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APPEAL DISMISSEDSENTENCE CONFIRMED} {\doccomm IN THE HIGH COURT OF FIJI; (AT SUVA); APPELLATE JURISDICTION; CRIMINAL APPEAL NO. 53 OF 1993 ; BETWEEN: MOSESE NAISAROI ; APPELLANT ; v ; S T A T E ; RESPONDENT ; The Appellant in person; Ms. L. 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}{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 MOSESE NAISAROI}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par APPELLANT \par \par -v- \par \par }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 STATE}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par RESPONDENT \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par The Appellant in person \par Ms. L. Laveti for the Respondent \par \par }\pard \qc \li0\ri0\sl240\slmult0\nowidctlpar\hyphpar0\faauto\rin0\lin0\itap0 {\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 JUDGMENT}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par This appellant was convicted on 19 February 1993 on a charge of }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Indecent Assault}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 contrary to }{ \b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Section 154 (1) of the Penal Code,}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 and for }{ \b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Contempt of Court}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 contrary to }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid10648821 Section 136}{ \b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 (1)(a) of the Penal Code Cap 17}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 and was sentenced to 2 years and 3 months respectively and both terms to be served consecutively. \par \par He now appeals against both conviction and sentence. \par \par The facts are these. \par \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The complainant was 36 years old at the time of the alleged incident. She lived in Narere, a suburb of the city of Suva which is approximately 12km from the centre of the city. She recalled the 26th of June 1991 when between 11.30a.m. and 1p.m. she was washing clothes, when the accused approached her. He asked her if he could have her permission to cross over to the compound of the complainant's neighbour. She gave h im permission to do so. As he came near her, he introduced himself as "Reverend Doctor Mosese Naisaroi" who could heal people as he is a faith healer. She said that he told her he had healed thousands of people especially those who were paralysed, those w ho could not talk and people generally with various other sickness. He asked her if she had any illness. She said she stopped washing clothes and stared at the accused for a long time at his statement. \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The complainant said that she remembered that she was a patient due to depression at the St. Giles Hospital in 1979 after her first child was born. She said she told the accused this and he replied that it was God's will that they had met that day. She told him about her son's illness. The accused went insid e her house uninvited and prayed for him in Fijian language. She said she then asked him to pray for her. He replied that he could not pray for her in her house but could do so at his place and then asked her to go to his place which is about 70 metres fro m her place. \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The complainant then went to the accused's place after washing her clothes. She said she went alone and it took about 5 minutes to walk to his place. When she reached his house, she knocked on the door and the accused opened it. Once inside, s he said he asked her a few questions in English which she said she did not fully understand. She said he then quoted a few verses from the Bible in respect of her illness. The accused asked if she had a husband and she said she did. The accused said he wa s willing to treat her. She said she told the accused that she would like to go to her husband and ask if she could be treated by the accused but he told her not to ask. She said that at that time he also showed her a photograph of his graduation ceremony a s a doctor to look after women when they are sick. She said that he asked her to sign a piece of blank paper in an exercise book with nothing written on any side. Then he prayed for her both in Fijian and English languages. She was then told to go into a b edroom where the accused asked her to lie down on a mattress on the floor. The accused then locked the outside door as well as closed the bedroom door in order to commence treatment. She said that he took oil and nivea cream in his hand and began to massa g e her head, face, neck and her breasts. She said that he then told her to take off her bra. She said she took the hook off so that the breasts could be exposed. At that time she had her dress on but was slipped to her shoulder. She said that he then began to suck the breasts. He then massaged her hip and asked her to take the panty off because he wanted to examine her private parts. The accused put his fingers on top of the private parts and then put two fingers inside the vagina. She said she suspected th at he was up}{\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid10648821 }{\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 to something and gave a surprise look at him. As he touched her private parts, she said that he asked her if he could lie on top of her. She said that it was at that time she saw the accused's erect private part. She said she got afraid, knew h e was upto some mischief, pushed him, picked up her panty and went to the sitting room. She said he then held her hand, prayed, and asked for her forgiveness. He then asked her for some money. The complainant told him that she will not forgive but leave i t up to the Lord. She said she gave him $1.55 because he wanted it for his services to her. \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The complainant said that she never consented to the accused sucking her breasts or to touching of her vagina. She said she went from the accused's house to her hom e, asked her son to get ready, went to Suva where her husband works and told him about her experience with the accused earlier in the day. The matter was then reported to police.}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par The appellant appeals to this Court and over eighty grounds of appeal were f iled and many of which were repetitious and overlapping and some were without merit. This is not uncommon in cases where appellants are not legally represented. The grounds can, however, be summarised into the following:- \par \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 (1) That the Learned Trial Magist rate, erred in law and in fact in refusing to accept that the appellant had obtained consent from the complainant before he touched her body, hence there has been a substantial miscarriage of justice. \par }\pard \ql \fi-744\li744\ri0\sl240\slmult0\nowidctlpar\tx-720\tx0\tx720\hyphpar0\faauto\rin0\lin744\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 (2) That the Learned Trial Magistrate erred in law and in fact in admitting "Similar Facts" evidence at the trial, hence there has been a substantial miscarriage of justice. \par }\pard \ql \fi-744\li744\ri0\sl240\slmult0\nowidctlpar\tx-720\tx0\tx720\hyphpar0\faauto\rin0\lin744\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 (3) That the Learned Trial Magistrate erred in law and in fact in not considering his evidence before convicting him showing bias against him, hence there has been a substantial miscarriage of justice. \par }\pard \ql \fi-744\li744\ri0\sl240\slmult0\nowidctlpar\tx-720\tx0\tx720\hyphpar0\faauto\rin0\lin744\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 (4) That the Learned Trial Magistrate erred in law and in fact in convicting him for Contempt of Court, hence there has been a substantial miscarriage of justice. \par }\pard \ql \fi-744\li744\ri0\sl240\slmult0\nowidctlpar\tx-720\tx0\tx720\hyphpar0\faauto\rin0\lin744\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 (5) That the sentence passed by the Learned Trial Magistrate is harsh and excessive. \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par As for the first ground of appeal the appellant argued that he had already obtained consent both verbally and in writing from the complainant Laisani Sukanabose bef}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid10648821 ore he touched her body to conti} {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 nue with what he termed as his }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 "modern scientific healing method".}{ \f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 He referred to }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Ex.A}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 (the signed consent by complainant) to substantiate his argument. He contended that the healing process was carried out with dignity, honour and respect. There was no struggle at all and the complainant did not raise her complaint earlier until the afternoon when she reported the matter to her husband in Suva. He further argued that since consent had been given prior to the healing by the complainant he was not guilty of any offence under }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 S.154(1) of the Penal Code.}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 S.154(1) reads - \par }\pard \ql \fi-744\li744\ri0\sl240\slmult0\nowidctlpar\tx-720\tx0\tx720\hyphpar0\faauto\rin0\lin744\itap0 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Any person who }{\b\i\f0\fs24\ul\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 unlawfully}{\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 and }{\b\i\f0\fs24\ul\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 indecently}{ \i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 assaults any woman or girl is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment.}{ \f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par He maintained his action was not unlawful and not indecent because he was permitted by the complainant to touch her body. \par \par Miss Laveti for the Respondent in reply argued that complainant consented only to massage and prayer. She did not consent to the touching of her pr ivate part by the appellant. Miss Laveti added the purported consent was obtained by fraud as the complainant signed a blank piece of paper which was filled in later by the appellant }{ \b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 (Refer to Ex.A)}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Miss Laveti referred to the case of }{ \b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 R v. Williams [1923] 1 Q.B 340}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 in support of her argument. \par \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 "The appellant, who was engaged to give lessons in singing and voice production to a girl of sixteen years of age, had sexual intercourse with her under the pretence that her breathing was not quite right and that he had to perform an operation to enable her to produce her voice properly. The girl submitted to what was done under the belief, wilfully and fraudulently induced by the appellant, that she was being medically and surgically treated by the appellant and not with any intention that he should have sexual intercourse with her:- \par }\pard \ql \fi-744\li744\ri0\sl240\slmult0\nowidctlpar\tx-720\tx0\tx720\hyphpar0\faauto\rin0\lin744\itap0 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Held, that the appellant was properly convicted of rape."}{ \f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par The facts in detail for our purpose are these- \par \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The appellant, who was the choirmaster of a Presbyterian church, by reason of t hat fact became acquainted about Christmas, 1921, with Vera Howley, a girl of sixteen years of age, and it was arranged by her parents that she should take lessons in singing and voice production from him. On the occasion of the second singing lesson on J a nuary 17 the appellant said that she was not singing as she should and was not getting her notes properly and told her to lie down on a settee. He then removed a portion of her clothing and placed upon the lower part of her body an instrument-which was in the nature of an aneroid barometer and according to the evidence was not in working order and would not any event have been affected by the breathing of the girl-and then told her to take a deep breath three times. He looked at the instrument and purporte d to write something in a book. He then dropped on to her and proceeded to have sexual intercourse with her. She said: "What are you going to do?". He said: "It is quite all right; do not worry. I am going to make an air passage. This is my method of train i ng. Your breathing is not quite right and I have to make an air passage to make it right. Your parents know all about it, it has all been arranged; before God, Vera, it is quite right. I will not do you any harm." The girl made no resistance, as she belie ved what he told her and did not know that what he did was wrong-nor did she know that he was having sexual intercourse with her. The appellant had sexual intercourse with the girl a second time on April 28 in similar circumstances.}{ \f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The appellant also on t wo occasions committed an indecent assault upon Ada Mary Cannell, a girl of nineteen years of age, to whom he was also giving lessons in singing and voice production. Upon the pretence that her breathing was not right he put his finger up her private part s, saying that he was making an opening for the air to pass up.}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par Williams' case clearly is the authority that fraud vitiates consent. \par \par The question to be answered here is }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 "Did the appellant obtain the complainant's consent wilfully and fraudulently?}{ \f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par \par The co mplainant had asked appellant to pray for her in her house after he had prayed for her son. But he replied that he could not do that as he could only pray for her in his house. One wonders why appellant could not do that, as ministers of religions and oth er faith healers pray for the sick in the presence of others, but insisted that complainant should come to his house. He even discouraged her from informing her husband prior to his performing his }{ \b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 "healing process".}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Although complainant allowed the appellan t to touch her body by massaging she began to be suspicious when appellant started massaging and sucking her breasts until he inserted two fingers in her vagina. It was at that stage she realised that appellant had other motives. She was frightened when h e asked if he could lie on top of her. She pushed him away, when she saw his erect penis, picked up her panty and went away to the other room. He held her hand and asked for forgiveness. The complainant went to her home and then left for Suva to report the matter to her husband. If complainant had really given her consent for the appellant to insert two fingers in her vagina as part of the appellants' }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 "modern scientific healing method"}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 why would she then reported the incident to her husband? \par \par The complainant maintained }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Exhibit A}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 was blank when she signed it. A close study of }{ \b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Exhibit A}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 would reveal that such a document looks very suspicious indeed which lends support to the complainant's claim. \par \par I find it rather odd that appellant's }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 "modern scientific method of healing"}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 includes the inserting of two fingers inside the vagina in closed room without the presence of a female. Furthermore he confines his healing method to Fijian women alone. One will appreciate that most Fijian housewives living in Housing Estates and villagers are humble and God-fearing and would trust and believe the assurances of one who impresses them as a man of God almost to the verge of naivety. More so in cases like this when the appellant professes to be a Doctor of women by showing a numb er of "certificates" to people to convince them, particularly his Fijian women patients. \par \par As far as I know all genuine examination of women by doctors is done in the presence of a female nurse in their clinic or surgery. \par \par The appellant submitted at the hear ing of his appeal that he carried out his healing method on the complainant with dignity honour and respect. With respect I cannot agree that such humiliating and degrading act on an unsuspecting innocent woman can be regarded as dignified, honourable and respectful. \par \par He argued that if complainant had not consented to be healed by him she could have reported the matter to the first person she met but not to wait until the afternoon to report her experience to her husband. \par \par It is without doubt that such a matter was very sensitive and personal and that complainant wanted to let her husband be the first to know and to advise her on what action she should take. The Court was referred to the case of }{ \b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 R v. Cummings [1948] 1 AER 551}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 ., by Counsel for Respondent. \par \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 "T he prosecutrix alleged that she was raped by C. It appeared that after the incident C. took her back in his motor van to the land workers' camp where for a week she had been living. She did not complain to the camp warden although she saw him, nor to girl s sharing her hut, but the following day she went to an older woman whom she knew, living two miles from the camp, and to her made a complaint which led to C.'s arrest. At the trial evidence of this complaint was admitted. C. was convicted, but, on appeal, it was argued that the complaint had not been made immediately, and, therefore, evidence of it was inadmissible. \par }\pard \ql \fi-744\li744\ri0\sl240\slmult0\nowidctlpar\tx-720\tx0\tx720\hyphpar0\faauto\rin0\lin744\itap0 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 HELD: it was for the judge who tried the case to decide whether the complaint was made as speedily as could reasonably be expected, and, as th e judge had applied the right principle, i.e., that there must be an early complaint, the Court of Criminal Appeal could not interfere with the exercise of his discretion as to the admissibility of the evidence."}{ \f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par This Court likewise cannot interfere with the exercise of the Learned Trial Magistrate's discretion as to the admissibility of the complaints' evidence. \par \par I am satisfied that the consent given by the complainant was obtained wilfully and fraudulently by the appellant. For this reason this ground of appeal is dismissed. \par \par For ground 2 appellant submitted that the Magistrate was wrong in admitting the evidence of his previous conviction under the principle of }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 "similar facts evidence"}{ \f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 through P.W4 Akanisi Danidani. P.W4's case has already been dealt with and that a person should not be crucified twice on the same charge. \par \par After the prosecution's application to call PW4 to give evidence of similar facts was successful, she testified in camera after the court house was cleared. She told the court that in J anuary 1989 she came to C.W.M. Hospital in Suva from Naitasiri to seek treatment for pain in her neck. A month later she decided to seek treatment elsewhere as she got little joy from the hospital treatment. Upon advise of a friend who was a nurse and wit h whom she was staying, she went with her husband to see the accused. She said when she was talking to the accused, he told her husband to go to the kitchen and eat food. The accused then asked her to sign a piece of blank paper with nothing written on it. She said that the accused told her that all patients seeing him had to sign their names first. They went into a room which he locked. She said he asked her to lie on the floor on a mat. She took off her dress after he told her to do so and began to massag e her. At that time she had only her sulu on. She said he massaged her chest (and breasts), then went down to her private parts, touched and inserted two fingers in her vagina. She said she felt afraid and it hurt her. She told the accused about it. She sa i d he asked her if he could have sex with her but she refused. She also said that when the accused first asked her for sex, he placed a piece of white cloth on her face but she took it away and found him unbuttoning his pants. She then stood up, took her d ress and wanted to leave when he again asked if he could have sex. She refused again. Then she said he began to pray in English and as she was leaving he told her not to tell anyone what he had done to her. \par \par The appellant was convicted on his own plea of guilty. \par \par In dealing with Similar Facts evidence I will first refer to the case of }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Makin v. Attorney General}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 of New South Wales (1894) A.C.}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid10648821 }{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 57. The Privy Council's Judgment was delivered by the Lord Chancellor, who had this to say. \par \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The appellants in this cas e were tried and found guilty at the Sydney Gaol Delivery held at Darlinghurst of the murder of the infant child of one Amber Murray. The learned judge before whom the case was tried deferred passing sentence until after the argument of the special case w hich he stated for the opinion of the Supreme Court of New South Wales. \par }\pard \ql \fi-744\li744\ri0\sl240\slmult0\nowidctlpar\tx-720\tx0\tx720\hyphpar0\faauto\rin0\lin744\itap0 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The points reserved by the learned judged were: first, that his honour was wrong in admitting evidence of the finding of other bodies than the body of the child alleged to be Horace Am ber Murray; secondly, that his honour was wrong in admitting the evidence of Florence Risby, Mary Stacey, Agnes Todd, Agnes Ward, and Mrs.}{\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid10648821 }{ \i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Sutherland; thirdly, that there was no evidence to prove the identity of the body marked D with that of Horace Amber Murray; fourthly, that there was no evidence of the death or cause of death of Horace Amber Murray, or that he was murdered. \par }\pard \ql \fi-744\li744\ri0\sl240\slmult0\nowidctlpar\tx-720\tx0\tx720\hyphpar0\faauto\rin0\lin744\itap0 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The questions for the Court were, whether the evidence objected to was admissible, and if not, were the prisoners rightly convicte d? and even if inadmissible, was there evidence sufficient to sustain the conviction? On the argument of the special case the third point was abandoned by the learned counsel for the prisoners? On the other points the judgment was in favour of the Crown. \par }\pard \ql \li0\ri0\nowidctlpar\faauto\rin0\lin0\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Special leave was granted to appeal to this Board from the judgment of the Supreme Court of New South Wales, some of the questions raised being of grave and general importance. \par }\pard \ql \li0\ri0\nowidctlpar\faauto\rin0\lin0\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 At the close of the argument before their Lordships they intimated that they w ould advise Her Majesty that the appeal should be dismissed, and that they would state their reasons for this advice on a future occasion. \par }\pard \ql \li0\ri0\nowidctlpar\faauto\rin0\lin0\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 There can be no doubt, in their Lordships' opinion, that there was ample evidence to go to the jury that the infant was murdered. Indeed, that point was scarcely contested in the argument of the learned counsel for the appellants. The question which their Lordships had to determine was the admissibility of the evidence relating to the finding of other bodies, and to th e fact that other children had been entrusted to the appellants. \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 In their Lordships' opinion the principles which must govern the decision of the case are clear, though the application of them is by no means free from difficulty. }{\i\f0\fs24\ul\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 It is undoubtedly not comp etent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal c o nduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused (my emphasis).}{ \i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The state ment of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other. \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The principles which their Lordships have indicated appe ar to be on the whole consistent with the current of authority bearing on the point, though it cannot be denied that the decisions have not always been completely in accord. \par \par The leading authority relied on by the Crown was the case of }{\b\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Reg.v.Geering 18 LJ (NS) (M.C) 215,}{\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 where on the trial of a prisoner for the murder of her husband by administering arsenic evidence was tendered, with the view of shewing that two sons of the prisoner who had formed part of the same family, and for whom as well as for her hu sband the prisoner had cooked their food, had died of poison, the symptoms in all these cases being the same. The evidence was admitted by Pollock, C.B., who tried the case; he held that it was admissible, inasmuch as its tendency was to prove that the de a th of the husband was occasioned by arsenic, and was relevant to the question whether such taking was accidental or not. The Chief Baron refused to reserve the point for the consideration of the judges, intimating that Alderson, B., and Talfourd, J., conc urred with him in his opinion. \par }\pard \ql \fi-744\li744\ri0\sl240\slmult0\nowidctlpar\tx-720\tx0\tx720\hyphpar0\faauto\rin0\lin744\itap0 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 This authority has been followed in several subsequent cases. And in the case of }{ \b\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Reg. v. Dossett 2 C&K 306,}{\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 which was tried a few years previously, the same view was acted upon the Maule, J., on a trial for arson, where it ap peared that a rick of wheat-straw was set on fire by the prisoner having fired a gun near to it. Evidence was admitted to shew that the rick had been on fire the previous day, and that the prisoner was then close to it with a gun in his hand. Maule, J., s aid: "Although the evidence offered may be proof of another felony, that circumstances does not render it inadmissible, if the evidence be otherwise receivable. In many cases it is an important question whether a thing was done accidentally or wilfully."} {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par In }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Makin's}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 case }{\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 - \par \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment is not admissible unless upon the issue whether the acts charged against the accused were designed or accidental, or unl ess to rebut a defence otherwise open to him. \par }\pard \ql \fi-744\li744\ri0\sl240\slmult0\nowidctlpar\tx-720\tx0\tx720\hyphpar0\faauto\rin0\lin744\itap0 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Where prisoners had been convicted of the wilful murder of an infant child which the evidence shewed they had received from its mother on certain representations as to their willingness to adopt it, and upon p ayment of a sum inadequate for its support for more than a very limited period, and whose body the evidence shewed had been found buried in the garden of a house occupied by them, }{ \b\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 held,}{\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 that evidence that several other infants had been received by the pris oners from their mothers on like representations and on like terms, and that bodies of infants had been found buried in a similar manner in the gardens of several houses occupied by the prisoners, was relevant to the issue which had been tried by the jury .}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par In }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 R v. Huijser [1988] 1 NZLR 577,}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 the New Zealand Court of Appeal dealt with admissibility of similar facts evidence. In that case, the accused faced charges of indecent assault on a young woman who was employed by him in his shop. Her evidence related to two different incidents on the same afternoon and there was further evidence given by three other women who had also worked for the accused. It was argued by the Crown that this was similar fact evidence admissible in relation to both incidents. The ac c used appealed when the District Court Judge ruled that the evidence of the three other women was admissible. The Court of Appeal held that there was evidence of a general pattern and a constant or continual attitude on the part of the accused. Although th e re were differences in detail, the evidence, if accepted, would show a practice established over a considerable number of years by the accused of subjecting women employees to minor sexual assaults and harassment during the course of their working relatio nship and further that any risk of collaboration among the witnesses was not of such a dimension as to justify withholding the evidence altogether from the jury. \par \par In }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 R v. McLean [1978] 2 NZLR 358 at page 361}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 it was stated that the approach to take is this. \par \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 "While various formula are used to express the same underlying idea, it is enough for our purposes to say that evidence of other conduct by the accused may not be admitted merely to show that he has a propensity to commit homosexual offences; but if, betw een the complainant's account and the accounts given by others of the accused's conduct on other occasions, there is a striking similarity, so as to make it highly likely that the complainant is telling the truth, those other accounts may be admitted; sub j ect, nonetheless, to the overriding discretion of the Judge to exclude them on such grounds as that their probative value is outweighed by their prejudicial effect or that there appears to be a real chance that witnesses have collaborated to tell a false story."}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par In }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 R v. Boardman [1975] AC 421 at p444 Lord Wilberforce}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 said that: \par \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 "The basic principle must be that admission of similar fact evidence is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, fro m the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or fr om pure coincidence. They jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other(s)."}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par On page 442, Lord Wilberforce said that when in the field of sexual conduct or ot herwise, there is no general or automatic answer to be given to the question whether evidence of facts similar to those in subject of a particular charge ought to be admitted and in each case it is necessary to estimate, firstly, whether, and if so how st r ongly, the evidence as to other facts tends to support, (i.e., to make more credible) the evidence given as to the fact in question and, secondly, whether such evidence, if given, is likely to be prejudicial to the accused. He said that both these element s involve questions of degree and it falls to the judge, in the first place by way of preliminary ruling to estimate the respective and relative weight of these two factors and only to allow the evidence to be put before the jury if he is satisfied that th e answer to the first question is clearly positive, and, on the assumption, which is likely, that the second question must be similarly answered, that on a combination of the two the interests of justice clearly require that the evidence be admitted. He wa rned that questions of this kind arise in a number of different contexts and have to be resolved in different ways. \par \par }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Lord Hailsham at p 453}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 said that the truth is that a mere succession of facts is not normally enough on a course of criminal conduct and the re must be something more than mere repetition; there must be "underlying unity", "nexus", "unity of intent, project, campaign or adventure", "part of the same criminal conduct" or "striking resemblance". He warned that these are all highly analogical not to say metaphorical expressions and should not be applied pedantically and that the doctrine of similar facts evidence should be applied with great caution. He said that the test in each case is whether the evidence with regard to other charges is relevan t to that charge. In other words whether there is "such an underlying unity between the offences as to make coincidence an affront to common sense. \par \par In the same case Lord Hailsham said that question must always be whether the similar fact evidence taken tog ether with the other evidence would do no more than raise or strengthen a suspicion that the accused committed the offence with which he is charged or would point so strongly to his guilt that only an ultra-cautions jury, if they accepted it as true, woul d acquit in face of it. In the end, although the admissibility of such evidence is a question of law not of discretion, the question as he sees it must be one of degree. \par \par Lord Salmon said that there are special circumstances where evidence of similar facts is admissible notwithstanding that it may disclose that an accused is a man of bad character with a disposition to commit the kind of offence with which he is charged. His Lordship at page 462 said, \par \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 "The test must be: is the evidence capable of tending to persuade a reasonable jury (or a Judge) of the accused's guilty on some ground other than his bad character and disposition to commit the sort of crime with which he is charged? It has never been doubted that if the crime charged is committed in a unique l y or strikingly similar manner to other crimes committed by the accused the manner in which the other crimes were committed may be evidence upon which a jury (or a Judge) could reasonably conclude that the accused was guilty of the crime charged. The simi larity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence."}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par In the light of the authorities that have been discussed the Trial Magistrate was correct in admitting the evidence of Akanisi Danidani to support and corroborate the evidence of the complainant as the pattern and method adopted by the appellant in his }{ \b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 "modern scientific healing method"}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 is very, very similar. Further more the appellant did not deny inserting two fingers inside the vagina of the complainant and Akanisi Danidani pleading that both women had given their consent to touch their private parts, which they denied. \par \par Since I have dismissed the appellant's first ground of appeal dealing with consent I also find no merit on this ground and it is therefore dismissed. \par \par As for ground 3 I am afraid I cannot see any merit on it. The record showed that the Trial Magistrate went into great length to guide and accommodate the appellant who was unrepresented. The Judgment of the Magistrate fully dea lt with the evidence, of both the Prosecution and the Defence culminating in his finding:- \par \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Finally, after considering the submission of, both, the accused and the State and the evidence, this court concludes that the evidence of the accused is so inconsis tent that no reliance can be placed on it. On the other hand I believe the evidence of the complainant who has repeatedly said that she did not consent to the accused touching her private parts. I hold on evidence before me that she did not consent in the manner alleged by the accused. The accused has admitted that he is the one who touched the complainant's private parts. This is an admission by the accused himself and this piece of evidence is perhaps one of the best forms of corroboration. I am satisfie d on evidence before me that the State has proved the accused's guilt beyond reasonable doubt and find him guilty of the offence of indecent assault of the complainant as charged.}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par On perusal of the record I cannot find any evidence of bias and on the Magis trate, on the contrary, the Magistrate kept a very clear record of what transpired in the Court below. The Magistrate has every right to question any witness including the appellant any question in a trial in order to clarify certain points. \par \par There is no merit on this ground it is accordingly dismissed. \par \par On ground 4 the appellant argued that the Magistrate was wrong in convicting him for }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Contempt of Court.}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par \par The record of the trial shows that after appellant was convicted and sentenced he asked for a suspended sentence or bail. When the Trial Magistrate refused his application, he told Magistrate }{ \i\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 "You will not be here within 2 years I am a man of God. I will sentence you within 2 years so that you are not here.}{ \f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Court: You are causing disturbance \par \par Accused: I am innocent. You have sentenced me so it is my turn to sentence you now, not to live in this world. \par \par Court: Do you know what you are saying? Do you know what it means? \par \par Accused: Yes - you will not be in this world before end of 2 years. I promise that you don't live. \par \par Court: Do you realise you are in contempt of court? \par \par Accused: All I know is you sentenced me so I will sentence you. You will be no more in 2 years in the world. \par \par Court: Looks like you are not sorry for what you said. So I now hold you in Contempt of Court contrary to S.136 of Penal Code, Cap 17. \par }\pard \ql \fi-744\li744\ri0\sl240\slmult0\nowidctlpar\tx-720\tx0\tx720\hyphpar0\faauto\rin0\lin744\itap0 {\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The court was then adjourned for 20 minutes. \par \par When court resumed:- \par \par Court: Could you show cause why you should not be dealt with by me for disrespect to court in speech and manner under S.136 of Penal Code. \par \par Accused: Like another Magistrate to hear me. It is my right - from the beginning of my case. \par \par Court: The disturbance and disrespect for which you have been cited were in Court before me. So I shall deal with you on this matter under S.136 of Penal Code. I will proceed with this matter.}{ \f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par \par }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Accused: I have suffered enough I am giving judgment according to the laws of God. Now I will sentence you my way with the help of God. You won't be here. \par \par After further exchanges between appellant the Trial Magistrate then sentenced appellant to 3 months to be consecutive to the 2 years sentence for Indecent Assault. \par }\pard \ql \fi-744\li744\ri0\sl240\slmult0\nowidctlpar\tx-720\tx0\tx720\hyphpar0\faauto\rin0\lin744\itap0 {\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li720\ri0\nowidctlpar\faauto\rin0\lin720\itap0\pararsid10648821 {\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The jurisdiction for courts to deal with Contempt of Court is provided in para 28-24 at page 2973 of Archibold 1992 Vol 2. \par \par "Superior Courts of record have jurisdiction to deal summarily with contempts both in the face of the court and out of the Court:- \par \par Inferior Courts of record have jurisdiction to deal summarily only with Contempts in the face of the Court:- R v. Brompton County Court Judge [1893] QB. 195. \par \par For conduct amounting to contempt. See Halsburys Laws of England Fourth Edition Vol 9. \par \par 5. }{\b\f0\fs24\ul\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Conduct amounting to contempt.}{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 The power to fine and imprison for a contempt committed in the face of the court is a necessary incident to every court of jus tice. Although the boundaries of this kind of contempt have not been precisely defined, a contempt in the face of the court may be broadly described as any word spoken or act done in, or in the precincts of, the court which obstructs or interferes with th e due administration of justice or is calculated to do so. In order to constitute a contempt in the face of the court, it appears to be unnecessary that the act of contempt should take place wholly, or in part, in a court room itself; nor does it seem to b e necessary that all the circumstances of the contempt should be within the personal knowledge of the judicial officer dealing with the contempt.}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par On the above authorities the Trial Magistrate had the jurisdiction and that the words and action of appellant amount to contempt in the face of the Court. \par \par I find no merit on this ground it is therefore dismissed. \par \par As for the last ground the appellant had been convicted on five counts for }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Indecent Assault}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 for which he was given a concurrent sentence of 1 year in 1989 and 1990. The maximum sentence for }{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Indecent Assault}{ \f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 is 5 years and I can see nothing wrong with the 2 years sentence imposed by the Magistrate. I do not regard it as harsh and excessive. As for }{ \b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 Contempt of Court,}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 although the Magistrate imposed the max imum of 3 months, I find it quite adequate and fitting in the light of the disturbance created by the appellant. The sentence is exemplary and quite proper in order to deter the appellant and would be offenders as well. In my view the Magistrate was corre ct in exercising his discretion to order that the two sentences be consecutive. \par \par This ground has no merit it is also dismissed. \par \par Finally this appeal is dismissed and the sentence imposed by the Court below is confirmed. \par \par }\pard \qc \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 S W Kepa \par }{\b\f0\fs24\ul\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 JUDGE}{\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \ql \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\b\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 3rd December, 1993.}{\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 \par }\pard \qr \li0\ri0\sl240\slmult0\nowidctlpar\tx-720\hyphpar0\faauto\rin0\lin0\itap0 {\f0\fs24\lang2057\langfe5129\langnp2057\insrsid5636985\charrsid10648821 HAA0053J.93S \par }}