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State v Delailakeba - Judgment [2016] FJHC 483; HAC109.2014 (9 May 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 109 of 2014

STATE

v.

JIONE VAKATALAI DELAILAKEBA

Counsel : Ms. L. Bogitini for State
Ms. L. Raisua for Accused

Date of Hearing : 02^nd, 03^rd May 2016
Date of Summing Up : 06^th May 2016
Date of Judgment: 09^th May 2016

JUDGMENT

[Name of the victim is suppressed. The victim will be referred to as M.D.]

1. The accused Jione Vakatalai Delailakeba is charged with the following one count of Sexual Assault and 3 counts of Rape.
   

FIRST COUNT

[Representative Count]

Statement of Offence (a)

SEXUAL ASSAULT: Contrary to section 210 (1) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

JIONE VAKATALAI DELAILAKEBA between the 1^st day of March 2011 and the 31^st day of December 2011 at Nabua in the Central Division unlawfully and indecently assaulted ‘M.D.’, a 9 year old girl, by touching and licking her vagina.

SECOND COUNT

[Representative Count]

Statement of Offence (a)

RAPE: Contrary to section 207 (1) and (2) (b) and (3) of the Crimes Decree 44 of 2009

Particulars of Offence (b)

JIONE VAKATALAI DELAILAKEBA between the 1^st day of January 2012 and the 31^st day of December 2012 at Nabua in the Central Division penetrated the vagina of ‘M.D.’ a child under the age of 13 years, with his finger.

THIRD COUNT

[Representative Count]

Statement of Offence (a)

RAPE: Contrary to section 207 (1) and (2) (a) and (3) of the Crimes Decree 44 of 2009

Particulars of Offence

JIONE VAKATALAI DELAILAKEBA between the 1^st day of January 2013 and the 30^th day of September 2013 at Nabua in the Central Division had carnal knowledge of ‘M.D.’, a child under the age of 13 years.

FOURTH COUNT

Statement of Offence (a)

RAPE: Contrary to section 207 (1) and (2) (b) and (3) of the Crimes Decree 44 of 2009

Particulars of Offence

JIONE VAKATALAI DELAILAKEBA between 1^st day of October 2013 and the 31^st day of October 2013 at Nabua in the Central Division penetrated the vagina of ‘M.D.’, a child under the age of 13 years, with his finger.

2. After trial the 3 assessors unanimously opined that the accused is guilty of counts 1, 2 and 4 and not guilty of count no. 3. I adjourned to consider my judgment. I direct myself in accordance with my summing up and the evidence adduced at the trial.
   
3. At the trial the prosecution called 3 witnesses and the accused opted to remain silent.
   
4. The undisputed facts are that the accused is the father of the alleged complainant ‘M.D.’ and the complainant had been living with the accused and her siblings in the same house during the periods relevant to the charges 1 – 4. Mother of the complainant had been living separately since year 2008 after the accused divorced her. Accused was the guardian of the complainant during periods relevant to all charges. Complainant was born on 30/07/2002.
   
5. The evidence of the complainant was that the accused, complainant and the little sister used to sleep in the sitting room and her elder sister used to live in one of the bedrooms. One afternoon in 2011, the accused had come and started touching her vagina. Although she asked him to stop as it was painful, he had kept on doing it. Accused also had poked his finger into her vagina.
   
6. In 2012 also when they were sleeping the accused had carried the complainant upstairs to a room at about 6.00am. He had taken her clothes off and had poked his private part into her vagina.
   
7. In 2013, when she was sleeping in the house at Nadera, accused had come and poked his finger into her vagina. It had been painful. She said that she identified the accused from the tube light in the bedroom which was about 3 meters away. It had been painful when he poked his finger. The accused also had licked her vagina.
   
8. In October 2013, also she said that the accused used to lick and poke his finger into her vagina. Later she had run away from the house because the accused had given her a hiding for leaving the house without telling him. Accused had reported her missing and when the police found her and questioned her, she had told the police what had happened to her.
   
9. The medical report and the evidence of the doctor who examined the complainant confirmed that there had been a laceration on the hymen that may have caused by inserting a finger.
   
10. The position taken by the defence in cross examination of the complainant was a total denial of the sexual acts alleged by the complainant.
11. It was evident that the complainant used to leave the house without informing or getting permission of the accused to see her mother and sometimes to her friends. It is also evident that the accused punished her for leaving home without informing him. Therefore the position taken by the defence in the line of cross examination of the complainant was that she made the complaint as she was angry with the accused for giving her a hiding.
    
12. Complainant gave clear and consistent evidence that the accused licked her vagina, poked his finger into her vagina and also poked his penis into her vagina. Out of all the incidents mentioned by the complainant, in 2013 it had happened in the night, and she had seen the accused from the tube light in the bedroom. The said lighting in the bedroom from the tube light was not challenged by the defence. The complainant is the daughter of the accused and I find that there is no doubt in her identification of the accused at the time of the offence. In 2011, 2012 and October 2013 the said incidents had happened during daylight. However, the identification was not challenged by the defence, and the accused had been staying in the same house with the complainant. The evidence of the complainant that the accused used to sleep with the complainant and her younger sister in the living room was also not challenged.
    
13. The evidence revealed that the complainant used to leave the house to her mother and her friends without telling the accused. However, even none of those times the complainant had told these acts committed by the accused to her friends, mother or the police. In 2011 the complainant had been 9 years old. The accused was her guardian. It is quite natural in the circumstances for a child of that age to keep these kinds of events a secret and to avoid telling others against her own father who is her guardian. Her mother also was not permanently living with her and the complainant child was living with the father. The circumstance has forced her to keep the sexual harassment from her father to herself. Therefore I find that the delay in reporting the matter to police or others is well understandable and justified.
    
14. I find that the accused has committed those sexual acts of touching and licking her vagina, poking his finger into her vagina and also poking his penis into her vagina. He had been doing it repeatedly taking advantage of the vulnerability of the child. I find that the evidence of the complainant was truthful and I have no reason to disbelieve her evidence that the accused committed those sexual acts on her.
    
15. The prosecution has proved beyond reasonable doubt that the accused committed the offences mention in counts no. 1 and 4 during the periods mentioned therein.
    
16. The particulars of the offence in count no. 2 say that during the said period in 2012, the accused penetrated his finger into ‘M.D.’s vagina.
    
17. The particulars of offence mentioned in count no. 3 say that during the given period in 2013, the accused had carnal knowledge of the complainant. However, the complainant in her evidence said that the accused penetrated his penis into her vagina in 2012 and penetrated his finger in 2013.
    
    18. Assessors were directed on these facts and the legal position to consider. I find that the accused committed both acts on the complainant but she was only inaccurate on the specific period. I bear in mind that the complainant was only 10 year old in 2012 and these sexual acts have repeatedly occurred. The accused had admitted that he was the guardian of the victim and has admitted that he was staying with the complainant in the same house and that he was looking after the complainant and the others during the periods relevant to the charges. (Admitted facts 4, 5, 10, 11, 12) There is no evidence to show that the victim had any sexual relationship with any other person.
        
    19. The date specified in an indictment is not a material matter unless it is an essential part of the alleged offence; the defendant may be convicted although the jury finds that the offence was committed on the date other than that specified in the indictment, provided that the defendant has not been misled as to the allegation he has to answer or that he would not be prejudiced in his defence. (R. v. Dossi, 13 Cr. App. R. 158, Wright v. Nicholson, 54 Cr. App. R. 38, R. v. Robson [1992] Crim. L.R. 655, R. v. Radcliffe [1990] Crim. L. R. 524)
        
20. I find that the difference in the dates of the offence committed in the charges in counts No. 2 and 3 and the evidence could not have misled the accused to the allegation he has to answer and that no prejudice was caused in his defence.
    
21. Therefore I find that the prosecution has proved all the elements of the offence of Sexual Assault in count no. 1 and all the elements of Rape in counts 2, 3 and 4 beyond reasonable doubt. Hence I agree with the unanimous opinion of the assessors that the accused is guilty of counts no. 1, 2 and 4. I overturn the unanimous opinion of the assessors that the accused is not guilty of count no. 3 and find him guilty of the same.
    
22. Therefore I find the accused guilty of all counts 1, 2, 3 and 4 and convict him accordingly.
    

Priyantha Fernando

Judge

At Suva
09^th May 2016

Solicitors
Office of the Director of Public Prosecutions for State
Office of the Legal Aid Commission for Accused