State v Naduva [2015] FJHC 692; HAC221.2014 (11 September 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 221 of 2014

STATE

V

FABIANO DAKAI NADUVA

Counsel: Ms. S. Navia and Ms. S. Tivao for State
Ms. M. Tarai for Accused

Hearing: 7th, 8th September 2015
Summing Up: 10th September 2015
Judgment: 11th September 2015

JUDGMENT

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

1. The accused is charged with the following offence.
   

First Count
Statement of Offence

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

Particulars of Offence

FABIANO NADUVA on the 13th day of May 2014 at Lami in the Central Division penetrated the vagina of 'M.S.', a 4 year old girl, with his fingers.

2. After trial three assessors unanimously opined that the accused is guilty of the offence of Rape as charged.
   
3. I direct myself in accordance with my summing up and the evidence adduced at the trial.
   
4. The elements the prosecution has to prove beyond reasonable doubt to find the accused guilty are:
   
   1. The accused
   2. penetrated his fingers into the complainant's vagina.
      
5. It is an agreed fact that the alleged victim 'M.S.' was born on 08/10/2010 and that she is under 13 years of age. She had been 4 years old at the time of the alleged offence was committed. Therefore it is immaterial whether she consented to the sexual act or not.
   
6. In her evidence 'M.S.' said clearly that the accused called her upstairs and touched her 'pussy'. She also said that the accused 'MomoFabi' touched inside her 'pussy' and he pinched inside. She said that it was painful when he touched it.
   
7. She had told her mother, the same day the incident happened. However her mother Aqela had reported to police on 26/05/2014 after 13 days of the incident. Answering the questions about the delay in reporting, she said that she was shocked, lost and also she discussed with her father and that she also went for counselling.
   
8. Accused denied the allegation. In his evidence he said that this is a made up story by her sister Aqela (mother of the victim) because of the arguments and fights he had with her. Another sister of the accused 'Mere' giving evidence said that the same day accused had an argument with Aqela and that she did not see accused inserting his fingers into 'M.S.'s vagina.
   
9. Alleged victim 'M.S.' gave evidence in court very clearly and was consistent in what she said. She demonstrated in court how the accused touched her vagina pointing her fingers to the vagina. In cross examination she confirmed that the accused pinched her vagina. She also said that she talked to her mother about this before coming to court and also when she was asked 'Did mommy tell you to say that 'MomoFabi' touched your pussy?" she said yes.
   
10. After she repeatedly said that the accused touched and pinched inside her vagina and demonstrated how he did, the defence counsel suggested that MomoFabi did not do anything and she answered 'he did not do anything'.
    
11. However in re-examination she confirmed that the accused did penetrate her vagina with his fingers and also demonstrated in court how he did it. She never said that the mother told her to tell something which did not happen to her.
    
12. The doctor who examined the victim said that the mild abrasion she observed would heal within around 4 days and maximum 7 days. The doctor has examined the victim about 2 weeks later and therefore the mild abrasion she observed could not have any connection to the alleged incident. Even if there was an abrasion similar to what she observed it would have healed within 7 days.
    
13. The doctor also said that it is highly expected for the hymen not to be intact if a finger is inserted into the vagina. Any foreign body like finger or penis goes through the vaginal opening there would be injuries to the hymen, she said.
    
14. However there need not be full penetration further into the vaginal opening passing the hymen, but slightest penetration is sufficient to prove the element of penetration.
    
15. Section 207 (2) (b) of the Crimes Decree 2009 under which the accused is charged says that;
    

"If the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent"

Therefore the finger need not necessarily fully penetrate the vaginal opening beyond the hymen to complete the element of penetration. The victim clearly said that the accused pinched inside her pussy and it was painful when he did it.

16. The complainant 'M.S.' had told the mother about the incident the same day. She had taken few days to open up fully according to her mother. Her mother Aqela in her evidence related to certain other details which 'M.S.' had told her about changing the clothes. However 'M.S.', did not refer to those details in her evidence. Considering the age of the victim 'M.S.', it cannot be considered as aninconsistency that affects her credibility.
    
17. I observed the demeanour and deportment of the complainant who was 4 years old at the time of the alleged offence and 5 years old when she gave evidence. I have no reason to disbelieve or doubt her evidence that the accused inserted his fingers into her vagina.
    
18. Hence I find that the prosecution has proved beyond reasonable doubt that the accused penetrated his fingers into her vagina as charged.
    
19. Hence I accept the unanimous opinion of the assessors that the accused is guilty of the offence of Rape as charged.
    
20. Therefore I find him guilty of rape and convict accordingly.
    

Priyantha Fernando
Judge

At Suva
11th September 2015

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