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State v Tubuduadua - Judgment [2016] FJHC 75; HAC083.2013 (8 February 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 083 OF 2013

STATE

Vs

SEMI TUBUDUADUA

Counsels : Mr M Vosawale and Ms L Bogitini for the State

Mr Ravuniwa for the Accused

Dates of Trial : 1st – 3rd February 2016

Summing Up : 5th February 2016

Judgment : 8th February 2016

JUDGMENT

[1] The Accused is charged under following count:

First count

Statement of Offence

Rape- contrary to section 207(1) and (2)(b) of the Crimes Decree No. 44 of 2009

Particulars of the Offence

SEMI TUBUDUADUA on the 16thday of February 2013, at Lot 2, Velau Drive, Kinoya in the Central Division, inserted his finger into the vagina of MISTY DAWN VAREYA without her consent.

[2] The accused pleaded not guilty to the charge and after the ensuing trial the assessors, by their majority opinion, found the accused guilty to the count of Rape.

[3] I direct myself in accordance with the law and the evidence which I discussed in my summing up to the assessors.

[4] Prosecution case was essentially based on the evidence of the complainant. She is a mother of three children and on the day of the incident was with her relations, as it was customary for them to get together on Friday evenings. The accused, who grew up in the family of her partner was also there and she knew him from a very young age.

[5] They all started drinking beer inside the main house. One carton of beer was consumed and the accused and another had brought the second carton. The complainant, having consumed some beer, wanted to go to a night club where her brother was expected to bring his girl friend. She asked someone to accompany her to the club and repeatedly asked the accused also to accompany her. He declined her request.

[6] The complainant, having decided against her earlier intention to go to the club, then went into her bedroom where her daughter already had gone to sleep. This particular bedroom was located close to the drinking party and its door was kept open. It had no source of light on its own but the light from the porch, kitchen and nearby street lamp provided sufficient light.

[7] She woke up from her sleep when she felt somebody touching her. She could feel a hand touching her buttocks and between her thighs. At that time she was sleeping on her side hugging a pillow. She fell asleep again. Again she felt a hand touching her body. As she felt the touch she moved and twitched. Then the accused said to her ear "not to worry, it's OK don't worry, Just me". Thereafter he slid his hand along her panty line and had then touched her vagina. She felt fingers poking into her vagina and she felt the tip of a finger. He inserted his finger about an inch into her vagina. Then the hand was removed slowly.

[8] Her response to the touch was to put her skirt down and moving of her body. She had "twisted" her head as it happened to look at her daughter. Her daughter Adi was sleeping but she did not see the accused in the room. The complainant was conscious and was aware of what was happening although she was unable to get up or to call out for help due to intoxication.

[9] When she was confronted during cross examination on the basis that the voice and the incident are all a figment of her imagination induced by alcohol and it could be also a sexually oriented dream, her response was when he spoke in to her ear, she made sure as to whom she was listening to and she could distinguish the accused's voice from the voices of other males who were there drinking beer. She also heard the voice of her sister in law. She was shocked with the experience but soon fell asleep again. When she woke up the following morning she had called up her husband who was at Nadi at the time and informed him of the last night's incident. She also told her sister in law.

[10] The accused gave evidence reiterating his denial but admitted having gone into her bed room that night only once to pick his phone's battery charger. His caution statement was tendered as an agreed fact and he was cross examined as to his admission to police that he had gone into her bed room twice that night. His explanation was that though the statement was made available he was shown only some portions of his statement. The majority of assessors have rejected the version of the accused.

[11] The accused's claim that he went into the room to pick his phone charger that night seemed an unlikely scenario. The accused in his evidence said that he kept some of his belongings in that room such as his clothes and phone charger, although this was denied by the complainant. He would visit that house on a weekly basis. In the circumstances, it is improbable for the accused to keep his charger in a house to which he visits only on a weekly basis as the phone had to be regularly charged.

[12] The accused did not say this was a spare charger and also he used his phone very sparingly. What he said was the battery went down as he spoke to his girl friend that night. It is natural to expect that the charger is used regularly to charge the phone and is kept in a place where its owner had ready access.

[13] The witness called by the accused has admitted in cross examination that although the accused said that he would sleep in the sofa that night, he could not see the sofa from the place where he sat. It is this witness who admitted that when he learnt following day as to what took place in the bed room, had assaulted the accused. Considering all the circumstances, I agree with the majority of assessors in rejecting the accused's evidence.

[14] The assessors were directed that the prosecution must establish its case on the evidence it presented and the fact that rejection of accused's evidence does not automatically establish the case for the prosecution.

[15] In relation to the prosecution, the only evidence they presented to connect the accused to the offending act is the identification of the accused by voice. The assessors were directed to consider the possibility of a mistaken identity, and also the circumstances under which it was made. They were also directed as to whether the accuracy of identification by voice is diminished by the level of intoxication of the complainant.

[16] The majority of the assessors have accepted the identification of the accused by voice and there was no mistake made by the complainant and her level of intoxication had not adversely affected its acceptance. I am in agreement with the majority opinion of the assessors and the reasons for that conclusion are described in the following paragraphs.

[17] The possibility of a mistaken identity or even the possibility of non-identification for that matter is negated when considering the circumstances leading to the claim of identity. The complainant said she was woken up when she felt someone's touch on her body for the first time that night. That provided an opportunity for the complainant to recover from the initial drowsiness of her sleep. Then the second experience of feeling the touch would have alerted her mind to be mindful of what was happening.

[18] It is appropriate to note in relation to the circumstances that she did not hysterically reacted to the first touch, but had opted to observe and investigate as to what it was silently when it happened for the second time. It is clear that when the hand touched her body, she had keenly followed its movements along her body. She felt the hand touching her buttocks, then proceeded to touch between her legs. She was sleeping at that time on her side hugging a pillow. Then the hand proceeded along her panty line and then poked into her vagina. She clearly felt the fingertip as it penetrated into her vagina about an inch. When she put down her skirt and moved the body, the hand slowly withdrew. Then perhaps due to motherly instinct, she looked at her sleeping daughter by twisting her head.

[19] The description of the sequence, demonstrates of an alert mind which had recorded the events in details as it happened and stored in memory for recollection at a subsequent point of time. There was no evidence of any inconsistency of this sequence of events before the Court. It clearly negates any adverse effect of intoxication, which had by this time admittedly affected her body.

[20] It is this alert mind that had heard and processed the voice that spoke into her ear which said that "not to worry, it's OK, don't worry, Just me". She said in her evidence that she deliberately made certain to her mind to whom she was listening to and she could distinguish the accused's voice from the voices of other males who were there drinking beer. She also heard the voice of her sister in law. The complainant, in her mind, as these words are whispered into her ear, had compared the known voices, and having excluded other possibilities, concluded that it was the accused. The complainant, in her cross examination displayed no signs of a doubt when this issue was intrusively probed.

[21] Considering the alertness of her mind to register the sequence of events accurately as it happened and to reproduce them in the following morning when the complainant conveyed the incident to her partner and later in the day to the Police and finally to Court, as evidenced by consistency of her evidence, it is reasonable to infer that the level of intoxication had not altered her mind. It is for the same reason the possibility of a sexually oriented dream could safely be excluded.

[22] The evidence given by her daughter Adi, has no relevance to the charge against the accused and I would ignore that evidence altogether since the incident she spoke of is not relied upon by the DPP to lay a charge against the accused and does not connect him to the charge of Rape of the complainant.

[23] The apparent inconsistency of the complainant's evidence in relation to turning her head does not affect her credibility or its reliability at all as she used the term she "twisted" her head to look at her daughter and admitted that she looked at her daughter by turning her head. Therefore, it is clear that the complainant's evidence is both credible and reliable and the elements of the offence are sufficiently satisfied to the required level of proof.

[24] In my view, the assessor's majority opinion was not perverse. It was open for them to reach such conclusion on the evidence. I concur with the majority opinion of the assessors.

[25] I am also satisfied that evidence is sufficient to establish the guilt of the accused beyond reasonable doubt. Considering the nature of the evidence before the court, I am convinced that the prosecution had proved the case beyond reasonable doubt.

[26] I find the accused guilty as charged on the count of Rape contrary to Section 207 (1), (2) (b) of the Crimes Decree No. 44 of 2009. I therefore convict the accused Semi Tabuduadua to the count of Rape.

[27] This is the Judgment of the Court.

AchalaWengappuli
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.