Mr. P. Petaia for the Direof Public Prosecutions
Mr. H. Robinson for the Respondepondent
JUDGMENT
On the 15th of July 1997 the respondent was acquitted by the resident magistrate sitting at Taveuni on a charge of Wrongful Confinement (Count 1) and Indecent Assault (Count 2). The respondent had pleaded not guilty to both counts and had testified on oath at his trial.
The prosecution's case was that on the day in question the respondent had given the complainant a lift in a taxi that he was driving.
He had then driven the complainant to various places including Nagara, Bucalevu and then Waitavala where the alleged indecent assault occurred. Thereafter the prosecution claims the complainant was wrongfully confined in the respondent's
taxi until she jumped out in a desperate escape.
The respondent's evidence on the other hand was that he had given the complainant a ride in his taxi and it was she who had made sexual
overtures towards him. He had then driven to various places and finally as he was heading to Soqulu, the complainant jumped out of the taxi before he could bring it to a stop. He denied indecently touching the complainant or wrongfully
confining her in his taxi against her will.
In acquitting the respondent on the Unlawful Confinement count, the trial magistrate wrote in his judgment (at p.99 of the record):
"Considering all the evidence adduced in the case both by the prosecution and defence, this Court cannot come to the conclusion
that the complainant had been under any restraint or in wrongful confinement at any time she was with the accused either before boarding
the taxi or while being inside the taxi."
As for the second count of Indecent Assault the trial magistrate said (at p.105 of the record):
"When one considers the willingness with which she had boarded the taxi and had continued to travel in it without any attempt
to get away when she had so many chances of getting away, a reasonable doubt arises as to whether the indecent acts she is complaining
of had actually been committed or not."
and later at p.107 he states:
"... the factors I had dealt with regarding the first count of wrongful confinement make it dangerous for this court to act on
the uncorroborated evidence of the complainant in respect of the second count of indecent assault."
The Director of Public Prosecutions not satisfied with the result, appeals against the acquittals on the following grounds:
"(a) the learned trial Magistrate ("LTM") erred in fact and in law in acquitting the Respondent when the evidence adduced
by the applicant proved beyond reasonable doubt the guilt of the Respondent on both charges.
(b) the LTM erred in fact and law by finding that the voluntary boarding by the victim of the Respondent's vehicle cannot result in
Wrongful Confinement as provided for by section 256, Penal Code, cap. 17.
(c) The LTM was influenced in his findings of the facts because he blamed the victims choice to accept a ride in the Respondents car,
when she could have walked to her destination.
(d) The LTM erred in fact and in law by not directing himself as to the ingredients of the offence of wrongful confinement, thereby
failing to realise the point in time when the victim knew she was being illegally confined against her will inside the Respondent's
car.
(e) The LTM was mistaken in fact by not realising that the victim became wrongfully confined only after she was indecently assaulted
by the Respondent.
(f) The LTM improperly directed himself on the law as to the ingredients of the offence of Indecent Assault, contrary to section 154
Penal Code, Cap 17, thus concluding that there was no act of indecent assault.
(g) The LTM erred in law by casting doubt on an act of indecent assault taking place because he did not find wrongful confinement
proved, when the latter was arrived at on a wrong evidential basis.
(h) The LTM erred in law when he purported to treat Wrongful Confinement as an element of the offence of Indecent Assault, when he
could have viewed that proof of the indecent assault on the victim was prima facie evidence of the motive for the Wrongful confinement.
(i) The LTM erred in law when he held that convicting on the uncorroborated evidence of indecent assault was dangerous in the light
of an unproven wrongful confinement, when the two offences were distinct and operated separately from each other, thereby failing
to realise the available corroborative evidence.
(j) The LTM was wrong in fact regarding the material times of the offendings, thus exacerbating his negative impression of the victim
not taking advantage of the numerous opportunities to escape, and thereby failing to realise her genuine efforts to do so."
At the hearing of the appeal, State Counsel condensed the grounds into four (4) groups as follows: (1) Ground (a); (2) Grounds (b) to (e) which relates to the count of Wrongful Confinement; (3) Grounds (f) to (i) which relates to the second count of Indecent Assault; and (4) Ground (j) which generally relates to the trial magistrate's observations as to the numerous opportunities that the complainant had to escape
from the respondent's taxi during the course of the journey.
Unfortunately neither the appeal grounds or the four groupings were addressed seriatim during argument and I therefore propose to
adopt a similar approach in this judgment highlighting where relevant, State Counsel's principal submissions.
As to Ground (a) I make the general observation that it tantamounts to saying that the verdicts were against the weight of the evidence and in order
to succeed upon such a ground the appellant must clearly demonstrate that there was no evidence on which the trial magistrate could
have reached the conclusion which he did reach if he had properly directed himself.
The second observation I would make is that on an appeal on facts such as in the present case, the appeal is bound to fail unless
the appellate Court finds that the trial magistrate's conclusions which includes the inferences he draws from accepted evidence was
clearly and plainly wrong.
I turn next to consider Groupings (2) & (3) in relation to which State Counsel stressed that both offences occurred at or after the respondent's taxi stopped at a place called Waitavala and not before then. Indeed 'Waitavala' is the place where the offences are alleged to have been committed as set out in the Particulars of Offence and any consideration of events prior to that are only marginally relevant as being part of the res gestae 'so-to-speak'.
In particular State Counsel forcefully submits that:
"the unlawful confinement occurred after the indecent assault at Waitavala and not before. It was at that point that complainant's
consent was withdrawn from further travelling in the respondent's taxi. After this point in time the consent element no longer existed'
and counsel submits that the trial magistrate was unduly and improperly concerned with events prior to Waitavala and misdirected himself as to the weight to be attached to them in assessing the complainant's credibility.
I cannot agree. Even accepting that both offences are alleged to have occurred 'at Waitavala', that does not mean that the complainant's credibility must be necessarily confined to events that occurred only at that locality
and no where else.
A witness's credibility is incapable of such precise limitation or measurement and is based inevitably on a
general ssion gleaneleaned from his/her entire evidence and demeanour in the witness box.
As was said by the learned authors of Archbolds Criminal Pleadings Evidence and Practice (39th edn) at paras. 532 and 532a:
"The credibility of a witness depends upon (1) his knowledge of the facts to which he testifies; (2) his disinterestedness; (3)
his integrity; (4) his veracity; and (5) his being bound to speak the truth by such an oath as he deems obligatory ...
In addition to questions concerning a witnesses means of knowledge, opportunity of observation, reasons for recollection or belief,
a witness may be asked questions about his antecedents, associations or mode of life which although irrelevant to the issue would
be likely to discredit his testimony."
The essence of the offence of Wrongful Confinement is the unlawful restraint of a persons movement against his/her will. This may occur by direct physical means applied to the person,
or indirectly, by rendering escape impossible or highly dangerous, such as, by driving a vehicle in which the complainant is an unwilling
passenger at high speed.
It is this latter method that the prosecution alleges was used by the respondent to wrongfully confine the complainant in his taxi
after it left Waitavala and the mere fact that the complainant sustained only minor superficial injuries when she jumped from the moving taxi is sheer 'good fortune'.
The trial magistrate was of the view however that the nature and extent of the complainant's injuries was more consistent with the
respondent's version which was that the complainant had hurriedly got off the taxi by mistake or carelessly before he had brought
it to a complete stop.
Did the trial magistrate err in his view? Plainly he did not. It was in my opinion a reasonable view open to him on the basis of the
evidence led in the case.
Similarly the trial magistrate was entitled to draw adverse inferences based on the complainant's 'reason' for not even attempting to escape at Waitavala viz.: unfamiliarity with surroundings and not lack of opportunity, after the indecent assault is alleged to have occurred and where she could have done 'so without risking any danger to her life and limb'.
In this latter regard it is not seriously disputed that the complainant had no less than three (3) clear opportunities to escape from the respondent's taxi prior to and at Waitavala and a further opportunity to attract the attention of a passing police vehicle to her plight.
As for the charge of Indecent Assault, State Counsel forcefully submits that the trial magistrate 'misread the complainant's evidence as to the events at Bucalevu where no touching occurred' and where it is common ground, the complainant had at the respondent's request, merely changed seats from the back to the front passenger
seat. In the result there was no 'discrepancy' in the complainant's evidence and the trial magistrate erred in so finding.
Having considered the certified transcript of the complainant's evidence at p.31 of the record I am satisfied that Counsel's submission is strictly correct albeit that an understandable mistake was made by the trial magistrate having regard to the way in which the evidence in that regard was
elicited from the complainant as recorded by the trial magistrate. In any event the trial magistrate in his judgment treated the
'discrepancy' as being material to the question of her wrongful confinement 'as she could have easily get away if he had molested her at Bucalevu junction ...'.
Be that as it may the trial magistrate was plainly aware that the respondent had denied on oath that he had touched the complainant
at any time and faced with the uncorroborated testimony of the complainant, the trial magistrate was clearly left with a reasonable
doubt 'as to whether the indecent acts she (was) complaining of had actually been committed or not'.
This was clearly a case which depended almost entirely on the view that the trial magistrate took as to the conflicting evidence of
the complainant and the accused based in large measure upon his assessment of their respective credibility and bearing in mind that
the burden of proof in a criminal trial remains throughout on the prosecution to prove each and every ingredient of the offence charged
beyond a reasonable doubt.
In dealing with an appeal from such a case it has been said time and time again that an appellate court will not interfere with the
magistrate's findings of facts based solely or mainly on an assessment of the credibility of witnesses; and, convincing and compelling
reasons must be shown before an appellate court will feel justified in differing from the magistrate's findings.
In this appeal after careful consideration of the evidence led in the trial, the trial magistrate's judgment and State Counsel's comprehensive submissions, I remain unconvinced that the trial magistrate's assessment of the complainant's credibility was insupportable,
biased or erroneous.
The appeal is accordingly dismissed.
D.V. Fatiaki
JUDGE
At Labasa,
26th October, 1998
Haa0073j.97b
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