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State v Bola - Judgment [2014] FJMC 71; Criminal Case 03.2011 (10 April 2014)

IN THE MAGISTRATE’S COURT AT SUVA
CRIMINAL DIVISION

Criminal Case No. 3 of 2011

The State

v

Osea Bola

For the State: Mr. Prakash
For the Accused: Mr. Maisamoa

JUDGMENT

The Accused was originally charged with 12 counts on the amended charge of Sexual Assault contrary to section 210 (1) (b) (i) and (2) of the Crimes Decree as follows: -

First Count: - It is alleged that between the 1st of February 2010 to the 31st day of March 2010, at Kadavu, Osea Bola procured Betero Seruvatu, without his consent, to commit an act of gross indecency.

Second Count: - It is alleged that between the 14th of May 2010 and the 21st of August 2010, at Kadavu, Osea Bola procured Filipe Tawanabalebale, without his consent, to commit an act of gross indecency.

Third Count: - It is alleged that on the 14th of March 2011 at Kadavu, Osea Bola procured Filipe Tawanabalebale, without his consent, to commit an act of gross indecency.

Fourth Count: -It is alleged that on the 14th of November 2010 at Kadavu, Osea Bola procured Marisio Vuniwai, without his consent, to commit an act of gross indecency.

Fifth Count: - It is alleged that on the 29th of November 2010 at Kadavu, Osea Bola procured Taniela Vuinakelo, without his consent, to commit an act of gross indecency.

Sixth Count: - It is alleged that between the 16th of May and the 19th of August 2011 at Kadavu, Osea Bola procured Suliasi Mei, without his consent, to commit an act of gross indecency.

Seventh Count: - It is alleged that on the 9th of March 2011 at Kadavu, Osea Bola procured Josaia Vuiono, without his consent, to commit an act of gross indecency.

Eighth Count: - It is alleged that on the 10th of April 2011 at Kadavu, Osea Bola procured Ilikimi Rakaso, without his consent, to commit an act of gross indecency.

Ninth Count: - It is alleged that on the 2nd of April 2011 at Kadavu, Osea Bola procured Marika Baro, without his consent, to commit an act of gross indecency.

Tenth Count: - It is alleged that on the 23rd of May 2011 at Kadavu, Osea Bola procured Marika Baro, without his consent, to commit an act of gross indecency.

Eleventh Count: - It is alleged that on the 23rd of May 2011 at Kadavu, Osea Bola procured Marika Baro, without his consent, to commit an act of gross indecency.

Twelfth Count: - It is alleged that on the 23rd of May 2011 at Kadavu, Osea Bola procured Timoci Butoni, without his consent, to commit an act of gross indecency.

The amended charge alleges that between the months of February 2010 and May 2011 – the Accused person, whilst employed as a bursar at the Vunisea Secondary School procured the various complainants, without their consent, to commit one or more act of gross indecency with him.

The alleged acts of gross indecency include indecent assault, acts of fellatio (oral sex) and also anal intercourse allegedly performed by the complainants on the Accused person. At all material times all the complainants were Form 5 and 6 students at Vunisea Secondary School between the ages of 16 to 18.

The Accused pleaded not guilty to all counts and the case was fixed for trial for one week from the 14th to the 18th of October 2013.

The State called the following witnesses: -

• PW1 – Betero Seruvatu
• PW2 – Marisio Vuniwai
• PW3 – Josaia Vuiono
• PW4 – Suliasi Mei
• PW5 – Marika Baro
• PW6 – Filipe Tawanabalebale
• PW7 – Ilikimi Rakaso
• PW8 – Timoci Butoni
  

The evidence for the State
PW1 Betero Seruvatu testified that in 2011 he was in form 502 at Vunisea Secondary School and at the time he was 18 years of age.

He testified that on the 27th of May 2011 he was watching movies because there was a hurricane warning in place that day. He met the Accused who was the school bursar. The Accused told him to go and have his shower at his house so he agreed to accompany the Accused to his house. At the Accused’s house, the Accused played a “blue movie” (pornographic movie) and went to have his shower. PW1 was watching the movie in the Accused’s room sitting on his bed while the Accused had his shower. The Accused came out of the shower and headed towards where PW1 was and started touching his private part. He did so without asking for permission. PW1 stated that he felt angry that the Accused did what he did to him. At the same time he was also frightened. The Accused then told him to fuck his backside and not to tell anyone else. He then started to pull down PW1’s pants and started to suck his penis and he did so until he ejaculated. According to PW1 the Accused forced him and after he has sucked his penis, the Accused gave him $2. PW1 was asked by State counsel why he did not resist or stop the Accused when he was pulling down his pants. His response was that he was shocked at the Accused’s action and he also respected the Accused because of his status as a member of the staff as school bursar so he did not resist when the Accused did those things to him.

After that he left and tried to forget what had happened to him. The next year he was in form 6 and he testified that at about 7 pm he was watching movies with his dorm mates when the Accused came and asked him to go to his house. He did not know why the Accused wanted him to go to his house. At the Accused’s house he again went to have his shower while he played a blue movie for him to watch. After returning from his shower the Accused again approached PW1, pulled down his pants and underwear and started to suck his penis. PW1 again did not resist or stop the Accused from sucking his penis. After sucking PW1’s penis, the Accused told him to fuck his backside. PW1 then did so and after he finished, the Accused gave him $10. PW1 testified that he never gave his permission to the Accused to suck his penis or to have him penetrate the Accused’s anus. He maintained that he complied with what the Accused told him because he was frightened of him and he respected him as a member of the staff.

Under cross examination it was put to him that he was never coerced into anything and that in fact he was a willing and consenting participant in everything that happened on the two occasions in question. PW1 was also referred to his written statement and to the inconsistencies between his testimony and what he had told the police. In relation to the first incident PW1 confirmed that he did not consent to what the Accused was doing to him although he did not stop him. On the second incident PW1 confirmed that the Accused had inserted PW1’s penis into his own anus. He also confirmed that he did not resist or stop the Accused at any time.

In re examination PW1 confirmed that he did no resist because he was frightened and he respected the Accused as a member of the staff equivalent to a teacher.

PW2 was Marisio Vuniwai and his testimony was that in 2010 he was a form 6 student at Vunisea secondary School and at that time he was 17 years of age.

He testified that on the 14th of November 2010 he was looking for his necktie for the church service. At around 2:15pm that afternoon he met the school cook and the bursar, the Accused. He asked the Accused whether he had a necktie. He told PW2 to go to his house and so he went to the Accused’s house. At the Accused’s house he watched an action movie and at this time the Accused closed the door. After closing the door, the Accused then changed the action movie to a blue movie. When the Accused did this, PW2 was shocked and at that point the Accused then asked him whether he had already had sex with a woman. PW2 told the Accused that he had not had sex before. The Accused then told him to show his private parts to him. PW2 stated that he was shocked and afraid and while he was still stunned – the Accused then touched his penis over his clothes. He forced PW2 to remove his clothes and he went in to another room. When the Accused returned he was naked. PW2 felt afraid and he thought of his friends. The Accused told him to go into the room and to take off his clothes. He took off his clothes and the Accused then told him to have sex with him. PW2 then had sex with the Accused after which the Accused asked him not to tell anyone. This incident happened in the Accused’s room and after it finished he felt ashamed of himself.

Later that year the Accused approached him again for sex and even offered to pay for his school fees and he did so in 2011 as well but from then on PW2 actively avoided the Accused.

Under cross examination it was put to this witness that far from being shocked or afraid of the Accused he was in fact a consenting and willing partner to what ever happened in his house that day. Under cross examination PW2 maintained that the Accused’s actions were unwanted and unwelcome.

PW3 was Josaia Vulaono. He testified that in 2011 he was a student at Vunisea in Form 5. He testified on the 9th of March 2011 he was returning from school after listening to the Police Jazz Band. He returned to the Police barracks where he hung his clothes and he decided to go to the Accused’s house because he had heard from some of his friends that the Accused used to go out with them and he wanted to find out whether this was true or not.

When he went to the Accused’s house, the Accused called him into the house and shut the door. The Accused then told him to lie down on the floor and pull down his pants. After pulling down his pants the Accused started to suck his penis. When PW3 was asked about how he felt when the Accused was doing this to him he stated that he was scared and shocked. After doing this to PW3, the Accused gave him $5 but he did not tell him what the money was for.

Under cross examination it was put to him that he consented to what the Accused did to him and that he had lied under oath. PW3 maintained that he had not given his consent to anything that had been done to him by the Accused.

PW4 was Suliasi Mei. He testified that in 2011 he was staying at the Police barracks in Vunisea Kadavu and he was also attending school at Vunisea Secondary School. He recalled that in Term 1 of 2011 he returned from school and his older brother told him to go to the Accused’s house and get some DVDs from there. This was around 4pm and he went to the Accused’s house to ask from some DVDs to watch. When he arrived at the Accused’s house he saw him watching a blue movie. When PW4 asked the Accused for movie DVDs he was told by the Accused to go and look for it. PW4 wanted to watch a horror movie and was looking for the movie; the Accused told him that he wanted to suck his penis. PW4 then testified that he was shocked and ashamed at what the Accused had asked him. The Accused then pulled PW4’s sulu and started to suck his penis. PW4 confirmed that he did not give his consent to the Accused to do what he did. After he had sucked PW4’s penis, the Accused then told him that they could do it on another day but he told him no. Since that day PW4 has never been alone with the Accused at any time.

Under cross examination he did not deny that he had not resisted the Accused or pushed him away but he maintained that the Accused had done so without his consent.

PW5 was Marika Baro. He testified that in 2011 he was 16 years of age and he was in form 5 at Vunisea Secondary School. He testified that on the 2nd of April 2011 he was sent by the school cook to the Accused to get money to buy sugar. He went to the Accused’s house and the Accused gave him the money and told him to return to his house after buying the sugar. When he returned to the Accused’s house – the Accused asked him whether he could suck his penis. PW5 testified that he was shocked and afraid and he did not resist when the Accused fondled his penis and started sucking his penis. After the Accused sucked his penis he then told PW5 to “fuck his arse.” PW5 then inserted his penis into the Accused and had sex with him. Under examination by State counsel he confirmed that he complied with everything that the Accused told him to do as he felt that he had no choice in the matter. After having sex the Accused then gave him $5 to buy bread.

Under cross examination he confirmed that he had not resisted or pushed the Accused away when he was touching him. He also confirmed that he did not resist when the Accused told him to have anal intercourse with him. He maintained that he did not consent to anything that happened that day. After that the Accused promised him that he would give him some money.

PW5 testified that on the 23rd of May 2011 he was on duty and as part of his duty he was tasked to go and meet the ferry at the jetty. He was accompanied to the jetty by the Accused because as the bursar he needed to confirm delivery of the stores for the school. On their return from the jetty the Accused told PW5 to go with him to his house and so they went. When they arrived at the house, the Accused then asked PW5 if he could suck his penis and he then started touching PW5’s penis. He then started sucking PW5’s penis and after 5 minutes the Accused then asked PW5 to “fuck his arse.” PW5 then did so and after he finished the Accused then gave him $5 for bread. PW5 testified that he felt “bad” about this incident and at no stage did he give his consent to the Accused to touch his penis or suck his penis. He also did not give permission to the Accused when he requested him for PW5 to “fuck his arse.”

Under cross examination it was put to PW5 that he had lied under oath and that in fact he was a willing and consensual participant in everything that happened on those two occasions. PW5 maintained his testimony that he had not given his consent to the Accused for anything that happened between them.

At this point the State sought leave to amend the charge and to withdraw Count 5 as the complainant was not available to give evidence. Leave was granted and the charge was further amended accordingly.

The next witness PW6 was Filipe Tawanabalebale Valesu. He testified that in 2010 he was staying at Kadavu and attending school at Vunisea Secondary School and he was 18 years of age. He testified that in 2010 he could not recall the exact date; he was doing prep when a friend came to inform him to take the key to the Vice Principal’s house. He was then informed that the key was with the Accused and he needed to get the key from there.

He went to the Accused’s house to get the key and while there the Accused started asking him questions. Amongst the questions that the Accused asked PW6 was if he the Accused could suck his penis. When he heard this PW6 was shocked and did not resist when the Accused started to fondle his penis over his clothes. When the Accused did this PW6 testified that he became erect and he could not control himself so he allowed the Accused to suck his penis. This happened for about 3 minutes after which the Accused gave him the key to take to the Vice Principal.

PW6 testified that on the 14th of March 2011 he was at the school dispensary and he was there with the school matron. As he was there a girl called Mereani came and told him to bring the sugar from the Accused’s house.

PW6 testified that by that time he had forgotten about what happened before and he ran to get the sugar from the Accused’s house. When he arrived at the Accused’s house he was standing at the door looking outside. When PW 6 arrived at the house he knocked at the door and went inside to get the sugar. The Accused was at the door looking outside, he closed the door and approached PW6 and he started fondling his penis again over his clothes. When the Accused did this, PW6 was shocked so he did not do anything and he just stood there. When the Accused started to touch him, PW6 again became aroused and the Accused started to suck his penis and he closed the door. After 3 minutes of sucking PW6’s penis, the Accused gave him a condom and told him to “fuck his arse.” By that time PW6 testified that he was so aroused that he proceeded to do so – he put on the condom and inserted his penis. When he finished, the Accused then gave him the sugar and he took it back.

PW6 was subjected to the same line of cross examination by counsel for the Accused – that he was not coerced or compelled in any way by the Accused. In fact it was put to the Accused that despite the first encounter, he kept on returning to the Accused and this demonstrated that he was a willing participant to whatever happened in the Accused’s house.

PW6 maintained under fierce cross examination that he never gave his consent to anything that happened with the Accused. He submitted because he felt that he had no other choice.

The next witness PW7 was Ilikimi Rakaso. He testified that in 2011 he was 18 years old and he was a form 5 student at Vunisea Secondary School. He further testified that on the 10th of April 2011 he went to the Accused’s house to watch a movie and also to get money for bread as promised to him by the Accused. When he arrived at the Accused’s house, the Accused told PW7 to switch the movie on and when he played the movie he discovered that it was a blue movie. The TV was inside the Accused’s room and when the blue movie came on PW7 was sitting on the floor watching the movie. After the movie was switched on PW7 was concentrating on the movie playing and at this time the Accused came and sat beside him. The Accused then asked PW7 whether he had been with a girl before. PW7 told the Accused that he had not been with a girl before. The Accused then started fondling PW7 and touching his penis and when he did so PW7 became aroused and could not control his feelings so the Accused proceeded to suck his penis. PW7 testified that after sucking his penis the Accused also gave him money to buy bread. PW7 then left the Accused’s house. PW7 maintained that he did not give his consent to the things that that he did with the Accused.

Under cross examination it was again put to him that he was a consenting participant in all the activities with the Accused. PW7 maintained that he did nit consent and did not give the Accused any consent to do what he did that day.

PW8 was Timoci Butoni and in 2011 he was 18 years old and attending form 6 at Vunisea. He testified that on the 19th of May 2011 there was an open day at the school and the Prime Minister was the chief guest. The students went along to sing songs at the opening of the wharf. They returned to the school at around 11:30 am and when he returned he saw the Accused who then asked him where they were coming from. He told him that they were returning from the wharf and he left to go to the dormitory however the Accused told him to go to his house after taking his shower. When PW8 went to his dormitory he noticed the Accused following but when he noticed that PW8 was with his other friends he then left.

Later that evening he saw the Accused near the dormitory in the cassava plantation and he was shocked to see him there. As he stood there the Accused started touching his private parts. He confirmed that he did not give permission to the Accused to do so. When the Accused persisted in fondling him he became aroused and the Accused then started to suck his penis. He confirmed that he did not stop the Accused because he was aroused.

After that the Accused told PW8 to fuck his arse. The Accused took PW8’s penis and inserted it into his anus. He confirmed that by that stage he was so aroused that he did not resist. After they had finished the Accused then left.

Under cross examination he maintained that he had not consented although he did not resist because he was aroused.

The last civilian witness PW9 was Noa Turaganivalu. He testified that in 2011 he was the school chaplain at Vunisea Secondary School. In addition he was the child protection officer and he occupied quarters at the school. He confirmed that at that time he was at the school that the Accused was employed there as the school bursar.

He testified that on the 29th of May 2011 he was returning from a prayer meeting and when he returned to the school he met the Accused at the school gate. When he asked the Accused where he was going he told him that he was going to the house of Peni Tukuca who was the school cook. At that time the Accused was living outside and so he was wondering why he was inside the school compound particularly at that time of the night. When he arrived at his house PW9 looked towards Peni Tukuca’s house and he was surprised to see the lights were out and there was no one at the house.

Later at around midnight he woke up and when he went outside he noticed some male students milling around in the school ground. When he asked them what they were doing they told him that they were eating bread. He found this very odd at that time.

Later on the 30th of May 2011 he noticed a male student going to the bursar’s house. At that time the quarters was vacant as the bursar was not staying there. The bursar actually stayed at the bachelor’s quarters provided. He then asked a student called Viliame what was happening, Viliame then told him that the Accused was molesting the students.

PW9 then decided to find out for himself what was happening and so he questioned students individually. He talked to some boys including Betero Seruvatu, Filipe Tawanabalebale, Suliasi Mei, Josaia Vulaono, Ilikimi Rakaso and Timoci Butoni.

After interviewing the students individually the matter was then referred to the police.

The State then closed its case at this stage.

At the close of the State’s case the Accused then made a submission of no case to answer and filed written submissions to that effect.

The Court found that the Accused has a case to answer and he was then put to his defence. The Accused elected to give evidence under oath and also to call two witnesses as well.

The evidence for the Accused
The Accused himself testified on his own behalf.

He testified that on the 1st of February 2010 he had been at the school attending to his work. He later returned to his home and he stayed there the whole day until the 2nd of February 2010. He confirmed that he slept at home on the 1st of February and on the next day he was called to be part of the DISMAC team in Kadavu so he was not at his home or at the school. He denied that anything happened between him and Betero Seruvatu.

He later testified that on the 27th of May 2011 there was a birthday party for one of his nephews at the Provincial Administrator’s home. The party started at 6pm and finished at 2am the next morning. After that he returned with a cousin who taught at a nearby school. They came and slept until the next morning.

14th May 2010 – he testified that on that date he was in Suva preparing rations and orders for the students at the school. This was during the first term holidays and also coincided with the Coke Games so he accompanied the students. The students left after the Games while he stayed behind and left after the second week to purchase the stores for the school.

He also did this for the Term II holidays on the 21st August 2010 he also stayed in Suva and only returned to Kadavu just before the beginning of the next term. The Accused was then referred to the evidence of the various State witnesses and asked to comment on the same.

For Filipe Tawanabalebale’s testimony, the Accused denied all the allegations made against him.

With respect to the testimony of Marisio Vuniwai, the Accused also denied all the allegations made in the testimony of Marisio Vuniwai. He denied that anything happened between Marisio Vuniwai and him on the 14th of November 2010.

With regard to the allegations made by Suliasi Mei, the Accused testified that on the 16th and 17th of August he was in Suva processing the orders and purchasing stores for the school. He returned to Kadavu on the 16th and resumed duty on the 23rd.

The Accused further testified that from 30th May 2011 he was suspended from the school and after being charged he was then remanded for these charges from July to August 2011 – a period of 6 months.

The Accused also denied the allegations contained in the testimony of Josaia Vulaono. He testified that he had gone to work in the morning and he had lunch from 1 to 2pm and he had gone to have lunch with the school typist at her house. After having lunch they then returned together to the school to resume work. He confirmed that on that day in question the police band was in Kadavu but it was not playing. He also stated that the generator was not on between 1pm to 2pm therefore he could not operate any electronic appliance.

He denied that he was at home at the time that Josaia Vulaono stated that he was.

In answer to Ilikimi Raikaso’s testimony the Accused did not deny that Ilikimi Raikaso had come to his house on the 10th of April 2011. The Accused however denied the rest of Ilikimi Raikaso’s testimony.

In answer to Marika Baro’s testimony he denied that he had called him to his quarters to get the sugar as sugar was stored in the store room and he had the key to the same. He denied the allegation of Marika Baro.

In answer to the testimony of Timoci Butoni he denied his testimony. He denied being at the school later that evening as all the civil servants were having kava with the Prime Minister at the Agricultural Station in Vunisea.

Under cross examination he confirmed that during Hurricane Thomas he had been with his family and there had been an order for some families to be evacuated to the school including his family so he accompanied them, helping move their belongings.

He maintained his testimony that he either had no opportunity to be with the various complainants or that he had not done any of the things that he is accused of doing with the boys.

Under cross examination he maintained these denials although he did concede that he had had consensual sex with Filipe Tawanabalebale and Timoci Butoni although they did so on later dates and not in the dates covered in the charge.

He called three alibi witnesses who testified that he was with them on these dates: -

Vilisi Masi is the school secretary –she testified that on the 9th of March the Accused was with her all the day as they worked in the same office and he also had lunch with her at her home. She testified that at no point did the Accused meet any student that day.

Under cross examination she confirmed that the Accused was her nephew as well as her coworker but she denied that she was tailoring her testimony to help his case.

The second witness was Seruwaia Wati – on the 29th, 30th and 31st of March 2010 she testified that Kadavu was struck by a hurricane and her son, the Accused was seconded to be a part of the DIMAC team for Kadavu.

She testified that on the first night they were directed to evacuate their house because of the hurricane. She testified that the Accused was with her and the rest of the family moving their household goods to the school building.

Under cross examination she confirmed that she could not account for the Accused’s movements at all times in these three days.

The third witness was Jone Bola Tuirabe. He testified that in 2010 he was based as a teacher at Daviqele and in the weekend between the 14th and 16th May 2010 he had come to Vunisea to watch the Asco 7s tournament there and he came to stay with the Accused. He confirmed that he spent the weekend with the Accused and they went drinking with friends in Vunisea. He testified that the Accused was with them all the time and that he never saw him with any of the students from the school at this time.

Later on the 14th of November he had come up to Vunisea again and spent the weekend with the Accused and his family as well. On this second occasion he also confirmed that he stayed with the Accused and they had then come together to Suva.

Under cross examination he could not account for the Accused’s movements at all times while he was with him.

Analysis

The Accused Osea Bola is charged with 11 separate counts of Sexual Assault contrary to section 210 (1) (b) (i) of the Crimes Decree. The offence is an indictable offence which is triable summarily and the State bears the burden of establishing the following elements of the offence: -

(i) That between the months of February 2010 and May 2011 – the Accused person Osea Bola,

(ii) Procured the 8 complainants named in the amended charge, without their consent, to commit one or more acts of gross indecency with him.

(iii) The particular acts of gross indecency included indecent assault – fondling the complainants’ genitals, performing felatio and also for some of the complainants – procuring them to penetrate him anally.

The alleged offences occurred in and around the Vunisea Secondary School Compound where the victims were senior students in forms 5 or 6 and where the Accused was at all material times a member of the staff as school bursar.

The onus of establishing the above charge lay at all times with the Accused and at no time did this burden shift to the Accused. The standard of proof is proof beyond all reasonable doubt.
In this case the Accused had indicated prior to the fixing of the trial date that he would rely on an alibi defence with respect to some of the charges against him. Accused sought leave to do so and leave was granted he then accordingly filed an Alibi Notice pursuant to section 125 (3) of the Criminal Procedure Decree.

He called three alibi witnesses who testified that he was with them on these dates: -

(i) Vilisi Masi – 9th March 2011 – Josaia Vuiono

(ii) Seruwaia Wati – on the 29th, 30th and 31st of March 2010 – Betero Seruvatu

(iii) Jone Bola Tuirabe – 14th November 2010 and 14th to 16th May 2010 – Filipe Tawanabalebale and Marisio Vuniwai.

With respect to the remaining counts he relied on the defence of consent as all complainants were over 16 years of age.

When he came to testify he then denied that any sexual contact at all had happened between him and the various complainants who had given evidence. He did concede that he had sexual contact with Filipe Tawanabalebale and Timoci Butoni although this happened later outside of the period of the charge.

Consent is a legal term and is defined at section 206 (1) and (2) of the Crimes Decree in the following terms: -

“(1) The term “consent” means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.

(2) Without limiting sub-section (1), a person’s consent to an act is not freely and voluntarily given if it is obtained—

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.”

The issue of consent was extensively discussed in the case of Volavola –v- The State [2008] FJHC 400. In that case which was in relation to Rape and Defilement the issue of consent also arose especially where consent was vitiated by virtue of the position of authority held by the offender over the complainant.

The High Court cited various authorities and made the following statements: -

“Mr Ramsay argued that the exercise of authority was not relevant to the issue of consent&#160er s 135. HowevHowever, the court said this 'is not so', citing (at [16]-[19]) R v Lock (1872) LR 2 CRR 10, R v Nichol (1807) Russ & Ryand R v O'Connor (1998) 123 CCC (3d) 487:

`[These cases] recognised that, at common law, exercise of authority was relevant to the issue of consent : "These cases estabthat: (at: (1) consent mea active will in the mine mind of the complainant to permit the doing of the act, and (2) if a relationship of authority exits between the accused and ompla it iircumstance ance which may be taken into account in dein determitermining whether the complainant consented to the acts companied of, and, if she did not consent&#16o explain the lahe lack of resistance: at para 42" Furthermore, there is substantial authority to the effect that excise of authority has long been a relevant factor in determining the issue of consent or the absence thereothe cthe criminal law. In R v Jobidon [1991] 2 SCR 714 the Supreme Court of Canada was dealing with cons160; defen assault, Sec, Section 265(3) of the Criminal Code listed four factoractors whis which vitiated consent to ass one ic whas exercisercise of authority. The Court said at 739-740: "Parliament did not sett set foot into new territory when listingfour ting factors in s 265(3). On the contrary it will be seen that, for the most part part, tha, that list merely concretized, and made more explicit, basic limits on the legal effectiveness of co which had for cent centuries formed part of the criminal law in England and in Canada. The expression in the Code did not reflect an intent to remove the existing body of common law whireadyribed those limitlimitations and their respective scope. The. The Code just spelled them out more clearly, in a general form." That common law is rich and extensive, with roots reaching back well into the decades preceding Canada's adoption of the Code of 1892. For instance, it provided that, as a general rule, consent; would only be vali valid or legally effective if it was given freely by a rational and sober person (see Russell on Crime (12th edn, 1964), vol 1, p 678 by J W Cecil Turner). Thus in v March (1844) 1 Car &aar & Kir 496 the English criminal court, speaking through Lord Tindal CJ held that a fraudulently obtained consent to commoault was no c160;consent at allIn.. >R v Lock (1872) LR 2 CRR 10, an English criminal court held that eight-year-old boys were too young to understand the nature of a sexual act with a grown man to be able t160;ct to it. Sut. Submissbmission by a young child to an older stronger person, an authority figure, would not be considered consensual.

The consent&#ould in all probabrobability have been obtained under a coerced and ill-informed will. The principle now finds expression in Canada ... This makes clear that the common law recognised exercise of authority as a factor to be considered in determination of the issue of consent in the nal law, and the refe reference to Lock makes it clear that it was a factor to be considered in determination of the issue of consent in relation to sexual oes nces ... It fo thatenactment of the the CrCriminal Code.,.. did not change the common law insofar as it recognised exercise of authority as brelevo the issue of consent to l interintercourscourseourse, simply by failure to list it as a vitiating factor in s 135(b).'

'[20] [I]f there is any doubt left, the Supreme Court again touched on the same issue in R v Audet [1996] 2 SCR 171. La Forest J said at 185-186 as follows: "The relative positions of the parties have always been relevant to the validity of consent under Can criminal law. The. The common law has long recognised that exploitation by one person of another person's vulnerably towards h her ave an impact on the validity of consent : historical review pre bred bred by A Wy A W Bryant `The Issue of Consent in thee of Sexual Assl Assault ' (1989) 68 ian Bar Review view 94 at 127-131; R v Jobidon [1991] 2 SCR 7> at and .>Norberg v Wg v Wynrib [1993] 2 LRC 408 ..."