State v AB - Judgment [2016] FJHC 60; HAC181.2011 (5 February 2016)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 181 OF 2011

BETWEEN :

STATE

AND :

AB

Counsel : Mr. Niudamu for State
Mrs. Narara for the Accused

Date of Hearing : 3rd of February 2016
Date of Summing up : 4th of February 2016
Date of Judgment : 5th of February 2016

JUDGMENT

1. The names of the victim and the accused are suppressed.
   
2. The Accused is charged with one count of rape contrary to Section 207 (1) and (2) (b) of the Crimes Decree. The particulars of the offence are that;
   

"AB between 1st day and 30th day of June 2011 at Lautoka in the Western Division penetrated the vagina of SO, aged 11 years and 11 months old with his fingers"

3. The accused pleaded not guilty, wherefore, the matter was set down for hearing on 3rd of February 2016. The prosecution called two witnesses including the victim. At the conclusion of the prosecution case, the learned counsel for the defence informed the court that the accused opted to remain in silence without giving evidence. Subsequently, the learned counsel for the prosecution and the defence made their respective closing addresses, which was followed by summing up of mine.
   
4. The three assessors returned with unanimous verdict of guilt. The assessors' verdict was not perverse. It was open for them to reach such conclusion on the evidence presented during the hearing.
   
5. Having considered the evidence presented during the course hearing, respective closing addresses of the prosecution and the defence, and the opinions of the assessors, I now proceed to pronounce my judgment as follows.
   
6. The prosecution alleges that the accused who is the uncle of the victim inserted his finger into the vagina of the victim while she was sleeping in the night. It was a small house and has no separate rooms. The evidence of the victim revealed that the sofa and the bed were jointed. She slept with her mother on the bed while the accused was sleeping on the sofa.
   
7. In view of the cross examination of the learned counsel of the accused, it appears that the defence tried to discredit the consistency and the reliability of the evidence of the victim on two main grounds, they are that;
   

i) The inconsistency nature of her evidence with her statement made to the police,

ii) The absence of recent complaint,

8. The inconsistency nature of her evidence given in court with her statement made to the police is founded on the ground that the victim stated in her evidence that the radio was switched on and it had a light. She was able to recognised the perpetrator as her uncle from that light. However, she has stated in her statement to the police that the lights were off at that time.

9. If there is an inconsistency, it is necessary to decide firstly, whether it is significant and whether it affects adversely to the reliability and credibility of the issue that is considering. If it is significant, it needs to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, then it could conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for the court to decide as to what extent that influence the judgment of the reliability of such witness.

10. The learned counsel for the accused in her closing address urged that the inconsistency nature of the evidence in respect of the lighting condition in the house has created a doubt about the identity of the perpetrator. During the cross examination, the victim explained that she told the police that the radio was switched on and it had a light. The other lights were off when the house was closed. She was able to recognise her uncle from the light came from the radio. Apart from that explanation on the nature of the lighting condition in the house, she stated that her uncle told her that not to tell anyone of this, if not there will be a lot of problems.

11. The explanation given by the victim and the evidence that she heard that the accused told her not to tell anyone, confirm that she has properly recognised the perpetrator as her uncle. Accordingly, I find that the inconsistence of her evidence in court with the statement made to the police in regard to the lighting condition has not adversely affected the reliability and consistency of her evidence.

12. I now turn onto the issue of evidence of recent complaint. The learned counsel for the defence in her closing address submitted that there is no evidence of recent complaint in order to support the version of the victim.

13. Hon. Chief Justice Gates in Anand Abhay Raj v The State ( 2014) FJSC 12; CAV0003.2014 (20 August 2014) has discussed the effect and the test of the evidence of recent complaint in an inclusive manner, where his lordship stated that;

"In any case evidence of recent complaint was never capable of corroborating the complainant's account; R v Whitehead (1929) 1 KB 99. At most it was relevant to the question of consistency, or inconsistency, in the complainant's conduct, and as such was a matter going to her credibility and reliability as a witness...........(para 33)

"The complaint is not evidence of facts complained of, not it is corroboration. It goes to the consistency of the conduct of the complainant with her evidence given at the trial. It goes to support and enhance the credibility of the complainant". (para 38)

14. His Lordship in Anand Abhay Raj ( supra) went further and discussed the applicable test of reliability and consistency of the evidence of the victim in respect of recent complaint, where his lordship held that;

"Strict dicta to the contrary in Peniasi Senikarawa v The State Crim. App. AAU0005/2004S 24 March 2006 may have been setting too inflexible a rule. A complainant's explanation as to why a report was not made immediately, or in its fullest detail, to be expected. The real question is whether the witness was consistent and credibly in her conduct and in her explanation of it".

15. Bear in mind the above mentioned judicial precedent enunciated in Anand Abhay Raj (supra), I now draw my attention to discuss that whether the absence of evidence of recent complaint has discredited the consistency and the credibility of the evidence of the victim.

16. It was revealed during the cross examination of the victim, that one of the teachers in her school has overheard this incident, when she was telling her friends about what her uncle did to her. The victim stated in her evidence that she neither complained to her mother nor any other family members.

17. I am mindful of the fact that a sexually molested and traumatised child may not openly discuss such issues of sexual matters with others as freely as adults. Various reasons such as shame and fear, family name, cultural taboos, the control that the perpetrator had towards her in her life or within her domestic environment etc. may have prevented her complaining about this incident.

18. The victim stated in her evidence that the accused told her not to tell anyone otherwise there will be a lot of problems. Those who have been victims of rape react differently. The victim was eleven years old at that time and the perpetrator was her uncle. The incident took place in the night while she was sleeping. Having considered the circumstances of this offending, I find that the reaction of the victim during the time of this offence was committed is probable. She has given an explanation why she has not complained to her mother or any other close family member. Accordingly, it is my opinion that the absence of the evidence of recent complaint has not discredited the consistency and reliability of the evidence of the victim. Hence, I accept the evidence of the victim as true and credible testimony.

19. I now turn on to the confessionary statement made by the accused in his caution interview. WDC Asenaca in her evidence stated that though she has over sighted to put her signature on the caution interview, the accused had put his signature in order to confirm that the answers were given by him. The questions asked by the counsel during the cross examination are not evidence, hence the court needs some form of evidence to discredit the version of interviewing officer in respect of the answers given by the accused. In the absence of such evidence before the court and the manner WDC Asenaca gave her evidence, I am satisfied that the contents in the caution interview are true and credible. I accordingly accept the confessionary statement of the accused in his caution interview as true and credible evidence.

20. In view of the reasons discussed above, I am satisfied that the prosecution has proved that the accused is guilty for this offence beyond reasonable doubt. Hence, I do not find any cogent reason to disregard the unanimous verdict of guilt given by the three assessors.

21. In my conclusion, I find the accused person is guilty for the offence of rape contrary to Section 207(1) and (2) of the Crimes Decree and convict for the same.

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
5th of February 2016

Solicitors : Office of the Director of Public Prosecutions
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