State v Vosabeci - Judgment [2016] FJHC 731; HAC249.2015 (16 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC. 249 of 2015

STATE

V

EPELI VULI VOSABECI

Counsel : Ms. L. Bogitini with Ms. Tamanikayaroi for State
Mr. L. Qetaki with Ms. M. Tarai for Accused
Dates of Hearing : 10^th-12^th August 2016
Date of Summing up : 15^th August 2016

Date of Judgment : 16^th August 2016
(Name of the complainant is suppressed. Accordingly, the complainant will be referred to as YS)

JUDGMENT

1. The accused is charged for the following offence;
   

Statement of offence

Rape: Contrary to section 207 (1) and 2(b) of the Crimes Decree, No. 44 of 2009.

Particulars of offence

EPELI VULI VOSABECI on the 10^th day of May, 2015 at Lobau Feeder Road, Nausori in the Central Division penetrated the vagina of YS with his finger without her consent.

2. Two assessors have returned with the opinion that the accused is not guilty of rape as charged and not guilty of the alternative charge of sexual assault. One assessor has opined that the accused is guilty of rape as charged.
   
3. I direct myself in accordance with the summing up delivered to the assessors on 15^th August 2016 and the evidence adduced during the trial.
   
4. According to the prosecution, the accused touched the complainant when she was inside the room which the accused’s baby daughter was sleeping and then the accused took the complainant to the other room by pulling her from her hand. Then the accused pushed her onto the bed, got on top of her and started kissing her and touching her. Then he removed her three quarter pants and inserted his finger inside her vagina. The complainant told the accused that she will remove her cloths so that the accused would get off of her and when the accused stood up, she pushed him and ran to her house. The complainant was babysitting the accused’s children as the accused and his wife went out for dinner and the incident took place after the accused came back home alone in the morning on 10/05/15.
   
5. According to the defence, the accused came home alone that morning as he could not find his wife inside the club they went to after the dinner. He went to the room the baby was sleeping after he heard his baby crying. Then he slept on the ground next to the bed. As the complainant repeatedly called him about three times, he thought that the complainant was up to something, so he got onto the bed and started kissing her. The complainant did not resist and she kissed him back. Then they went to the other room as the complainant suggested so, because the baby was on the bed. He went first and the complainant followed him. They sat on the bed and kissed each other. He was trying to remove her pants but it was too tight. Then the complainant said she will remove it herself but when he stood up, the complainant pushed him and walked out. The accused says that he thought that the complainant consented to what took place between them that morning but he denies inserting his finger inside the complainant’s vagina.
   
6. It is obvious that the majority of assessors have not believed the account given by the complainant having heard the entire evidence led in this case and upon observing the demeanour of the complainant when she gave evidence; and they have accepted the evidence given by the accused.
   
7. The complainant said in her evidence that she complained to her aunt and uncle soon after the incident. Complainant was the only witness called by the prosecution. Complainant admitted during her cross examination that she told her uncle soon after the incident, that the accused tried to remove her cloths and then she ran away. Defence called this uncle of the complainant as the second defence witness. The second defence witness said in evidence that the complainant told him that morning, that the accused wanted to have sex with her and she pushed him and came home. This is consistent with what the complainant said during cross examination. The complainant did not explain why she told her uncle soon after the incident that the accused only tried to remove her cloths.
   
8. This version is also consistent with what the accused said in evidence as he said that he could not remove the three quarter pants the complainant was wearing as it was too tight. This version appear to be true and in the event it is true; that is, if the accused was unable to remove the trouser the complainant was wearing during the time in question, the complainant’s version that the accused inserted his finger into her vagina becomes improbable. Though it may be possible to insert a finger inside the vagina while the complainant was still wearing the trouser, that was not her evidence.
   
9. The complainant also admitted that she complained to her teacher about this incident which led to the matter being reported to the police, when she got poor marks for her short test. There was evidence to the effect that the complainant was unable to concentrate on her studies and according to the complainant, it was due to what the accused did to her during the morning in question. This evidence suggests two things. Either the complainant was suffering within her because no action was taken with regard to the incident that took place on the morning in question which resulted in her having poor marks; or she wanted to give an excuse for her poor marks and therefore there is an ulterior motive behind the complaint she made to her class teacher concerning the accused. The latter also suggests that the allegation of rape may be a fabrication.
   
10. Considering all the evidence led in this case, I do not find that the decision of the majority of assessors is perverse in rejecting the complainant’s version that the accused raped her, as there is a reasonable doubt whether or not there was penetration of the complainant’s vagina. It was open for them to reach that decision based on the evidence.
    
11. The evidence led in this case was also not sufficient to prove beyond reasonable doubt that the complainant did not consent for what took place until she decided to push the accused and walk away. It is also doubtful whether the accused knew or believed that the complainant was not consenting to what the accused was doing and whether the accused was reckless as to whether the complainant was consenting or not until that point in time.
    
12. Therefore, it was also open for the assessors to come to the conclusion that the evidence led in this case does not prove the alternative charge of sexual assault beyond reasonable doubt.
    
13. In the circumstances, I concur with the majority opinion of the assessors and I find no compelling reason to hold otherwise.
    
14. It is pertinent to note that the offence of sexual assault under section 210(1)(a) of the Crimes Decree 2009 (“Crimes Decree”) has the same elements of the offence of indecent assault under section 212(1) of the Crimes Decree. Whereas section 210(1)(a) carries a maximum sentence of 10 years imprisonment, the offence under section 212(1) carries a maximum sentence of 5 years imprisonment.
    
15. According to section 212(2) of the Crimes Decree, consent is not a defence in relation to the offence of indecent assault, if the victim is a boy or a girl under the age of 16 years. In this case, the complainant may have been below the age of 16 years during the time of offence. Apart from the complainant’s evidence that she is 17 years when she gave evidence, the prosecution did not establish the age of the complainant as at the time of offence. Had the prosecution proved that the complainant was below the age of 16 years at the time of offence, the evidence may have been sufficient to establish the lesser offence of indecent assault under section 212(1) of the Crimes Decree.
    
16. However, for the reasons given above I find the accused not guilty of rape as charged and not guilty of the alternative charge of sexual assault. Accordingly, I acquit the accused.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva