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State v Tabua [2009] FJMC 15; Criminal Case 76.2008 (21 August 2009)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No: 76 of 2008

STATE

V

MISIWAINI TABUA

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution: Inspector Ali
Accused: Present
For Accused: Mr. Rigamoto (Legal Aid)

JUDGMENT

Introduction

The accused is charged with Indecent Assault, Contrary to Section 154 (1) of the Penal Code (Cap 17). It is alleged that Misiwaini Tabua on the 6th day of July 2008 at Lutu, Naitasiri, in the Central Division, unlawfully and indecently assaulted Atelaite Nawa, a girl aged 13 years.

The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt.

The elements of the offence that the Accused is charged with that the Prosecution need to prove beyond reasonable doubt in this case are as follows:

(a) Misiwaini Tabua, (the person in the charge and appearing in court – identification)

(b) assaulted, A N (the complainant), and

(c) the assault was unlawful and indecent, that is morally offensive.

Prosecution Case

The first witness for the prosecution was the complainant who gave evidence in camera (a partition was allowed due to the victims age and so that she could give her evidence without any fear of the accused). The Defence did not object to the partition being used. The Court enquired with the complainant the importance and the significance of the taking of oath and telling truth. The complainant stated that she knew the importance of taking oath and the need to tell the truth. The complainant took oath on the Bible in Fijian.

The Complainant’s (PW-1) evidence in Examination in Chief was as follows:

" – I was born on 16th September 1994.

- Living in Vunidawa for 1 year now.

- Before I lived in Lutu, Naitasiri.

- Stayed with uncle, aunty and one of their daughters.

- My father and that aunty are brothers and sisters.

- On 5th July 2008, I can recall that I was at home. I was at my uncle’s place in Lutu.

- Something unusual happened. It was on Saturday afternoon. I was at home with my uncle and his daughter. Aunty was in Suva.

- We were home when the 4 o’clock bus came. Aunty did not come. My uncle told me to wait for the bus. I told uncle that aunty is not in the bus.

- After I told uncle that aunty is not in the bus. I went to cook. The daughter went for choir practice.

- I told uncle that dinner is ready. He told me to have dinner and not go anywhere after that I stayed at home and went to study.

- After studying I fell asleep in the sitting room. After a while I woke up and went back to sleep.

- Later I woke up again when my uncle woke me up to sleep on his bed. I went and I slept on uncles’ bed.

- My uncle came and off the light and asked me to lie on my back so he can lie on top of me.

- I was frightened so I came back and lied down where I was before.

- That was about 4 o’clock the next morning. I can feel pain on my vagina my uncle was licking my vagina and he was putting his finger inside also.

- I was wearing a skirt and a top. My panties were removed.

- I informed one of my auntie’s (Makareta) about the incident.

- Uncle’s daughter did not come home. She stayed at Sunday school at the teachers place.

- My aunty’s husband is the uncle I am talking of.

- I was able to identify the person. It was night and the tubelight outside was on. I could see clearly.

- He was wearing a yellow jersey and brown ¾ pants.

- The uncle is Misiwaini. He is present in court today. (witness pointed out and identified accused in witness box)

- I informed aunty, Makareta and we went to report to Vunidawa Police Post.

- I was medically examined by a Doctor Bakani."

In Cross Examination (Pw-1) (the Complainant) stated the following:

"- accused was wearing a yellow jersey. He wore it whole day.

- Accused was drinking kava by himself.

- The outside light was on. Light inside was off.

- House had no bed rooms. One big room. 2 doors. House has windows.

- Neighboring houses are 4 steps away (distance from witness to the counsel)

- Uncle touched me. I was scared. My heart was pounding.

- I did not run because uncle held me.

- I later went to sleep in the same house.

- I did not leave the house the same day. I left the next day to the neighbors.

- Uncle was there whole night."

On question that, "you could have yelled out?" "I wanted to shout he covered my mouth" when she was further questioned, "you did not mention him covering your mouth in examination in chief?" Pw-1 answered that "the prosecution did not ask me."

The complainants other response to Cross- Examination were as follows:

"- nobody else was home. Uncle did not sleep whole night.

- It is not true he slept at 10pm.

- He woke up at 4 o’clock that night.

- I did not meet someone else.

- I was not seen with another person.

- Its true it was my uncle.

- I have never blamed anyone else for something similar."

In Re-examination PW-1 was asked "Where was uncle drinking kava?" her response was "At home. By himself. Start from 4 o’clock (afternoon) end at 10 o’clock."

The 2nd Prosecution witness was Dr Bakani (PW-2). He took oath on Bible in English. Doctor Bakani’s evidence in chief was as follows:

" – 6 years service as a Doctor.

- Served in Vunidawa last year.

- On 14th July 2008 conducted medical examination on Atelaite Nawa.

- Saw her at 3 o’clock accompanied by police.

- History related was that she felt her uncle lick her private part and insert fingers in her private part.

- Examination- she was shy and hesitant. 9 days after incident. No bruising and abrasion. Vagina/hymen intact incomplete tear in 6 o’clock and 9 o’clock position."

PW-2 identified the medical report of the complainant. Has his signature on pages 2, 3 and 5. It was admitted as Prosecution - Exhibit 1. The Defence did not object to the tendering of the medical report.

In Cross Examination, Dr Bakani’s evidence was as follows:

" – the purpose of the examination was to document injuries.

- Describe if she (complainant) was a virgin.

- The clinical finding is incomplete tear to hymen. I cannot conclude what it was due to.

- History stated 9 days after- assault on 5th July.

- Can happen in cases of horse riding and riding bicycle – hymen will not be totally there.

- History of no other trauma.

- History and findings on victims account. Cannot put accused to the report."

There was no Re-examination of Pw-2.

The Defence did not object to the tendering of the caution interview and the charge sheet of the accused – Exhibit 2.

Defence Case

The Accused (D-1) gave sworn evidence (Bible in Fijian). His evidence in chief was as follows:

" – lived in Lutu for 46 years. Farmer.

- 6th July 2008 I cannot recall.

- 1st Saturday of July can recall.

- Myself, the complainant (Nawa) and my daughter (Makelesi Seru) lived in our house.

- No bedroom in house. 18 x 20 feet. 2 doors in house. One neighbor is close by. 4 metres.

- Movement in house can be heard by neighbors. It was a fine day. I worked in the farm in the morning.

- I returned at 4pm. I had basin of grog. In my house. Grog finished at 10pm. The electricity went out at 10pm. No more power at that time.

- When power went off I went to sleep.

- I saw A N at home before 6pm. She went out. I had told her to study. On that day she did not come back home.

- Nothing happened in the house. I got angry with complainant at 3-4 in the morning.

- I spoke to her she was missing. Before power went off she was in the house. She was missing after 6 pm. I saw her again 3-4 early next morning.

- I slept at 10 pm. No one else was in the house.

- I woke up at 4 o’clock to go to the dairy farm to get milk.

- I saw her outside the house I scolded her (in front of the house)

- I asked her where was she. I told her to wait for me when I return from the dairy farm I will beat her up.

- I did not do anything. This is the 3rd time allegation has been made. She is a complainant in another case."

In Cross Examination the accused stated the following:

"- my daughter was at cousin’s house. Daughter was not at my place.

- At 5pm complainant was home.

- I did not send her to wait for the bus. Wife was in Suva.

- I did not sexually abuse the complainant.

- I did not sexually abuse her at 4am. How can someone do that at that time."

There was no re-examination.

The 2nd defence witness was Jiutasa Nasamila (D-2). D-2 gave sworn evidence (Bible in Fijian). His evidence in chief was:

"- I live in Lutu, Wainibuka. Farmer.

- 6th July 2008 I was in the village at 10-11 at night. Afternoon at home.

- The accused was awake at 10 pm. The accused was drinking grog at 11 pm. When I was in village we had planned to drink grog at accused home. We did not drink grog.

- I think he was awake at that time.

- I heard someone speak loudly in the morning at the accused home.

- Did not see complainant run out of house at any time.

- Did not hear any scuffle or knocking at accused house.

- Accused house is about from the witness box to the main door of court house.

- Did not hear anything."

In Cross Examination, D-2 stated the following:

"- 11 pm accused still drinking grog. Light was on.

- 4 am I was not awake. No idea what happened at that time."

In Re-examination D-2 stated that -"I wear a watch. I did not have watch at that time. Nothing happened that night. If something happened we would know."

The 3rd Defence witness was Timoci Tabuaca (D-3). He took oath on the Bible (Fijian). He gave evidence as follows:

" – live 10 metres away from the accused (distance is about witness box to court entrance door).

- Village quiet at night. Light in village.

- 5th July 2008 – remember.

- 4 am next morning- remember – did not hear any noises. I wake up before 4 am. I did not hear anything."

In Cross Examination, D-3 stated that on "6th July 2008 I was awake at 4 am", "I did not hear anything did not hear accused growl at complainant. I have no idea what happened."

In Re-examination D-3 stated, "I did not see complainant run around screaming. No struggle or bumping."

The Law and the Analysis of the Evidence

The prosecution in this case needed to prove the following elements of indecent assault laid against the accused:

(a) Misiwaini Tabua, (the person in the charge and appearing in court – identification)

(b) assaulted, A N (the complainant), and

(c) the assault was unlawful and indecent, that is morally offensive.

The Court in this case notes the ruling of the Supreme Court in Eliki Mototabua –v- The State, Criminal Appeal No. CAV0004 of 2005S (Date of Judgment 29th February 2008) where Mason, Handley and Weinberg JJ stated (In paragraph 39):

"... First, it has never been the law that actual corroboration is required in cases involving sexual offence. There was only a requirement, at common law, that a warning be given of the dangers of convicting on the uncorroborated evidence of complainant. Second, it has been held by the Court of Appeal that that rule of practice no longer exists in Fiji: See Sereima Balelala –v- The State at p.19."

This Court takes notes of and heed of the comments by the Supreme Court Justices.

One of the elements that the prosecution needed to prove in order to prove its case was the identity of the accused, Misiwaini Tabua. There is no doubt as to this proof of this element as the complainant pointed out the accused in the witness box as Misiwaini Tabua as the one who had indecently assaulted her. The complainant also told the court that when the alleged offence took place the outside lights were on and she could clearly see the accused. The complainant upon questioning by the Doctor when she was examined on 14th July 2008 in response to Q. D (10) of the Fiji Police Force Medical Examination Form stated: "alleged that her uncle Misiwata sexually assaulted her by licking her private part and inserting one of his finger in her vagina..." The accused was clearly identified by the complainant as the one who sexually assaulted her from the light that shone on him from the outside light. She also identified him as the same person who had sexually assaulted her when asked to do so as the accused person (Misiwaini) present in the court. The Court accepts the complainant’s identification as the complainant has lived with the accused for some time and they are related. The accused identity is proved by the complainant. The defence has not cast any doubt as to the identity of the accused.

The Accused in his defence argues that he did not commit the act of indecent assault on the complainant. The Complainant gave vivid account of the allegation of the indecent assault. She stated in Court that on the evening of 5th July 2008 she was alone with her uncle at his home. The Uncle’s daughter went away for choir practice and did not return that night. After studying she fell asleep in the sitting room. Later her uncle woke her up to sleep in his room. She did so. Then her uncle came and off the light and asked her to lie on her back so that he could lie on top of her. She was frightened and moved back to the first place she was sleeping. At about 4am (6th July 2008) she felt pain on her vagina and saw her uncle, the accused licking her vagina and putting his finger in her vagina.

In cross examination the complainant stated that when her uncle touched her she was scared and her heart was pounding. She could not run as her uncle held her. She also told the Court that her uncle did not sleep at 10pm and that she did not meet someone else.

The accused in his defence stated that he had a basin of grog and it finished at 10pm. The electricity went out at 10pm and there was no power. He went to sleep. Before 6pm he saw the complainant and she went out and he had told her to study and she did not return home that night. He denied the incident and stated that at 3-4am in the morning he got angry with the complainant as she was missing.

The accused next states that before power went off she (complainant) was in the house. She was missing after 6 pm. The Court noted the accused stating that power went off at 10pm and the accused stating that before power went off the complainant was in the house. Does this then mean the complainant was in the house before 10pm or before 6 pm which is sometime much earlier than his alleged time that the power went off. This evidence does not tie up as he earlier stated that before 6pm he saw complainant and she went out. This also does not add up with his subsequent evidences. The evidence by the accused that he saw the complainant before 6pm and she went out does not tally as he later states that before power went off the complainant was in the house and the fact according to him that power went out at 10pm would mean she was in the house before 10 pm. The question that comes up is did she go out before 6pm. The contradictory evidence does not assist the accused.

The evidence of D-2, as to the lights in the house D-2, Jiutasa Nasamila was that the accused was awake at 10pm. The accused was drinking grog at 11pm and he thought he was awake at the time. D-2, in cross examination clarified that at 11pm the lights were on in the accused’s house. This witness who is the accused’s witness confirmed in court that light was on at 11pm. The complainant also states that her uncle did not sleep at 10pm. The accused is the only one stating that light went off at 10pm.

The accused in his evidence further stated that when he woke up at 4am he saw the complainant outside and scolded her in front of his house. And he asked her where she was and told her to wait for him when he returned from the dairy farm. The 3rd witness for the accused told the Court that he remembered 4am and he did not hear any noises. He wakes up before 4am. In cross examination he stated that he did not hear accused growl at the complainant. The houses of the accused and the witnesses are about 10 metres apart and yet one witness who was awake states that he did not hear any noises or even the accused scold or tell off the complainant outside his house. The evidence by the accused and his witnesses do not add up and support his allegation that he scolded the victim and that the lights were off at 10pm. In fact his own witnesses have created doubts on his evidence.

This case is one where the credibility of the witnesses is also an issue, whom the court believes. The court does not believe the accused. The Court has noted the demeanor of all the witnesses. The Court finds the Complainant to be truthful. She even stood by her evidence in thorough cross examination and was not discredited. The Court does not believe the accused. He is not telling the truth and the evidence he has given does not add up with his own witnesses and do not support his argument that the light was off at 10pm and that the accused scolded the complaint. D-3 was awake some 10 metres away he did not hear the accused scold the complainant at 4 in the morning. If the accused had scolded the complainant D-3 would surely have heard him. He did not hear anything because no such thing occurred.

The prosecution has proved the elements of the offence in this case beyond reasonable doubt. The court believes the complainants version as to the accused indecently assaulting her as per the charge.

The accused is found guilty of the offence that he is charged with.

Chaitanya Lakshman
Resident Magistrate
NAUSORI

21/08/09