Republic v Kapeia [2003] KIHC 32; Criminal Case 05 of 2002 (1 March 2003)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Case No. 5 of 2002

THE REPUBLIC

vs

AARON KABEIA

For the Republic: Ms Pole Tebao
For the Accused: Mr Banuera Berina

Date of Hearing: 29, 30, 31 July 2002

JUDGMENT

The accused (Aaron Kabeia) is charged with indecently assaulting the complainant (Nei Taomarie Baraam) under section 133(1) of the Penal Code (Cap. 67) by kissing her on the breasts and neck without her consent. The accused however denied the charge.

The issue is whether or not the accused indecently assaulted the complainant in his office on 20 August 2001.

The incident giving rise to the charge occurred on 20 August 2001 inside the accused's office at about 1.00 pm where it was alleged that the accused kissed the complainant at the top front part of her body including her neck and breasts without her consent and without the accused removing her clothes.

The prosecution called six witnesses to prove its case.

The complainant (Nei Taomarie) was the first prosecution witness (PW1). She testified that she is aged 24, and that on 20 August 2001 when she was with the accused in his office during lunch break at about 1.00, the accused indecently assaulted her by kissing her on the top front part of her body including the neck and breasts without her consent. She said that before she saw the accused at lunch break she had made an appointment with him by telephone to see him earlier on during working hours (i.e. between 8 am and 12.30 pm) of the morning of that same day because she wanted to collect from him her work reference for employment as he was the third secretary (the assistant secretary) in the Ministry of Works and Energy and as such he was responsible for personnel matters relating to employment in that Ministry.

The complainant said that she was first engaged by the Ministry of Works and Energy in July 2001 in order to gain some work experience and as such she was working without pay.

She said also that the accused was not in his office when she went to see him in his office so she entered the office and waited for him. Then moments later he came, closed the door and headed to the complainant, took hold of both of her hands, pulled her and laid her on the ground. When she was on the ground she struggled with him to free herself so she tried to stand up but was not able to do so as he pulled and pushed her back to the ground whenever she tried to stand up. And in the course of such struggle the accused forcefully kissed her all over the front part of her upper front body including the neck and breasts but still fully clad as the accused did not remove any of her clothes. This struggle and kissing went on for about two (2) minutes and then the complainant felt afraid and shocked as she did not expect the accused to do this to her. So she quietly thought about freeing herself from the accused and then told the accused that she was feeling sick and her heart had almost stopped. She was tired and felt afraid. She couldn't scream as she was feeling weak. Then the accused released her but kept holding one of her hands and when she tried to stand up he told her to sit down as he wished to discuss something with her. She then reminded him again that she has a weak heart and was about to stop. So he released her hands and that is how she managed to get away from him. She then left the accused by opening the door of his office and went out. As she was about to leave his office the accused called out to her not to go and told her that she could work with him. She turned around and told him she did not need his help and left.

When she left the accused's room she met Nei Mereta in the corridor. Mereta is one of the girls employed in the Ministry of Works and Energy. She told the complainant that she could see the accused and appeared to be following her. She (complainant) looked back and saw the accused just exiting his room so she thought he was following her so she told Nei Mereta they should run away and hide themselves from him. So they ran to Mautake's office (room) to hide.

Mautaake is one of the employees in the Ministry of Works and Energy. When they (i.e. the complainant and Mereta) entered Mautake's office Mautake was inside with one Terubentau, the manager of the Solar Energy Company and so in the presence of Mautake, Terubentau and Mereta inside Mautake's office Nei Taomarie burst out crying and revealed everything which the accused had done to her in his office when they were alone namely that he had forcefully kissed her all over the front part of her upper body including her neck and breasts. After telling her story to these people (i.e. Mautaake, Terubentau and Mereta) the complainant went to the Minister and reported to him also about the same incident which she had told these people.

After she saw the Minister she lodged her complaint with the police on the same day. On re-examination she said also that the accused had never made any jokes to her before the incident in question.

In cross-examination the complainant was quite firm and unshaken in her evidence that the accused had indecently assaulted her in his office by kissing her at the top part of her front body including her neck and breasts. However the complainant had not remembered precisely how she and the accused had set up their meeting on that day in question of 20 August 2001. However I am satisfied beyond doubt that the complainant and the accused had made an arrangement to meet together on day in question to discuss some business: as far as the complainant was concerned they were to meet for the purpose of collecting her work reference from the accused; and as far as the accused is concerned they were to meet (i.e. accused, complainant and Mautaake (PW2) to discuss the complainant's proposed transfer to Energy section. The accused in his evidence and record of interview confirmed that he did in fact see the complainant on same day in question and had made an appointment to see the complainant at any time during that day about her transfer to the Energy Section of the Ministry but not during lunch time. This happened at about 9.30 am after he left the Minister's office and when the complainant said that the accused himself came to her office in early part of the working hours (i.e 8 am and 12.30 pm) of the morning of 20 August 2001 and told her he was free at that time so she could come and see him then, I am satisfied that the complainant referred to this appointment which the accused had made with the complainant. However because she was still distraught from the incident in question I am satisfied that she had forgotten some details of the incident in question. However she was unshaken and quite firm and remembered clearly in her evidence that the accused had forcefully kissed her on the upper part of her front body including her neck and breasts though the accused did not remove her clothes, in the confines of his office on the day in question.

She was also cross-examined about her story that she had bitten the accused on the shoulder during her struggle with the accused in his room. The complainant admitted having bitten the accused on the shoulder but didn't state it in her statement of 28 September and in her evidence because she was uncertain as whether or not there were some bite marks left on the accused's shoulder. Thus she omitted it in her statement and evidence.

The second prosecution witness is Mautake Tannang (PW2). He testified as to the distressed condition of the complainant (Taomarie) when he first saw her. He said (from my note):

"On 20 August, I was at work. The complainant (Taomarie) and Mereta suddenly barged into my room (office). It was about 12 noon or a little bit after 12 noon. Terubentau was with me in my room at that time. He was the then general manager of the Solar Energy Company. When the complainant got in my room she appeared petrified and she came to my room to hide. I knew then something has happened. Her appearance and facial expression was rather unusual. She was pale. I heard her saying: "He knows I am sick". I didn't expect her to suddenly barge in my room the way she just did and certainly other staff in the Ministry had never done this to me before either. I knew then that there was a problem and so I asked her as what has happened but she did not answer me. She was still too distraught to talk about it. Instead she was agitated and now and then she kept looking at outside of the room to see as if someone is coming or following her and then went to the corner of the room and hid herself there. She then stood up and so I stood up too and went to her and held her to calm her down and noticed she was trembling all over." So asked her again as what has happened to her but she was still too distraught to speak about it, then but did not hear this from the complainant herself but from memory, he thought, he heard it from Mereta who said that the accused had tried to rape her in his office. He then told her if what Mereta had said was true she could lodge her complaint with the police.

I accept this testimony of Mautake. I believe him as a truthful witness and some of his evidence supports Taomarie's account of what happened to her immediately after she left the accused's room and the accused. Clearly the complainant was in great fear and distress. However in his testimony Mautaake appeared to have been forgetful as he had not made any reference at all nor mention the evidence of the complainant that when she and Mereta burst into his room the complainant burst out crying. It appeared that Mautaake's memory had failed him as regards to these items of evidence. He simply was forgetful but I still accept his evidence as to the condition and appearance of the complainant when she was in his office.

Mereta however (PW3) who accompanied the complainant when they first barged into Mautaake's office testified that she saw the complainant burst out crying inside Mautaake's office, in the presence of Mautaake and Terubentau.

The testimony of the complainant is also supported by Mereta Resture's evidence (PW3). She testified that on 20 August 2001 she was with the complainant at the Personal Assistant's room (PA) to collect from her any faxes for them (i.e. the section of the Ministry she was at) if any. And as they were talking then, Aaron who is the accused and in court today at the dock, Moiwa, Ienimoa and another person walked into the PA's room. So they had a meeting with the Minister. After a while they (the accused and three other persons) finished their meeting with the Minister and came out of the Minister's room and once again they walked past through the PA's room and it was then that the complainant asked Aaron (the accused) to give her a work reference. The accused in reply told her to see him at his office at lunch time.

When she finished telephoning the accused she went to the accused and Mereta was waiting for her as arranged for a while. Then she felt so hungry as it was already lunch time by then so she got out of the PA's room to get some lunch. As she got out of the PA's room she saw the complainant (Taomarie) just leaving the accused's room and she was approaching her and she appeared to be heading back to the PA's room. She described the condition and appearance of the complainant when she first saw her and was near her thus:

"she appeared to be petrified, she grabbed my hand and felt her hand were cold; we both ran and as we ran she told me to look back. Is he coming? She asked. We kept running then we barged in Mautake's room (PW1) to hide. When we were in Mautake's room she burst out crying aloud. She said she was afraid. Mautake tried to calm her down and comfort her by begging her not to cry. Mautake then asked her why she was crying. She replied and said she is afraid of Aaron (the accused)".

Then she related what the complainant had told them about what the accused had done to the complainant when she was alone with him in his room. In her evidence she testified that the accused pulled the complainant down to the mat and then the complainant and the accused struggled. During the struggle the complainant bit the accused's shoulder and as the result the accused released her and then she managed to escape from him.

The fourth prosecution witness was Corporal Bamaere Tira (PW4). He had been with the Police Force for 23 years. He witnessed the caution of the accused by Detective Constable Boitu Beniamina on 21 August 2001 and the interview of the accused on 27 October 2001. He countersigned the caution statement and put it also into evidence without objection as Exhibit 1.

The accused Aaron denied in his statement that he indecently assaulted the complainant Taomarie. He also denied that he did anything bad to Taomarie like touching her breast or removing her pants. But he admitted that he knew her very well as she has been engaged by the Ministry of Works and Energy before and on that day in question to gain some work experience. Regarding her complaint, he denied that he did it on purpose and he had not in his life raped or attempted to rape anybody at all and what he did to the complainant was a joke without any meaning at all. If he had known that the complainant was cross with him he would then had apologised to her.

The fifth prosecution witness (PW5) was Detective Constable Boitu Beniamina. He took the caution statement of the accused on 21 August 2001 and he interviewed the accused on 27 October 2001. He put into evidence without objection a copy of the record of questions and answers of the interview of the accused on 27 October 2001 and was marked as Exhibit 2.

In the record of interview the accused admitted that he had an appointment with the complainant on the morning of the day in question to discuss her proposed transfer from the PA's office to the Energy Section and they (i.e. the accused and the complainant) had agreed that morning that they would discuss such her proposed transfer after he returned from the Minister. However the complainant did not turn up that morning and instead she came at lunch time when it was about 1.00 o'clock pm. However he denied that he ever pulled the complainant by the hand as they entered his office but instead he suggested to her as a joke, that they should go and sleep on the mat as it was lunch time and there was practically nothing that they could do then.

The accused further denied he ever held the complainant's hand. Nor had their bodies ever rubbed or touched together at that time in question.

That concluded the case for the prosecution.

I found there was a prima facie case for the accused to answer and the accused elected to give evidence.

Aaron Kabeia (the accused) gave evidence and testified that he adopted as his evidence in court the contents of his caution statement of 21 August 2001 (Exhibit 1) and also the record of questions and answers of police interview with the accused on 27 October 2001 (Exhibit 2).

He also testified that he had never indecently assaulted the complainant (Taomarie). He said:

"I never kissed her on the neck nor breast nor anywhere, never pulled her to the mat nor pulled her hand. What I did was a joke. I said to her: Now that you come during lunch there is nothing we can do. Let us go and sleep on the mat".

The accused also testified that on the day in question the curtains in his room were pulled down (closed) as they normally were every day; he also had already spread out his sleeping mat with a cushion on it as a pillow on the floor for him to sleep on during that lunch break in question but the card players were making a lot of noises so he did not sleep on his mat that lunch time but was watching card players playing cards outside his office.

He denied also having made an appointment with the complainant to see her at that lunch time in question, but she nevertheless came while he (the accused) was watching card players playing. She saw him and went to him and asked him:

"What about my request? The accused as a joke said: You come when it's time, what can we do shall we sleep?" Then he pulled her hands and went with her to his room. He entered first and having released accused's hand the complainant followed and closed the door. The complainant did not bite nor struggle with the accused at all in the room. The curtains in the room were as always pulled down.

In cross-examination the accused reconfirmed that he never made any appointment with the complainant to see her at lunch time on the day in question. But he admitted having arranged with the complainant to see him at his office at any time on the day in question but not at lunch time, about her request to be transferred from the PA (Personal Assistant) section to the Energy Section of the Ministry of Works and Energy. And he organised this after their meeting with the Minister had finished at about 10.00 am.

The accused further testified that he has a degree in Public Health administration and when assessing the health of the complainant, to him she is skinny, sickly looking and speaks with a feeble toneless voice. These are the symptoms of TB (Tuberculosis) and thus he could not in the least be interested in or attracted to her as a girl let alone kissing her on the neck and breasts. He also said that when he first met the complainant outside and inside his room she was perfectly normal: her hands were not cold, nor was her face pale, nor trembling all over, nor petrified as reported to the contrary by PW1, PW3 and the complainant herself in their evidence as it has already been shown above.

Under cross-examination the accused also testified that the complainant told him that her heart was about to stop when he pulled her by the hands to follow him to his room and suggested to her as a joke that they (accused and complainant) go sleep in his room. He said:

"when we entered (i.e. the accused room) I (accused) went in first and she (complainant) followed and then I said to her 'Come let us go and sleep'. Then she replied: 'Is that a joke? Why are you joking to me like that. My heart is about to stop'. Then I said to her: 'Your heart is about to stop?' I asked her this because I didn't know that her heart was weak".

Under further cross-examination the accused testified that he could not assist the complainant about her request to be transferred from the PA section (Personal Assistant section) to the Energy section because she had come at the lunch break, and also because Mautaake who is in charge of the Energy section must also be there with them at the lunch break in question if they have to discuss such her proposed transfer, but he could not possibly do so then because it was a lunch break time when office work is normally temporarily suspended. And that is one of the reasons why he did not wish to see the complainant at that lunch break in question.

Under further cross-examination the prosecution challenged such evidence of the accused as being inconsistent with his statement of 27 October 2001 where the name Mautaake was nowhere to be found. In response and while admitting that the name Mautaake is nowhere to be found in that statement he said that he mentioned the name Energy section in his statement and this is the same as mentioning Mautaake's name because Mautaake is in charge of Energy section.

That concluded the case for the defence.

But then counsel for the defence, Mr Berina, informed the court that the defence wishes to call one more witness for the defence, apart from the accused, by the name of Ueatu Teaati. Mr Berina did not inform the court about this witness before he called the accused to give evidence and thus I had assumed all along throughout the trial that the accused was the only witness who was to give evidence for the defence. So I was taken by surprise, and so too was the prosecution. Consequently the prosecution objected strongly against such witness being allowed to give evidence at this late stage in the trial especially as he has been sitting in Court throughout listening to all the evidence of the accused. And having heard submissions of both counsels for the prosecution and the defence on the matter I ruled that the witness be allowed to give evidence.

The second witness of the defence was Ueatu Teaoti (DW2). He testified that on 20 August 2001 he was watching card players playing cards. When he was there he saw the accused standing in front of him also watching card players playing. And as they were standing he saw the complainant approaching the accused and asked him. "How about my request".

The accused then said: "What are we going to do, it is lunch time. Let us go to sleep". Then he took hold of her hand and pulled her into his room. Shortly afterwards he saw the complainant coming out of the room followed by the accused who went near the card players and watched them playing cards.

In cross-examination the witness remained consistent and unshaken in his evidence as adduced in examination in chief.

Now I am sure that that really concluded the case for the defence.

And as I had already anticipated no sooner had the case for the defence been concluded than the prosecution applying for permission of the court to call evidence to rebut the evidence of the defence especially Ueatu's evidence (DW2). The prosecution, in my view, is entitled to call any such evidence and I granted permission to do so.

The sixth Prosecution witness was Moanatake Beiabure (PW6). He was specifically called by the prosecution to rebut the evidence of the defence (DW2) that the complainant did speak with the accused asking him about her transfer to Energy Section whilst the accused was watching card players playing cards outside his office before he (accused) pulled the complainant by hand to his room.

Moanatake in his evidence did not give support to that above assertion of DW2. However in cross-examination he qualified his position by saying that it was possible that the accused was there with card players and did speak with the complainant but could not have seen him and the complainant as there were other persons there also moving in and out of the room watching card players playing.

That concluded the case for the prosecution.

I then heard addresses from counsel for the Republic and counsel for the defence.

Counsel for the Republic argued that the prosecution has proved all the elements of the offence of indecent assault against the accused beyond reasonable doubt through the testimony of all its witnesses whom it called; and as the determination of the question as to whether or not the accused is guilty of the offence of which he has been charged with in this case and whom to believe turns on the facts in each case, counsel urges the court to accept the prosecution witnesses' version.

Counsel for the defence on the other hand argued (and it seems to be implied from his submissions) that the prosecution had failed to prove beyond reasonable doubt that Aaron (the accused) had indecently assaulted Taomarie (the complainant) as charged. And the reasons being that the evidence of Taomarie who testified that she has been indecently assaulted by the accused on 20 August 2001 was not corroborated by the evidence of Mautaake (PW2) nor that of Mereta (PW3).

Further Mr Berina argued that "we can deduce from the evidence that the first time indecent assault was alleged was not when the complainant complained to Mautaake, Mereta and the Minister. It was made only to the Police much much later and what was told to the Police was different to what was told to Mereta and Mautaake.

Before I consider the evidence I must direct myself that the burden of proof beyond reasonable doubt remains upon the prosecution all throughout the proceedings of the trial in this case from the beginning to the end. The prosecution must prove the charge and each element of the charge beyond reasonable doubt and if it fails to do so then the accused is entitled to be acquitted. There is no onus on the accused to prove his innocence. In the present case the prosecution must prove beyond reasonable doubt that the accused had unlawfully and indecently assaulted the complainant.

I must also direct myself that in cases of this nature it is dangerous to convict on the uncorroborated evidence of the complainant. However, bearing that warning in mind, if I have no doubt that the complainant is speaking the truth then I may convict on her evidence, even though uncorroborated.

As it has already been stated earlier the issue in this case is whether or not the accused had unlawfully and indecently assaulted the complainant in his office on 20 August 2001. The complainant vigorously maintained that the accused did unlawfully and indecently assaulted her while the accused strongly denied that he did so.

Apart from the fact that the complainant appeared not to have been able to recollect precisely as how she had set up her meeting with the accused on the morning of 20 August 2001: whether the complainant herself telephoned the accused first and then the accused fixed the time to meet the complainant at lunch time in the accused's office or vice versa, or whether the accused himself went over to the complainant's room and then informed her that he was free and so he could see her then, or the complainant herself rang the accused from the PA's room where PW3 was, and then informed the accused that she was coming to see him at his office at lunch time, all these detailed information are immaterial. And what is material for purpose of this case and beyond doubt, and as it has already been shown, is that the complainant and the accused did in fact meet together alone in the confines of the accused's office at lunch time on 20 August 2001, and whilst there in the confines of accused's office, and as already been described above, the accused allegedly indecently assaulted the complained by allegedly forcefully kissing her over the front part of her upper body including her neck and breasts. This meeting of the accused and the complainant in the confines of the accused's office was confirmed by the accused's himself in his evidence except that he denied having indecently assaulted the complainant while they were alone together in his office.

In cross-examination the accused also said that he did not want to see the complainant at lunch time in question because Mautaake (PW1) who was in charge of the Energy Section of the Ministry of Works and Energy would not be available at that time to participate in their discussion (i.e. accused and complainant) about her transfer to the Energy Section. As already stated above the complainant denied having made such arrangement with the accused. In the accused statement of 27 October 2001 no mention of Mautaake's name was ever made and the accused argued that mention of the name "Energy Section" in that statement is the same as mentioning the name Mautaake because he is in charge of the Energy section of the Ministry in question and even though he did not mention the name Mautaake the accused argued that it is implied in the mentioning of the name Energy section. I do not accept this argument of the accused as Mautaake himself had never confirmed in his evidence nor in cross-examination that he was to hold a meeting on the day in question with the accused and the complainant in the accused's office to discuss the proposal of the complainant for transfer to the Energy section of the Ministry of Works and Energy.

Furthermore there was no express mention of Mautaake's name in the accused's caution statement of 27 October 2001 that his attendance in such meeting was required or that he has to attend such meeting even though his attendance in such meeting is crucial and essential especially as he is in charge of the Energy section and therefore he is the one who must decide whether or not the complainant's transfer was to be approved.

If it was really true that the accused did not wish to see the complainant at that lunch time in question because Mautaake would not be able to be present in the meeting then, why didn't he send the complainant away and tell her to come back later and see him after lunch break when Mautaake would then be present? Instead, and as already been mentioned the accused dragged the complainant into his office by pulling her hands. Yet in the same breath in his evidence and statement of 27 October 2001 the accused contradicted himself by denying that he even pulled the complainant to the mat or pulled her hands, or had any part of his body (accused) and that of the complainants body ever rubbed or touched together in any manner at any time. Whereas in fact he had already confirmed that he pulled the complainant by the hand to his office. Clearly the accused is not a truthful and reliable witness.

Under further cross-examination the accused also said that he could never be interested in or attracted to the complainant as a girl let alone wanting to kiss her on the neck and breasts as she was a sickly looking girl with a feeble voice and appeared to be suffering from TB.

Yet what the accused did to the complainant did not appear to support how he had felt so disinterested in the complainant: he dragged her by the hands towards the confines of his office; with the mat and pillow in the form of a cushion already spread out and laid on the floor; and the window curtains already pulled down (closed); and even though the complainant struggled with him and resisted his advances, the accused eventually overpowered the complainant and had his own way by kissing her on the neck and breasts as it had already been shown.

Also under further cross-examination the accused admitted that when he was alone with the complainant in his office he suggested to her jokingly that they might just as well go to sleep on the mat because she had come during lunch break when by then there was practically nothing that they could do. When the complainant heard this she reacted:

"why are you joking to me like that? Don't you know that my heart had nearly stopped? Then the accused asked her: Your heart had nearly stopped? He asked her this because he didn't know that her heart was weak".

This evidence of the accused is also supported by the testimony of the complainant herself who said that when she struggled with the accused in his office the accused simultaneously forcefully kissed her on the neck and breast she then became afraid of him and felt weak so she told him, that "her heart had nearly stopped".

The above evidence about the complainant's heart, which had nearly stopped, is the only item of evidence upon which the accused and the complainant had appeared to have happily found some common ground on. And I am satisfied beyond reasonable doubt that the weak heart of the complainant which "had nearly stopped", and which the complainant told the accused about (in a sense that her heart beat namely the movement or sound of the heart as it pumps blood around her body) had nearly stopped not because of what I call the accused's "sleep on the mat joke" to the complainant but because of the alleged indecency he had allegedly committed on the complainant in that he pulled, pushed and struggled with her and in turn she resisted him in his office and at the same time he also kissed her all over the top front part of her body including her neck and breasts.

I therefore found that the accused is not telling the truth when he repeatedly denied that he indecently assaulted the complainant in his office at lunch time on 20 August 2001. On the other hand I found the complainant to be a reliable and truthful witness and she is telling the truth and I believe her beyond doubt that the accused on 20 August 2001 at lunch time indecently assaulted her inside his office by kissing her all over the front upper part of her body including her neck and breasts.

And I accept the testimony of the complainant alleging that she was indecently assaulted by the accused. Further I also accept that Mautaake's evidence (PW2) is consistent with what the complainant had told the court about her being in distress and fear immediately after she left the accused's office. Mautaake stated that when the complainant and Mereta barged into his office her face was rather unusual. It was pale and she appeared to be too distraught and frightened and said nothing about the incident in question apart from saying that "he knows I was sick" meaning the accused. She was agitated and trembling all over.

I also find as a fact that Mereta's evidence is also consistent with the testimony of the complainant about her having been assaulted by the accused, and her having been in distress and fear of the accused after she left the accused's office and that she first complained about all this to Mautaake and Mereta as soon as she left the accused. She testified that the complainant told them inside Mautaake's office (i.e. Mautaake, Terubentau and Mereta herself) that as already been mentioned above, the accused pulled the complainant down to the mat and then they struggled and as they struggled the complainant tried to stand up but the accused pulled her and pushed her down again to the mat. She also said that when she first saw the complainant immediately after she left the accused's office she appeared petrified, she grabbed Mereta's hand and she felt the complainant's hands were cold; they both ran and kept on looking back to see if the accused was following them. They kept on running and then they suddenly barged into Mautaake's office to hide from the accused in case he followed them. When she was inside Mautaake's office she burst out crying aloud. Mautaake tried to calm her down and begged her not to cry and also asked her why she was crying and said she was afraid of the accused.

The evidence of the complainant alleging that she has been indecently assaulted by the accused in his office is supported by the evidence of the accused himself who testified that when he first met and saw the complainant outside and inside his office immediately before she walked out quickly from his office after having stayed there for about two (2) minutes, she was a perfectly normal girl: her hands were not cold, nor was her face unusual and pale, nor crying aloud, nor trembling all over, nor petrified.

And yet and as already been stated above when the complainant left the accused's office after having spent only about two (2) minutes there with the accused inside his office she became a different person. She was completely changed to a different girl from what she was when she first went in the accused's office. She was no longer a normal girl but a terribly frightened girl, she cried out aloud, in fear of the accused, her face was unusual and pale and she was trembling all over. I am satisfied that the accused had done something unusual to her inside the confines of his office where he had been alone with her.

Upon consideration therefore of the whole of the evidence in this case I am satisfied that the prosecution have proved beyond a reasonable doubt that the accused had unlawfully and indecently assaulted the complainant by kissing her all over the top front part of her body including her neck and breasts.

The accused is therefore found guilty of the offence of indecent assault contrary to section 133(1) of the Penal Code (Cap. 67) and is convicted accordingly.

Dated the day of March 2003

THE HON MR JUSTICE MICHAEL TAKABWEBWE
JUDGE