State v Naisau - Judgment [2016] FJHC 799; HAC057.2013 (23 August 2016)

THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 057 OF 2013

STATE

vs

PENI NAISAU

Counsels : Ms. S. Navia for the State
Ms. P. Preetika and Mr. D. Chand for the Accused

Date of Trial : 9^th, 10^th and 11^th August 2016

Summing Up : 12^th August 2016

Judgment : 23^rd August 2016

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

JUDGMENT
___________________________________________________________________________

[1] The Accused, PENI NAISAU is charged, contrary to Sections 207(1), (2)(c) and (3) of the Crimes Decree No. 44 of 2009 for committing for Rape on A.B., who was 7 years old at the time of the offending.

[2] He pleaded not guilty to the charge and the ensuing trial lasted for 3 days. The complainant, A.B., her sister C.D. and two Police officers who were involved with the caution interview of the accused have given evidence for the prosecution while the accused offered evidence in support of his case and called witness Amar Babu Narayan on his behalf.

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

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

[5] Prosecution case was based primarily on the evidence of the 10 year old complainant. According to her, the accused is the husband of her mother's friend. She called him "Seki". On the evening of 12^th December 2012, along with her two sisters and mother A.B. visited the accused's wife. A.B and her two sisters played with the children of the accused. The accused was asked to cook dinner, while the ladies were drinking grog. The accused then called A.B. to kitchen.

[6] The complainant went into the kitchen, was made to sit on the kitchen table, and was also asked to put her pants down. Then the accused unzipped his trousers and put out his penis, put some cream onto it and asked A.B. to suck it. She did. Upon hearing footsteps of someone coming in that direction, the accused asked her to put up her pants and to play with other kids.

[7] Thereafter, A.B. returned home and did not tell this incident until few days later. Her sister C.D. who felt uneasy observing the way A.B. sucked a stem of a soursop fruit, enquired where she saw that. A.B was reluctant to tell and had to be bribed with a candy. She then told C.D. as to what happened to her on that evening. Then her parents complained to Police.

[8] During her cross examination, A.B. admitted having stated in her statement to Police that "... I sat on the table, uncle Peni then told me that he will touch my ball and I have to touch his ball," and she also admitted that is the true statement. There were two other inconsistencies highlighted by the accused.

[9] The accused in his evidence admitted that he only got A.B. to lick his left testicle after putting some cream on it. He denied any penetration of her mouth by his penis.

[10] In relation to his caution statement, where he made certain admissions on relevant matters to this case, the accused claimed that the interviewing officer had told him to confess or they will make him confess. He also nudged the accused on his side causing pain. His two cell mates told him of that they were assaulted during the caution interview and it is in these circumstances he made his caution statement and the interviewing officer kept reminding him of the threat he already issued during pre-interview briefing. He also claimed that there was no witnessing officer present throughout the duration of interview.

[11] When the prosecution called the witnessing officer, the accused highlighted that the witnessing officer, though claimed that he was there, did not place his signature to any of the pages of the caution statement.

[12] The witness called by the accused testified that he and the accused were interviewed in the presence of each other and both were assaulted by the interviewing officer with handle of a broom. The accused has also shown this witness of fresh injury mark caused by the interviewing officer, when he jabbed the accused with a broom stick.

[13] The assessors have found the evidence of prosecution as truthful and reliable, as they unanimously 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 parties. The inconsistencies of the evidence of A.B. were also highlighted with suitable cautions.

[14] The three assessors have obviously rejected the denial of the accused. It was a question of believing whom.

[15] In my view, the assessor's opinion was not perverse. It was open for them to reach such conclusion on the available evidence. The "inconsistency" of A.B that "... I sat on the table, uncle Peni then told me that he will touch my ball and I have to touch his ball" was marked to show that use of penis in A.B.'s evidence was inconsistent with statement. The accused claimed that she too said to Police that she touched "ball" of the accused and thereby agreed with the claim of the accused that she licked his testicle and not sucked his penis.

[16] It is clear from this portion from the statement that A.B. referred to her "balls" as well and that simply means she had used this term to denote the genitals generally and not to describe the testicles of the accused. I concur with the opinion of the assessors.

[17] It is the considered opinion of this Court that the caution interview statement, tendered as P.E. No. 1 is voluntarily made by the accused. His evidence relating to the circumstances under which it was made is improbable and also in conflict with his witnesses' evidence. This Court already ruled of its voluntariness after a voir dire and upon reconsideration of the evidence finds no reason to change its view. It contained a truthful statement, voluntarily made by the accused.

[18] I am also satisfied that evidence of the prosecution presented through the complainant and the admissions made in the caution interview statement, if found to be truthful and reliable, is sufficient to establish the elements of Rape, namely penetration of mouth and identity of the accused beyond a reasonable doubt.

[19] In the circumstances, I convict the accused, PENI NAISAU to the count of Rape.

[20] This is the Judgment of the Court.

ACHALA WENGAPPULI
JUDGE

At Suva
23^rd August 2016

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

Solicitor for the Accused : P. Preetika Lawyers