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State v Tuinayau - Judgment [2016] FJHC 911; HAC006.2016 (7 October 2016)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 006 of 2016

[CRIMINAL JURISDICTION]

STATE

V

SULIO VUNIAMATANA TUINAYAU

Counsel : Ms. K. Semisi for State
Mr. J. Savou and Ms. A. Prakash for Accused
Dates of Hearing : 03^rd to 05^th October 2016
Date of Summing up: 06^th October 2016
Date of Judgment : 07^th October 2016
(The name of the complainant is suppressed. Accordingly, the complainant will be referred to as MLV)

JUDGMENT

1. The accused is charged with the following offences;
   

COUNT ONE

Statement of offence

Rape: Contrary to section 207 (1) and (2)(c) and (3) of the Crimes Decree, No. 44 of 2009.

Particulars of offence

SULIO VUNIAMATANA TUINAYAU between the 1^st day of July 2011 to the 31^st day of July 2011, at Kadavu in the Central Division, penetrated the mouth of MLV a child under the age of 13 years with his penis.

COUNT TWO

Statement of offence

Sexual Assault: Contrary to section 210 (1)(a)of the Crimes Decree, No. 44 of 2009.

Particulars of offence

SULIO VUNIAMATANA TUINAYAU between the 1^st day of July 2011 to the 31^st day of July 2011, at Kadavu in the Central Division, unlawfully and indecently assaulted MLV by touching her vagina.

2. The assessors have returned with a unanimous opinion that the accused is guilty of both counts above.
   
3. I direct myself in accordance with the summing up delivered to the assessors on 06^th October 2016 and the evidence adduced during the trial.
   
4. The complainant gave evidence with regard to incidents that took place in July 2011 when she was 9 years old. The defence did not challenge her evidence when she said that she is 14 years old now and that her date of birth is 12/07/02. The accused also said during cross-examination that he thinks the complainant was 9 to 10 years old in July 2011. Therefore, I consider that the fact that the complainant was 9 years old at the time of the incident has been proved beyond reasonable doubt.
   
5. According to the defence the complainant’s evidence is not credible due to the delay in her complaining about the incidents. The complaint regarding this case was made to the police after the complainant informed the second prosecution witness (“PW 02”) about the matter in April 2012. This was after PW 02 questioned the complainant when the complainant was found crying outside PW 02’s house.
6. The complainant said that the accused had threatened that he will kill her if she informs anyone about the incidents. According to her that is the reason she did not tell anyone apart from the accused’s wife, about what the accused did to her when she was in Kadavu. The defence does not dispute the fact that the complainant informed the accused’s wife about the alleged incidents. The accused said in evidence that he and his wife questioned the complainant regarding what the complainant had told his wife and the complainant was crying and did not say anything.
   
7. According to the complainant, though she was threatened by the accused, she told his wife because she felt that it is safe to do so. I cannot agree with the position taken by the defence that this conduct of the complainant is inconsistent with her evidence that she was scared as she was threatened by the accused not to tell anyone. Given her explanation, I do not find this action taken by the complainant to be irrational or that it undermines her evidence with regard to the two incidents.
   
8. The complainant said in her evidence that when she told the accused’s wife about the incidents the accused’s wife cried and also told her not to tell anyone. The complainant also said that she was trying to forget what happened and that is the reason she told her aunt, PW 02 about what happened. It is pertinent to note that according to PW 02, the complainant came out with the story after PW 02 questioned the complainant as to why she was crying outside her house in April 2012. By this time, the complainant was still 9 years old. Therefore, considering the evidence, it is not difficult to believe that the complainant was in fact trying to forget about what the accused did to her and that is the reason why she did not reveal it to anyone until PW 02 questioned her about the reason she was crying.
   
9. Therefore, I find that the delay in complaining about this matter to the police is justified through the evidence.
10. The defence counsel submitted that there are inconsistencies in the evidence presented by the prosecution. According to the defence, the complainant’s evidence regarding the two allegations are not consistent in view of the evidence given by PW 02 and the third prosecution witness (“PW 03”). PW 02 said in evidence that the complainant told her that the accused showed the complainant his penis and told the complainant to put it inside the complainant’s mouth. PW 02 did not mention about the accused touching the complainant’s vagina. PW 03 said in evidence that the complainant told her that the accused removed the panty and touched the complainant’s vagina and that the accused rubbed his penis on the complainant’s mouth.
    
11. It is pertinent to note that PW 02 and PW 03 are lay persons and they are not trained to record statements regarding sexual offences. Their evidence was based on what they perceived from what the complainant told them. Both PW 02 and PW 03 are related to the complainant as aunt and grandmother and they are also related to the accused as the accused is PW 03’s brother. Obviously, the complainant would find it difficult to give a full narration of what the accused did to her, to PW 02 and PW 03.
    
12. Secondly, the evidence of the prosecution was that the complaint to the police regarding this matter which is the first formal complaint was made within 3 days from the date the complainant informed PW 02 that the accused did something to her in Kadavu. It would be reasonable to infer that there is no inconsistency between the complainant’s evidence and her statement given to the police because the defence did not point out such inconsistency. It should be noted that I am not shifting any burden of proof on the defence in this regard.
    
13. Whereas it is unreasonable to expect from the complainant to give a full account of what the accused did to her as I have explained before, and whereas PW 02 and PW 03 are lay persons who gave evidence based on what they perceived from what the complainant had told them and because it appears that there are no inconsistency between the complainant’s evidence and her statement given to the police, I do not find that the complainant’s credibility is affected because of the fact that there are slight variations in the evidence given by PW 02 and PW 03 regarding what the complainant had told them.
    
14. The other inconsistencies outlined by the defence are not material and significant.
    
15. The defence says that the complainant’s version that the accused inserted his penis inside the complainant’s mouth and that she was struggling is improbable given that the accused’s wife and three children were all there inside the house which was an open house with an area of 6m X 5m at the material time.
    
16. The complainant clearly said that the accused told the other children to go to sleep and that the incident took place when the other children and the accused’s wife were sleeping. The complainant did not say that she shouted though she said she was struggling. She was a 9 year old child at that time and she cannot be expected to resist in the manner an adult would. Considering her age and also the fact that the accused was her grandfather and the head of the house she was living in at that time, she cannot be expected to put up a strong resistance against the accused. All in all, I do not find the complainant’s version that the accused inserted his penis inside the complainant’s mouth when the others in the house were sleeping to be improbable.
    
17. The accused said that he thinks the complainant is making the allegations because he used to beat her up and suggests that the complainant has opted to make allegations of this nature because she was once a victim of a sexual offence and therefore she has the knowledge about sexual offences. I observed the demeanour and deportment of the accused when he gave evidence. In my judgment the accused was not a credible witness. Therefore, I am not convinced that his version is true.
    
18. I believe the complainant’s evidence that in the month of July 2011 the accused inserted his penis inside her mouth and after few days, he removed her panty and touched her vagina. Touching the vagina of the complainant in the given circumstances was indecent and sexual in nature.
    
19. Therefore, I find that the prosecution has proved the first count and the second count beyond reasonable doubt.
    
20. I am therefore convinced that the unanimous opinion of the assessors in finding the accused guilty of the first count of rape and of the second count of sexual assault was not perverse and it was open for them to reach that conclusion.
    
21. Therefore, I concur with the unanimous opinion of the assessors.
    
22. I find the accused guilty of both counts as charged and convict him accordingly.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.