State v Gaunavou [2015] FJHC 807; HAC250.2013 (15 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 250 of 2013

STATE

V

WAISIKI GAUNAVOU

Counsel: Ms. K. Semisi for State
Mr. J. Savou with Mr. W. Nainima for Accused
Hearing: 12th, 13th October 2015
Summing Up: 14th October 2015
Judgment: 15th October 2015

JUDGMENT

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

1. The accused is charged with the following offence.
   

First Count
(Representative Count)

Statement of Offence

INDECENTLY ANNOYING ANY PERSON: Contrary to section 213 (1) (b) of the Crimes Decree 44 of 2009.

Particulars of Offence

WAISIKI GAUNAVOU, between the 1st day of January 2013 and the 17th day of June 2013, at Senibua Lane, Raiwaqa in the Central Division, with intent to insult the modesty of 'L.S.', exposed his penis.

Second Count
(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

WAISIKI GAUNAVOU, between the 1st day of January 2013 and the 17th day of June 2013, at Senibua Lane, Raiwaqa in the Central Division, penetrated the vagina of 'L.S.', a child under the age of 13 years, with his finger.

2. As the accused pleaded guilty to the 1st count, the trial proceeded on the 2nd count of Rape.
   
3. After trial the three assessors unanimously opined that the accused is guilty of the offence of Rape as charged in count No. 2.
   
4. I direct myself in accordance with my summing up and the evidence adduced at the trial.
   
5. The elements that 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.
      
6. It is an agreed fact that the alleged victim 'L.S.' was 8 years old during the relevant period. In terms of Section 207 (3) of the Crimes Decree 2009, a child under the age of 13 years is incapable of giving consent. Therefore it is immaterial whether she consented to the sexual act or not.
   
7. The accused is the grandfather of 'L.S.'. 'L.S.' in her evidence said that when she was in the sitting room, the accused always called her to the room and touched her 'pipi' with his 2 fingers. She said that he touched inside her 'pipi' and that it was painful when he did so.
   
8. The doctor who examined 'L.S.' said in her evidence on her medical findings,'vagina gapping posterior hymen intact and anterior hymen not visible – not intact". She said that her medical findings were consistent with penetration of vaginal orifice. She also said that penetration had been done by a blunt object. She said that she cannot confirm the time and the age of the injuries. She had examined 'L.S.' on 23/06/2013.
   
9. It was suggested by the defence to the victim that the accused only touched her vagina outside, but did not penetrate the finger inside.Denying the said suggestion, 'L.S.' clearly said that it was painful when he touched the 'pipi'. She also said that the accused touched inside.
   
10. It was evident that the victim had made a statement to the Central Police Station later stating that the complaint she made before to Raiwaqa Police Station was not true. The complainant was only 8 years old at the time she faced this situation. The complainant clearly said in evidence what happened to her and what the accused did to her. She also said that later her grandmother and aunt forced her to make that statement to Central Police Station. She said that her aunt was telling her what to say at the Central Police Station.
    
11. I find that the complainant was forthright and consistent in her evidence. I find 'L.S.' was truthful when she said that she was forced to make a different statement to Central Police Station later. I also bear in mind that she was only 8 years old then.
12. The accused in his caution interview statement has said that he only touched her vagina but did not penetrate inside. However I find that 'L.S.' was truthful when she said the accused penetrated his fingers inside the vagina and that it was painful.
    
13. I have no reason to disbelieve or doubt the evidence of 'L.S.' when she said that the accused touched inside her vagina with his fingers.
    
14. Therefore I am of the judgment that the prosecution has proved all the elements of the offence of Rape against the accused as charged.I agree with the unanimous opinion of the assessors that the accused is guilty of Rape as charged.
    
15. Hence I find him guilty of Rape on Count No. 2 and convict him accordingly.
    

Priyantha Fernando
Judge

At Suva
15th October 2015

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