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State v Gounder [2009] FJMC 14; Criminal Case 172.2003 (21 August 2009)

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

Criminal Case No: 172 of 2003

STATE

V

ARMOGAM GOUNDER

BEFORE: Chaitanya Lakshman
RESIDENT MAGISTRATE

For Prosecution: Inspector Ali
Accused: Present
For Accused: Mr. Sunil Kumar

JUDGMENT

Introduction

The accused is charged with Indecent Assault, Contrary to Section 154 (1) of the Penal Code (Cap 17). It is alleged that Armogam Gounder on the 17th day of September 2001 at Manoca, Nausori, in the Central Division, unlawfully and indecently assaulted a woman namely, Marylin Geeta.

At the outset the Court wishes to express its concern with the length of time this case has taken to proceed to hearing. It is saddening to note that an offence committed in 2001 and filed in Court in 2003 proceedings to be heard in 2009. The reasons for these delays are numerous and the court apart from its dismay at the length of the delay does not wish to make any further remarks. However the court urges that all stakeholders to the judicial process properly manage and deal with cases within a reasonable time.

The accused pleaded not guilty to the Charge. 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. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated:"it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ’of course it is possible but not in the least probable,’ the case is proved beyond reasonable doubt, but nothing short of that will suffice."

The elements of the offence that the prosecution is required to prove beyond reasonable doubt are the following:

(a) Armogam Gounder, (the person in the charge and appearing in court – identification)

(b) assaulted, Marilyn Geeta (the complainant), and

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

Prosecution Case

The prosecution in this case called two witnesses. The 1st Prosecution witness was the complainant (P-1), Marilyn Geeta. She gave sworn evidence.

In her examination in chief P-1, she stated the following:

"- recalled staying in Manoca.

- Staying with husband and children.

- Recall neighbours at that time.

- Recalled 27th September 2001.

- Visited someones house at his request.

- Visited Bachu’s house.

- Bachu’s wife, children, step brother, Armogam Goundar and Prema were there.

- I was there for 2-3 hours.

- After that I went home.

- I came out of Bachu’s house with my neighbor Prema.

- I asked Prema to stand for a while and I will open my door.

- I was waking my children up. They did not wake up. I climbed up the steps and pulled up tin to open the door.

- It was on left side of house.

- While I was opening the door something touched my stomach and back.

- I was touched from left side.

- I pulled my hand out and looked. I saw Armogam was standing on the side.

- I jumped down from the step and said what you are doing.

- He started saying that somebody will listen.

- By then my neighbor, Shobna on the kitchen light. She can see my door.

- Armogam was still following me and said quiet, quiet to me.

- Shobna said what happened. I told her and she started swearing at Armogam.

- Armogam stated Bhauji (meaning sister in-law) do not scream.

- It was a moonlight night.

- I was on step. He was down. I turned I saw him."

P-1 pointed out the accused in the witness box as Armogam. She further stated that she knows the accused since 2000 and at the time of the offence knew him for 1 year and that prior to the incident met accused at Bachu’s house. She further stated that she was ashamed of what accused did to her.

In cross examination P-1 response was as follows:

"Q: What time you went to sister in laws place?

A: about 7.30pm

Q: More than 7.30 or below?

A: it was below 7.30pm

Q: You said it was 8pm?

A: when I gave statement everything was fresh.

Q: Where did you go?

A: went to sister in laws place, Shobna."

(Defence Counsel then showed P-1 her statement to the Police, P-1 identified the statement and pointed out her signature)

"Q: You have mentioned Baba in the statement?

A: Armogam Gounders nick name is Baba.

Q: you went for 2-3 hrs and left?

A: yes.

Q: Can you recall the time you left?

A: sometime around 10

Q: Not 11?

A: 10.30 to 10.45

Q: What you were having?

A: Armogam Gounder and Bachu were having spirit. Step Mother and Step Brother were having kava.

Q: In statement to Court you came to steps to wake children up, Prema Waited at the Road?

A: Prema is brother in-law.

Q: You did not tell the Court that light was on in the neighbours kitchen?

A: the kitchen light was on.

Q: this morning you told court you tried to pull tin open?

A: yes

Q: Line 20 in statement, what you said then?

A: It was not the window – the door.

Q: you said you recognize Armogam Gounder, what he was wearing?

A: he was wearing the clothes. Long pants – cannot recall shirt or t/shirt.

Q: Read Line 26 in statement?

A: police asked me what I was wearing.

Q: It was a dark night?

A: it was a moon light.

Q: You are mistaken about Armogam Gounder being present it was someone else?

A: it was Armogam Gounder.

Q: Did your children wake up to let you in?

A: no.

Q: Where did you go?

A: When Shobna swore at Armogam Goundar. I started to talk to her. I opened the door when Shobna was speaking to me.

Q: Armogam Gounder was with your brother in-law?

A: he is lying.

Q: you are mistaken about the identity of the person who touched you?

A: accused was the person

Q: what does your husband do?

A: fisherman. He was not there that day.

There was no re-examination of P-1.

The Prosecution informed the Court that Shobna was summoned but was not present.

The 2nd Prosecution witness was Sergeant 3366 Amelia (PW-2). In her examination in chief, she stated as follows:

"- in 2001 I was dealing with sexual cases.

- I recall being investigating officer in this case.

- I bought accused to court on victim’s statement.

- Shobna gave a statement as well.

- On 17th January 2002 brought the accused for interview.

- Interview was at the crime office in English.

- Answers were given voluntary."

The defence did not dispute the Interview statement of the accused and it was tendered by consent. The record of caution interview of the accused and the charge sheet which were tendered by consent of both the Party’s and were respectively marked and admitted as Exhibits 1 and 2.

In cross examination PW-2 stated the following:

"- I investigated.

- Received complaint on 1st October 2001"

"Q: you took 4 months to get the accused?

A: I had to get other witnesses. Could not get other witnesses."

"– I released accused on 17th January 2002.

- I visited scene 6 months later.

- On 17th July 2002 I charged the accused.

- Bailed on 18th February 2003.

- I gave statement when matter went for hearing."

"Q: Did complainant go to hospital?

A: did not go to hospital."

"-Since it was indecent assault. She was wearing the clothes. She was touched."

"Q: One Armogam Gounder assaulted her and she does not want to be medically examined?

A: She was touched but her clothes were on. I asked for medical examination."

"- I had to ask my superior whether to lay charges or not."

"Q: 5 months gap is unreasonable?

A: It’s reasonable."

There was no re-examination and the prosecution closed its case.

Defence Case

The first witness was the accused (D-1), Armogam Goundar, he took oath on Ramayan. D-1, stated the following in Court:

"- have heard what the complainant said. I do not understand English well.

- She has lied in Court."

In Cross Examination D-1 stated the following:

"- I know the complainant for long. Since I came there.

- I was at Bachu’s house drinking grog not alcohol.

- 3 of us left Bachus house (me, complainant and Prem Narayan). I went home.

- I was not in talking terms with the complainant before the incident.

- When I built my house her husband had trouble from that day we were not talking."

"Q: Marylin Geeta is 28 years old why she would make false allegations?

A: I did not do anything. They want to entrap me. Prem was there. He was 4 metres from the complainant."

There was no re-examination of D-1.

The 2nd defence witness was Prem Narayan (D-2), he took oath on Ramayan. In his examination in chief he stated the following:

"– I know the complainant. She is my sister in-law.

- 12 years in manoca.

- I came to Manoca just before the complainant.

- 22nd September 2001 – the date of the incident. I can recall.

- I went to Bachu’s place.

- Bachu, the accused and myself were there. Drinking kava.

- Finish at about 11.30 – 12 midnight.

- Complainant was there.

- After grog we left.

- I left with the accused and the complainant.

- The complainant told me to stand so she can open the door. I stood in front of door steps.

- I was beside steps. The accused had left. I am sure.

- Nothing happened when complainant was there.

- I left about 10 minutes later.

- She was outside I left."

In cross examination D-2 responded as follows:

"Q: any arguments between complainant and accused?

A: none.

Q: were complainant and accused in talking terms before incident?

A: they were in talking terms.

Q: accused said you were 4 metres away from the step. You stated you were 1 metre away?

A: I rely on what I said.

Q: will you be able to tell what happened after you left?

A: yes."

D-2 further stated:

"– I did not see if the accused came back.

- My wife is Savita not Shobna.

- I do not know Shobna.

- I stayed there for 12 years."

There was no re-examination of D-2.

Closing Submissions

Defence

In closing the defence submitted the following:

"legal burden on prosecution to prove beyond reasonable doubt. All witnesses heard by the court. Police officers acted directly on complainant’s version and 2 months later charged the accused.

The complainant stated the name of Prem Narayan. Prem Narayan was there. Police did not record his statement. The defence witness was with complainant about 1 metre away. Accused stated 4 metres. The complainant stated accused was one metre from her. The complainant evidence is not corroborated. The defence is on balance of probabilities.

The defence witness knows both the complainant and the accused. Prosecution case is weak and has doubts. If one compares the defence is to be believed. Accused must be acquitted."

Prosecution

The prosecution in its submission stated that in "most charged for indecent assault 90% of the time take place in dark. Prosecution relied on evidence of victim. She has proved the act of the accused and identified the accused.

The complainant has proved that prior to the incident the accused was in the same house. The prosecution has proved the elements of the offence of indecent assault. Corroboration is not required in sexual cases."

The Law and the Analysis of the Evidence

Elements of the Offence

The prosecution in this case is required to prove the following elements of indecent assault (as per the charges laid) against the accused:

(a) Armogam Gounder, (the person in the charge and appearing in court – identification)

(b) assaulted, Marilyn Geeta (the complainant), and

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

Indecent assault

The standard definition of an incident assault is found in the English Court of Criminal Appeal decision in Beal v. Kelley (1951) 35 Cr App R 128, where Lord Goddard CJ, speaking for the Court said:

"the definition given in Archbold’s Criminal Pleading ((32nd Ed), p 1067) of an indecent assault is perfectly right; ‘an assault accompanied with circumstances of indecency on the part of the prisoner’, that is to say, indecency offered towards the person alleged to have been assaulted. If a person is assaulted, that is to say, if there is a hostile act with every circumstance of indecency, I cannot see why it is not an indecent assault. If a man assaults a woman, at the same time exposing his person to her, I have no doubt that that is an indecent assault on a female, just as I have no doubt that the conduct of the respondent was an indecent assault."

Element of indecency

For the assault to be indecent it must be accompanied by a circumstance of indecency. Conduct is indecent when it is as such that ordinary people would so describe it, in light of prevailing standards of morality (as per Court [1989] 1 AC 28) and, more specifically, in light of whether the victim has consented to the conduct in question.

In this case it is alleged that the accused touched the stomach and back of the complainant which the complainant was ashamed of and did not like.

The alleged act complained of amounts to indecent assault as the complainant is a married woman and she felt ashamed as according to her the accused touched her stomach and back. It is morally offensive to touch any girl or a woman in the manner as is alleged. The accused is not the husband or an intimate partner of the complainant. The Complainant did not consent to such act as well. The alleged behavior is not an acceptable standard of behavior in our community and such actions amount to indecent assault.

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 with regards to corroboration in sexual cases.

Identification

The Courts notes identification guidelines, as set out in R v Turnbull & Anor [1976] 3 All ER 549 (CA).

This court notes the guidelines set in Turnbull and in particular the following questions: (a) How long did the witness have the accused under observation? (b) At what distance? (c) In what light? (d) Was the observation impeded in any way, as for example by passing traffic or a press of people?) (e)Had the witness ever seen the accused before? (f) How often? (g) If only occasionally, had he/she any special reason for remembering the accused? (h) How long elapsed between the original observation and the subsequent identification to the police? (i) Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

(a) How long did the witness have the accused under observation? While the complainant did not give a specified time period. The complainant gave evidence that "While I was opening the door something touched my stomach and back. I was touched from left side. I pulled my hand out and looked. I saw Armogam was standing on the side. I jumped down from the step and said what you are doing. He started saying that somebody will listen. By then my neighbor, Shobna on the kitchen light. She can see my door. Armogam was still following me and said quiet, quiet to me. Shobna said what happened. I told her and she started swearing at Armogam. Armogam stated Bhauji (meaning sister in-law) do not scream." The Court here notes from the evidence of the complainant that these events would take some time and would surely give the complainant adequate time to observe the accused.

(b) At what distance? According to the complainant the accused was next to her.

(c) In what light? The complainant stated that it was moon light and later she saw the accused from the kitchen light from Shobna’s house.

(d) Was the observation impeded in any way, as for example by passing traffic or a press of people? No. according to the complainant the accused was next to her and in her view. She also saw him as he was following her asking her to be quiet.

(e) Had the witness ever seen the accused before? The accused and the complainant were together that night at the house of one Bachu and according to both of them they returned together from that house.

(f) How often? They were from the same settlement and have lived there for some time. They know each other well.

(g) If only occasionally, had he/she any special reason for remembering the accused? Not applicable.

(h) How long elapsed between the original observation and the subsequent identification to the police? The complainant informed the police on 1st October 2001 that the accused indecently assaulted her. In the hearing some 8 years later she identified and pointed out the accused as the one who had indecently assaulted her.

(i) Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance? There is no material discrepancy.

The Court is satisfied as to the identity of the accused and this element of the offence is proved beyond reasonable doubt by the prosecution.

Credibility of the Witnesses – whom the Court Believes

One of the main issues in this case is the credibility of the witnesses and whom the court believes. The defence has pointed out that there are two versions before the court, the court agrees. The complainant has stated that the accused touched her stomach and back. The accused is denying such act.

The Court noted the demeanor of all the witnesses in this case. The complainant despite the alleged incident occurring close to 8 years ago vividly recalled the incident. She gave her evidence and maintained her composure in cross examination and she was not discredited. She stood by what she alleged occurred that night.

The accused in his cross examination told the court that he was not in talking terms with the complainant before the incident. The Court notes the caution interview which the party’s have tendered with consent. Question 17 was "Do you have any previous problem with Maryline?" The response by the accused is "no, only after the incident than we are not in talking terms." There is clear inconsistency between what the accused told the police after the incident when he was interviewed under caution and what he told the court. In his caution interview in Question 18 he was asked "can you explain as to why Maryline reported against you? If you are telling the truth?" The Accused response was "I know that, that must be something that Maryline and Bachu’s wife (Shobna) talked about, to make that allegation and have me reported to police, since they were suspecting me of giving the information to the police which resulted in Bachu’s arrest for in possession of drugs." In cross examination the accused told the court that "when I built my house her husband had trouble from that day we were not talking. The Court notes that the version he gave to police is different from what he told the court. He has two sets of stories on why the complainant would make such an allegation one he gave to the police and another to the court. These do not tie up and do not assist the accused. The court does not believe the accused. He is not truthful.

The defence witness, Prem Narayan (Prema) in his evidence in cross examination told the court that before the incident the complainant and the accused were in talking terms.

The accused in his caution interview states in response to question 13 stated that only Bachu and Prema took liquor. The defence 2nd witness was Prem Narayan (Prema) he stated in his evidence that he drank kava at Bachu’s house and after grog they left. Prema did not state he drank liquor. This is another inconsistent evidence of the accused and his witness.

The prosecution in cross examination asked Prem Narayan – "will you be able to tell what happened after you left? His response was "yes". The Court does not believe this witness will know if something which happened in his absence. In fact he admits that "he did not see if Armogam Gounder came back". Prem Narayan in fact told the Court that he left and the complainant was still outside.

The other interesting evidence by the accused is the evidence that "Prem was there. He was 4 metres away from the complainant." In stark contrast, Prem Narayan stated in court he was 1 metre away. How would the accused know that Prem Narayan was 4 metres from the complainant when he states that he left for home and he was not there? Even if there is a suggestion that the accused and the complainant discussed the matter they are way off with the distance. But for the accused to state that Prem was there and 4 metres away suggests he was there as well to state that Prem was 4 metres away and Prem could see I did not do anything.

The court does not believe the accused. He is not truthful. His evidence has been discredited in cross examination and his evidence is not reliable. He is not consistent with his statements. He cannot be believed.

The Court believes the complaint and her version.

The court finds Armogam Gounder guilty that he on the 17th day of September 2001 at Manoca, Nausori, in the Central Division, unlawfully and indecently assaulted a woman namely, Marylin Geeta.

Chaitanya Lakshman
Resident Magistrate
NAUSORI

21/08/09