State v Naidu [2016] FJHC 981; HAC120.2015 (28 October 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 120 of 2015

STATE

vs.

JAMES ANTHONY NAIDU

Counsels : Ms. S. Kiran for the State
: Mr. K. Tunidau for the Accused

Dates of Hearing : 12, 17, 19, 20 October, 2016
Closing Speeches : 21 October, 2016

Date of Summing Up : 26 October, 2016

Date of Judgment : 28 October, 2016

JUDGMENT

(The name of the complainant is suppressed, the complainant will be referred to as “HD”).

1. The Director of Public Prosecutions charged the accused by filing the following information:
   

COUNT ONE

Statement of Offence

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

Particulars of Offence

JAMES ANTHONY NAIDU on the 1^st of May 2015 at Lautoka in the Western Division penetrated the mouth of “HD” with his penis, without her consent.

COUNT TWO

Statement of Offence

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

Particulars of Offence

JAMES ANTHONY NAIDU on the 1^st of May 2015 at Lautoka in the Western Division penetrated the anus of “HD” with his finger, without her consent.

COUNT THREE

Statement of Offence

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

Particulars of Offence

JAMES ANTHONY NAIDU on the 1^st of May 2015 at Lautoka in the Western Division penetrated the vagina of “HD” with his finger, without her consent.

2. After the prosecution closed its case I ruled that the accused had no case to answer in respect of count two. I therefore find the accused not guilty of count two on the charge of rape, accordingly I acquit him of this charge.
   
3. As a result the hearing proceeded on counts one and three on the charge of rape. The three assessors had returned with a unanimous opinion that the accused was guilty of both counts of rape.
   
4. On the evidence before the court, it was open to the assessors to reach such a conclusion.
   
5. I adjourned to consider my judgment. I direct myself in accordance with my summing up, the evidence adduced at the trial and the opinion of the assessors.
   
6. The prosecution called five witnesses and the defence called three witnesses. The court summoned one witness namely W.D.C Irene Singh.
   
7. On 1^st May, 2015 at around 7pm the complainant who was 16 years of age, a Form 5 student and a friend Sara were picked by the accused from Ram Asre Road in his car. The complainant knew the accused who was a family friend. She accompanied Sara since it was her school holidays and Sara had an employment opportunity at the Motel owned by the accused.
   
8. In the car the complainant saw Meli Tauvoli a worker of the accused. The accused drove to the City gave Meli some money to buy liquor, after buying liquor all went to the seawall at Marine Drive. At the seawall all except the accused drank liquor. After a while Sara and the accused went somewhere in the car of the accused, when they returned Sara informed the complainant that the accused wanted to talk to her in private about her wages.
   
9. The complainant went with the accused in his car she sat in the front seat of the car, the accused drove to Navutu to a vacant land. After stopping the car the accused locked the door of the car pulled down his three quarter pants and told the complainant to suck his penis. The complainant was scared and shocked she had nowhere to go she could not escape because the door was locked. The accused took her head and pushed it towards his penis.
   
10. As the complainant was sucking the penis of the accused, the accused pulled down the skirt of the complainant and started to play around with her vagina and then inserted his finger into her vagina. This continued for five minutes. At this time the accused received a phone call hence he pushed her head up.
    
11. The complainant did not consent to what the accused had done to her. The complainant was wearing a skirt and mini shorts that evening. After this, the accused drove the complainant back to Marine Drive, however, Meli and Sara were not there. At Marine Drive the accused told the complainant to go to the back seat of the car and not to tell anyone about what had happened he threw $20.00 at her.
    
12. After picking Meli and Sara the accused dropped the complainant and Sara home. The next day the complainant met her best friend Janet Cathy, on her way to the church she told Janet everything that happened to her the previous night.
    
13. I accept the evidence of the complainant as truthful and reliable. She was forthright in her evidence and was able to withstand cross examination and recall whatever the accused did to her clearly. I have no doubts in my mind that the complainant told the truth in court.
    
14. Janet informed the court that the complainant told her that she had gone in the car with the accused. After he stopped the car he asked the complainant to suck his “dick” meaning his private part and the accused used his hands and fingers to touch her private part he gave her $30.00. Janet noticed that the complainant looked sad when she was telling her what had happened to her.
    
15. Janet told her mother despite the complainant asking her to keep her secret. I accept this evidence of Janet as truthful.
    
16. Later Janet who was recalled as a witness told the court that after a few days of giving her police statement the complainant came to her house and asked her what she had told the Police in her police statement. During the conversation that took place the complainant told Janet that everything she had told her about the allegation was a lie.
    
17. Janet informed her mother and together they went to the Lautoka Police Station. At the Police Station they met W.D.C Irene Singh who wrote a police statement of what Janet told her which was that the complainant’s allegation was a lie. According to Janet this statement was read back to her and she was asked whether the contents were true, Janet signed and the Police Officer Irene signed as well.
    
18. Furthermore Janet and her mother also saw Inspector Maciu who refused to write anything and informed her that she was not able to withdraw her statement. As a result of this evidence the complainant was recalled as a witness by the court she told the court that she had not told Janet that she had lied about her allegation against the accused.
19. Janet’s mother Sereana Likusalusalu supported what Janet had said in court about going to the Police Station and meeting W.D.C Irene Singh and Inspector Maciu.
    
20. Since Janet had given new information which was crucial to the just decision of the case the court summoned W.D.C Irene Singh to court. According to W.D.C Irene Singh, Janet and her mother had approached her about 3 or 4 times in regards to the withdrawal of her statement and at no time she had recorded a further statement from Janet.
    
21. No reason was given to her for the withdrawal of the police statement and since the case was pending in court she had no authority to record Janet’s withdrawal statement. Furthermore it was only after the accused was charged that Janet and her mother started approaching her in regards to the withdrawal of her statement.
    
22. I find that Janet Cathy did not tell the truth to the court when she was recalled to give evidence I reject her evidence that the complainant had told her that the allegation against the accused was a lie. I also do not accept Janet’s evidence that W.D.C Irene Singh had recorded her police statement in which she wanted to withdraw her police statement on the basis that the complainant had told her the allegation was a lie.
    
23. There was no need for Janet and her mother to see Inspector Maciu if their withdrawal statement was recorded by W.D.C Irene Singh. I accept the evidence of W.D.C Irene Singh that Janet and her mother Sereana Likusalusalu had made repeated approaches to this Police Officer in an effort to withdraw her statement. The conduct of Janet and her mother gives an indication of the desperation with which Janet and her mother were trying to get a withdrawal statement recorded.
    
24. I accept the evidence of W.D.C Irene Singh that no withdrawal statement was recorded from Janet and that Janet and her mother started approaching W.D.C Singh after the accused got charged and the matter was pending in court hence she had no authority to record any further statement from Janet.
    
25. I also reject as untruthful the reason given by Janet that she did not get the opportunity in court to give her letter dated 11^th October, 2016 (Defence Exhibit no. 4) when she first came to court to give her evidence. There was no need for Janet to hand over a letter when she had the opportunity to tell the court whatever she wanted to whilst giving oral evidence.
    
26. Saraseini Nawa referred throughout the trial as Sara in her evidence informed the court that she was a graduate with a New Zealand Diploma in Business who was going to be a Marketing Officer at the Motel owned by the accused. 1^st May, 2015 was going to be the first night of her employment, however, after been picked up by the accused he told Sara that there will be no work that night since the business was slow. After drinking at the seawall the accused dropped the complainant and Sara home.
    
27. This witness turned “hostile” against the prosecution who had called her as a witness. Sara stated that the second half of her police statement dated 15^th May, 2015 (Defence Exhibit no.2) was not true since she was influenced and intimidated by the complainant and her family to say whatever they wanted her to say.
    
28. At the time she gave her police statement she was living with her younger sister at the house of the complainant, she left the house of the complainant one week after giving her first police statement on 15^th May, 2015. Sara signed another police statement on 8^th April, 2016 (Defence Exhibit no.3) seeking to withdraw her earlier police statement. Sara also informed the court that she was intimidated by Police Officer Irene Singh that she will be a suspect if she did not give her police statement. Sara overheard the complainant and the entire family except her father talking about monetary gain when they win the case.
    
29. I reject the evidence of Sara that she was influenced or intimidated by the complainant and her family to give her police statement on 15^th May, 2015. After one week of giving her police statement she had left the house of the complainant and started living with her grandfather at Veiseisei yet it took her about eleven months to go to the Police Station on 8^th April, 2016 to withdraw her statement.
    
30. A perusal of Sara’s police statement dated 8^th April, 2016 shows that there is no mention made by Sara that she had given her earlier police statement under any influence or intimidation by the complainant or her family. Sara also told the court that when she was giving her police statement on 15^th May the complainant’s family was not present at the Police Station. Furthermore there is also no mention in the police statement of 8^th April, 2015 about any intimidation by W.D.C Irene Singh contrary to what Sara told the court in her evidence. I note that the police statement of Sara dated 8^th April, 2016 was recorded by A/Cpl 3692 Asenaca so there was no reason why Sara could not have mentioned about the intimidation of W.D.C Irene Singh and the influence and intimidation by the complainant and her family to Police Officer Asenaca.
    
31. In the statement of 8^th April Sara also does not state anything about her first police statement not been true. I also reject Sara’s evidence that she was scared of the Police after she had not been properly treated by the Police Officers and that the complainant and her family were talking about receiving monetary gain from the accused when they win the case.
    
32. I am satisfied that Sara told the truth in her first police statement of 15^th May, 2015 when she told the Police that the accused wanted to talk to the complainant in private to discuss her wages and had left with the accused from the seawall. This is also consistent with the evidence of the complainant.
    
33. On 14^th May, 2015 Salome Dunn the sister of the complainant was told by Janet’s mother Sereana Likusalusalu about what had happened to the complainant. Salome informed her mother and other family members.
    
34. The complainant upon returning from school was asked if what the accused had done to her was true. The complainant started crying and narrated her ordeal to Salome, her mother and the family. Upon hearing this Salome called the accused to come home. He came over and according to Salome when the accused was talking to the complainant’s mother the Police came and took him away.
    
35. Alanieta Dunn the mother of the complainant after listening to what her daughter the complainant had to tell her hugged her and asked her why she didn’t tell her first. The complainant told her that she felt ashamed to tell her mother such a thing.
    
36. When the accused came over according to Alanieta he wanted to reconcile. She told the accused that she trusted him and that she cannot believe that he will do such a thing to her daughter.
    
37. The next day the son of the accused and his workers came to her house to offer money. Alanieta refused saying she cannot take any money since the matter was in court and with the Police.
    
38. The accused gave evidence he denied the allegation saying that he did not go anywhere from the seawall with the complainant alone and that the allegation against him was a lie. He agreed that in the evening of 1^st May he had picked Sara and the complainant with Meli. He was not aware that the complainant was going to accompany Sara. According to the accused Sara had asked him to pick her up in the afternoon to talk about her employment in detail.
    
39. The accused agreed that he gave money for the purchase of liquor, he did not drink, it was Meli, Sara and the complainant who were drinking. The drinking took place for about 45 minutes to an hour the accused further stated that he had nothing to do with the complainant’s drinking of liquor at the seawall since he had no control over who was drinking.
    
40. I note that the accused has not challenged the evidence of Alanieta Dunn who had informed the court that the son of the accused and his workers approached her offering money.
    
41. Also in the cross examination of the complainant it was put to the complainant that together with Sara she had asked for $200.00 from the accused for clubbing that night and it was also suggested that the complainant and Sara then asked for $800.00 for shopping as well. The accused did not say anything about this aspect in his evidence as well.
    
42. Throughout the trial the accused’s defence has been that the allegation was a means of making money by the complainant and her family from the accused under the guise of an allegation founded on a lie.
    
43. There is no evidence before the court to suggest that the complainant and/or her family had made any approaches to the accused for payment of money. There is however, the unchallenged evidence of Alanieta Dunn which I accept, that there was an attempt made by the son of the accused and his workers to offer money to her.
    
44. The accused in his evidence stated that the allegation against him was a lie to get money out of him cannot be accepted as the truth bearing in mind the fact that he did not give evidence about any approaches made to him by the complainant and her family about payment of any money.
    
45. I find that the accused has not been a reliable and a credible witness and therefore I reject his evidence that he did not go with the complainant alone anywhere from the seawall. I accept that it was the accused who had on 1^st May, 2015 penetrated the mouth of the complainant with his penis without her consent and also on the same night he had penetrated the vagina of the complainant with his finger without her consent.
    
46. I also accept that the accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time in regards to both the counts with which the accused is charged.
    
47. Furthermore I find it difficult to accept that the accused had nothing to do with the complainant’s drinking of liquor at the seawall since he had no control over who was drinking when he had given money for the purchase of the liquor. So rather than going to the Motel where Sara was to have started her first night’s work he opted to take the complainant and Sara to the seawall and offer them drinks.
    
48. The accused called Meli Tauvoli as his witness who stated in his evidence that the accused did not leave the seawall with the complainant alone. Meli Tauvoli has been employed by the accused for the past five (5) years and is close to the accused and his family. Meli had stated that the accused never buys drinks for potential employees other than this, I do not accept the evidence of Meli that the complainant had not gone with the accused alone that evening. It is quite obvious that Meli was trying to save his employer due to the closeness of his relationship with the accused and his family. I find Meli to be an untruthful witness.
    
49. The final witness for the defence was Sereana Likusalusalu (Janet’s mother) who informed the court that when Salome came to her house to get herbal medicine during the conversation Salome had told her if the complainant wins the case the complainant will get money, house and a car from the accused. This does not make sense and I reject this witness evidence as unreliable. Furthermore I do not accept that Sereana was truthful when she told the court that W.D.C Irene Singh had written a withdrawal statement of her daughter Janet.
    
50. I am satisfied beyond reasonable doubt that on the first count of the information filed, on 1^st May, 2015 the accused had penetrated the mouth of the complainant with his penis without her consent.
    
51. Furthermore I am also satisfied beyond reasonable doubt on the third count that the accused had penetrated the vagina of the complainant with his finger without her consent.
    
52. I also accept that the accused knew or believed the complainant was not consenting or didn’t care if she was not consenting at the time in regards to both the counts with which the accused is charged.
    
53. In view of the above I find the accused guilty as charged on counts one and three and I convict him accordingly for the two offences of rape.
    
54. This is the Judgment of the Court.
    

Sunil Sharma
Judge

At Lautoka
28 October, 2016

Solicitors

Office of the Director of Public Prosecutions for the State.
Kevueli Tunidau Lawyers for the Accused.