorded the statements and arrested the accused on the next date. She conducted the caution interview of the accused (PE2) and further said the victim was not eager to give statement and was bit emotional.
8. For the defence the accused and 02 other witnesses gave evidence.
9. The accused said he went to his mother’s home where he stayed for 10-15 minutes. He felt like having a cigarette and called loud to Reicheli to get a match. His mother instructed her to get that for him. On the way inside he met PW1 who was peeping from toilet. He pushed her from shoulder. Whilst he was smoking the children were playing inside and saw his sister coming with grandmother. He did not ask PW1 to go to toilet and after she left home with her brothers did not follow her.
10. During cross-examination the accused said the victim was his niece and also people sitting inside could not see him outside. Mother asked Reicheli to give him matches and then he went inside and got them from kitchen. On the way he saw PW1 looking through a window and pushed her. He did not touch her breast. On 16/01/2016 the mother of the victim came to see him and said uncle was forcing her to make this allegation. He did not tell that to his counsel.
11. DW2 was Reicheli who was inside the house playing with her cousins when the accused called her from outside. She did not see him calling PW1. She saw PW1 going to toilet. After coming back from toilet, PW1 did not tell about anything and keep playing. During cross-examination she said her uncle was not smelling liquor and also not holding a beer bottle.
12. DW3 was Sisilia, the sister of the accused and saw him outside the house smoking. Around 9pm the police came and informed about the allegation and next day she went to see what happened. During cross-examination she said she saw PW1 inside the house playing and also did not see PW1 going to the toilet. When she met PW1, she told the witness this report was lodged because her mother was going to give a beating to her.
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 accused is charged with one count of Indecent Assault contrary to section 212(1) of the Crimes Decree which reads :

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

15. Hence the prosecution has to prove following elements beyond reasonable doubt :
    1. The accused;
    2. Unlawfully and indecently ;
    100. Assaults the Ms.MN.
16. In this case the accused is denying committing this offence. But he admitted that he was at that place and pushed the victim on his way to the kitchen.
17. The victim in her evidence has clearly explained about what happened on that day. She said the accused told her to go to the toilet and from there touched her breast. During cross-examination also she maintained this version.
18. She informed this incident to her aunt after running away from that place and, aunt also confirmed that to the Court. This is a “recent complaint “and in AnandAbay Raj v The State, Criminal Appeal Case No. CAV 0003 of 2014, his Lordship Chief Justice Gates said “The complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the complainant.”
19. Hence I find this complainant to her aunt made the victim’s version more credible in this Court.
20. There are no other witnesses to corroborate the victim evidence. But section 129 of the Criminal Procedure Decree has taken away the need for corroboration in a sexual offence of the victim’s evidence.
21. The defence has called the accused and 2 other witnesses. Whilst the accused was trying to show that this allegation was leveled on the instigation of another person (uncle), DW3 said the victim made this story because she feared her mother. But these allegations were not put the prosecution witnesses when they were giving evidence.
22. In Browne v. Dunn (1893) 6 R. 67Lord Herschell observed :

“ ... I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”

23. Hence without putting these allegations to the prosecution witnesses and explaining about that first time during their testimonies by the defenceis in my view unfair to the prosecution. Accordingly I do not give weight to these allegations.
24. The accused also called DW2 to show this allegation was false. But having considered the evidence and demeanor of the witnesses, I accept the version of the prosecution.
25. I find the prosecution has proved this charge beyond reasonable doubt.
26. The accused is found guilty for this charge and convict accordingly.
27. 28 days to appeal

Shageeth Somaratne

Resident Magistrate