State v Kurivora - Judgment [2015] FJHC 781; HAC041.2014 (28 September 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 041 OF 2014

STATE

-v-

TIMOCI KURIVORA

Counsel: Ms. J. Fatiaki for the State
Ms. S. Ratu for the Accused

Date of Summing up: 25th September, 2015
Date of Judgment: 28th September, 2015

(Name of the Complainant is suppressed. She is referred to as ET)

JUDGMENT

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

Statement of Offence

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

Particulars of Offence

TIMOCI KURIVORA on the 1st of March 2014 and the 18th of March 2014 at Sigatoka, in the Western Division, penetrated the vagina of ET, a 7 year old girl with his finger.

3. Two Assessors found the Accused not guilty while the other Assessor found the Accused guilty of Rape.

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. It was agreed that the Complainant was 7 years old at the time of the offence. A woman under age of 13 years is considered by law as a person without necessary mental capacity to give consent. Therefore, she 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 the girl because law says that she, in any event, cannot consent.

6. The only issue to be decided in this case therefore is whether the prosecution had proved, beyond reasonable doubt, that the Accused penetrated the vagina of the Complainant with his fingers.

7. Prosecution called the Complainant and two other witnesses including a Doctor. Prosecution case was substantially based upon the evidence of the Complainant.

8. I find that the Complainant's evidence was probable and believable and the Assessors had reasons to believe her. Two Assessors failed to analyse the evidence presented in the trial correctly and properly. I summarize my finding as follows.

9. A Rape case can stand or fall on the testimony of the Complainant. Evidence of the Complainant alone is sufficient to bring about a conviction in a rape case if the Court believes her evidence to be truthful. No corroboration of her evidence is required.

10. Complainant was eight years old and she appeared intelligible and was competent to give evidence.

11. Most important part was to judge whether the child witness had told the truth, and had given a reliable account of the events she was describing.

12. The Complainant said that the Accused touched her 'lolo', meaning her private part with his hands. When the State Counsel asked her how Bee touches her 'lolo', she demonstrated the way he touches. She made a loop using her index finger and the thumb of the left hand and inserted her middle and index finger of the right hand into the loop. She described the experience as painful. The Doctor who had examined the Complainant had stated in her medical report that the Complainant's hymen was not intact and perforation of hymen was suggestive of penetration by a blunt object consistent with history.

13. Under cross examination, the Doctor said that hymen can naturally be ruptured through physical activities like cycling, horse riding and gymnastic etc. There is no evidence before this court to say that the Complainant was engaged in such physical activities. The medical evidence supports the Prosecution's version of penetration.

14. Children may not fully understand what it is that they are describing, and they may not have the words to describe it. They may, however, have come to realise that what they are describing is, by adult standards, bad or, in their perception, naughty. They may be embarrassed about it, and about using words they think are naughty, and therefore find it difficult to speak. I am satisfied that the Complainant described digital penetration of her vagina by the Accused. The only inference that this Court could draw upon from the evidence led in the trial was that.

15. There is no evidence that the Complainant had any reason or motive to fabricate a story against the Accused to put him in trouble. The Complainant was only seven years old at the time of the incident. If the Complainant was coached by Amelia or her father, the court could have expected her to describe the story in a more vivid and precise language.

16. Courts must be conscious of malleability of a child witnesses. In my opinion the Complainant was subtly compelled, under cross examination, to answer in Defences' favour some of the leading questions put to her in the form of suggestions. For example, the Complainant said that she did not recall whether her mother had made a rule in a family meeting requiring the residence of the house to be at home by 8.00p.m. When it was put to the Complainant by the Defence Counsel that Aunty Amelia did not like that rule she said 'no she did not like it'. Complainant was compelled, in a subtle manner, to give an answer with regard to the state of mind of another and about a matter she said she did not even recall.

17 My opinion on malleability of a child witness was further reinforced when the Defence Counsel managed to get the answer in her favour with regard to Aunty Amelia.

Q: ET, I am putting it to you this is my instructions that these allegations were cooked up by Aunty Amelia the allegation I am talking about ET, the allegation is that Bee touched your lolo, that's the allegation and I am suggesting to you ET that the allegation was cooked up by Aunty Amelia to help your dad get custody of you?

A: That's correct.

18. Questions were being asked in a Court environment by an adult whom the Child witness sees as being in a position of authority. That can make it difficult for her to answer freely. Courts should bear those difficulties in mind when considering the answers Complainant has given. Court can understand how difficult it must be for a child witness if the form in which a question put is leading or complicated or challenging or conceptual.

19. Answers given by the Complainant to questions (that were not leading) under re-examination portray a clearer picture as to what had happened.

Q. When my friend here was asking questions you said that you were crying in Aunty Amelia's room, you remember saying that.

A. Yes.

Q: ET, can you tell us why you were crying in Aunty Amelia's room?

A: Aunty Amelia told me I have to tell the allegation about what Bee did.

Q: And when Aunty Amelia said for you to tell her, what did you tell her?

A: About Bee.

Q: And why were you crying when you were telling her about Bee?

A: Aunty Amelia said to tell the truth.

Q: ET, what was the truth?

A: About Bee.

Q: Can you clarify ET, what about Bee?

A: Bee is sleeping. Aunty Amelia told me about Bee.

20. According to evidence presented by the Defence, Accused cared for and loved the children of Luisa more than their biological father would do; Complainant in turn was reciprocal and loved him very much. According to Luisa's evidence, Complainant even ran towards the Accused for protection when her father came with the Police to take her. In these circumstances, if the version of the Defence was true, I cannot see any reason why the Complainant should fabricate a story against the Accused whom she loved so much.

21. In my judgement, Complainant's evidence is credible and believable. In some cases, the court may warn itself about the inherent dangers of convicting an accused on the unsupported evidence of a particular witness. I do not consider Complainant in this case to be one such witness. Her evidence reads coherently and I consider that I am entitled to accept her evidence without support. Her evidence alone is sufficient to bring about a conviction of rape. (see: Kamalesh Prasad Goutam v. State (HAA 033 0f 2007 per Shameem J).

22. Amelia was not available for the Prosecution to call her in time despite her name was listed as a Prosecution witness. Prosecution closed the case without calling Amelia. Prosecution was so sure that it is capable of convincing this Court and proving the charge against the Accused without calling Amelia as a witness. Evidence presented through the Complainant proved that the thinking of the Prosecution was right.

23 However, I allowed the belated application of the Prosecution to call Amelia as a witness to ensure that the truth is further ascertained and justice prevailed.

24. Amelia said that she woke up around 7 a.m. to find that ET was not sleeping where she was supposed to be sleeping. She was sleeping in the room where Jim and Luisa normally sleep. She saw the blanket was covering both Jim and ET. She called ET and questioned her as to why she was lying down in that room. When she was questioning ET, Luisa came after her night shift. Luisa was angry at her for questioning about those things as ET was just a little girl.

25. I am convinced that Amelia told the truth and with her evidence, the Prosecution case was further bolstered. She was not a readily available witness for the Prosecution. If Amelia was complicit with Complainant's father, Afroz in fabricating a story against the Accused, she would have been an enthusiastic witness for the Prosecution. But, she could not be traced and the Prosecution managed to secure her attendance only at the tail end of the trial. It tends to show that she is not an interested witness as far as the Prosecution case was concerned.

26. Amelia was frank and straightforward in her evidence. She described her experience, what he saw, heard and felt in the household of Luisa. Her evidence to a greater extent was consistent with that of the Complainant.

27. Amelia frankly admitted that she came home around 2.00a.m on the day of the incident. She could have denied that as such a conduct on her part as a babysitter would have amounted to dereliction of duty towards children. Complainant in her evidence confirmed and admitted that she was still awake watching TV when Aunty Amelia returned home late night on the day of the incident.

28. Amelia also admitted a rule having being issued against her discouraging her night visits. Amelia said that she had met Afroz, father of the Complainant, before the rule was issued and denied it having anything to do with her complaining to Afroz about the sad plight of the children. There was conflicting versions also on the Defence side as to who made the rule. Accused said it was he who made the rule. Luisa said she made it. It seemed that the Accused took a great effort to own the rule to justify his claim. If the rule was actually made by Luisa, Court can't see why Amelia should be developing animosity towards the Accused.

29. Accused himself admitted that the rule issued was of no avail and Amelia did not fall in line. Amelia was away from home most of the time, he said. Then why should Amelia bother about the rule and conspire with Afroz to put the Accused in trouble.

30. Accused said in his evidence that Amelia was caught up red handed brining a boy to her room and that incident led to the breakdown of good relationship with her. That was another story advanced by the defence to justify its claim that the allegation against the Accused was made up by Amelia. Amelia vehemently denied the story. Luisa, in her evidence, quite surprisingly mentioned nothing about such an incident ever happened.

31. Even though Amelia was a close relative of Luisa, she was there for a payment. If the so called conspiracy was aimed at handing over the custody of children to Afroz, then the ultimate result would be to lose her job in Luisa's household. Would Amelia want that to happen?

32. It is quite natural for Amelia to raise concerns with Complainant's father about plight of children for whose wellbeing she had been brought in. It is also not unnatural for her and Afroz to first complain to a known Police Officer before a formal complaint being made at the Police Station itself.

33. Delay in making a complaint to Afroz and to Police regarding the incident was sufficiently explained by Amelia. She said that she managed to obtain the full information from the Complainant only on Thursday as her first attempt was spoiled by Luisa's interruption on Saturday. When the complete information was available, she said she went and complained.

34. I watched Complainant and Amelia giving evidence in Court, observed their demeanour and their general conduct in Court. I am convinced that the Complainant and Amelia were telling the truth, nothing but the truth.

35. Amelia's evidence is consistent, plausible and believable.

36. Accused denied the allegation in his evidence. Any person accused of a crime is expected to give an innocent explanation to escape the criminal liability hanging over his head. Accused in this case is no different.

37. Luisa, the witness called by the Defence was Accused's ex de-facto partner. She had come forward to give evidence for the Defence to discredit her own trustworthy daughter. (Luisa said that her daughter is a good and truthful child) Luisa cannot be considered as an independent witness. She said that she still trusts the Accused and cares for him. She is no doubt an interested witness.

38. Luisa said in her evidence that she missed her children very much after they were taken by Afroz more than a year ago. If the allegation of rape was made up by Amelia with the help of Afroz in order to deny her the custody of children, Luisa was expected to take some action to bring the custody of the children back. There is no evidence that Luisa had taken any action or effort to take the children back to her custody.

39. Complainant identified the person who touched her 'lolo' as Bee and also as the person who was staying in her house in Laselase as her mother's 'husband'. Both the Accused and Luisa admitted that the Complainant used to call the Accused as Bee. The identity of the Accused was not challenged by the Defence.

40. It is not necessary to prove full penetration in order to prove the charge of Rape. Even a slight penetration is sufficient to prove the element of the offence. Having considered all the evidence led in the trial, I am satisfied that the Accused had penetrated the Complainant's vagina with his fingers.

41. I considered evidence presented by both parties to ascertain the truth. I find that the evidence presented by the Prosecution is credible, reliable and, sufficient to prove the charges against the accused beyond reasonable doubt. I accept the version of the Prosecution. Version of the Defence is not appealing to me and not sufficient to create any doubt in the Prosecution case. I reject the version of the Defence.

42. I am satisfied that the majority opinion of the Assessors is perverse. As per the directions given in my Summing up, they were not justified in coming to an opinion of not guilty to the Counts of Rape. I reject the majority opinion of the Assessors.

43. I hold that the Prosecution has proved the Count of Rape beyond reasonable doubt. The Accused is convicted on the Count of Rape as charged.

44. That is the judgment of this Court.

Aruna Aluthge
JUDGE

AT LAUTOKA
On 28th September 2015

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