State v Vono - Judgment [2015] FJHC 87; HAC369.2013 (10 February 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 369 of 2013

STATE

v.

NASONI VONO

Counsel: Ms. J Prasad with Ms. S. Navia for State
Ms. M Tarai for Accused

Hearing: 26th, 27th, 30th January, 2nd February 2015
Summing Up: 04th February 2015
Judgment: 10th February 2015

JUDGMENT

[Names of the victims are suppressed. The victim in counts 1-5 will be referred to as L.D. and victim in counts 6-7 will be referred to as M.R.]

1. Mr. Nasoni Vono, the accused is charged with the following 5 counts of Rape and 2 counts of Sexual Assault.
   

FIRST COUNT

(Representative 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

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division penetrated the vagina of L.D., a child under the age of 13 years, with his penis.

SECOND COUNT

(Representative 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

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division penetrated the anus of L.D., a child under the age of 13 years, with his penis.

THIRD COUNT

(Representative Count)

Statement of Offence

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

Particulars of Offence

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division penetrated the mouth of L.D., a child under the age of 13 years, with his penis.

FOURTH COUNT

(Representative Count)

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

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division penetrated the vulva and vagina of L.D., a child under the age of 13 years, with his finger.

FIFTH COUNT

(Representative Count)

Statement of Offence

SEXUAL ASSAULT: Contrary to section 210 (1) (a) and (2) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division unlawfully and indecently assaulted L.D.

SIXTH COUNT

(Representative 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

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division penetrated the anus of M.R., a child under the age of 13 years, with his penis.

SEVENTH COUNT

(Representative Count)

Statement of Offence

SEXUAL ASSAULT: Contrary to section 210 (1) (a) and (2) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division unlawfully and indecently assaulted M.R.

After the hearing all three assessors unanimously opined that the accused is guilty on counts No.1, 4, 5 and 7 and not guilty on counts No.2, 3 and 6. I adjourned to consider my judgment. I direct myself in accordance with my summing up and the evidence adduced at the trial.

2. What this court has to consider is, whether the prosecution has proved all the elements of the offences beyond reasonable doubt.
   
3. Counts 1 – 5 relates to the victim L.D. and Counts 6 – 7 relates to the victim M.R. Both victims testified in court.
   
4. L.D. was 9 years old at the time of giving evidence. Incidents have taken place in 2013 when they were living with their grandparents. Accused is her grandfather. She clearly said in her evidence the sexual acts the accused committed on her. She said that the accused kissed her vagina, touched her, squeezed her breasts and rubbed his penis on her vagina. She also said that after touching the vagina he used to lick her vagina. If this version is accepted then the accused has committed the offence of sexual abuse mentioned in Count No. 5 on L.D.
   
5. L.D. also said that the accused touched her vagina with his finger, put his penis into her anus, and poked his finger into her vagina. She also demonstrated how he did it. Accused has also put his penis inside her mouth. She also said that he put his penis into her vagina. She demonstrated how the accused did it. Therefore if this evidence is accepted the accused has committed all the sexual acts relating to the counts 1, 2, 3, and 4 of rape in the indictment.
   
6. Defence did not challenge the evidence of L.D. or M.R. about their age. They both were below13 years of age. Therefore the element of their consent for sexual acts will not apply.
   
7. It was elicited by the defence from L.D. when she was giving evidence, that two of her cousins committed some sexual acts on her. What this court has to consider is, whether the accused committed the sexual acts that the victim mentioned in court and whether the prosecution has proved the elements of the offences in the indictment beyond reasonable doubt. Not whether L.D. had any previous sexual encounters.
   
8. Defence questioned L.D. about her telling the police that these things happened in lot of places. She answered to court explaining how it happened in the room and also in the cemetery. The defence questioned L.D. as to why she did not complaint to anyone or at least to her mother or grandmother. L.D. said that she did not tell anyone because she was scared that grandfather would smack her.
   
9. I observed the demeanour of the victims L.D. and M.R. in court when giving evidence. M.R. was forward and she talked freely. L.D. looked scared and shy. However, I found both these victims were credible and truthful and this court has no reason to disbelieve or doubt their testimony.
   
10. M.R. in her evidence said that the accused tells them to turn their backs and puts his penis inside their anus. She said she used to cry as it was always hard. This shows that the accused has penetrated his penis into M.R.'s anus which amounts to rape. The doctor who examined M.R. had not examined her anus. The doctor said that it was not stated in the history. Even in case of L.D. he doctor has not examined the anus for the same reason. The court will take into consideration the fact that the two victims were at the age of 6 and 7 years at the time of the alleged incident. One cannot expect a victim of this age to divulge the history of sexual acts done on her freely, without being carefully questioned by a doctor. However the doctor said that even if there were injuries in the anus by penetration of a penis, they would be visible up to 72 hours as in case of a vagina.
    
11. M.R. also said that the accused also wanted her to lie down and poked his finger inside her front where she pees from. Medical evidence showed that M.R.'s hymen was intact. However slight penetration is sufficient to prove the element of penetration. However, it is not clear if the finger penetrated the vagina. But the accused had put his finger in the vagina according to M.R. I find that the victim is unable to explain the penetration but the fact remains that accused touched her vagina, which clearly amounts to sexual assault.
    
12. The court would consider that the victims both L.D. and M.R. were in their tender years at the time of the incidents took place. These incidents had taken place when both the victims were being looked after by the grandparents and were in their custody and care. In the circumstances a child of this age would always be hesitant or reluctant to make a complaint against her grandfather. This kind of sexual offences, one cannot expect a child of this tender age to complaint to the parents or grandmother immediately. It is quite natural for a child to hide it from the adults or in this case from the grandmother especially when the act was committed by the grandfather.
    
13. M.R. in her evidence said that she did not complain, as the accused grandfather had threatened her to poke a stick in her mouth if she tells anyone.
    
14. Evidence of the victim L.D. and M.R. were clear, precise and I have no reason to have any doubt on the truthfulness of their evidence.
    
15. Accused giving evidence denied committing any sexual act on the two children. In the caution interview statement he has said that he only bathed the children. He had said that he only cleaned their private parts using his hand when bathing them. In his evidence in court he denied saying that to the police. However when the Detective Constable who recorded the statement gave evidence, it was never put to him by the defence that he did not say so. However he denied the answers to some other questions and also that some questions were not even put to him. When I consider the evidence of the victims and the accused, I find that the accused was trying to create a false impression in the mind of the court and the police, that he may have inadvertently touched the private parts of the victims while bathing them. I find that the accused was not truthful in giving evidence and that the evidence of the victims can be accepted without any doubt.
    
16. There has been an incident where accused's money went missing at home. Victims M.R. and L.D. had been blamed for that. When questioning about it, the victims have told the grandmother about these incidents and then to L.D.'s mother.
    
17. The defence suggested that this story was made up by the victims to get away from the missing money issue. As I have discussed above I found that the 2 victim witnesses were forthright and truthful. I am inclined to accept the evidence of L.D. and M.R. without any reservation. In the above premise, I find that the prosecution has proved the counts 1, 2, 3, 4, 5, 6 and 7 against the accused beyond reasonable doubt. Therefore I find that the assessors were entitle to find the accused guilty on counts 1, 4, 5 and 7, on the basis of the evidence placed before court. However for the aforesaid reasons their opinions were perverse when they opined that the accused was not guilty of counts 2, 3 and 6.
    
18. Therefore acting in terms of section 237(2) of the Criminal Procedure Decree I accept the unanimous opinions of the assessors that the accused is guilty of counts 1, 4, 5 and 7. I overturn the opinions of assessors that the accused is not guilty of counts 2, 3 and 6. Therefore I find the accused guilty of all counts 1, 2, 3, 4, 5, 6 and 7 and convict him on all counts accordingly.
    

Priyantha Fernando
JUDGE

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