Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Mohammed [2012] FJMC 237; Criminal Case 751.2009 (18 October 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 751/2009

THE STATE

V

JAMEEL MOHAMMED
(S/O Jalil Mohammed)

Prosecution : Mr. Singh (for DPP)
Accused : Ms Vulimainadave.

JUDGMENT

1. Jameel Mohammed was charged with two counts of Defilement of a girl under the age of 13 years contrary to section 155(1) of the Penal Code Act Cap 17. The alleged incident took place on 16th June 2009 at Jittu Estate in Samabula.
   
2. The charges were put to the accused before commencement of the proceedings on 03.05.2012 and he pleaded 'Not Guilty'.
   
3. Following applications from the State were allowed by the Court.
   
   1. Suppression of victim's identity,
   2. Screening,
   3. In camera proceedings.
      
4. During the prosecution case State called six witnesses and tendered 4 exhibits. After the prosecution rested their case the accused was called upon for his defence. The accused and his sister gave sworn evidence during the defence case.
   
5. It is clear that the burden of proof lies with the prosecution to prove its case. Hon. Justice Madigan during his summing up in State v Raibevu [2012] FJHC 1036; HAC27.2011 (26 April 2012) stated
   

'The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it, Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you. If however you are sure that the accused had sexual intercourse with Lusia, knowing and believing that she was under 16, then you will find him guilty'

6. What is 'Defilement'? As per section 155 (1) defilement is having sexual intercourse with a girl who is under the age of thirteen. It is to be noted that section 155 and 156 is different although both define the offence of defilement. Section 156 speaks on the defilement of victims who are in the age of thirteen and sixteen. But section 155 is limited to persons who are below the age of thirteen. The other deference between the two sections is that section 155 does not have any statutory defence. Also consent of the victim is not a defence.
   
7. Therefore the prosecution has to prove following elements beyond reasonable doubt.
   
   1. That this offence was committed by Jameel Mohammed,
   2. He had sexual intercourse with LG,
   3. That LG was below the age of 13.
      
8. During pre-trial stage both parties agreed to the identity of the accused person. I will now revisit the prosecution case.
   
9. Victim LG was the first to testify. Marked birth certificate confirmed her oral testimony that she was born on 18.12.1996. She was a form 01 student at the time of the incident. She lived with her elder sister and mother who was the breadwinner of the family. She recalled the date and the circumstances of the incident without any difficulty.
   
10. On 16th June 2009 she left home at about 6.35 am to get the school bus. She managed to catch the Raiwaqa-7 bus. She met the accused inside the bus. She identified him as he was known to her prior to the incident. The accused and victim had met each other at her neighbour's place few months before the incident. Victim said that the accused approached her during that time and invited her to become his girlfriend. But she refused by stating that she is too young for it. She stated that in fact she trusted him as an elder brother.
    
11. LG stated that when she about to get down from the bus the accused stopped by holding her hand. She could not resist him as she was afraid of Jameel. Obviously the age difference between the two had an authoritative power on the acts of Jammel. Both got down at Walu bay and walked to Suva bus stand. Then they boarded in to Raiwaqa 18 bus heading to Jittu Estate. Then the accused forced her to get down at a place near to Jittu Estate. Both followed a short cut to accused house. Then the accused had asked the victim to enter in to his room through a back door of his house.
    
12. Inside the room the victim has pleaded the accused to not to do anything as she is underage girl. Accused has forced to open her cloths and had sexual intercourse. She explained her experience which was painful on that day. After that the accused asked her to get a wash from a bath room inside the house. The victim had a wash and laid on the bed of the accused as she felt dizzy after the first incident. Then the accused again started to have sex with her. This was the second time on that day. Later she returned home after 3.30 pm.
    
13. Victim did not disclose this to anyone. However the incident came in to light due to the questioning of her sister and neighbour on failure to attend school that day.
    
14. During the cross examination defence counsel questioned on the issues which relates to the consent of the victim. This will have no impact whatsoever on the victim's testimony as the consent is immaterial to prove a charge of defilement. Also she questioned whether the victim made two statements to the police. She admitted that she made two statements. But mere fact that she made two statements would not have any adverse effect on her credibility. Further she did not suggest at any stage that the victim is not trustworthy.
    
15. It appears that the line of cross examination directed on the issue of 'mistake of fact'. But the statutory defence is not available for section 155 (1) when the girl is below the age of 13. Anyhow the victim clearly stated that the accused knew her age was 12 and she was a form one student prior to the incident. And when she pleaded just before the intercourse she had repeated her age and class which she attends to the accused. The accused did not challenge these statements.
    
16. The second witness of the prosecution was victim's elder sister. She stated that the victim went to school alone on the day of the incident. And she found that her younger sister (LG) has not attended to school that day. Later in the afternoon she has noticed that LG was acting in a different manner. Normally she was a person who doesn't do any house work. But that afternoon she engaged in house work. These unusual circumstances had led the elder sister to ask the reason and whether she met a boy in the town that day. LG has then admitted and further divulged that she went to Jameel's house and played with kids there. It is to be noted that LG has lied to the elder sister when she asked whether Jameel did anything wrong to her. This witness identified the accused in Court.
    
17. Victim's mother too corroborated elder sister's testimony. She further stated that the victim maintained the same position until she was informed by a female police officer that she will be examined medically.
    
18. Head of Obstetrics and Gynaecology in CWM hospital Dr. James Fong testified on the medical report of the victim which was prepared by Dr. Tema McCaig as she was migrated at the time of the trial. He identified the notes of Dr Tema and expressed his expert opinion on the findings. Victim was medically examined on the 18th June 2009. This was two days after the incident. Only finding was that her Hyman was not intact. Medical opinion confirmed that the victim was sexually active. He further expressed that forceful penetrations do not always require injuries.
    
19. Detective Sgt 2424 Moimoi testified how she took the victim for medical examination. She stressed on the demeanour of the victim. The entire time victim appeared scared and she was in tears. Sgt Moimoi stated that this was not because of any threat or force.
    
20. Detective Constable 2991 Clint was the investigating officer. He also performed the recording of caution interview. He stated that the accused consented for him to be interviewed in English. He further visited and re-constructed the crime scene at the accused residence in Jittu Estate. He confirmed that the bath room and Jameel's room were few steps away and someone can go to the bath room without any other person's knowledge.
    
21. Constable Clint further stated that the accused did not admit the offence in his caution interview.
    
22. The Court has to now consider whether the prosecution has done their duty to prove the charges beyond reasonable doubt. At the very outset I must note that both charges are based on victim's testimony. She was sixteen when she gave evidence in Court. She is no longer a child witness who is below the age of fourteen. The law is settled on the evidential value of the persons of tender age. There is no necessity for corroboration. In sexual cases the mandatory requirement for a corroboration warning was abolished in Balelala's case. [Seremaia Balelala v The State [2004] AAU003.2004S]
    
23. This Court had the opportunity to observe the demeanour of the victim. She clearly stated the incident without leaving any ambiguity. During her cross examination the counsel could not impeach her credibility. The Court has to consider victim's conduct before she disclosed the incident. She admitted that she lied to her sister and mother about the sexual intercourse although she admitted that she met the accused that day. She maintained this position even at the police station. She made the vital admission when she was told about the medical examination.
    
24. Victim explained how scared she was before the intercourse. She pleaded to the accused not to do any wrong to her. It is to be noted that at the time of the incident accused was 25 years old. Victim was twelve. The victim was told not to divulge the incident by the accused. The Court understands the plight of a twelve year old female who only had the assistance of two other female members in the family. It is clear that the unseen emotional force occurred from the incident and by the accused led the victim to keep the secret until she was told on medical examination. The behaviour of the victim shows her degree of traumatisation.
    
25. There were no vital contradictions or omissions made in the victim's testimony. Thus I am convinced on the trustworthiness of victim's evidence. The veracity of her evidence is not affected by the cross examination.
    
26. The accused in his caution interview mentioned that the victim once told that she was seventeen years old. But this was never put to the victim during his cross examination. Also the Court heard from the victim and that she told twice that she is an underage girl who is in form one. Mother of the victim too testified that even she told the age to the accused when he asked permission to marry her. Therefore the Court excludes any possibility on mistaken understanding of her age by the accused person. The evaluation of the prosecution evidence shows that it has a proved case without any reasonable doubt.
    
27. The accused and his sister gave evidence during the defence case. It is important to note following positions when analysing the evidence of an accused person.
    
    1. If the defence evidence is believed it must be acted upon.
       

2. If the defence evidence creates a reasonable doubt in the prosecution case, defence taken up by the accused must succeed.

3. If the defence evidence cannot be accepted and cannot be rejected the defence taken up by the accused must succeed.

28. Accused Jameel Mohammed gave sworn evidence. He stated that he met the victim on the day of the incident at Suva bus stand. Then they have gone to 'Sea Wall' for spend the day. They had a chatting session from 9.30 am to 2.30 pm at the Sea Wall. Then he had left her at the bus stand and went for a billiard session. Later he had gone home around 6.30 pm. He found that police was looking for him on the following day. He stated that he voluntarily surrendered to the police.
    
29. He admitted the fact that he gave a statement to the police. But he said that he was not conversant in English although it was recorded in English. I note that this objection would have taken at the inception. The accused did not make an attempt even to complaint this during the pre trial stages. On the other hand the officer who recorded his interview stated that he never made an application on this language issue. In the light I note that this application has no merit in it.
    
30. During his evidence Jameel Mohammed stated that he never had any sexual relationship with the victim. Also he stated that once she came to his residence to ask $ 10 but never went inside the house. It is to be noted that he has taken a different position on these issues in his caution interview. During his answer to question No 30 he has stated that he had prior sexual experience with the victim during Coca-Cola games. He had not stated anything on exchange of $ 10. This Court is not prejudiced by this statement. But it affects the credibility of the accused testimony.
    
31. Accused further stated that he met the victim in the bus stand and she was not in school uniform. I note that this position was never suggested to the victim during her cross examination. Having considered the accused evidence this Court notes that accused has taken different positions during his sworn evidence and caution interview. Inconsistency leads to totally reject his evidence as well as the caution interview.
    
32. Sister of the accused gave sworn evidence for the defence case. She stated that she was at home on the 16th June and this incident never took place. She was looking after her father who was sick at that time. She said that her bed room is situated before the bathroom and nobody can get in to the bathroom without her knowledge. This is contrary to investigating officer's observations. And also the accused did not pose a single question on the presence of his sister during the visit of Constable Clint. Furthermore this witness stated that she didn't want to see his brother behind bars. It was apparent that she wanted her brother released from the charges. Court notes that it is highly unsafe to act on such evidence as it was influenced by the accused. Thus I reject Ms Nurian Mohammed's evidence.
    
33. View of this Court is that the accused during his defence case has failed to create a reasonable doubt on the prosecution. Therefore I find that the accused is guilty for each count on the charge sheet.
    
34. This Court convicts Jameel Mohammed for each count of defilement on a girl less than thirteen years of age.
    
35. Now I will proceed to hear both parties on sentencing.
    
36. 28 days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

18th October 2012