State v Waqanituva [2015] FJHC 803; HAC242.2013 (9 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 242 of 2013

STATE

V

SENIJIELI WAQANITUVA

Counsel: Ms. K. Semisi for the State
Mr. A. Paka for Accused

Hearing: 5th, 6th and 7th October 2015
Summing Up: 8th October 2015
Judgment: 9th October 2015

JUDGMENT

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

1. The accused is charged with the following offence:
   

Representative 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

SENIJIELI WAQANITUVA, between the 1stday of June 2010 to the 31st day of June 2010, at Joma Village, Kadavu in the Central Division, penetrated the vagina of 'M.V.', a child under the age of 13 years, with his finger.

2. After the 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 that the prosecution has to prove beyond reasonable doubt to find the accused guilty are:
   
   1. the accused
   2. penetrated his finger into complainant's vagina.
      

It is not in dispute that the complainant was born on 09/06/1999 and that she was below 13 years of age at the time of the alleged offence.

5. According to the complainant's evidence the incident had happened in the night that her parents had gone to their mother's village. She had been at home with her sisters and grandmother. When she was sleeping, the accused whom he knew before, had come home and taken a mobile phone. Her grandmother had scolded the accused. 'M.V.' had been sleeping in the sitting room with others.
   
6. Then the accused had come again in the same night, gone to the room and had called her. She had not gone. When the accused kept on calling her, she had gone to the room. Accused had wanted her to remove her clothes. When the accused repeatedly asked her, she had removed her clothes. Then the accused had inserted his finger into her vagina. It had been painful. When she said it was painful, accused had got the finger off and had left. She had told the accused that she would tell her parents.
   
7. The position taken by the defence was that the complainant has mistakenly identified the accused as the person who came that night. The complainant said that from the light of the kerosene lantern which was on in the sitting room, she identified the accused clearly.
   
8. Although the complainant said that she told her mother about the incident the following day when her mother came back, her mother testified that she got to know about the accused's name when the teachers came home.
   
9. The complainant had told the teachers in school when she was questioned about it.
   
10. The evidence revealed that the questioning by the teacher had been on 28/06/2010. According to the evidence of the mother of the complainant, she had been away at her village only on 21/06/2010 in the month of June. Therefore, if the incident had happened on the day that her parents were away as the complainant says, it has to be on 21/06/2010.
    
11. The complainant had not told anyone about the incident until the teacher questioned her on 28/06/2010. The complainant was a child of 11 years old then. One cannot expect always for an 11 year old child to reveal this kind of an incident immediately to the parents or the teachers. Complainant said in evidence, that even after she told that to the mother, she was afraid that she would smack her.
    
12. In the circumstances I find that the few days delay in revealing the incident to the teacher is justified and that would not affect her credibility adversely.
    
13. On the identity of the accused, the complainant was questioned at length. It is clear that the accused was known to the complainant before. Even the accused in his evidence said he knew 'M.V.', her parents and siblings. Complainant says that she recognized the accused and she saw him clearly with the light of the kerosene lantern which was bright in the sitting room.
    
14. It was not a fleeting glance. Accused had kept on calling the complainant to the room and when she went to the room she had to face the situation mentioned before. Therefore I find that there was no mistaken identity and that the complainant has identified the accused without any doubt.
    
15. I observed the demeanour and deportment of the complainant and I find that she was forthright. She was not evasive and was consistent in her evidence.
    
16. Caution interview statement of the accused was admitted in evidence as an agreed document. It is evident that the father of the complainant is Vilimone. Accused admitted in his statement to police that on 21/06/2010 he went to Vilimone's house for tea. To circumvent the situation he testified in court that he was in Niudua on that day and that in his caution interview statement he referred to a different Vilimone who is in Niudua. I find that the accused was not truthful when he said that he did not go to complainant's house on the day in question.
    
17. I have no reason to disbelieve or doubt the evidence of the complainant, that the accused inserted his finger into her vagina inside the room of her house in the month of June 2010 as charged. Whether she consented to the sexual act is immaterial as the complainant was 11 years old at the time of the offence was committed.
    
18. Hence I find that the prosecution has proved beyond reasonable doubt, all the elements of the offence of rape as charged. I therefore agree with the unanimous opinion of the assessors that the accused is guilty of the offence of Rape as charged.
    
19. Hence I find him guilty of Rape and convict him accordingly.
    

Priyantha Fernando
Judge

At Suva
09thOctober 2015

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