State v Cumu [2016] FJHC 1132; HAC305.2014 (13 December 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 305 OF 2014

STATE

vs

INOKE CUMU

Counsel : Ms M Chowdhury and Ms L Bogitini for the State
: Mr L Qetaki for the Accused

Dates of Trial : 28^th November – 7^th December 2016

Summing Up : 8^th December 2016

Judgment : 13^th December 2016

(Name of complainant is permanently suppressed and will be referred to as A.B.)

JUDGMENT
___________________________________________________________________________

[1] In this case the accused, Inoke Cumu was charged by the DPP for Rape of a child under 13 years of age, contrary to Section 207(1),(2)(b) and (3) of the Crimes Decree 2009.

[2] He pleaded not guilty to the charge and the ensuing trial lasted for 8 days. After the Ruling on voir dire was delivered the accused opted to renounce his right to be present during the trial since he absconded from that point onwards. The trial proceeded in his absence; after determining the issue on evidence, but his Counsel continued to represent his interests.

[3] The complainant, A.B., her teacher Mrs. Bula and the Police officer who interviewed the accused have given evidence for the prosecution while the accused's Counsel opted to address Court, when this Court ruled that there was a case to answer.

[4] At the conclusion of the evidence and after the directions given in the summing up, the majority of the assessors found the accused guilty to the count of Rape.

[5] I direct myself in accordance with the law and the evidence which I discussed in my summing up to the assessors.

[6] Prosecution case was based primarily based on the evidence of the 10 year old complainant and the caution interview of the accused, which contained some admissions. According to the complainant, the accused after pulling her into his house, pulled down her panties and licked her vagina. She was on her way back to her house after borrowing some matches from her grandmother. This happened during her August 2014 school holidays in her village.

[7] Her teacher Mrs. Bula, who was called by the prosecution in order to place recent complaint evidence, stated that what the complainant told her was that she had gone to a neighbour's house to borrow some matches and when she knocked on its door, Inoke pulled her in and then licked her vagina after removing her pants. During her cross examination, A.B. admitted that she knew the accused as Inoke and only this year she was told by someone that his name is Inoke Cumu.

[8] This inconsistency of the complainant’s evidence with her recent complaint was brought to the attention of the assessors with suitable directions.

[9] In relation to his caution statement, where he made certain admissions on relevant matters to this case, the accused claimed through his suggestions, that the Police treated him unfairly by refusing to his mother to be present during his interview and it was made involuntarily due to assault by three Police officers.

[10] The majority of assessors have found the evidence of prosecution as truthful and reliable, as they found the accused guilty to the count of Rape. They were directed in the summing up to evaluate the probabilities of the version of events as presented by the prosecution.

[11] The majority of assessors have obviously rejected the denial of the accused. They have also accepted the caution interview statement as voluntarily made by the accused.

[12] In my view, the assessor's majority opinion was not perverse. It was open for them to reach such a conclusion on the available evidence. The "inconsistency" of A.B on her recent complaint evidence could probably be due to incomplete or sketchy reporting to her teacher of the incident which could be attributable to her reluctance to tell. Mrs. Bula said in evidence that she had to repeatedly reassure the complainant to tell what happened. Therefore, I concur with the majority opinion of the assessors, that the complainant’s evidence is credible and reliable.

[13] It is the considered opinion of this Court that the caution interview statement, tendered as P.E. No. 1A is voluntarily made by the accused. His suggestions relating to the circumstances under which it was made is improbable, inconsistent and denied by the interviewing officer. This Court already ruled in favour of its voluntariness after a voir dire, during which the accused offered evidence. Upon reconsideration of the evidence, this Court finds no reason to change its view. It contained a truthful statement, voluntarily made by the accused.

[14] This Court is also satisfied that evidence of the prosecution presented through the complainant and the admissions made in the caution interview statement, is sufficient to establish all the elements of Rape, namely penetration of vagina by tongue by the accused. It also established the identity of the accused also beyond a reasonable doubt, as there is no evidence to show there was another or several others who also known as “Inoke” in the village of Nasigatoka.

[15] In the circumstances, I convict the accused, Inoke Cumu to the count of Rape as charged.

[16] This is the Judgment of the Court.

ACHALA WENGAPPULI
JUDGE

At Suva
This 13^th Day of December 2016

Solicitor for the State : Office of the Director of Public Prosecution, Suva

Solicitor for the Accused : Legal Aid Commission