State v Corivuka - Judgment [2015] FJHC 733; HAC75.2012 (6 October 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 075 OF 2012

STATE

V

JONETANI CORIVUKA

Counsel: Mr. L. Latu for the State
Accused in Person

Date of Summing up: 1st October, 2015
Date of Judgment: 6th October, 2015

(Name of the Complainant is supressed. He is referred to as KK).

JUDGMENT

1. The Accused was charged with the following Counts and was tried before three Assessors.

2.

First Count
Statement of Offence

RAPE: Contrary to Sections 207 (1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JONETANI CORIVUKA between the 1st day of January 2012 and the 30th day of April 2012 at Ba in the Western Division penetrated the anus of KK a ten year old child, with his penis.

Second Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JONETANI CORIVUKA on the 14th of May 2012 at Ba, in the Western Division, penetrated the anus of KK a ten you old child, with his penis.

3. Assessors unanimously found the Accused not guilty of first count and found him guilty of the second count.

4. I direct myself in accordance with my own Summing up and review the evidence presented in the trial. I pronounce my judgment as follows.

5. Prosecution called the Complainant, KK and four other witnesses including a doctor.

6. Complainant was a ten year old child at the time of the offence. A person under the age of thirteen years is considered by law as a person without necessary mental capacity to give consent. Therefore, KK did not have the capacity under the law to consent. So, the prosecution does not have to prove the absence of consent on the part of KK.

7. The only issue to be decided in this case therefore is whether the Prosecution had proved, beyond reasonable doubt, that the Accused penetrated the anus of the Complainant with his penis on two occasions as is alleged in the information.

8. I find that the Assessor's opinion in respect of the first count is correct and is not perverse. However, the evidence presented in the trial is not sufficient to find the Accused guilty of Rape for the second count but only sufficient to find him guilty of lesser count of Sexual Assault. I summarize my finding as follows.

9. The Prosecution based its case substantially on the evidence of the Complainant, KK. KK said that Suli's father(accused) inserted his penis on two occasions into his anus. I concur with the finding of the Assessors and find that KK has not been consistent in his evidence in relation to the first incident and his evidence is not credible to find the Accused guilty of the first count.

10. Complainant, KK, could not recall when the first incident took place. He only said that the first incident took place before 14th May 2012. The date on which the first incident alleged to have occurred, KK had gone to the river with Tomasi, Tamana, Junior and Paula. They were swimming in the river and collecting stones when the Accused first appeared. The alleged first incident occurred after that. KK had not reported the first incident to anybody although he had reported the second incident to his close friends; Tomasi and Junior, despite the Accused's warning not to tell anybody. Both Tomasi and Junior gave evidence and confirmed receiving information from KK regarding the second incident but said nothing about the first. Tomasi or Junior did not utter a single word about the first incident although they were swimming in the river with KK. Nor were they questioned about such an incident.

11. Describing the first incident, KK went to a certain extent and stopped. KK said that Suli's father asked him to go further upwards the river and swim. Then, he said, Suli's father took him to a sugarcane field, undressed him and asked him to pick up a stick. He stopped the story there and said that he went to his friends again and started swimming. He came out with the rape incident only when he was questioned again by the State Counsel. KK's conduct of having a swim with friends after being subjected to an incident of rape is highly improbable.

12. Describing the second incident on 14th May, 2014,Tomasi said that he went with KK and his younger brother Junior, looking for a chicken. They saw the Accused standing on the other side of the creek. Accused went inside the sugarcane field to cut sugarcane. Then KK went to the Accused and asked him if he could cut sugarcane for him. If the Accused had raped KK on a previous occasion it is highly unlikely that KK would go to the Accused again seeking sugarcane from him, leaving his two friends behind.

13. According to KK's father Kumaran's evidence, the alleged first incident had come to light only when he was questioning his son about the second incident. Kumaran had asked KK whether it was the first time Suli's father had done this to him. KK had answered in the affirmative. I am of the view that it is not prudent to take this statement as a piece of evidence in the nature of recent complaint for two reasons. Firstly, that the statement had come out in reply to a leading question and secondly, after a lapse of considerable time.

In The King –v- Osborne[1905] 1 K.B p. 551, it was stated:

"It appears to us that the mere fact that the statement is made in answer to a question in such cases is not of itself sufficient to make it inadmissible as a complaint. Questions of a suggestive or leading character will, indeed, have that effect, and will render it inadmissible; but a question such as this, put by the mother or other person, "What is the matter?" or "Why are you crying?" will not do so. These are natural questions which a person in charge will be likely to put; on the other hand, if she were asked, "Did So-and-so" (naming the prisoner) "assault you?" "Did he do this and that to you?" then the result would be different, and the statement ought to be rejected."

14. In my opinion, Assessors had ample reasons to disbelieve the evidence of KK in respect of the first incident and their finding is not perverse in respect of the 1stCount of Rape.

15. Then I proceed to give my reasoning in respect of the second Count of Rape where I have decided to find the Accused guilty of lesser count of Sexual Assault instead of Rape in contrast to the Assessor's finding.

16. Credibility of a witness is not indivisible. Assessors and Courts can accept part of the evidence of a particular witness and reject the other part. There is no rule of evidence to say that if a witness is disbelieved on a particular point his or her evidence must never be accepted and be rejected as a whole.

"The disputed guilty verdict does not however become irrational in light of an acquittal on another count simply because both counts depended on the evidence of the same person, where that person's credibility was in issue and the acquittal indicated that the jury had rejected her version in relation to that count. It is well established that a witnesses' credibility need not be regarded as a homogeneous whole, one and indivisible. A jury might accept part of a witnesses' evidence and reject other part". (Taylor on Criminal Appeals, Oxford University Press, Page 1865)

17. KK statedin Court that Suli's father (accused) inserted his penis into the anus in a sugar cane field on 14th May 2012. However, soon after the incident, he had told Junior and Tomasithat Suli's father "put his ball on his backside". Shortly thereafter, KK had told his father Kumaran that Suli's father "undressed his cloths and then he inserted". He had even watched sperms coming out from Accused's penis.

In his exacts words this is what KK had stated in his evidence:

"Suli's father took out his penis and showed it to him. Then he inserted it into my anus. I saw the white sperm coming out. Then he took it out with his hands and left the place".

18. KK was ten years old at the time of the incident. He appeared intelligible in terms of identifying the anatomy of the human body. He used the words penis and anus in his evidence. He even described vividly how the Accused discharged sperms on ejaculation. In this context, he is expected to use the same words to describe the incident to his close friends and his father. However, he had told Junior and Tomasi that Suli's father "put his ball on his backside". KK had told his father that Suli's father "inserted". He had never used the words 'penis' and 'anus'. The unrepresented Accused lacked the ability to cross examine the Complainant and failed to get the phrase "put his ball on his backside" clarified.

19. There can be no doubt that KK's reporting to Junior, Tomasi and to his father Kumaranis admissible as an important piece of recent complaint evidence in respect of the second incident. Recent complaint would enhance the consistency and credibility of the KK's story. However, his complaint, in my view, is not consistent with the rape allegation.

20. Recent complaints are admissible only to prove the consistency of the witness, not the truthfulness of the statement. In other words, the complaint is not evidence of facts complained of, nor is it corroboration. It goes to the consistency of the conduct of the complainant with his evidence given at the trial. It goes to support and enhance the credibility of the complainant.

21. The complaint need not disclose all of the ingredients of the offence but it must disclose evidence of material and relevant unlawful sexual conduct on the part of the Accused. It is not necessary for the complainant to describe the full extent of the sexual conduct, provided it is capable of supporting the credibility of the complainant's evidence. See: AnandAbhaya Raj v. The StateSpl. Leave to Appeal No.CAV 0003 of 2014).

22. Having said that, I am not inclined to believe that KK has been consistent in his evidence with regards to his allegation of rape especially when it is not supported by medical evidence.

23. Since Doctor Nath who had examined the Complainant was not called to give evidence, I explained the rule excluding hearsay and warned the Assessors against placing any reliance on the history related by the patient to the Doctor as is reported in the medical report. Even if one were to consider the history related it is not consistent with rape. It only speaks of sexual abuse.

24. Specific Medical Findings in part D12 of the Medical Examination Form, Doctor Nathhad observed only reddening around anal opening. He had not seen any bruises or lacerations. In his conclusions in part D16, Doctor Nath had stated that "it is very difficult to prove that anal intercourse did happen or not since the time of presentation to me was late for further examination". He has further stated that reddening around anal opening should be taken note of.

25. The second alleged anal rape incident had taken place on the 14thof May 2012. Doctor Nath had examined the Complainant on the following day that is on the 15thof May 2015.It is clear that the Complainant had in fact been presented for medical examination within twenty four hours of the incident although the doctor had stated that "time of presentation to me was late for further examination".

26. Doctor Luse, on the other hand, emphasised that if the intercourse took place the day before the examination, with the insertion of the penis, the Doctor should be able to see evidence of injuries around the anus. She further said that assuming it is an anal intercourse, with the young boy, and the age of the Accused, there would be bleeding, lesser raisin around the anus because of its very anatomy which is very vascular and friable with no defensive mechanism.

27. She also described other possible causes leading to reddening in anal opening like itchiness and hookworm infections etc. common in children in Fiji. It seems that the reddening around anal opening is not conclusive evidence of anal intercourse.

28. The Doctor Luse in this case, came before Court as an expert witness. Expert evidence is not accepted blindly. However, Doctor's opinion in this case is important to resolve the issue of rape as her reasons are convincing and acceptable. She expressed her opinion having considered all necessary matters. The medical finding does not support the Prosecution's version of anal penetration.

29. There is no evidence that KK was in a distress condition after the alleged incident. No evidence of crying or of painful experience.

30. Having considered rest of the evidence led in the trial and my personal observation of the physique of the Accused and the Complainant, I am not sure if the Accused had penetrated the anus of KK with his penis. I give the benefit of that doubt to the Accused.

31. I watched the accused giving evidence in court. He denied the allegation and said that he was digging scrap metal with his son and nephew on the day of the alleged incident. When the Accused cross examined KK, he was asking questions on the basis that he was somewhere else on that particular day. However, when he came to give evidence he took a different stand and admitted that KK came to him that day and asked for sugarcane. Accused was not consistent in his version.

32. He did not call his son and nephew to give evidence in Court to support his version. He did not give any reason for doing so. He had given a different version to the Police. Version of the Accused is not plausible.

33. I am satisfied that the Accused only gave an innocent explanation to escape criminal liability. He did not have anything to prove in this case. He has however, failed to create any doubt in the Prosecution case.

34. I am sure that the Accused had only touched KK's anus and had done some sexual activity with his penis but his penis did not penetrate KK's anus.

35. I find that it is not open for the Assessors to reach the opinion of guilty for the second count of Rape. Evidence led in the trial is only sufficient to find the Accused guilty of lesser count of Sexual Assault. Accused is convicted of Sexual Assault accordingly. Accused is acquitted and discharged of both counts of Rape as charged.

36. That is the judgment of this Court.

ArunaAluthge
JUDGE

AT LAUTOKA
On 06th October 2015

Solicitors: Office of the Director of Public Prosecution for State
Accused in Person