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State v Tukana [2018] FJMC 87; Criminal Case 183 of 2017 (28 September 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: 183/2017

STATE
V
WILLIE TUKANA

For the Prosecution: Sgt.Shalend
For the Accused: Ms.Tuiloma(LAC)
Date of Hearing: 26^th of September 2018
Date of Judgment: 28^th of September 2018
(Since the victim is a juvenile her name is suppressed and identified as Ms.LB)

JUDGMENT

1. The accused was initially charged with one count of Rape contrary to section 207(1) Crimes Act No 44 of 2009(“Crimes Act’) and 2 counts of Indecent Assault contrary to section 212(1) of the Crimes Act .
2. In the High Court the State filed an amended information on 03^rd May 2017 charging the accused for one count of Sexual Assault contrary to section 210(1) (a) of the Crimes Act and 2 counts of Indecent Assault contrary to section 212(1) of the Crimes Act . The particulars of the offences are as follows :

Count 1 (Sexual Assault)

WILLIE TUKANA between 27th day of February to the 15th day of March, 2017 at Davuilevu, Nausori, in the Central Division, unlawfully and indecently assaulted Ms.LB by touching her vagina with his hand.

Count.2 (Indecent Assault)

WILLIE TUKANA between 27th day of February to the 15th day of March, 2017 at Davuilevu, Nausori, in the Central Division, unlawfully and indecently assaulted Ms.LB, by touching her thigh with his hand.

Count.3 (Indecent Assault)

WILLIE TUKANA between 27th day of February to the 15th day of March, 2017 at Davuilevu, Nausori, in the Central Division, unlawfully and indecently assaulted Ms.LB , by touching her breast and kissing her on the mouth.

3. The accused elected the Magistrate court and the case was remitted back to this court. The accused pleaded not guilty wherefore this proceeded for the hearing.
4. The Prosecution called 03 witnesses and for the defence the accused gave evidence. At the conclusion of the hearing only the defence made closing address which I have considered for this judgment.
5. PW1 was Ms.LB, the victim in this case. On 2014 she was in Form 4 in Lelean Memorial School,Nausori and the accused was training her for athletics there . He said he wanted to be her personal trainer and asked her to meet him in the evening. When she said it was too late he asked her to meet him on the next date. On that day she met him in his workshop and he took her to store room there. He told her to stretch her legs and was massaging her thigh and asked her to take off her panty. When she pulled it down he started touching her vagina and put his hand inside. When she told him to stop that he said he wanted to finish it. After that she came out from the room. He gave her $2.00 and a bangle that he confiscated from a student. Next week Tuesday he again asked her to come to the room and started touching her private part after pulling down the panty. He also touched her breast and kissed her. She thought it was part of training. She informed about these to her friends and also medically examined. PW1 also identified the accused in the court.
6. During cross-examination she said these happened twice and the first time the accused asked her to stretch the legs, pulled the panty down and touched her vagina. She was asked about her police statement where she said she was having menses and he was trying to touch her panty. She did not report to students or principle about the 1^st incident. Second day also there was physical contact and the store room did not have windows and no one can see what was happening inside.
7. During re-examination the witness confirmed that the accused was touching her vagina and she mentioned that to the police. He inserted fingers inside her vagina and at that time she was 14 years old. She informed all these to her friends.
8. PW2 was Ms.SR the friend of the victim. She was also in the school at that time and PW1 told her that the accused called her to store room, asked her to take off the panty and inserted the fingers inside the vagina. He also kissed her. During cross-examination also she maintained this version.
9. PW3 was Dr. Alivera , who examined the victim on 23^rd March 2017 .The victim told her one Tukana sexually assaulted her. There were no injuries on hymen or vagina. PW3 could have noticed them if she examined her soon after the incident. She also marked the medical report as PE2.
10. During cross-examination the doctor said the victim related that Tukana touched her panty and inserted fingers inside the vagina.
11. The prosecution also marked the caution statement of the accused as PE1.
12. The accused in his evidence denied committing these offences. He was a teacher of Lelean memorial school and also a coach of the athletic team. He saw PW1 running in the road and noticed that her technique was not good. Next morning he asked her to come to his work shop and told her put her leg in the table. With her permission he touched her thigh and was trying to show the correct position. He did not reach under her clothes, took out her panty and touch her vagina. After that she left. Again few days later she came to the work shop and they had discussion about her not attending the school. There was no physical contact at that time and she left after that.
13. During cross-examination the accused said he was trying to correct her style because she was a gold medal prospect for the school in athletics. There was a playground but he used the work place for demonstration. He only touched her hips and she stole $2.00 from his table. He gave her a bangle because she was asking for it. It was confiscated from a student earlier.
14. In closing address the counsel for the accused said there were numerous contradictions of her evidence and her police statement as well as history given to the doctor and based on that there is reasonable doubt about the prosecution case. Accordingly the defence asked this court to acquit the accused from all these counts.
15. 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).

16. The accused was charged with one count of Sexual Assault contrary to section 210(1) (a) of the and 2 counts of Indecent Assault contrary to section 212(1) of the Crimes Act .
17. Hence the Prosecution has to prove beyond reasonable doubt the following elements:

1^st counts (Sexual Assault)

i) The accused;

ii) Between 27^th February to 15^th March 2017;

iii) Unlawfully and indecently assaulted PW1 by touching her vagina with his hand.

2^nd count

i) The accused;

ii) Between 27th February to 15th March 2017;

iii) Unlawfully and indecently assaulted PW1 by touching her thigh.

3^rd count

i) The accused;

ii) Between 27th February to 15th March 2017;

iii) Unlawfully and indecently assaulted PW1 by touching her breasts and kissing her mouth.

16. From the evidence there is no dispute about the identity of the accused and he also admitted with the permission of PW1 he was touching her hips. But he denied other incidents.
17. Presently these is no need to corroborate the evidence of a complainant in a sexual offences (section 129 of the Criminal Procedure Act). Hence if the court is satisfied about the testimony of the victim based solely on that the accused can be convicted in this case.
18. The main witness for the prosecution is the victim. She has clearly said on the first day the accused called her to the store room and was touching her thigh. She also demonstrated how he was doing that which shows he was in fact trying to touch near her private part. After that he asked her to remove the panty and inserted his hand inside her vagina and also touched that place.
19. On the second occasion also he committed the same thing and in addition he touched her breast and kissed her.
20. I accept the victim as honest and reliable witness. She has given consistent evidence. Even though the counsel for the accused submitted that there were contradictions of her testimony and out of court statements (police statement and the medical report) I do not find anything like that manner.
21. In her police statement even though on the first occasion she was mentioning about having menses and the accused was touching her panty it was also shown that it contained a part where she said the accused touched her vagina and inserted fingers inside. She said the same thing to the doctor.
22. She also informed about all these to her friend soon after this incident and this friend (PW2) has given evidence about that. This evidence can be categorized as a ‘recent complaint’.
23. In Conibeer v State [2017] FJCA 135; AAU0074.2013 (30 November 2017) his Lordship Justice Goundar said

“ As a general rule, a prior consistent statement of a witness is inadmissible evidence. However, there are many exceptions to this rule. One of the exceptions to the rule is in sexual cases. In sexual cases, the evidence a recent complaint of the sexual assault made to another person by the complainant is allowed to show the consistency of the conduct of the complainant and to negative consent (Peniasi Senikarawa v The State unreported Cr App No AAU0005 of 2004S; 24 march 2006). The relevance of the evidence was explained by the Supreme Court in Anand Abhay Raj v The State unreported Cr App No CAV0003 of 2014; 20 August 2014 at [38]:

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.”

24. Accordingly I find this recent complaint shows the consistency of the victim’s evidence and supporting her credibility.
25. The medical report is not showing any injuries in victim’s private part. But she was examined 08 days after the second incident and the doctor has confirmed to this court by that time the injuries would have healed.
26. The accused admitted that there was a playground in the school. But he was trying to show the running style to the victim in his work shop. Even though the defence was trying to show this was an open place access to all, the victim said these incident happened inside the store room and there were no windows to that place. No one can see what was happening there.
27. The accused also admitted that he gave a confiscated bracelet to the victim. Even though he said this was given because she was asking, I find he was trying to bribe her by giving this bracelet and also giving her $2.00 for what he committed on her. I do not accept the victim stole that money and he did not also mentioned about this stealing in his caution interview.
28. Having considered all the evidence and demeanor of witnesses, I accept the version of victim in this case. I reject the evidence of the accused.
29. Accordingly I find the prosecution has proved beyond reasonable doubt that the accused sexually assaulted the victim by touching her vagina. He also touched her breast and kissed her and also touched her thigh in unlawful and indecent manner.
30. I find the accused guilty and convict him for all these counts.
31. 30 days to appeal to the Court of Appeal.

Shageeth Somaratne

Resident Magistrate