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State v Natau - Judgment [2014] FJHC 723; HAC305.2012 (6 October 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 305/2012

BETWEEN:

THE STATE

AND:

PITA NATAU

COUNSEL : Mr Y Prasad and Ms V Prasad for the State
: Accused in Person

Dates of Trial : 18/09/2014
Date of Summing Up : 19/09/2014
Date of Judgment : 06/10/2014

[Name of the victim is suppressed. She will be referred to as R.N.]

JUDGMENT

[01] Pita Natau has been charged with the following charge on amended information dated 15th day of November, 2014 by Director of Public Prosecutions.

The Charge

Statement of Offence

RAPE: Contrary to Section 207(1) and 207(2) (a) of the Crimes Decree No: 44 of 2009.

Particular of Offence

PITA NATAU on the 13th day of November 2010, at Lokuya Settlement Verata, Tailevu in the Central Division, had carnal knowledge of R.N being a child under the age of 13 years.

[02] After trial on the charge, the assessors returned unanimous opinion of guilty against the accused. I direct myself on my own summing up and on looking at the evidence in its entirety I find that I cannot agree with the guilty verdict of the assessors. I find the guilty verdict of the assessors appears to be perverse.

[03] In this case prosecution charged the accused for committing one count of Rape against the victim.

[04] The victim R.N. was 11 years old at the time of the offence. She was living at Lokuya with her mother Unaisi and her step-father Pita Natau. Their house is 5 meters in length and width is about the court room size. The house has electricity and the verandah light is on during the night. They all sleep in the house during the night. On 13/11/2010 as usual she slept inside the house. Her mother had slept with her sister and Pita Natau slept with her brother. She slept on the floor. The distance between her and her mother and Pita Natau is about 2 ½ meters. At about 12.30 am she suddenly found that she was naked and was carried up to the place where Pita was sleeping. When she tried to go back to her place where she slept, Pita pulled her up and covered her mouth with a pillow. Thereafter he had inserted his penis into her vagina and kissed her. She could not go back to her mother as Pita held her firmly. After that she wore her clothes and went to the place where she was sleeping. She could not sleep thereafter and was up till morning. After the incident Pita had threatened her not to tell anybody. On the following day her cousin had seen blood on her pants. She then informed this to her mother but did not tell the incident to anybody.

[05] She then went to live with her Aunty Mere Marama as Pita had chased her and her mother away from the house after a fight. She then told the incident pertains to this case in the year 2011. Her Aunty after hearing from her reported the matter to the police. Thereafter she was subjected for a medical examination.

[06] In the cross examination the victim admitted that two girls got pregnant at her Aunt's house. According to the victim blood only came after the sexual act done by the accused. Victim was at her Aunt's place for about two years and went to her mother's place thereafter. Victim admitted that she complained against her Uncle Keni to the police. The allegation is that he had gone to the bathroom when the victim was inside. The victim said that she did not know why her Uncle Keni was tried before Korovou Court. The reason she did not tell the incident to her mother as the accused told her that he would do bad things if she divulge this to anybody. Victim did not explain what meant by bad things by the accused. The victim admitted that her mother went to Nadi in the year 2011 but denied that her mother went to marry a soldier. Victim said that her Aunty had helped her to report the matter to the police. Victim admitted that she first reported the matter on 27/12/2011. The victim denied that she told police that she was afraid to tell her mother as her step father would kill her.

[07] According to Mere Marama, she admitted that she went to the police in the year 2011 regarding the victim's complaint. Victim had told her that while she was at the accused's house he used to carry her from her bed to his bed, fondle her breasts and insert his penis into her vagina. The victim had come to her place after the accused chased the victim and her mother from the accused's house.

[08] In the cross examination witness admitted that her two daughters got pregnant at her house. Witness admitted that she reported two matters to the police; one against the accused and one against Keni. She confirmed the allegation the victim made against Keni. She is a relation of Keni. Further she admitted that her sister, the victim's mother got pregnant by a police officer.

[09] According to the history given to the doctor, the victim's step father used to go to her at night. He used to fondle her, insert his finger into her vagina. Further her step father sexually penetrated her only one time. And he made her to hold his penis. This had happened many times last year.

[10] The victim in this case was 10 years and 11 months old at the time of the offence. The alleged incident had taken place on 13/11/2010. But she had told her Aunt and the doctor that the accused used to fondle her breasts and insert his finger into her vagina on many occasions. In her evidence she has not uttered single word about those incidents. Further the victim had never said to her mother about the sexual assault of the accused though she had ample opportunity to inform this to her mother. She only came out of the incident after more than one year. The reason she said that she was scared of the accused. But she denied telling the police that she was afraid of telling her mother as the accused would kill her. Further two daughters of her Aunt got pregnant during the time she stayed with her. Further she lodged a complaint against Keni a close relation of her Aunt who entered the bathroom while she was inside. This complaint was settled. At that time, the victim after more than a year had lodged a complaint first time against the accused. Her Aunt Mere Marama had assisted her. Further the victim failed to explain to this court what she understood by bad thing.

[11] Considering evidence presented by the prosecution it creates a genuine doubt in my mind and the benefit of doubt must be given to the accused.

[12] It is the duty of the prosecution to prove the case beyond reasonable doubt. But in this case the prosecution has failed to prove the case against the accused beyond reasonable doubt.

[13] Therefore, I acquit the accused from the charge.

[14] 30 days to appeal.

P Kumararatnam
JUDGE

At Suva
06/10/2014