IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 519/09

BETWEEN

THE STATE

AND

ANU RAM

JUDGEMENT

1.	The accused is charged with one count of attempted rape. The statement of offence and the particulars of offence are as follows;

Statement of offence

Attempted rape; contrary to Section 151 of the Penal

Particulars of offence

Anu Ram s/o Hanu Manthu on the 3rd day of November, 2009 at Lautoka in the western Division, attempted to rape, the victim.

BACK GROUND

2.	The victim is a school girl and the accused was a teacher of the same school. The victim is 18 years and the accused is 41 years when they gave evidence. The alleged incident took place on the 3rd November 2009. The accused was charged on the 9th November 2009. The case was taken up for hearing on the 04th May 2010.

3.	The prosecution called four witnesses. After the prosecution case the prosecutor submitted that the court can convict the accused for a lessor offence under Section 162 of the Criminal Procedure Decree. The defence counsel informed court that he was intending to make submission on no case to answer. But he said since the prosecution informed about a lessor offence, he will not make submissions on no case to answer. 

4.	The court held that there is a case for the accused to reply and the accused gave evidence. No other witnesses were called for the defence. 

5.	Since the victim is a young girl, I decide to suppress the names of the victim and the other relevant witnesses in order to conceal the identity of the victim.

THE LAW

6.	Section 151 of the Penal Code reads as follows;

"Any person who attempts to commit rape is guilty of a felony, and is liable to imprisonment for ten years"

7.	Section 149 of the Penal code describes the offence of rape in the following manner;

"Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape."

8.	Section 380 of the Penal Code defines attempt as follows;

"When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. 

It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence." 

ANALYSIS

9.	The victim said that the accused was her master since 2008, when she was studying at Jasper William High School. She said that on the 3rd November 2009 the accused came and picked her from her home to go for night classes at school. The victim said that after the night classes, the accused came and picked her up from school around 9 pm. She gave the following evidence regarding the alleged incident.

"I sat on the front seat. When we passed Natacowaqa Police Post he started touching my thighs. Then when we reached Natabua Police Post he did not turn to my road to my house and he went straight. He said he will turn from the front and drop me. He went right up to Saru. Its distance is like from here to Lautoka hospital. He parked the car. There were no houses or street lights. He locked the doors. He locked all the doors from his side. He forced me by pulling me to kiss him. Then I refused. Then he pulled put his penis. Then he wanted to have oral sex with me. He pulled me and pushed down my head towards his penis. Then I pushed him away. When I pushed him he started putting his hand into my vagina. He said if I don't want to be with him whether he can lick my vagina. I was so frightened. I could not believe he would do like that being my master. I said no. He was still putting his hand in my vagina. I was wearing a T shirt and a basket ball short with a sulu. I told him to stop and drop me off if not I will tell my father because he is an army officer. He started the car and he told me not to tell any one. He came and dropped me at home."

10.	The defence counsel cross examined the victim at length. Following are some excerpts relevant to this case;

Q:	The story that the accused touched your thighs and he asked to have oral sex is a lie?
A:	If it is a lie why does he have to come home and ask for forgiveness.

Q:	If this incident is true you would have been scared and frightened?
A:	Yes

Q:	Yet when you went home your mother asked you as to why you were late?
A:	No

Q:	She did ask?
A:	No

Q:	Your answer was that computer classes took long?
A:	No

Q:	You had dinner?
A:	No

Q:	You did not complain about the accused?
A:	No

11.	The victim admitted that she did not complain to her mother father or the 14 year old brother. She further admitted that she did not complain it to her teacher or to the headmistress. But she said on the 4th she told it to one of her friends, named "T". When the defence counsel asked her as to why she did not say that in examination in chief, she said that the prosecutor did not ask what happened on the 4th. The victim said that she told it to a friend named "S" on the 5th.

12.	The victim was further cross examined in the following manner;

"Q:	The accused did not pull your head towards his penis, he did not ask to lick your vagina or did not put his hand in to your private parts?
A:	He did all that. If he did not do that why did he come asking for forgiveness?

Q:	These days your father being a military officer the accused thought he would be beaten up. What is your fathers rank?
A:	I don't know.

Q:	When this came to your father's attention was he furious?
A:	Yes

Q:	And his words if you remember correctly Matenikaindia, meaning kill the Indians?
A:	No

Q:	Isn't it true that your father was going to beat him up at the army camp?
A:	Yes but he didn't.

Q:	You kissed him on his cheeks and said good night?
A:	No."

13.	In re examination the victim said;

"The accused came home to ask for forgiveness. He came on Saturday after the matter was reported. He came four times to ask for forgiveness. Last time he came to my house for this, is last month. My father told me that he will beat him up. But he did not do that. He said so, soon after the incident."

14.	It should be noted that the victim gave evidence with lot of confidence and clarity. It appeared that she did not want to suppress anything at anytime. She answered the questions put by the defence in a very convincing manner. She was not hesitant or confused when she gave evidence. Although she was cross examined at length, her credibility could not be challenged at any time. I am satisfied that the victim's credibility remained intact right through out. 

15.	The other witnesses of the prosecution corroborated her evidence. The prosecution called one "S. B." to give evidence and she said that on the 5th November 2009 the victim and another friend of her came to stay at her place after classes. She said they came to stay at her place as their houses are far from her school. She said the victim told her what happened on Tuesday between the victim and Master Ram. The witness identified the accused as Master Ram. The witness said that when the victim was telling her what the accused did to her, the victim was emotional and was shaking. The witness said she told her mother about the incident and later they went to sleep. She further said that her mother called the victim's parents in the morning. This witness was cross examined by the defence. She admitted she made the statement to the police on the 6th Saturday. Further she answered in the following manner during the cross examination;

Q:	Two of you were in the same form?
A:	yes

Q:	you don't have any idea about what happened on 4th?
A;	yes

Q:	Even on the 5th before you came home you did not notice anything?
A:	she was quite and didn't talk much.

Q:	On the 5th you played basketball?
A:	yes.

16.	In re examination the witness, "S. B." said that the victim was quite and staring in to the thin air. She further said that;

"Prior to this incident she was playful. I asked her while we are having dinner for her change. I was concerned she is my friend. She cried the whole night."

17.	"S. B.'s" mother "F. N." gave evidence and confirmed that upon being told by her daughter and later by the victim, she called the victim's father and informed him about the incident.

18.	The victim's father, "S. M." was called by the prosecution. He said that he received a call from "S.'s" mother and he was told what master Ram did to his daughter. He said he went to see the principal with his wife and later he complained about the incident to the police. When the victim gave evidence the defence suggested that these days her father being a military officer the accused thought he would be beaten up and suggested that her father was telling about killing Indians. But none of those suggestions were put to the victim's father by the defence. It appears that if such things were done or said by the victim's father, he is the best person to be cross examined about such things. But since the defence was silent about those issues during the cross examination, I decide that those are baseless and frivolous allegations put forward by the defence just to give a racial coating to this incident. Further I am satisfied that there was no threat or fear caused by the victim's father as claimed by the defence. Although the defence referred to the victim's father as a military officer, it was revealed that he is only a private in the army.

19.	WPC Akisi Waqatairewa was called by the prosecution and she said that she conducted the caution interview of the accused. The caution interview was tendered as exhibit 1. She further said that she did a second interview when it was reported that the accused took a bundle of grog to the victim's house. The second caution interview was tendered as Exhibit 2. The witness produced and identified a parcel of grog as what was given to the victim's family by the accused. The Police witness was not cross examined by the defence.

20.	The first caution interview is recorded on the 7th November 2009 at 12.11 pm. The accused has denied the allegations by the victim. However following are some excerpts from the caution interview;

Q:	Did you take her anywhere before dropping her home?
A:	she insisted for a ride.

Q:	why did you take the victim for a ride when you a school teacher and a father of two children?
A:	She told me that she did not want to go home that time. She wants to be dropped after 5 minutes.

Q:	Where did you take her for a car ride?
A:	Up to Saru road

Q:	did you park your vehicle somewhere at Saru road?
A:	No

21.	Another caution interview of the accused is recorded on the same day at 4.45 pm for taking grog to the victim's house. The accused had said that he went to ask for forgiveness for picking, dropping, kissing her and taking for a ride. He had further said that the victim, her mother and father were there at home with another two ladies when he went with grog.

22.	After the prosecution case the accused gave evidence. He admitted that on the 3rd November 2009 he picked and later dropped the victim. However the accused denied doing any of the acts alleged by the victim. He said that when he was going to drop her back they saw some Fijian boys walking down the street. He said when he was slowing down the vehicle, the victim insisted him to keep driving. He said he went about ½ km and turned and came back. He said then he dropped the victim. 

23.	The prosecution cross examined the accused extensively. The accused said during the cross examination that he had to take the victim bit further because of the Fijian boys on the road. How ever it appears that this position is contradictory to what the accused said in the caution interview. At the caution interview he did not mention anything about Fijian boys and he had said that he took her further since the victim didn't want to go home and since she wanted to go for a ride.

24.	The accused said during the examination in chief that he got to know on Saturday morning that complaint is made to the school against him and he went to the victim's house with some grog. He said that he wanted to apologize for dropping her and for exchanging kisses. The accused said he thought that the victim's father will beat him up since he is a military man and that's the reason why he took grog. However it should be noted that during the caution interview the accused did not mention such a reason for taking grog. Instead he had said that his intention was to ask for forgiveness for picking, dropping, kissing her and taking for a ride.

25.	The accused said that the victim kissed him from the passenger side window after getting down from the car. He said he also kissed her. The accused gave evidence on this issue in the following manner;

"When I stopped the car she kissed me from the window and I kissed her back as a sign of a good bye. I did not stop on the way and did anything to her."

26.	 The prosecution disputed this and cross examined the accused in the following manner to show the court that it is quite improbable for a person who got down from a car to put her head inside the window and kiss a person on the driving seat;

Q:	In your guidelines as a teacher are supposed to get in to a physical contact? Are you allowed to kiss students?
A:	We don't see anything wrong. Its the culture. We hug and kiss children at school.

Q:	Where did she kiss?
A:	on my cheeks

Q:	where did you kiss?
A:	On her cheeks. As she opened the door she put her head from the passenger side and kissed me.

Q:	How do you say that from such a distance she could kiss you?
A:	It is possible

Q:	You are a liar?
A:	No

Q:	You are lying in court to save your job?
A:	No

Q:	It is not possible for a short girl like the victim to put her head through the window and kiss you?
A:	Possible.

27.	It should be noted that the defence did not dispute the contents of the caution interview. Yet it was observed that there were contradictions between the caution interview and the evidence given by the accused. Further the accused gave evidence in a very excited manner. Once the court recorded his demeanour due to the way he answered during the cross examination. Further it has to be noted that the court had to record the examination in chief in question and answer format due to the way his evidence was led. It appeared that the accused could not give consistent evidence. I am not satisfied about the credibility of the accused's version due to the above reasons.

28.	No other witnesses were called for the defence. There is no gain say that it is the duty of the prosecution to prove the case beyond reasonable doubt. Yet the accused can create a reasonable doubt through cross examination or by producing evidence at a trial. However in this case it should be noted the defence was not able to challenge the evidence of a single witness of the prosecution or the credibility of the prosecution witnesses. The victim in this case gave consistent and solid evidence which was corroborated by the other witnesses. 

29.	After the closing of the defence case parties filed written submissions. The following two issues were raised by the defence in the written submissions;

A)	Failure to make a recent complaint
B)	Whether the complainant's story is worthy of belief?

30.	It appears that there is a delay in making a complaint about the alleged incident. The defence rightly pointed out the importance of a recent complaint. The victim was cross examined on this issue at length by the defence. She admitted that she did not tell her mother, father or brother at the first opportunity. Even on the following day she did not complain about this to a teacher or to a family member. How ever the victim in answer to a question put by the defence said that she told about this incident to a friend by the name, "T." on the following day. When the defence counsel asked her as to why she did not mention about it the victim said she was not asked by the prosecutor as to what happened on Wednesday. She further said she can produce her to court. However the defence did not inquire about it any further. It should be noted that the witness, "S. B." said that only when she asked about the victim's change, she complained about this to her. According to this witness, who is a school friend, she has observed a change in the victim's behaviour during those few days. She further said that the victim cried the whole night after she unfolded this story.

31.	Belatedness of a complaint is a crucial issue specially in cases of sexual offences. The rationale behind this theory is to rule out any possibility of fabrication and bringing up of false allegations. However it should be noted that mere belatedness is not a ground to undermine the genuineness of a complaint of this nature. The court has to look at this issue cautiously. Further the court has to consider other surrounding circumstances before attaching any weight to the belatedness of a complaint. It is not much difficult to understand the mentality of a 17 year old school girl who underwent a traumatic situation like this. The culprit of the alleged offence is non other than a person who was in authority in the same school she was studying. Besides it could be expected for a young girl, brought up in the Fijian culture to vacillate in complaining about an incident of this nature. 

32.	Secondly the subsequent behaviour of the accused itself is suggestive of some crisis between the victim and the accused. The accused was unable to provide a clear reason as to why he had to apologize to her parents in the traditional Fijian way. He said he went to apologize for picking, dropping and kissing the victim. But at one point the accused said it is the culture to kiss and hug students. I am not convinced about the reason the accused gave for apologizing to the victim's parents. It should be noted that in this case, although the accused denied the allegation, no doubt was created to assume that the victim fabricated the whole story. At least the defence did not suggest a reason as to why the victim would have wanted to fabricate anything. All in all nothing suggests that the belatedness led to fabrication of a false allegation. In the circumstances I decide although this incident transpired two days later, the belatedness neither makes the victim's evidence untrustworthy nor does it contaminate the crux of this particular case.

33.	The defence in its written submissions highlighted that the evidence led in this case by the prosecution does not support the offence of attempted rape. I think this issue has to be considered in depth by the court.

34.	Section 380 of the Penal Code stipulates that;

"When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence."

35.	It is worthwhile to see whether the prosecution produced evidence which fall in line with the two limbs in this Section. Firstly at this juncture I will deal with the medical report tendered in evidence.

36.	The victim tendered her medical report while she was giving evidence. It appears that she had been medically examined on the 6th November 2009. The medical report says that the hymen is not intact and there were some abrasions around vulva region. Further the medical report says that " Abrasions around external region suggestive of infection which may also be related to the incident." However it should be noted that the medical report does not say whether the hymen tears were recent or old. In any event the accused is charged only with attempted rape. Secondly it is not clear how recent are the injuries. Thirdly there was no evidence of penetration. Although the doctor has recorded that the "abrasions may also be related to the incident" I believe it is unfair to act on this type of inconclusive and vague evidence. I do not see a clear nexus between the medical evidence and the evidence given by the victim. Thus I decide to disregard the medical evidence in fairness to the accused. 

37.	Even in the absence of medical evidence it is not impossible to establish a charge of attempted rape. It is not necessary to prove that the accused had gone so far as to attempt physical penetration of the vagina. It was held in Attorney-General's Reference (No. 1 of 1992) [1993] 1 WLR 274;

"That in the opinion of the court, a prima facie case of attempted rape was sufficiently raised if there were evidence from which the intent to rape could be inferred and acts were proved which a jury could properly regard as more than merely preparatory to the commission of the offence; and that accordingly, it was not incumbent on the prosecution, as a matter of law, to prove that the defendant physically attempted to penetrate the woman's vagina with his penis."

38.	 Thus it is worthwhile to ascertain whether the evidence produced in this case is sufficient to prove the elements of the offence.

39.	It should be noted that the victim's evidence does not suggest anything which falls in line with the two limbs of Section 380 of the Penal Code. The victim said that the accused wanted to have oral sex with her. Therefore it appears that the evidence led by the prosecution falls short of proving the charge of attempted rape against the accused.

40.	However after the closing of the prosecution case, the Police prosecutor brought to the attention of the court that the court can always convict a person for a lesser offence under Section 162 of the Criminal Procedure decree.

41.	I think at this point, before I embark on dealing with the issue of lesser offence, it is pertinent to ascertain whether considering a lesser offence could jeopardize the accused's rights. The accused was represented by a counsel from the beginning of this case. After closing the prosecution case the Police Prosecutor for the first time invited the court to consider a lesser offence in this case based on the evidence. When the Prosecution made this submission, the defence counsel informed court that although he was intending to make submissions regarding no case to answer, he will not do that as the prosecution informed of a lesser offence. Thus it is quite manifest that the defence was aware, that this situation could arise. Further it was more evident from the following manner, that the defence counsel led the evidence of the accused;

Q:	Did you at anytime inside your car in any way insult the modesty of the victim?
A:	No

Q:	Did you at anytime inside the car indecently assault the victim?
A:	No

42.	Therefore it is clear that the defence led the evidence of the accused with an anticipation to face a situation of a lesser offence. Further in the written submissions of the defence it is stated at the end that " the same considerations as submitted for the present charge be applied towards any possible kindred offences .......". I am satisfied that the defence was aware of a possible application of a lesser offence and thus I do not think that it could cause any harm to the accused.

43.	Section 162 of the Criminal procedure decree reads as follows;

162. 	(1) Where a person is charged with an offence but the court is satisfied that the evidence adduced in the trial supports a conviction only for a lesser or alternative offence, the court may record a conviction made after due process for — 

(f) any sexual offence where the charge has been for rape; 

(2) The court may record convictions for certain offences in accordance with sub-section (1) notwithstanding that no charge has been laid for the lesser or alternative offence in accordance with the provisions of this Decree. 

44.	It could be a bone of contention, as to whether a charge of attempted rape can be substituted with a lesser offence under Section 162 as it only speaks of rape. Under Section 162 the acts which fall short of rape can be substituted with any relevant sexual offence. It should be noted that attempted rape is indeed an act towards the commission of the act of rape. The purpose of section 162 is to allow convictions on available evidence which is not sufficient to prove the major offence. Unlike the corresponding Section in the repealed Criminal Procedure Code, the scope of Section 162(1)(f) of the Criminal Procedure Decree is expanded by allowing any sexual offence to be substituted as a lesser offence of rape.

45.	On the other hand Indecent assault, almost always overlaps with attempted rape. It would be absurd to argue that although the offence, rape can be substitute with any other sexual offence, the offence, attempted rape cannot be substituted with a lesser offence. The lessor offence can be either identical to the main offence or it could be step taken in the course of committing the offence.

46.	In regards to the issue of lesser offence Sachs LJ stated in R v Springfield (1969) 53 Cr App R 608 at 610-611, as follows:

"The question accordingly arises as follows. Where an indictment thus charges a major offence without setting out any particulars of the matters relied upon, what is the correct test for ascertaining whether it contains allegations which expressly or impliedly include an allegation of a lesser offence? The test is to see whether it is a necessary step towards establishing the major offence to prove the commission of the lesser offence: in other words, is the lesser offence an essential ingredient of the major one?"

47.	Therefore it is crystal clear that although the offence attempted rape is not literally mentioned in Section 162, it is enshrined in the broader objective of this section regarding sexual offences. Thus I decide that the offence attempted rape can be substituted with the lesser charge of indecent assault based on the available evidence although the accused is not charge with indecent assault in view of the provisions in Section 162.
 
48.	Section 151(4) reads as follows;

"Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment."

49.	Indecent assault means an immodest, obscene and unbecoming act. The victim in this case gave evidence of the acts of the accused in the following manner;

"He forced me by pulling me to kiss him. Then I refused. Then he pulled put his penis. Then he wanted to have oral sex with me. He pulled me and pushed down my head towards his penis. Then I pushed him away. When I pushed him he started putting his hand into my vagina. He said if I don't want to be with him whether he can lick my vagina. I was so frightened. I could not believe he would do like that being my master. I said no. He was still putting his hand in my vagina."

50.	 It appears that those acts can not be anything less than immodest, obscene and unbecoming in nature. In any civilized society this kind of acts done by a teacher on his student will have to be described as an indecent assault. I am satisfied that the alleged acts of the accused fall well within the definition of indecent assault. In this case there was no dispute with regard to the date time and place of the alleged incident. The identity of the accused was also not in dispute. 

51.	Thus I am satisfied that the evidence of the prosecution is sufficient to prove the ingredients of the offence of indecent assault. Accordingly I decide that the prosecution proved beyond reasonable doubt that the accused, Anu Ram on the 3rd day of November 2009 at Lautoka in the Western Division indecently assaulted the victim and thereby committed indecent assault contrary to section 154(1) of the Penal Code.

52.	I find the accused guilty and convict him for the offence of indecent assault.

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

18.10.2010