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State v M.A [2018] FJMC 129; Criminal Case 98 of 2016 (26 October 2018)

IN THE MAGISTRATES COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 98 - 2016

STATE

-v-

M. A.

For Prosecution : WPC Chand [ Police Prosecution ]
Accused : Ms Henao [ Legal Aid Commission ]

Trial Date : 9^th October 2018
Date of Judgment : 26^th October 2018

JUDGMENT

BACKGROUND

1. The Defendant is charged with:
   

Statement of Offence

INDECENT ASSAULT: Contrary to section 212 of the Crimes Act 2009.

Particulars of Offence

MA on the 18^th day of April, 2016 at Tavua in the Western Division unlawfully and indecently assaulted the victim.

2. I have redacted the name of the defendant and the victim and generalized some of the information in this Judgment. This is for the benefit of the alleged victim who is a female child.
   
3. I will refer to her hereinafter as the child.
   
4. The defendant initially pleaded guilty and this was on the 12^th of September 2016.
   
5. After discussing his plea with his counsel, he changed his plea to that of ‘not guilty’.
   
6. Later the defence after taking some time to take instructions from the defendant, informed the court that they will not require a voir dire in the case in relation to the police caution interview of the defendant.
   
7. The defence indicated that they will only challenge the police caution interview on the basis that some of the answers were fabricated by the police, specifically the defendant’s answers to question 32 and 33 of his police caution interview.
   
8. The defendant and the victim are related or the defendant is the uncle of the victim and an interim DVRO with standard non-molestation conditions was imposed on the defendant for the protection of the victim. This was done on the 9^th of October 2018.
   
9. The trial or proceeding was held both in open and a closed court setting.
   
10. The court was closed when the child gave evidence and it was open after that to the public when the other witnesses ( all adults ) gave evidence.
    
11. When the child gave evidence, the court ordered that a screen be used.
    
12. This was to shield the child’s view of the defendant when giving evidence.
    
13. The defence were content with this approach when dealing with the child’s evidence and I am grateful to the parties for their sensitivity in an attempt to make the proceedings comfortable to the child witness whilst ensuring a fair trial for the defendant.
    
14. The child’s birth certificate too was tendered by consent and this is Prosecution Exhibit 1 – birth certificate registration number 2941390.
    
15. The child witness’s date of birth is the 8^th of June 2006.
    
16. As usual on the trial date, the prosecution began and called their witnesses.
    

PW1

17. Prosecution witness 1 [ PW1 ] is the child’s mother. I intentionally omit her name and will refer to her as PW1.
    
18. PW1 is the older sister of the defendant.
    
19. Earlier in 2004, the defendant came to live with PW1 and her family.
    
20. PW1 says that on the 18^th of April 2016 at around 8.30pm, she was at home with her daughter or the child. The defendant too was at the house.
    
21. PW1 was watching T.V with her child.
    
22. The defendant then called the child asking her if she could scratch his back.
    
23. PW1 said that the defendant was in the kitchen at the time which is 4 – 5 meters away from where they were watching T.V.
    
24. The child went to the defendant.
    
25. After sometime, PW1 called the child but there was no response.
    
26. PW1 went to check her daughter and when PW1 came to the kitchen, PW1 saw the child lying down on the floor. The defendant was beside the child and he was licking the child’s stomach. PW1 saw that the child’s top was pulled right to the child’s breast.
    
27. PW1 said that she grabbed the defendant’s shirt and told him to leave the house.
    
28. The defendant left the same night and later on the next day, PW1 reported the matter to police.
    
29. When cross examined, PW1 agreed that her relationship with the defendant whilst she was supporting him was both good and bad. They had disagreements sometimes. PW1 found it frustrating at times that the defendant was still staying at her home.
    
30. PW1 says that the defendant was present during the birth of the child and the defendant’s relationship with PW1’s children was good.
    
31. PW1 said that the defendant was licking the child’s stomach by the time PW1 came into the kitchen. The defendant was sitting when doing this.
    
32. PW1 told the defendant to leave and the defendant left that same night.
    
33. PW1 said that she later checked the child’s private parts and PW1 saw nothing abnormal.
    
34. PW1 described that when she asked the child what happened, the child told her that the defendant told her to lie down and not to tell anyone about ‘this’.
    
35. PW1 denied she forced the child to fabricate the allegation. PW1 denied that she fabricated the allegation so as to make the defendant leave the house.
    

PW2

36. This was the child.
    
37. She would be approximately 12 years old when giving evidence.
    
38. She was 10 years old when the incident allegedly happened in April 2016.
    
39. The court conducted a competency test before the child gave evidence.
    
40. The court was satisfied that the child was competent to give evidence and also understood the significance of an oath.
    
41. The child tells me that she is here to tell the court about the incident when the defendant lifted her top.
    
42. The child says that she was watching T.V with her mother.
    
43. The defendant whom the child refers to as ‘Mamu’, told her to scratch his back.
    
44. Mamu told her to lie down, this was in the kitchen.
    
45. Mamu licked her stomach. The child says that Mamu only licked once.
    
46. Then her mother came and scolded mamu. After that Mamu left the house.
    
47. In cross examination, the child agreed that she spoke to her mother about the incident. To the police too.
    
48. The child maintained that the defendant licked her stomach. Mamu used his tongue. The child said that her relationship with Mamu was good.
    

PW3

49. The 3^rd witness for prosecution was WPC 3481 Lusiana Bulivane.
    
50. She is the police investigating officer and she was also the person who interviewed the defendant under caution.
    
51. The police caution interview of the defendant [ written ] was tendered as prosecution EXHIBIT 2.
    
52. In cross examination, PW3 maintained that the answer specifically to questions 32 and 33 were given by the defendant. These answers were not fabricated PW3 said. The defendant signed his interview.
    
53. The impugned questions and answer of the interview are:
    

‘ 32. Why she has lay down?

Ans. So that I can rubbed my tongue.

Q33. Where did you rub your tongue?

Ans. On her stomach. ’

.

54. The prosecution closed their case thereafter.
    
55. The court found that there was a case to answer.
    
56. The court then explained to the defendant his options.
    
57. The proceedings was paused to allow time to the defendant to think about this options as he appeared to be unsure and after some time was given, he maintained that he will not give evidence or will remain silent. His counsel also spoke to him.
    
58. I defendant has exercised his right and I make no negative inference regarding the exercise of his right to remain silent.
    

ANALYSIS

Burden and Standard of Proof

59. I remind myself that the defendant is presumed innocent until proven guilty.
    
60. The prosecution carries the burden of proving his guilt.
    
61. I remind myself that I must be convinced beyond a reasonable doubt that the defendant committed the offence before I find him guilty. Only until I am sure he committed the offence, should he then be found guilty.
    

Elements Of the Offence

62. The elements for indecent assault, all of which the prosecution must make me sure of are:
    
    1. The defendant;
       
    2. Unlawfully and indecently
       
    3. Assaulted;
       
    4. The victim
       
63. Unlawful is anything that is without justification.
    
64. An assault is an act which intentionally or recklessly causes someone else to apprehend immediate and unlawful personal violence [ Fagan v Metropolitan Police Commissioner [ 1968 ] 3 All E.R 442 ] .
    
65. What is indecent I would think is relative or depends on factors such as the act itself, the context in which it was done, the relationship of the parties amongst other factors and whether the factors would lead a right thinking person to conclude that it was indecent.
    
66. Massaging or squeezing the breast of an adult female who is a stranger, will most likely be considered indecent by a right thinking person [ Sharma v State [2009] FJHC 288; HAM011.2009 ( 2 February 2009 ) ] .
    
67. If for instance that act was done on a consenting adult, then one would think that it is not indecent.
    
68. It is not a defence to committing the act of indecency if a child under 16 years is involved and that the defendant had reasonable cause to believe and did in fact believe that the person was not a child.
    
69. The issue in relation to the caution interview is that the impugned answers to question 31 and 32 was fabricated by the interviewing officer or forged.
    
70. If forgery or fabrication is alleged, it is not a case of voluntariness being questioned and therefore there is no need to have a voir dire hearing to determine the admissibility or voluntariness of the interview [ Ro Olivini Radininausori v The State Criminal Appeal No. AAU015 of 2007 ( 26^th November 2010 ) ].
    
71. Tactically the defence can choose to challenge fabrication or forgery of the interview or some portion of it during the trial proper, which is the case here.
    
72. In relation to the interview, I will have to determine whether:
    
    1. The answers in the defendant’s interview, particularly impugned answers to question 32 and 33, was given by the defendant or not fabricated by the police;
       
    2. If it was given by the defendant, then I have to consider whether the answers are true.
       

Findings

73. The prosecution’s case rests on 3 pieces of evidence.
    
74. The evidence of PW1 the mother of the victim who claimed to see the defendant licking her daughter’s stomach.
    
75. The evidence of PW2 the child who told us that the defendant licked her stomach.
    
76. The defendant’s own police caution interview where he purportedly admitted to police that he licked the child’s stomach. He also added that it happened ‘all of a sudden’.
    
77. If I accept at least one of this piece of evidence, then one might think that the charge is made out.
    
78. Having listened and observed both PW1 and PW2 or the child, I am convinced that they were telling me the truth about what happened on that day.
    
79. I am not inclined to accept that PW1 was fabricating this story so that the defendant could be forced to leave their house. Even PW1 chased the defendant out of the house before the police report was made.
    
80. PW1 and her husband brought the defendant into their home and they could also tell him to leave.
    
81. I accept that PW1 made the complaint to police the following day. Her report was contemporaneous and it is indicative of her feelings of being upset with the defendant because of what the defendant did.
    
82. More importantly, I was particularly impressed with the evidence of PW2 the child. I accept that she was forthright. I do not accept that she has been coached to come and give her evidence.
    
83. For instance, nowhere in the evidence will it be found that the child victim said that she apprehended or feared immediate unlawful personal violence or something to that effect.
    
84. She is a child and I don’t expect her to say that.
    
85. If she did, I would strongly suspect that she has been coached.
    
86. I can fathom whether there was an apprehension of violence by taking into account her age, the place where the act was done, the act itself, the relationship to the defendant amongst other factors.
    
87. I infer that she would have apprehended that something bad or wrong was going on.
    
88. She is young.
    
89. She was told to lie down on the kitchen floor.
    
90. She didn’t answer her mother’s call.
    
91. She was told by the defendant not to tell the mother.
    
92. The defendant is in a position of authority in relation to her or is her uncle.
    
93. I find that there was an assault here.
    
94. The parties too are known to each other and so identification is a non-issue.
    
95. I accept too that the act done of licking the victim’s stomach was indecent and any right thinking person would think that.
    
96. The defendant too since he was there at the time of the child’s birth or is close to the family would have known that the child was under 16 years old at the time.
    
97. This defence is not available to the defendant in this case.
    
98. In fact, his defence is that the act of licking the child’s stomach did not happen.
    
99. I have listened and observed the interviewing officer PW3. I have read the police caution interview.
    
100. I am satisfied with PW3’s evidence.
     
101. I believe PW3 the interviewing officer that the impugned answers in the caution interview belongs to the defendant and that he gave them voluntarily and this were his answers.
     
102. I believe that the defendant told the police the truth as reflected particularly in his answers to question 32 and 33.
     
103. I accept all 3 of the prosecution’s pieces of evidence.
     
104. All the elements of the offence are proven beyond a reasonable doubt.
     
105. I am sure that the defendant committed the offence.
     

CONCLUSION

106. For the reasons I have outlined above, I find the defendant guilty of the offence of indecently assaulting the victim.
     

_____________________
LISIATE T.V FOTOFILI
Resident Magistrate

At Tavua this 26^th day of October, 2018.