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State v M. N - Judgment [2015] FJHC 914; HAC216.2011 (20 November 2015)

JUDGMENT

1. The Names of the Victim and the Accused are suppressed.
   
2. The accused person is charged with one count of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Decree and one count of Indecent Assault contrary to Section 212 (1) of the Crimes Decree. The particulars of the offence are that;
   

The First Count

"MN, between the 1st day of January 2011 and the 31st day of May 2011 at Nadi in the Western Division, inserted his penis into the vagina of SW, a 9 years old girl"

The Second Count

"MN on the 5th day of June 2011 at Nadi in the Western Division unlawfully and indecently sucked the vagina of SA, a 9 years old girl"

2. The accused person pleaded not guilty for this offence; hence the hearing of this action took place on 17th and 18th of November 2015. The prosecution called three witnesses during the course of the hearing. At the conclusion of the prosecution case, the accused person chose not to give evidence on oath and not to call any witness for the defence. Subsequently, the learned counsel for the prosecution made her closing submissions but the accused opted to remain in silence. I then delivered my summing up to the assessors.
   
3. The three assessors returned with unanimous verdict of guilt against the accused person in respect of the both counts. The assessors' verdict was not perverse. It was open for them to reach such conclusion on the evidence presented during the hearing.
   
4. Having considered the evidence presented during the hearing, closing submissions of the prosecution, and the opinions of the assessors, I now proceed to pronounce my judgment as follows.
   
5. Sections 207 (1) and 207 (2) (a) of the Crimes Decree states that;
   

"Any person who rapes another person commits an indictable offence.

A person rapes another person if-

(a) the person has carnal knowledge with or of the other person without the other person's consent,

6. However, the Section 207 (3) of the Crimes Decree states that a child under the age of 13 years is incapable of giving consent.
   
7. Accordingly, the main elements of the offence of rape as charges are that;
   
   1. The accused,
   2. Inserted into the vagina of the victim with his penis,
   3. The victim was under the age of 13 years at the time of the offence,
      

8. Section 212 (1) of the Crimes Decree states that;

"A person commits a summery offence if he or she unlawfully and indecently assaults any other person"

9. Accordingly, the main elements of the second count are that;

i. The Accused,

ii. Unlawfully and indecently,

iii. Sucked the vagina of the victim

10. According to the first count, the Prosecution alleges that the accused inserted his penis into the vagina of the victim between 1st of January 2011 and 31st of May 2011. The victim in her evidence stated that the accused used to come to her in every night and did things to her. She explained that the accused came to her in the night and tied up her hands and legs. He then removed her cloths and inserted into her vagina with his penis.
    
11. The accused is the uncle of the victim. He used to stay at her house with her family because of his works. During that period, the victim lived with her family, another uncle and aunt and their son.
    
12. In respect of the second count, the prosecution alleges that the accused unlawfully and indecently sucked the vagina of the victim on 5th of June 2011. The victim in her evidence stated that she went to her father's work place, that is Bamboo's backpackers hotel in the night of that day. She went to her father' room to sleep, while her father was still working. She felt that someone was touching her legs and was calling her name. She recognised that it was the accused. He asked her to come down to the mattress on the floor for her to sleep with him. She refused and turned on to the side of the wall. The accused then lifted her to the mattress. He then removed her undergarment and started to lick her. Suddenly, he pushed her to the floor and laid down on the mattress saying that her father was coming.
    
13. Mr. Leone, the father of the victim, stated in his evidence that he noticed that all the lights of the guest room went off. It was the room the victim went to sleep. He then walked towards the room to check. He heard that the accused was telling "sit on me". It came from the room where the victim was sleeping. He then went into the room and switch on the light. He found the victim was lying on the floor and her legs were open. Her undergarment had removed from her. The accused was lying on the mattress. Mr. Leone asked the accused that what was happening. The accused told him that he was telling her ghost stories. He then took the victim out of the room and asked her what happened inside the room. The victim had then told her father that the accused did things to her. She told Mr. Leon that the accused asked her to sit on him and he had his penis out and showing it to her.
    
14. Doctor Abdul Wahab Shah, who is the Divisional Medical Officer of Nadi Hospital gave evidence and tendered the medical report made by Dr. Lizel Lontoc. He explained the medical findings made by Dr Lontoc in the medical report.
    
15. The accused did not give evidence nor called any other witnesses for the defence.
    
16. The prosecution case is mainly founded on the evidence given by the victim, who was 10 years old at the time of this incident took place. I am mindful of the fact that children do not have the same life experience as adults. They do not have the same standard of logic and consistency, and their understanding may be limited for a number of reasons, such as their age and immaturity. Having considered the evidence given by the victim and her demeanour of presenting her evidence, I am inclined to accept her evidence as reliable and credible. The evidence of father is also in consistence with her evidence. In view of these reasons, I find that the prosecution has proved beyond reasonable doubt that the accused person is guilty for these two counts. I accordingly find no cogent reason to disregard the unanimous verdict of guilt given by the three assessors.
    
17. I accordingly find the accused person is guilty for these two offences as charged in the information and convict him accordingly.
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
20th of November 2015

Solicitors : Office of the Director of Public Prosecutions