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State v Naulu [2019] FJHC 547; HAC7.2016 (16 May 2019)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 7 of 2016

STATE

V

SOSICENI VATUNITU NAULU

Counsel : Ms. P. Lata for the State.

: Ms. J. Singh with Ms. G. Henao [LAC] for the Accused.

Dates of Hearing : 13 and 14 May, 2019
Closing Speeches : 14 May, 2019
Date of Summing Up : 15 May, 2019
Date of Judgment : 16 May, 2019

JUDGMENT

1. The Director of Public Prosecutions charged the accused by filing the following information:

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (b) of the Crimes Act 2009.

Particulars of Offence

SOSICENI VATUNITU NAULU, on the 19^th day of March, 2015 at Nadi in the Western Division penetrated the vagina of TORIKA TABUA with his fingers without her consent.

2. This court also gave a direction in respect of the lesser offence of sexual assault on the evidence of the complainant’s uncle Seremaia Teka that immediately after the alleged incident he was told by the complainant the accused had touched her vagina.
3. The three assessors had returned with a mixed opinion that the accused was guilty of the lesser count of sexual assault by a majority of two is to one.
   

4. I adjourned overnight to consider my judgment. I direct myself in accordance with my summing up and the evidence adduced at trial.

5. The prosecution called three (3) witnesses and the accused exercised his right to remain silent and did not call any witness.

6. On 19^th March, 2015 the complainant Torika Tabua after a grog session at Narewa Village was asked by her uncle to buy some grog and a packet of cigarette from the house of Mesake in the village.
7. It was 3 am in the morning when the complainant went past the house of the accused she saw him sitting beside his house. The complainant knows the accused since they are from the same village. The accused called out to the complainant and asked for a cigarette roll. The complainant went to the house of an uncle to buy a cigarette roll when there was no answer the complainant opened the packet of cigarette she had with her and gave one roll to the accused. The accused smelt of liquor.
   
9. Both went to smoke on the footpath near her grandfather’s house. After a while the accused pushed the complainant on the footpath and forcefully removed her pants and inserted his finger into her vagina for about 2 minutes. When the accused did this the complainant was afraid of him.
   
10. When the accused was inserting his fingers into her vagina she had shouted by calling her grandmother but there was no response. At this time the accused was holding her hand she did not kick the accused but had pushed him.
    
11. The accused after removing the complainant’s shorts took it with him as a result she wrapped a towel around her waist which she was able to get in the village.
    
12. When the complainant reached home her uncle Seremaia Teka asked her what had happened, she told him everything the accused had done to her that morning. The complainant was wearing a ¾ shorts and a white t-shirt. The matter was reported to the police.
    
13. Seremaia Teka the uncle of the complainant informed the court he was having a grog session at one of his grandfather’s house. The grog and the cigarette had finished so he sent the complainant to buy some more at about 2 am in the morning.
    
14. The complainant was late in coming back but when she arrived the witness saw her clothes were dirty and she was wearing a towel. The witness asked the complainant what had happened to her the complainant told him that the accused had called her and asked for a cigarette, after both had smoked the cigarette the accused pulled her, removed her shorts and touched her vagina. When the witness asked the complainant why she did not shout, the complainant mentioned that she had called one of the witness aunts but there was no response.
15. The witness is the cousin of the accused. When this witness was referred to his police statement dated 19^th March, 2015 the witness agreed he did not tell the police that the complainant had told him the accused had touched her vagina. The witness explained he did not tell the police everything in detail about what had happened to the complainant.
16. The final witness was the charging officer Detective Constable Setareki Gavidi on 31^st December, 2015 the accused was charged in the iTaukei language. The witness had also prepared an English translation as well. The charge statement of the accused in the iTaukei language and the English translation were marked and tendered as prosecution exhibit no. 1 and 1 (A) respectively.
    
17. The witness stated that the accused had voluntarily made a statement in the following words:
    

“I admit what I have done to Torika after I saw her on the ID parade and I wish to apologise for what I have done to her and everyone who may have hurt. I also wish to apologise to the court for my actions.”

18. The witness agreed the admission did not mention that the accused had raped or inserted his finger into the vagina of the complainant. Furthermore, the witness did not clarify from the accused what he was apologizing for.
    
19. The defence position was that the accused did not penetrate the vagina of the complainant as alleged. The complainant could have shouted or called for help but she did not. The complainant made up a story against the accused because she did not have with her the packet of cigarette her uncle had asked her to buy.
    
20. I accept the evidence of all the prosecution witnesses as truthful and reliable. The complainant was able to recall and narrate what the accused had done to her some four years ago.
    
21. I accept that the complainant was afraid of the accused when he forcefully removed her shorts and inserted his fingers into her vagina. I also accept that the complainant had shouted for help but there was no one around during the early hours of the morning to help her. This court rejects the contention of the defence that the complainant did not shout for help inferring that nothing had happened. There is no requirement of the law for a complainant to shout or yell to show his or her resistance towards an unexpected sexual encounter.
    
22. I accept the complainant had told her uncle Seremaia Teka what the accused had done to her. This court has no doubt that the complainant told the truth in court her demeanour was consistent with her honesty. She was a straight forward witness who was not discredited during the cross examination.
    
23. Seremaia Teka also told the truth in court when he said he did not tell everything in detail to the police. A person cannot be expected to narrate word for word what he had been told 4 years ago. In any event Seremaia did tell the court about relevant and material information pointing towards the unlawful sexual conduct of the accused. The inconsistency between the evidence of the complainant and the witness Seremaia in this regard does not adversely affect the reliability of the complainant’s evidence.
    
24. Furthermore, the inconsistencies between the evidence of Seremaia and his police statement wherein he was mentioned as saying that he was told by the complainant that the accused had forcefully assaulted her also does not affect the reliability of the complainant’s and Seremaia’s evidence. A police statement does not necessarily reflect the truth of a matter compared to evidence give under oath. Seremaia was cross examined at length he was not shaken or discredited.
    
25. The discrepancies between the prosecution witnesses did not go to the root of the matter and shake the basic version of their evidence. The alleged incident happened in 2015 and after 4 years they were giving evidence considering the delay, discrepancies are bound to happen but not enough to render their evidence unreliable.
    
26. Moreover, the admission by the accused in the charge statement was given voluntarily without any force, pressure, unfairness or assault by the police. The accused was aware that the charge statement was in respect of the offence of rape and he had signed an acknowledgement that he understood the charge and the caution put to him. This court is unable to accept the defence contention that the accused was not apologizing for raping the complainant.
    
27. I also reject the assertion by the defence as unbelievable that the complainant had made up a story to implicate the accused since she did not have with her the packet of cigarette she was supposed to buy for her uncle.
    

28. The defence has not been able to create any reasonable doubt in the prosecution case.

29. I am satisfied beyond reasonable doubt that the accused on 19^th March, 2015 had penetrated the vagina of the complainant with his fingers without her consent.
    
30. I also accept that the accused knew or believed that the complainant was not consenting or didn’t care if she was not consenting at the time.
    

31. I agree with the minority opinion of the assessors that the accused is guilty of the offence of rape as charged.

32. In view of the above, I find the accused guilty as charged and I convict him accordingly.

33. This is the judgment of the court.

Sunil Sharma
Judge

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